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William Charles Nicholson, William Charles Nicholson, Esq.Esq.
BackgroundTeachingNorth 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
Widener University School of Law Terrorism and Emergency Law
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
Litigator in DC, General Counsel to CorporationMany publications, speeches, etc.
Copyright 2012 William C. Nicholson
Second Edition currently In Press – available summer 2012
Copyright 2012 William C. Nicholson
Copyright 2012 William C. Nicholson
Information Only...The following is
not legal advice.Consult your
attorney for legal advice for your situation.
Copyright 2012 William C. Nicholson
Our Subject TodayHow are standards established?By lawBy “Best Practices”How do Best Practices become
law?Focus on Comprehensive
Preparedness Guide 101 (CPG 101) Version 2.0, November 2010
Effect of CPG 101 mentioning laws – or not?
Copyright 2012 William C. Nicholson
Emergency LawsSome drafted
specifically for emergency management
Some apply to all government managers
Other obligations cover all emergency response personnel
Copyright 2012 William C. Nicholson
Sources of Emergency Management and Homeland Security Law Federal Statutes,
Rules, Presidential Documents
State StatutesLocal
OrdinancesCase lawPolicies
Copyright 2012 William C. Nicholson
“Voluntary” Benchmarks asIndustry StandardsIndustries promulgate “best practices”Even before formally required, may become legal
standard – includes appendices, annexesCourts look to industry practices in establishing
legal requirements - EMAPEmergency management affected by many such
standardsThe TJ Hooper - 1930’s radio in a tugboat
Safety equipment not required by any standardCourt still found negligence due to failure to have
equipment
Copyright 2012 William C. Nicholson
“Best Practices” Standards Promoting Legal Involvement in Emergency ManagementNFPA 1600 - Endorsed
by NIST as national standard forEmergency Management Business Continuity
Recommended to 9/11 Commission for adoption as national standard
Comply with all relevant laws, policies and industry practice
Copyright 2012 William C. Nicholson
“Best Practices” Standards Promoting Legal Involvement in Emergency Management
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
Copyright 2012 William C. Nicholson
“Best Practices” Standards Promoting Legal Involvement in Emergency ManagementEMAP Sec. 4.2 - EM
mustComply with applicable
legislation, regulations, directives and policies and
Keep up with changes in relevant laws and authorities
Copyright 2012 William C. Nicholson
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
Copyright 2012 William C. Nicholson
“Best Practices” Standards Promoting Legal Involvement in Emergency Management
National Response Framework
Local officials SHOULD “[u]nderstand..and implement.. laws and regulations that support emergency management and response.
Copyright 2012 William C. Nicholson
National Response Framework
Plans are acceptable only if “…consistent with applicable laws.”
Copyright 2012 William C. Nicholson
“Best Practices” Standards Promoting Legal Involvement in Emergency Management
FEMA Guide for All Hazards Emergency Operations Planning (SLG 101)
Predecessor to CPG 101
Copyright 2012 William C. Nicholson
SLG 101Predecessor to CPG 101At outset, Review
local and/or State laws - enabling legislation
Review Federal regulatory requirements.
Copyright 2012 William C. Nicholson
SLG 101Predecessor to CPG 101Identifying Hazards,
- Laws can help define universe of hazards which planning team should address in all-hazard EOP
Copyright 2012 William C. Nicholson
SLG 101Predecessor to CPG 101
Basic Plan should indicate legal basis for emergency ops
Laws relevant to emergencies should be listed
Copyright 2012 William C. Nicholson
SLG 101 Predecessor to CPG 101Resource
Management: Legal Advisor
Reports to EOC as specified by Resource Manager
Advises Supply Coordinator and Procurement Team on contracts, administrative law
Copyright 2012 William C. Nicholson
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.”
Copyright 2009 William Nicholson 21Copyright 2012 William C. Nicholson
Comprehensive Preparedness Guide (CPG 101) Version 2.0
CPG 101 Version 2.0 issued November 2010
Developing and Maintaining Emergency Operations Plans
Legal involvement is central to its conception
“As a public document, the EOP states its legal basis.”
All quotes from CPG 101Copyright 2012 William C. Nicholson
CPG 101 Version 2.0 Requires
“Authorities and References” section
“Provides the legal basis for emergency operations and activities”
Copyright 2012 William C. Nicholson
CPG 101 Version 2.0 “Concept of Operations” section Lists of laws, statutes, ordinances,
executive orders, regulations, and formal agreements relevant to emergencies (e.g., MAAs)
Extent and limits of emergency authorities granted to senior official, including conditions under which become effective and when terminated
Copyright 2012 William C. Nicholson
CPG 101 Version 2.0 “Concept of Operations” section Pre-delegation of emergency
authorities (i.e., enabling measures sufficient to ensure that specific emergency-related authorities can be exercised by the elected or appointed leadership or their designated successors)
Provisions for COOP and COG
Copyright 2012 William C. Nicholson
CPG 101 Version 2.0 “Concept of
Operations” section Must “Describe how
legal questions/issues are resolved as a result of preparedness, response, or recovery actions, including what liability protection is available to responders.”
Copyright 2012 William C. Nicholson
CPG 101 Version 2.0 Planners should ensure compliance
with Title VI of the Civil Rights Act of
1964Executive Order 13166Americans with Disabilities ActSection 504 of the Rehabilitation ActOther Federal, state, or local laws Anti-discrimination laws
These include interpreter and disability access
Copyright 2012 William C. Nicholson
CPG 101 Version 2.0 Under “Incorporating
Individuals with Access and Functional Needs” in Preparedness
“Does the plan include a definition for “individuals with disabilities and others with access and functional needs,” consistent with all applicable laws?”
Copyright 2012 William C. Nicholson
CPG 101 Version 2.0 How should the plan
be distributed?To whom should the
plan be distributed?Plan “promulgation
process should be based in a specific statute, law, or ordinance.”
Copyright 2012 William C. Nicholson
CPG 101 Version 2.0 “Plan maintenance is also
critical to the continued utility of the plans an organization has developed. A number of operations have had setbacks due to . . outdated laws.”
For emergency operations plan to be compliant, legal counsel ought to be closely involved in itsDevelopment andMaintenance
Copyright 2012 William C. Nicholson
CPG 101 Version 2.0 Bottom line – as CPG 101
states:“Acceptability. A plan is
acceptable if it meets the requirements driven by a threat or incident, meets decision maker and public cost and time limitations, and is consistent with the law.”
Who but a lawyer can say?Copyright 2012 William C. Nicholson
So, are you convinced? Who thinks the issues mentioned in CPG 101 need
a lawyer to answer them?Does FEMA want the local emergency manager to
have legal advice in the planning process?Do local leaders need legal advice during an
emergency or disaster?Do you think that the local emergency manager
needs a lawyer during all phases of emergency management?
Let’s briefly discuss how not having legal advice could get you in trouble……
Copyright 2012 William C. Nicholson
Basis for Liability: 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
Copyright 2012 William C. Nicholson
Basis for Liability: NegligenceObligation to act toward others in reasonable
manner considering circumstancesIf 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
Copyright 2012 William C. Nicholson
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.
Copyright 2012 William C. Nicholson
Negligence in Emergency Management Context
Results from failure to perform (or unreasonably bad performance of) particular governmental duties
Traditional Examples:Failure to properly train or supervise emergency
management workersFailure to perform duties generally accepted as being
part of emergency management’s responsibilities New example could be failure to comply with CPG
101 guideline such as:Not making provision for interpreter servicesFailing to promulgate the plan according to statute
Copyright 2012 William C. Nicholson
Problem: Lack of Legal AdviceNationwide Plan
Review Phase 2 Report:Both states and large
cities - one-third of plans reviewed only Partly Satisfactory coverage of enabling legislation
Copyright 2012 William C. Nicholson
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 jurisdiction with fewer
resources?Lack of COMPETENT legal advice – even in
large jurisdictions!Copyright 2012 William C. Nicholson
Why Work With a Lawyer?“Emergency” – something going wrong – damage to
property, personal injury or death“Management” – like it or not, you get to deal with
the consequencesOur litigious society – every injury must have a
remedyExamples of lawsuits -
Mitigation – you didn’t build the seawall high enough!Preparedness – your evacuation plan was flawed!Response – my precious Fluffy somehow got left
behind!
Copyright 2012 William C. Nicholson
Why Work With a Lawyer?GUESS WHAT?THE LOCAL JURISDICTION – AND THE
LOCAL EM – WILL BE SUED!No matter how well you plan, how well you
train, how well you exercise, how perfectly you revise the plan, how perfect your documentation is, etc., etc.,
YOU ARE GOING TO GET SUED If you do not want to get sued, change careers!Government is seen as the ultimate deep
pocketCopyright 2012 William C. Nicholson
Why Work With a Lawyer?Respondeat Superior - legal doctrine“The master is responsible for the act of the
servant”If you act within scope of employment, you
personally are not responsible for your actsYour employer must payThe plaintiff does not want your home or car –
she wants that deep pocket government money!
Lawyer will make sure that you are protected
Copyright 2012 William C. Nicholson
Why Work With a Lawyer?Lawyer can make it
LESS LIKELY that you will get sued.
Lawyer can help make your victory in lawsuit MORE LIKELY.
Copyright 2012 William C. Nicholson
Emergency Management and Lawyers
“Too busy saving lives and protecting property to bother with all that legal mumbo jumbo”
What about “all hazards” approach?
Emergency managers -Liability IS a risk!
Attorneys - Best lawyers know & understand the client’s business
Copyright 2012 William C. Nicholson
ConclusionTwo main sources for benchmarks in daily practices
LawBest practices, which can over time become law
Today’s best practice is tomorrow’s lawEvolution in guidance for emergency management
that requires legal adviceTrend is to ever more references to lawsMost recent – in CPG 101
Many references to laws CPG 101 does not require lawyer - complying with it
does
Copyright 2012 William C. Nicholson
Any questions?