Dealing with Homeland Security Issues at the Local Level

By Paul G. Sanderson, Esq.

In the post 9/11 era, municipalities have renewed their focus on local emergency management duties. Disasters may result from acts of nature, or from the negligent or intentional acts of people. Emergency management is the process of planning for an incident, taking steps to prevent the occurrence of the incident if possible, responding to an incident should one occur, followed by efforts to recover from the negative impacts upon persons, property and economic activities caused by the incident.

Local public safety agencies and governments are expected to be the first responders to an incident. If the needs of citizens exceed the capabilities of local government, state and federal governmental agencies can be called upon to respond with additional personnel, supplies and services, and eventually with economic aid during the process of recovery. The federal Department of Homeland Security has published information to help individuals, families and businesses prepare to meet their own safety and basic human needs should a natural or man-made disaster occur.

The Department of Homeland Security relies upon the New Hampshire Department of Safety, Division of Emergency Services, Communications and Management, Bureau of Emergency Management to administer federal grants designed to assist local first responders with the training, equipment and other tasks required to prepare them to respond to disaster. However, when disaster strikes, it is the local first responder who must be prepared to take immediate steps to reduce the harm to persons and property, and the task of the local emergency management director to create the written procedures that govern that response.

This column is intended to offer basic background information on the emergency management issue and provide links to sources for more information.

Q. What are the duties of local governments in the emergency management area?

A. RSA 21-P:39 requires each municipality to create a local emergency management organization and perform emergency management functions. These functions include preparation, training, hazard mitigation, response to incidents and recovery from the effects of disaster. Hazards from natural disaster are noted, as well as man-made hazards, such as response to terrorism, radiological release or biohazard. These functions are mandated upon the municipality by the state, but are constitutional, since the programmatic responsibility to deal with these hazards predated the Article 28-a amendment to the state constitution that prohibits unfunded state mandates.

Q. We do not have a full-time fire department or other resources that would be needed to respond to a significant incident. Do we have some legal protections in the event that our emergency management plan or actual response is not sufficient to meet everyone's needs?

A. Pursuant to RSA 21-P:41, any local official or volunteer who is “reasonably attempting to comply" with the requirements of RSA 21-P to perform emergency management functions shall not be liable for personal injury or property damage arising out of such activities. Thus, even though the municipality has a written plan for responding to an emergency, the law will not require absolute adherence to the plan during an emergency response. The law does require a “reasonable attempt," which means that a local official or volunteer cannot act with gross negligence or with reckless disregard to the safety of others, and also cannot intentionally cause physical injury or property damage. This is the legal standard that applies to all discretionary governmental functions on a daily basis and is a standard that is well understood among responders, attorneys and insurance professionals. Therefore, so long as the municipality has appointed an emergency management official, and the official acts reasonably in the preparation of the plan and in the implementation of a
response to an incident, the municipality has not taken on a risk of liability that is substantially different from the risk that occurs in the ordinary day to day administration of local governmental functions.

Q. What does the federal government require local governments to do in this area?

A. The Department of Homeland Security strives to create a standard and unified response structure across the nation in order to improve coordination of efforts, efficiency during a response, lower the costs of response and improve the ability of municipalities and citizens to recover from the effects of the incident. The structure is called the National Incident Management System (NIMS). The NIMS structure implements the National Response Plan (NRP), which is so new that it was only released on January 6, 2005.

NIMS compliance will be a precondition to application for federal grants for homeland security funds in the areas of prevention, preparation and hazard mitigation. In fact, commencing with FY 2005, it is already required that the local grantees formally recognize NIMS principles and policies and complete a course designed to create awareness of the system's principles and requirements. In future fiscal years, more compliance efforts will be required.

Many municipalities have existing emergency management plan documents. The Department of Homeland Security has created a tool called NIMCAST, which is an acronym for the National Incident Management Compliance Assessment Tool. This is a Web-based self-assessment tool and is found at www.fema.gov/nims/. The answers provided in this process will highlight areas where existing municipal documents should be updated to this new national standard.

Q. Are there issues specific to New Hampshire law applicable to emergency management plan documents?

A. Yes. We recently reviewed a plan document from a small town and raised these issues that would be common to all municipalities.

It is not appropriate for the plan to state that a single selectman or other single member of a governing body may take command or implement emergency management actions individually. The responsibilities are shared by the entire governing body and should be implemented by a quorum of the body.

Assure that the duties of police and fire responders are described using the language of the Incident Command System, which is a principle adopted in state law at RSA 154 and is also a principle contained in NIMS.

Assure that local responders comply with their duties to report incidents with environmental impact to the Department of Environmental Services. Visit the DES Web site at www.state.nh.us to obtain all of the reporting requirements for the various types of incidents.

Assure that the police and fire departments are required to preserve evidence in the event of actual or suspected criminal conduct. This could be critical in an environmental case, as well as the more frequently encountered motor vehicle crash case.

Assure that emergency responders report to the state emergency management director incidents as they occur or mutual aid resources as they are developed. This is required by RSA 21-P:39 and 40.

Q. Where can the municipality get more information about the emergency management function and opportunities to improve response capabilities?

A. At the federal level, the Department of Homeland Security is found on the Web at www.dhs.gov. This Web site has substantial resource links for first responders to information for individuals, families and businesses, as well as a description of federal programs and grant opportunities. The Web site also has a full explanation of the National Incident Management System, the National Response Plan and an opportunity to use the NIMCAST assessment tool.

At the state level, New Hampshire Department of Safety, Division of Emergency Services, Communications and Management, Bureau of Emergency Management is found on the Web at http://www.nhoem.state.nh.us/. This Web site has information specific to the risks of disaster present in the state, as well as state specific information on training and grant opportunities.

For the risks inherent in specific types of incidents, such as fire, or motor vehicle crashes, or radiological release, or the public health of disease outbreaks, there are additional resources that can be found at the Web sites of governmental agencies charged to work in these specific areas. As with the overall function, access the applicable federal agency Web site first, which will then direct you to the state agency contact for New Hampshire.