alert - warning

This page has not been translated into Español. Visit the Español page for resources in that language.

Emergency Protective Measures

Appeal Brief Appeal Letter

Appeal Brief

DesastreFEMA-1603-DR
ApplicantCity of Westwego
Appeal TypeSecond
PA ID#051-81165-00
PW ID#209
Date Signed2010-05-29T04:00:00

Citation:           FEMA-1603-DR-LA, City of Westwego, Emergency Protective Measures, Project Worksheet (PW) 209


Cross
Reference:
        Force Account Labor, Overtime

           
Summary:          In preparation for and in response to Hurricane Katrina, the Applicant used its regular employees, including fire, police, and EMS services, and accrued overtime hours for approximately three straight weeks.  The Applicant also used its force account equipment during this period, as well as purchased guns, ammunition, and tasers to arm its police force.  FEMA prepared PW 209 on September 16, 2005, to reimburse the Applicant for eligible force account labor, equipment, materials, rented equipment, and contracts associated with emergency protective measures.  Specifically, FEMA prepared PW 209 for force account labor to cover the Applicant’s claim that it had expended $971,652, and projected an additional $63,000 for the time period ending October 29, 2005, for a total obligated amount of $1,034,652.  FEMA prepared Version 1 to PW 209 on April 17, 2007, to align the scope of work and to account for the Applicant’s actual costs.  Version 1 reduced the amount for eligible labor cost from $1,034,652 to $428,082 (-$606,570), and added $347,777 for force account equipment, $28,074 for materials, $44,649 for rental equipment, and $162,875 for contract costs.  These adjustments resulted in a net deobligation of $23,195.  The Applicant submitted its first appeal March 27, 2008, appealing the deobligation of funding for certain force account labor overtime hours, force account equipment usage, and materials purchased as emergency protective measures.   On July 31, 2008, FEMA partially approved the appeal for $39,929 for firefighter force account labor overtime cost and fringe benefits.  In its second appeal dated October 6, 2008, the Applicant again requested reimbursement for force account labor overtime, force account equipment usage, and materials.  The Applicant reiterated its original argument and provided documentation for the purchase of guns, ammunition, and tasers.

Issue:              Is the Applicant eligible for reimbursement for costs associated with force account labor overtime, force account equipment, and guns, ammunition, and tasers?

Finding:            Partially.  The Applicant is eligible for reimbursement for materials costs associated with the guns, ammunition, and tasers.

Rationale:        44 CFR §206.225; 44 CFR §206.206.

Appeal Letter

May 27, 2010

 

 

 

Mark DeBosier

Deputy Director

Disaster Recovery Division

Governor’s Office of Homeland Security and Emergency Preparedness

7667 Independence Boulevard

Baton Rouge, LA  70806

 

Re:    Second Appeal–City of Westwego, PA ID 051-81165-00, Emergency Protective Measures,

         FEMA-1603-DR-LA, Project Worksheet (PW) 209

 

Dear Mr. DeBosier:

 

This letter is in response to the letter from your office dated December 10, 2008, which transmitted the referenced second appeal on behalf of the City of Westwego (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) decision to deny reimbursement for certain emergency and overtime costs.

Background

Following Hurricane Katrina, FEMA prepared PW 209 for $1,034,652 on October 1, 2005, to reimburse the Applicant for eligible force account labor associated with emergency protective measures.  On April 16, 2007, FEMA prepared PW 209 Version 1 to align the scope of work and account for the Applicant’s actual costs for emergency work.  Version 1 reduced the amount for eligible labor cost from $1,034,652 to $428,082 (-$606,570), and added $347,777 for force account equipment, $28,074 for materials, $44,649 for rental equipment, and $162,875 for contract costs.  These adjustments resulted in a net deobligation of $23,195.  Specifically, FEMA adjusted force account labor hours and force account equipment hours to only those hours for which the Applicant was able to provide documentation.  The Applicant’s original claims for the force account labor were for 24 hours per day, and the Applicant claimed force account equipment hours for three vehicles, but was only able to substantiate hours for one vehicle.

First Appeal

The Applicant submitted its first appeal March 27, 2008, arguing that in order to protect public health and safety, policemen, firemen, EMS, and other city employees were required to work consecutive 24-hour shifts.  The Applicant also stated that costs related to force account equipment should be reimbursed for the actual hours the employees worked.  Additionally, the Applicant argued that the guns and tasers that the Applicant purchased were required because looters had superior weapons.  FEMA partially approved the first appeal for firefighter overtime pursuant to a policy clarification memorandum from the Assistant Administrator of the Disaster

Assistance Directorate dated April 4, 2008.  This clarification allowed firefighters to charge up to 24 hours of overtime per day for the first 14 days after the declaration dates for Hurricanes Katrina and Rita.  FEMA prepared PW 209 Version 2 for $39,928 to reimburse the Applicant for 24 hours of firefighter overtime costs and fringe benefits for 14 consecutive days.

Second Appeal

In its second appeal, dated October 6, 2008, the Applicant appealed the limitation of 16-hour days for all city workers, including firemen, police, EMS, and others.  The Applicant also appealed the reduction of the force account equipment hours and requested reimbursement for guns, ammunition, and tasers.  Regarding the force account labor, the Applicant argued that it paid its employees for 24-hour shifts because, in accordance with the Fair Labor Standards Act (FLSA), the employees were unable to have uninterrupted periods of sleep.  The Applicant also appealed the decision to include only firefighters as eligible for a portion of 24-hour overtime pay, pursuant to the FEMA clarification memo regarding Recovery Policy RP9525.7, Labor Costs – Emergency Work, as well as the limitation of the 14-day time period.  With regard to the force account equipment, the Applicant stated that its employees used their own vehicles.  The Applicant did not provide documentation regarding this claim.  Finally, regarding the materials that the Applicant claimed (guns, ammunition, and tasers), the Applicant argued that these were eligible as emergency protective measures, and stated that it did not claim these costs initially because it was advised by FEMA personnel that it could receive funds more quickly if it removed this request at the time, stating that the issue of costs for these items could be revisited at a later time.  The Applicant provided invoices for these items.  On March 10, 2009, the Applicant met with the Director of the Public Assistance Division at FEMA Headquarters to present its argument and provide supporting documentation

Discussion

Section VII (D) of Recovery Policy RP9525.7 ), Labor Costs – Emergency Work, dated July 20, 2000, states that “Straight time and overtime will be determined according to the applicant’s written policies and labor union contracts in effect prior to the disaster.”  FEMA clarified its overtime reimbursement policy for Hurricanes Katrina and Rita in Information Sheet #3 dated October 14, 2005, which limited reimbursement to one 24-hour workday and 16 hours a day thereafter for the performance of eligible emergency work.  As stated above, the Assistant Administrator ‘s April 4, 2008 memorandum further clarified FEMA’s policy to allow reimbursement of overtime by firefighters for up to 24 hours per day for the first 14 days after the date of the disaster declaration.  The previous FEMA determinations on the Applicant’s request are consistent with Recovery Policy RP9525.7 and the April 4, 2008, policy clarification.

Title 44 CFR §206.206(a), Appeals, states, “The appeal shall contain documented justification supporting the appellant’s position.”  With regard to the force account equipment, the Applicant did not submit documentation sufficient to justify its request for additional funds.  Therefore, there is no basis for approving additional funds for equipment.  The Applicant provided invoices

and receipts for guns, tasers, and ammunition totaling $46,803.  Pursuant to 44 CFR §206.225(a)(3)(i), Emergency work, these items are eligible as emergency protective measures. 

Conclusion

I have reviewed the information submitted with the appeal and have determined that the Applicant is eligible for an additional $46,803.  Therefore, I am partially approving the appeal for $46,803.  By this letter, I am requesting the Regional Administrator to take the appropriate actions to implement my decision. 

Please inform the Applicant of my decision.  This determination is the final decision on this matter pursuant to 44 CFR §206.206, Appeals.

Sincerely,

 /s/

Elizabeth A. Zimmerman

Assistant Administrator

Recovery Directorate

cc:     Tony Russell

Regional Administrator

FEMA Region VI

Mark Landry

Acting Director

Louisiana Transitional Recovery Office