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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
Copyright 2009 William Nicholson 3
Information Only...The following is
not legal advice.Consult your
attorney for legal advice for your situation.
Copyright 2009 William Nicholson 6
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?
Copyright 2009 William Nicholson 7
Litigation Mitigation: A PartnershipHelpful input
before problems arise
Goals of litigation mitigation:Lowered exposure to
legal claims;Increased life safety;
and Greater property
protection
Copyright 2009 William Nicholson 8
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
Copyright 2009 William Nicholson 9
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
Copyright 2009 William Nicholson 10
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
Copyright 2009 William Nicholson 11
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
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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
Copyright 2009 William Nicholson 13
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
Copyright 2009 William Nicholson 14
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
Copyright 2009 William Nicholson 15
Sources of Emergency Management and Homeland Security Law Federal Statutes,
Rules, Presidential Documents
State StatutesLocal
OrdinancesCase lawPolicies
Copyright 2009 William Nicholson 16
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
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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
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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
Copyright 2009 William Nicholson 19
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 2009 William Nicholson 20
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 21
Standards Requiring Legal Involvement in EM
National Response Framework
Local officials should “[u]nderstand..and implement.. laws and regulations that support emergency management and response.
Copyright 2009 William Nicholson 22
National Response Framework
Plans are acceptable only if “…consistent with applicable laws.”
Copyright 2009 William Nicholson 23
Standards Requiring Legal Involvement in EM
FEMA Guide for All Hazards Emergency Operations Planning (SLG 101)
Copyright 2009 William Nicholson 24
SLG 101At outset, Review
local and/or State laws - enabling legislation
Review Federal regulatory requirements.
Copyright 2009 William Nicholson 25
SLG 101Identifying Hazards,
- Laws can help define universe of hazards which planning team should address in all-hazard EOP
Copyright 2009 William Nicholson 26
SLG 101
Basic Plan should indicate legal basis for emergency ops
Laws relevant to emergencies should be listed
Copyright 2009 William Nicholson 27
SLG 101 - Resource Management: Legal Advisor Reports to EOC as
specified by Resource Manager
Advises Supply Coordinator and Procurement Team on contracts, administrative law
Copyright 2009 William Nicholson 28
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
Copyright 2009 William Nicholson 29
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?
Copyright 2009 William Nicholson 30
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
Copyright 2009 William Nicholson 38
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
Copyright 2009 William Nicholson 39
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 2009 William Nicholson 40
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
Copyright 2009 William Nicholson 41
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
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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?”
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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
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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
Copyright 2009 William Nicholson 45
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
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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
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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
Copyright 2009 William Nicholson 48
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
Copyright 2009 William Nicholson 49
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).
Copyright 2009 William Nicholson 50
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?
Copyright 2009 William Nicholson 51
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!
Copyright 2009 William Nicholson 53