ManyAmericans dislike lawyers.They are frequently portrayed by the
media as grasping, greedy characters, who care little for the
their activities may have on society. Lawyers actions contribute to
the bad reputation fostered by the media. Some see destructive
lawsuits as attorneys
major products. Unsurprisingly, dislike of lawyers and fear of
influence the actions of individuals as well as governments at the
and federal levels. For local emergency management and local legal
however, overcoming the barriers to cooperation has great benefits.
Mutual Mistrust May Lead to Chaos
Emergency management directors (EMDs) and lawyers generally do not
have much to do with one another, yet liability risks are a matter
of great concern
to many EMDs. Liability issues are one of the few hazards common to
all jurisdictions, but they typically receive little attention. In
where EMDs and legal counsel work closely together realize numerous
The gap between EMDs and local legal counsel has many causes, the
important of which may be mutual ignorance. Emergency managers
only basic legal information as part of their required
training.This situation is
gradually improving for new hires as they take advantage of higher
courses that include legal aspects of emergency management.
attorneys only rarely have the opportunity to learn about emergency
in a formal setting.Since its creation in 1977, the Federal
Agency (FEMA) has sponsored only a single course for attorneys
Many perceive attorneys as an avaricious group, indifferent to the
their actions on society.This view is common among those unfamiliar
realities of legal practice and lawyers ethical obligations.The law
is a very crowded
field, adding thousands of new lawyers every year.This means that
must compete for clients to put food on the table, so what appears
to be greed
in many cases is a struggle to survive. Attorneys are ethically
required to represent
their clientszealously. This means that society in general is less
than the clients best interest, so the effect of representation on
the client is thelawyers main focus.The result of these realities
a general attitude that lawyers do not have my interests
at heart. In fact, the opposite is true if you are the client.
Typically, lawyers and EMDs know little about one
another when they first come in contact.Too often, that
first encounter takes place in the context of an emergency
response.As one emergency operations center (EOC) administrator
said to me (during an exercise),Law! Hell,
I dont have time for the law! Im too busy saving lives
and protecting property. Understandably, EMDs do focus
on saving lives and protecting property.An emergency
response is not an ideal time for either group to absorb
new information.Local lawyers usually
find themselves at sea, trying to
learn a new and complex area of law
even as real-time decisions are being
made that will have significant legal
consequences. The head of local
government, anxious to avoid litigation
when things are going wrong,may arrive with an
attorney in tow, endowing that lawyer with perceived authority.
Tension and mutual misunderstandings are almost unavoidable
in such a situation.The lawyerwho is accustomed
to being regarded as an expert whose advice is taken
seriouslymay try to take control of the situation,
seeking to slow events to get a handle on things from a
legal perspective.An inexperienced local leader may rely
on the lawyers advice and tell the EMD to follow suit.
For the response, the result can be increased chaos and reduced
effectiveness.Sometimes, the EMD may,out of frustration,
actually lock the lawyer out of the EOC.
Challenges in Involving Local
Clearly, the time for attorney involvement does not
begin when an emergency occurs.As the preceding discussion
indicates, when the attorneys first contact with
emergency management is during a response, the contribution
may prove less than helpful.Liability may result
from actions taken or not taken during all four phases of
emergency management. It follows that the lawyer
should be a part of the team during every phase.What is
the best way to accomplish this goal?
Most important, local governments leadership must
buy into the idea that the lawyer needs to be on board.
The reason for this is that lawyers cost money, and the leaders
are the ones who control the budget.This is less of a
problem in jurisdictions that employ a full-time legal staff.
In this case, the lawyers are simply told that advising on
emergency management issues is part of their job, and the
overall cost for counsel does not increase.
For the smaller,more rural units
of government, however, the challenges
can be significant.These entities
often pay a part-time legal
counsel by the hour, so every added
task is an added fee.A complication
arises from the fact that these lawyers
frequently are paid less for an hour of their time by the
government than they charge for their normal work.Understandably,
government assignments may be pushed to
the bottom of the stack, to be attended to during lulls in
the attorneys schedule.Therefore, even if the powers that
be are willing to expend funds for the busy lawyer to engage
in emergency management duties, those work meetings
and other tasks may not work their way into the
lawyers calendar.Another complication for the rural jurisdiction
is that the county lawyer often is awarded the
position due to political connections rather than any skill
or interest in the work of government.Rural units of government
also may employ their EMD part time, exacerbating
the challenges discussed above with respect to rural
Proper Role for Local Legal Counsel
Once local authorities have been persuaded to permit
their lawyers involvement in all phases of emergency
management, what should that role be? Above all, the
lawyer must remember that expertise and advice are being
sought, not a person to be in charge.
To provide competent advice, the lawyer must selfeducate
on the nature of emergency management as well
as on the relevant federal, state, and local law. (A brief list
of useful resources on emergency management law is appended
at the end of this article.) In learning about emergency
management, the lawyer must recall that the person
who knows the clients business best is the client.Thelawyer must be
able to admit ignorance and have the willingness
to learn from the EMD,who is the expert. Likewise,
the EMD must be ready to listen to the lawyer.For
the relationship to work well, both sides must have a
healthy dose of respect and any history of bad blood must
be put aside. Both must dedicate themselves to improving
their relationship to accomplish the mission of saving
lives and protecting property.
EMDs concerns regarding lawsuits are appropriate.
Lawsuits have been filed for actions taken or not taken
in all phases of emergency managementmitigation,preparedness,
response, and recovery. Reflecting on actions
filed over the years as illustrations of the various legal troubles
that may arise in the emergency management context
can be useful.
The attorneys role varies during different phases of
emergency management, and the following discussion of
that role is organized according to the phases.
The lawyers role in all phases involves mitigation of
liability, or litigation mitigation. During the traditional
mitigation phase, the lawyer should review all contracts
for services rendered, which may include such things as
retrofitting public structures or raising levees.Other documents
produced during mitigation should also be considered.
For example, the EMD may create flyers containing
evacuation information and specifying locations
for shelter for distribution to those with physical or other
challenges.These documents should be examined with
an eye on compliance with relevant laws such as theAmericans
with DisabilitiesAct.Eminent domain (for flood buyouts)
may arise.The attorney may also assist with fire and
building code compliance to make sure that structures conform
to fire and earthquake protection requirements.
Leveescreated to lessen or eliminate the effect of
possible future floodingare a classic example of mitigation.
After Katrina, a wide variety of plaintiffs sued the
federal government for improperly creating and maintaining
the levees around New Orleans. (Levees are not
solely a federal responsibility: states, local units of government,
businesses, and individuals all may be responsible
for creating or maintaining them.)The federal government
was able to avoid liability due to sovereign
immunity. Local governments may have the same protection
or take the exhaustion-of-remedies procedural defense
argued by the federal government as an alternative.
During mitigation, the lawyer may discover who has responsibility
for levees. If a duty to monitor or maintain
the levees rests on the unit of government, the lawyer can
bring that to the attention of those with the purse strings.
These authorities can decide in advance the steps they wish
to take to demonstrate reasonable attempts to perform their
duties.Their attorney may advise them that doing so would
be a more reliable defense than sovereign immunity or exhaustion
An important part of mitigation is the lawyers review
of the local ordinance (which may not have been revised
for some time) to make sure that it conforms to state and
federal requirements.The lawyer should consider the extent
of authority the ordinance provides for local leaders
in emergency situations. State law may contain language
regarding the governors powers that could be
duplicated.The ordinance should also provide for continuity
of government in emergency situations,with a list
of whos in chargethat includes as many as seven or eight
levels of office holder to ensure that there is not a leadership
vacuum in the aftermath of an emergency or disaster.
The ordinance review must also include the jurisdictions
requirements for replacement of infrastructure.
If these mandate replacement to bring them in line with
current codes and best practices, then the federal government
may pay to replace antiquated structures like
bridges that have been heavily damaged or destroyed with
modern counterparts. Another important issue to consider
during this review is the jurisdictions requirements
regarding reimbursement for mutual aid. If there is a mandate
(that the unit itself honors) for mutual aid expenses
to be fully reimbursed, the federal government will pay
these at the same rate as the unit itself.
The lawyer must be active during preparedness,
which consists of three elementsplanning, training, and
exercising.The emergency operations plan (EOP), after approval
by the relevant authorities,has the effect of law once
put into operation following a declaration of emergency.
Thus, the attorney must review it like any local ordinance
for compliance with relevant state and federal law and needs
to understand the requirements these laws impose for plans.
Federal laws include the RobertT. Stafford Disaster Relief
and Emergency Assistance Act and Homeland Security
Act of 2002, as well as standards incorporated therein
such as the National Incident Management System
(NIMS). State emergency management laws typically list
required plan contents. Specific hazards such as schoolshootings
often must be included under state law.Other
rules, like the voluntary National Fire ProtectionAssociation
Standard 1600,Recommended Practices for DisasterManagement(
NFPA 1600),must also be examined,
as they are industry standards that may have the force of
law in some courts.For units of government,NIMS as well
as state and local laws create affirmative duties to perform
to their benchmarks.Not doing so may result in liability
if the failure is the legal cause of death or injury.
The lawyer must support the EMD in ensuring that
those with responsibilities under the plan are trained so
that they understand those responsibilities.The plan must
also be exercised as required by state and federal guidelines,
and it must be revised to reflect lessons learned.
These steps are necessary to ensure that emergency management
grant funds will flow.The lawyer should be a part
of exercises, to create and contribute legal recommendations
and to help ensure reasonable steps are taken to
make them safe.
The local EOP for the City of New Orleans provided
the basis for a number of suits. Individuals sued on the basis
that the evacuation plan was faulty, resulting in deaths
of people not provided with the opportunity to escape
Katrinas rising waters. Failure to plan, inadequate plans,
and not following otherwise good plans can all provide
the basis for lawsuits. Local governments have the legal
obligation to train to the plan.They further have the
to correct any shortcomings that the exercise
reveals in the plan.They must ensure that exercises are conducted
safely.Like all aspects of government employment,
exercises are subject to the requirements of the U.S.Occupational
Safety and HealthAdministration (OSHA) or
the states equivalent law.
The attorney should be a part of the team that meets
in the EOC during a response. If involved during mitigation
and preparedness as suggested above, the attorney
will have knowledgeable input,welcome and even sought
after during response.Many laws apply during a response
that might otherwise not receive proper attention.For example,
both OSHA and the U.S. Environmental ProtectionAgency
comprehensively regulate all emergency responses,
above all those concerning hazardous materials
(HAZMAT). Sometimes, situations that may not appear
to involve HAZMAT actually do require compliance with
the stringent requirements for such responses.The responses
of federal, state, and local governments to Katrina have been
alleged to be too slow and uncoordinated, resulting in personal
injuries, deaths, and property damage. Following a
well-crafted plan in the absence of unexpected issues that
mandate a different approach is essential.
In emergencies,decisions must often be made that involve
selection between two distasteful alternatives.
Whichever is chosen, someones property may be damaged
or people may even be injured or die.At this point,
the attorneys knowledge of the privileges and immunities
that apply to emergency management may assist in
decision makingor at least provide reassurance to those
who bear the burden of making the choice.
Recovery is the phase that most resembles the attorneys
traditional approach to advising clients.Often, time
is available to research legal issues.On the other hand, the
sheer volume and variety of federal recovery programs
and the rules that govern their applicationmay prove
overwhelming. Fortunately, those who administer these
programs are very knowledgeable regarding their ins and
outs. Further, the FEMA Web site (www.fema.gov)
offers extensive information regarding them.
The lawyer can help by monitoring when the response
moves into the recovery mode. If the event involves HAZMAT,
emergency managers must comply with additional
After Hurricane Katrina, the federal government was
sued over inadequate sheltering and its attempt to end sheltering
assistance too early. Insurers refused to pay for damage
caused by the storm surge, stating that it was water
damage not covered by their policies. Homeowners alleged
that the surge was caused by wind, as wind damage
was a covered event.The citizens of New Orleans sued
the city for trying to raze their homes without giving evacuees
adequate notice of their properties destruction.Decisions
on buyout amounts are often controversial. Although
some of these matters are solely federal, to the
extent that local government is involved, the lawyer should
ensure that the rules are being properly followed.
During both response and recovery, the unit must
keep careful and complete track of expenses. FEMA will
not reimburse eligible expenses unless it receives full
Overcoming barriers that divide local EMDs and local
legal counsel holds many benefits for the local unit ofgovernment.
Jurisdictions in which this team works
smoothly together enjoy significant benefits.They reduce
their exposure to potentially crippling lawsuits and significantly
improve their compliance with the law.That
compliance can greatly increase funding for the jurisdiction.
Local attorneys and emergency managers share
many common interests.Both desire the best possible protection
for the people and property over which they watch.
As always with laws that promote public safety, increased
compliance directly results in greater safety, both for the
general populace and for emergency responders.