William Charles Nicholson, J.D. Homeland Security Institute Department of Criminal Justice North Carolina Central University

William Charles Nicholson, J.D.William Charles Nicholson, J.D.Homeland Security Institute Homeland Security Institute

Department of Criminal JusticeDepartment of Criminal JusticeNorth Carolina Central North Carolina Central

UniversityUniversity

William C. NicholsonNorth Carolina Central University

Homeland Security Institute Department of Criminal Justice Emergency Management and Recovery Homeland Security Law and Policy Criminal Justice Management and Organization Theory Ethics in Criminal Justice

Former General Counsel Indiana State Emergency Management Agency Indiana Department of Fire and Building Services Public Safety Training Institute Indiana Emergency Response Commission Indiana EMS Commission

Copyright 2009 William Nicholson 2

North Carolina Central University

Historically Black Colleges and Universities

First Homeland Security Institute in an HBCU

Part of Department of Criminal Justice




Information Only...The following is

not legal advice.Consult your

attorney for legal advice for your situation.


Litigation Mitigation

What is it?Pro-active risk manager Not a reactive risk

ignorerLegal counsel as

partner with emergency management

Why is it important – and challenging - for local folks?


Litigation Mitigation: A PartnershipHelpful input

before problems arise

Goals of litigation mitigation:Lowered exposure to

legal claims;Increased life safety;

and Greater property

protection


Litigation Mitigation: A PartnershipLegal counsel views lowered exposure to

legal claims as priorityLife safety and property protection flow

naturally from legal protectionAny thoughts as to why?All three are vital for emergency manager


Barriers to Litigation MitigationTraditionally, attorney viewed as “legal

firefighter” – call after event“I just got these legal papers. Somebody is

suing me!” Lawyer as fire inspector - identify legal

hazards, point out how to avoid


Barriers to Litigation MitigationFor attorneys sharing how

law might affect clients is financial risk

One goal lower attorney feesAttorneys and emergency

managers both love acronyms and jargon – language barrier

Litigation Mitigation succeeds only when both are equal partners


Barriers to Litigation MitigationLaw schools focus on

cases and controversies, not pro-active partnering

Cost – hard to sell like all mitigation

Politics – local counsel often change with elections

Government leaders and their lawyers often ignorant of EM law


Emergency Management and Lawyers

“Too busy saving lives and protecting property to bother with all that legal mumbo jumbo”

What about “all hazards” approach?

Best lawyers know & understand client business

Our goal today: examine challenges to that partnership for local jurisdictions


How Lawyers Can HelpMitigation - revise fire and building codes to

address evolving local hazards Preparedness - assist in drafting plans,

evaluate training standards, and observe exercises for potential legal issues, ensure plan revisions reflecting lessons learned are legally adequate

Will discuss planning legal issues later if time permits

Response – lay out expected legal effects of various alternatives

Recovery - make sure expenses properly documented, when to shift into mitigation


Emergency Manager Legal Responsibilities – Lawyers MUST Help

Some drafted specifically for emergency management

Some apply to all government managers

Other obligations cover all emergency response personnel


Sources of Emergency Management and Homeland Security Law Federal Statutes,

Rules, Presidential Documents

State StatutesLocal

OrdinancesCase lawPolicies


Standards Requiring Legal Involvement in EMNFPA 1600 - Endorsed

by NIST as national standard for Emergency Management Business Continuity

Recommended to 9/11 Commission for adoption as national standard

Comply with all relevant laws, policies and industry practice


Standards Requiring Legal Involvement in EM

NFPA 1600 - foundation for Emergency Management Accreditation Program (EMAP)

EMAP - de facto standard for EM

Accepted industry practices move from de facto to de jure through common law adoption


Emergency Management Accreditation ProgramEMAP Sec. 4.2 - EM

mustComply with applicable

legislation, regulations, directives and policies and

Keep up with changes in relevant laws and authorities


Emergency Management Accreditation Program

To comply with existing law & monitor new law

Local emergency manager MUST have access to competent legal counsel on a continuing basis


NIMS on Legal AdviceTo better serve their

constituents, elected and appointed officials should “Understand laws and regulations in their jurisdictions that pertain to emergency management and incident response.”



National Response Framework

Local officials should “[u]nderstand..and implement.. laws and regulations that support emergency management and response.


National Response Framework

Plans are acceptable only if “…consistent with applicable laws.”



FEMA Guide for All Hazards Emergency Operations Planning (SLG 101)


SLG 101At outset, Review

local and/or State laws - enabling legislation

Review Federal regulatory requirements.


SLG 101Identifying Hazards,

- Laws can help define universe of hazards which planning team should address in all-hazard EOP


SLG 101

Basic Plan should indicate legal basis for emergency ops

Laws relevant to emergencies should be listed


SLG 101 - Resource Management: Legal Advisor Reports to EOC as

specified by Resource Manager

Advises Supply Coordinator and Procurement Team on contracts, administrative law


Problem: Lack of Legal AdviceNationwide Plan

Review Phase 2 Report (2006):

Both states and large cities - one-third of plans reviewed only “Partly Satisfactory” coverage of enabling legislation


Nationwide Plan Review Phase 2 ReportStates, big cities one third “Partly

Satisfactory” coverage of enabling legislationThis analysis can be done ahead of time –

plenty of leisure to get it rightWhat does this say about quality of legal

advice during response?What about local jurisdictions?What about those with fewer economic

resources?


Difficulties for Local Jurisdictions: Attorneys Many communities do not have full-time law

departments, - private lawyers do legal work.Most of these private lawyers part-time.Most earn less per hour for legal work done

for government than for private clients.Most are political appointees.Many do not hold position for long period of

time. Some do not believe that they receive

respect.

Difficulties for Local Jurisdictions : AttorneysFew meet regularly with local Emergency Manager.Some may meet him/her only in immediate

aftermath of disaster.More likely called on during mitigation than

response. Do not typically have plan for disaster operations.Do not anticipate being member of resource

management team. Many do not use everyday language to explain legal

matters.Neither they nor the units of government they serve

fully understand the potential liabilities for failure to fully integrate the legal piece into emergency management.

Difficulties for Local Jurisdictions : Emergency ManagersSome are not full-time employees.Some are volunteers.Most had a previous career in one or another

of the emergency response agencies: law enforcement, fire service, or emergency medical services.

Some are retirees.Some do not believe that they receive the

respect to which their position and status entitle them.

Difficulties for Local Jurisdictions : Emergency ManagersTheir knowledge of EM law varies greatly. Few have detailed understanding of EM law. Few have had any formal training in EM law.Many dislike attorneys.Many regard attorneys as conceited and

arrogant.Many believe that attorneys are hindrance

rather than asset.Many very worried about potential liability risks.Many do not regard legal counsel as an

important part of the EM team.

Difficulties for Local Jurisdictions: Attorneys – Knowledge and TrainingKnowledge of EM law varies greatly.Few have detailed understanding of EM law.Few have formal training in EM law. No funds available to pay for training in EM

law. Continuing Legal Education in EM law rarely

available.

EM Legal EducationFew offerings at state and local levels Past FEMA program (1998) focused on federal

issues, not much help to state and local attorneys

March 5-6 2009 workshop - “The Law and Catastrophic Disasters: Legal Issues in the Aftermath,” good treatment of some legal issues (mostly federal) following radiological event Response, recovery focusFew local legal counselsIn DC – connected with NEMA meeting

EM Legal EducationState associations of local EM folks (like NCEMA) have

useful updates at conferencesAs with all EM education - costs, need to be away from

work, etc. keep those most in need from attendingSome state EM agencies sponsor EM law trainingThis covers costs, very helpful to rural groupsAuthor has presented in Indiana, New Jersey, &

MissouriNew York has also presented statewideMore states need to see this education as urgent

priority

A Few Examples of Why Legal Advice is Needed: Liability Source is NegligenceMajor basis for government liability is state

law, specifically the tort concept known as negligence

Comes from case lawEach case creates “precedent” - apply to

future cases with same issue Common law


NegligenceObligation to act

toward others in reasonable manner considering circumstances

If one acts (or fails to act) unreasonably and that act (or failure to act) is legal cause of an injury to a person or property, liability results


Elements of NegligenceDuty Requirement to act in a reasonable

manner.Breach of Duty Unreasonable action or

failure to act.Legal Causation Frequently referred to

as “proximate cause.” Harm happened as reasonably close consequence of act or failure to act.

Personal injury or property damageResult is liability.


Negligence in EM ContextResults from failure to perform (or

unreasonably bad performance of) particular governmental duties

Examples:Failure to properly train or supervise

emergency management workersFailure to perform duties generally accepted as

being part of emergency management’s responsibilities


Negligence in EM ContextExamples (continued):

Failure to create or adhere to a plan Executive level decision making – poor choices,

poor planning, bad emergency response, or Incident Commander’s lack of expertise

Failure to adhere to a legal duty like OSHA law


Violation of Law and Civil SuitViolation of law - proof in civil suit for

damages - personal injury or wrongful death Elements of violation same as required for civil

liabilityBurden of proof same for bothOnly issue in civil trial may be measure of

damages “How much do you owe?”


A Few Examples of Why Legal Advice is Needed: PlanningAttorneys may contribute to drafting plans Planning is basis of emergency management

at all levels of governmentAppropriate planning results in:

Properly organized resources, Proper procedures, and Trained personnel


Legal Issues in PlanningEvaluation of possible hazardsExplanations of agencies’ and

organizations’ responsibilitiesCommand structureProtocols for asking for support (mutual

aid, from higher levels of government)Analysis of different roles within response

effort for example, public information, evacuation, medical assistance, and quarantine


Mutual Aid

Traditionally a state matterNRP, NIMS don’t requireNIMS, NFPA 1600 strongly

suggest Emergency Management

Assistance Compact challenges re liability – only state employee professionals recognized

States have different rules


A Few Examples of Why Legal Advice is Needed: Local Emergency Management and LEPCLEPC responsible for EHS planningLocal emergency management responsible

for “all hazards” planningNeed to incorporate LEPC plan into local

EOP – one way is as annexMust work closely together to ensure

consistencyPotential liability for disconnects in plans


NIMS on Legal Advice During ResponseLegal counsel

assigned to Planning Section as technical specialist or to Command Staff to advise Incident Command on legal matters


NIMS on Legal Advice During Response

Incident objectives & strategy must conform to legal

obligationsmanagement objectives

of all affected agenciesinclude specific critical

infrastructure issuesLawyer is a necessity


A Few Examples of Why Legal Advice is Needed: Other Laws That May Apply OSHA law (whose applicability varies

state by state)Contract law (as well as state and local

government contracting requirements)Government ethics law (which includes

the Hatch Act for entities receiving federal funds as well as state and local varieties)

Procedural laws (such as state Administrative Procedures Acts and any local procedural requirements).


Other Laws That May ApplyPersonnel law (including: statutes, which often

authorize administrative agencies to take action, body of law that comprises the rules, regulations, and rulings of administrative agencies; common law tort and contract rules; state and federal constitutional specifications that delineate employee rights, mostly regarding government employees)

This maze of potential issues REQUIRES ongoing partnership with legal counsel

So the issue remains – how do local jurisdictions get there?


Where Do We Go From Here?Maze of potential issues

REQUIRES ongoing partnership with legal counsel

Issue remains – how do local jurisdictions get there?

Education for both emergency managers and legal counsels is a must

Commitment to ongoing revision and improvement of relationship

This means funding

ConclusionEM legal issues require advice of

competent attorneyEmergency managers and lawyers

need to know lawLegal standards are best practicesCompliance with law means

liability avoidanceCompliance with law means

responder safetyEmergency manager at all levels

of government MUST work closely with lawyer in ALL phases!

Both will sleep better – as will populace!


Any questions?