Chapter 4 Marshalling Resources
Library | Homeland Security and Emergency Management: A Legal Guide for State and Local Governments (ABA) (2018 Ed.) |
No single governmental agency or entity is equipped to respond to all possible incidents, especially large-scale incidents that might occur within its jurisdiction. The basic intergovernmental agreement for emergency response is the mutual aid agreement.
INTRODUCTION
Success in responding to a major incident depends on effective pre-incident marshalling of resources. Mutual aid agreements and other intergovernmental arrangements for emergency management and response are key tools for marshalling resources. This chapter discusses various types of mutual aid agreements and other intergovernmental arrangements, and common legal pitfalls associated with these relationships.2 The chapter concludes with a set of consolidated practice recommendations.
The basic intergovernmental agreement for emergency response is the mutual aid agreement. Mutual aid agreements are, in their most basic form, agreements between jurisdictions to make resources available should the other jurisdiction need them. Mutual aid agreements can and should be scalable, able to address routine day-to-day requests for assistance as well as larger-scale responses to major incidents. In addition to basic mutual aid agreements, there are a number of other arrangements for emergency preparedness and response, including interstate compacts, agreements among multiple layers of government, and regional task forces and response teams.
Jurisdictions should review the benefits and pitfalls associated with each of these arrangements, and structure intergovernmental agreements for emergency management and response to best meet the needs of the jurisdiction, facilitate operational effectiveness, and minimize legal and financial risk.
THE NEED FOR INTERGOVERNMENTAL COOPERATION
The Imperatives for Intergovernmental Cooperation
No single governmental agency or entity is equipped to respond to all possible incidents, especially large-scale incidents that might occur within its jurisdiction. Likewise, each jurisdiction must be prepared to contribute its resources to local, regional, statewide, and interstate efforts. Mutual aid relationships and other intergovernmental arrangements for emergency preparedness and response help facilitate coordination and cooperation.
Intergovernmental and interdisciplinary cooperation is also becoming a legal requirement.3 The Post-Katrina Emergency Management Reform Act of 2006 (PKEMRA), passed as part of the fiscal year 2007 Department of Homeland Security Appropriations Act, lists the development of mutual aid agreements within states as a preparedness priority.4 PKEMRA also directs FEMA's regional administrators to "foster the development of mutual aid and other cooperative agreements."5 Establishing and enhancing mutual aid agreements is an allowable planning activity under the fiscal year 2008 Homeland Security Grant Program (HSGP).6
Incident Command Structures Encourage Intergovernmental Cooperation
Standardized incident management systems form the underpinning of multijurisdictional incident response. The primary example of a standardized incident management system is the Incident Command System (ICS), developed in the 1970s by firefighting and emergency management agencies in the State of California to address major wildfires.7
The ICS is "the combination of facilities, equipment, personnel, procedures, and communications operating within a common organizational structure, designed to aid in domestic incident management activities."8 The ICS is organized around five functional areas: command, operations, planning, logistics, and finance.9 Four essential requirements guided the development of the ICS:
> Organizational flexibility to meet the needs of incidents of any kind and size;
> Scalability for use on a day-to-day basis for routine situations as well as for major incident response;
> Standardization so that personnel from different agencies and geographic locations can rapidly meld into a common management structure; and
> Cost effectiveness.10
Homeland Security Presidential Directive 5 and the National Incident Management System
In February 2003, President George W. Bush issued Homeland Security Presidential Directive 5 (HSPD-5), mandating intergovernmental cooperation for major incident response.11 A cornerstone of this national approach to domestic incident management is the National Incident Management System (NIMS).
The NIMS is "a consistent nationwide approach for Federal, State, and local governments to work effectively and efficiently together to prepare for, respond to, and recover from domestic incidents, regardless of cause, size, or complexity."12 The NIMS
uses a systems approach to integrate the best of existing processes and methods into a unified national framework for incident management. . . . It does this through a core set of concepts, principles, procedures, organizational processes, terminology, and standards requirements applicable to a broad community of NIMS users.13
The NIMS focuses on six elements: (1) command and management, (2) preparedness, (3) resource management, (4) communications and information management, (5) supporting technologies, and (6) ongoing management and maintenance.
The command and management element of NIMS is grounded in three separate systems: (1) the ICS, (2) multiagency coordination systems, and (3) public information systems.14 The ICS is used for scalable, flexible command of discrete incidents.15 Use of the ICS permits the authority having jurisdiction over the incident to retain command and control, while accessing the resources of local, state, and federal agencies through mutual aid agreements and other mechanisms. Multiagency coordination systems provide interjurisdictional and interdisciplinary support for incident operations.16
The NIMS recognizes that "[p]reparedness is the responsibility of individual jurisdictions; this responsibility includes coordinating various preparedness activities among all appropriate agencies within a jurisdiction, as well as across jurisdictions and with private organizations."17 Successful adoption of the NIMS by each jurisdiction is essential to ensure that multi-jurisdictional incident response functions smoothly.
Under HSPD-5, all federal departments and agencies are directed to adopt the NIMS, and use it in their "domestic incident management and emergency prevention, preparedness, response, recovery, and mitigation activities, as well as those actions taken in support of State or local entities."18 HSPD-5 also requires that "[b]eginning in Fiscal Year 2005, Federal departments and agencies shall make adoption of the NIMS a requirement, to the extent permitted by law, for providing Federal preparedness assistance through grants, contracts, or other activities," and directs the secretary of Homeland Security to "develop standards and guidelines for determining whether a State or local entity has adopted the NIMS."19
INTERGOVERNMENTAL AGREEMENTS FOR EMERGENCY PREPAREDNESS AND RESPONSE
Primary Legal Issues for Mutual Aid Agreements
Mutual aid agreements form the basis for public safety cooperation on a day-to-day basis. These agreements can be between neighboring jurisdictions, among all jurisdictions in a particular region, among all jurisdictions statewide, between jurisdictions in different states, and between various levels of government (local, state, federal, and tribal). Moreover, these agreements can be intended for both day-to-day and major incident response.20
Numerous legal issues can arise with respect to mutual aid agreements. The most important issues involve authority, compensation for injuries, liability to respond-ers, liability to third parties and governmental immunity, and indemnification and reimbursement.
Authority
State and local governments in virtually all instances possess sufficient authority to enter into intergovernmental agreements for emergency preparedness and response, either from state constitutions, local government home rule charters, general legislative grants of authority, or specific emergency management statutes. However, it is important to ensure that local jurisdictions have the authority not only to enter into agreements, but also to agree to provide the specific types of assistance contemplated in the agreement under the conditions set forth. It is also important that an individual with authority to bind the local jurisdiction actually sign the agreement.
Many states specifically authorize mutual aid agreements. For example, the Alaska Disaster Act encourages local governments to enter into mutual aid agreements and, indeed, grants the governor authority to compel local governments to enter into mutual aid agreements if necessary.21 The Kansas Emergency Preparedness for Disasters Act permits the governor to require two or more counties "to participate and enter into an interjurisdictional agreement or arrangement" if the governor finds:
(1) Such counties, or the cities therein, have equipment, supplies and forces which are necessary to provide mutual aid on a regional basis, and
(2) Such counties have not made adequate provisions in their disaster emergency plans for the rendering and receipt of mutual aid for the emergency management needs of the entire region.22
Other states place specific requirements on mutual aid agreements. For example, Maryland law requires that mutual aid agreements concerning law enforcement services contain a provision requiring the requesting jurisdiction to defend and indemnify officers from the responding jurisdiction.23
Certain states also authorize interstate mutual aid agreements. Rhode Island law authorizes the governor to enter into agreements with bordering states for law enforcement mutual aid.24 Likewise, local police chiefs may enter into mutual aid agreements with local governments in other states that border Rhode Island.25 Wyoming law provides similar authority for mutual aid agreements across...
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