William Charles Nicholson, Esq.. Background Teaching North Carolina Central University Homeland Security Institute Department of Criminal Justice Emergency.

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



Information Only...The following is

not legal advice.Consult your

attorney for legal advice for your situation.


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?


Emergency LawsSome 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


“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


“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


“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


“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


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



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)

Predecessor to CPG 101


SLG 101Predecessor to CPG 101At outset, Review

local and/or State laws - enabling legislation

Review Federal regulatory requirements.


SLG 101Predecessor to CPG 101Identifying Hazards,

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


SLG 101Predecessor to CPG 101

Basic Plan should indicate legal basis for emergency ops

Laws relevant to emergencies should be listed


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


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”


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


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


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.”


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


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?”


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.”


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


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……


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


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


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 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


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


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!


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


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.


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


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


Any questions?

William Charles Nicholson, Esq.. Background Teaching North Carolina Central University Homeland Security Institute Department of Criminal Justice Emergency.

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