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

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Presentation on theme: "William Charles Nicholson, Esq.. Background Teaching North Carolina Central University Homeland Security Institute Department of Criminal Justice Emergency."— Presentation transcript:

1 William Charles Nicholson, Esq.

2 Background Teaching North 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 Corporation Many publications, speeches, etc. Copyright 2012 William C. Nicholson

3 Second Edition currently In Press – available summer 2012 Copyright 2012 William C. Nicholson

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5 Information Only... The following is not legal advice. Consult your attorney for legal advice for your situation. Copyright 2012 William C. Nicholson

6 Our Subject Today How are standards established? By law By “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

7 Emergency Laws Some drafted specifically for emergency management Some apply to all government managers Other obligations cover all emergency response personnel Copyright 2012 William C. Nicholson

8 Sources of Emergency Management and Homeland Security Law Federal Statutes, Rules, Presidential Documents State Statutes Local Ordinances Case law Policies Copyright 2012 William C. Nicholson

9 “Voluntary” Benchmarks as Industry Standards Industries promulgate “best practices” Even before formally required, may become legal standard – includes appendices, annexes Courts look to industry practices in establishing legal requirements - EMAP Emergency management affected by many such standards The TJ Hooper- 1930’s radio in a tugboat Safety equipment not required by any standard Court still found negligence due to failure to have equipment Copyright 2012 William C. Nicholson

10 “Best Practices” Standards Promoting Legal Involvement in Emergency Management NFPA 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 Copyright 2012 William C. Nicholson

11 “Best Practices” Standards Promoting Legal Involvement in Emergency Management NFPA 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

12 “Best Practices” Standards Promoting Legal Involvement in Emergency Management EMAP Sec EM must Comply with applicable legislation, regulations, directives and policies and Keep up with changes in relevant laws and authorities Copyright 2012 William C. Nicholson

13 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

14 “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

15 National Response Framework Plans are acceptable only if “…consistent with applicable laws.” Copyright 2012 William C. Nicholson

16 “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

17 SLG 101 Predecessor to CPG 101 At outset, Review local and/or State laws - enabling legislation Review Federal regulatory requirements. Copyright 2012 William C. Nicholson

18 SLG 101 Predecessor to CPG 101 Identifying Hazards, - Laws can help define universe of hazards which planning team should address in all- hazard EOP Copyright 2012 William C. Nicholson

19 SLG 101 Predecessor to CPG 101 Basic Plan should indicate legal basis for emergency ops Laws relevant to emergencies should be listed Copyright 2012 William C. Nicholson

20 SLG 101 Predecessor to CPG 101 Resource 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

21 NIMS on Legal Advice To 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 Nicholson21Copyright 2012 William C. Nicholson

22 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 101 Copyright 2012 William C. Nicholson

23 CPG 101 Version 2.0 Requires “Authorities and References” section “Provides the legal basis for emergency operations and activities” Copyright 2012 William C. Nicholson

24 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

25 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

26 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

27 CPG 101 Version 2.0 Planners should ensure compliance with Title VI of the Civil Rights Act of 1964 Executive Order Americans with Disabilities Act Section 504 of the Rehabilitation Act Other Federal, state, or local laws Anti-discrimination laws These include interpreter and disability access Copyright 2012 William C. Nicholson

28 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

29 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

30 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 its Development and Maintenance Copyright 2012 William C. Nicholson

31 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

32 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

33 Basis for Liability: Negligence Major basis for government liability is state law, specifically the tort concept known as negligence Comes from case law Each case creates “precedent” - apply to future cases with same issue Common law Copyright 2012 William C. Nicholson

34 Basis for Liability: Negligence Obligation 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 2012 William C. Nicholson

35 Elements of Negligence Duty 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 damage Result is liability. Copyright 2012 William C. Nicholson

36 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 workers Failure 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 services Failing to promulgate the plan according to statute Copyright 2012 William C. Nicholson

37 Problem: Lack of Legal Advice Nationwide 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

38 Nationwide Plan Review Phase 2 Report States, big cities one third “Partly Satisfactory” coverage of enabling legislation This analysis can be done ahead of time – plenty of leisure to get it right What 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

39 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 consequences Our litigious society – every injury must have a remedy Examples 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

40 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 pocket Copyright 2012 William C. Nicholson

41 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 acts Your employer must pay The 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

42 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

43 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

44 Conclusion Two main sources for benchmarks in daily practices Law Best practices, which can over time become law Today’s best practice is tomorrow’s law Evolution in guidance for emergency management that requires legal advice Trend is to ever more references to laws Most recent – in CPG 101 Many references to laws CPG 101 does not require lawyer - complying with it does Copyright 2012 William C. Nicholson

45 Any questions?


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