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Legal Responsibility

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster1971-DR-AL
ApplicantUniversity of Alabama
Appeal TypeSecond
PA ID#000-UBZZQ-00
PW ID#2201
Date Signed2014-08-04T00:00:00

Conclusion:  The authority the State of Alabama granted to law enforcement officers, including the Applicant’s police officers, established Applicant’s legal responsibility for the work performed.

Summary Paragraph

On April 27, 2011, a tornado destroyed sections of Tuscaloosa County.  The Applicant performed emergency response activities including search and rescue, security in damaged areas, and maintaining access routes for emergency response vehicles.  FEMA prepared Project Worksheet (PW) 2201 for $516,367 to reimburse the Applicant for costs associated with those activities but found the PW ineligible.  FEMA determined that the Applicant performed the work in accordance with a 1994 local mutual aid agreement (MAA) which states that no party to the agreement shall be required to pay compensation for services rendered.  In its first appeal, the Applicant stated it has the legal responsibility to perform search and rescue operations on property not owned or leased by the Applicant as a “Primary Agency” under the Tuscaloosa County Emergency Operations Plan (EOP.)  The FEMA Region IV Regional Administrator denied the first appeal stating that the Applicant derived its legal responsibility from the MAA, and the Applicant was a “Providing Entity” as defined by Disaster Assistance Policy DAP 9523.6, Mutual Aid Agreements for Public Assistance and Fire Management Assistance and is ineligible for FEMA assistance for the mutual aid provided.  The Applicant’s second appeal asserts that FEMA relied on the incorrect agreement as its basis for denying the appeal and that the 1994 MAA was no longer in effect because it was superseded by the EOP. 

Authorities Discussed

  • DAP 9523.6, Mutual Aid Agreements for Public Assistance and Fire Management Assistance (Aug. 13, 2007) at 7.
  • Ala. Code § 16-47-11(a) (2011).
  • Letter from Office of the Attorney General, State of Alabama to Member, Alabama House of Representatives (Apr. 24, 2002).
  • Legal Opinion of the State of Alabama Office of Attorney General (July 16, 2014)

Headnotes

  • In accordance with Disaster Assistance Policy (DAP) 9523.6, generally, only Requesting Entities are eligible applicants under the Public Assistance program.
  • According to a legal opinion from the Office of Attorney General for the State of Alabama, the Attorney General interprets § 16-47-11(a)  to grant authority to the Applicant’s police officers to conduct search, rescue, and recovery operations off-campus on property not owned or leased by the Applicant.
  • Applicant has demonstrated that it had legal authority to perform the work that was independent of both the EOP and the 1994 MAA.

 

 

 

Appeal Letter

August 4, 2014

Art Faulkner
Director
Alabama Emergency Management Agency
5898 County Road 41
P.O. Box Drawer 2160
Clanton, AL 35046

Re: Second Appeal – University of Alabama, PA ID 000-UBZZQ-00, FEMA-1971-DR-AL, Project Worksheet (PW) 2201- Legal Responsibility

Dear Mr. Abbott:

This is in response to your letter dated October 23, 2012, which transmitted the referenced second appeal on behalf of the University of Alabama (Applicant).  The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of $516,367 associated with the emergency response activities the Applicant performed following the event.

As explained in the enclosed analysis, according to an Office of Attorney General of the State of Alabama opinion issued in response to a specific question raised by this office, Applicant’s police force had legal authority, independent of any mutual aid agreement, to conduct the search, rescue, and recovery operations that are the subject of this appeal.  Based upon this interpretation of Alabama law, the Applicant has established legal responsibility and is an eligible applicant.  Accordingly, I am granting this appeal.  By copy of this letter, I am requesting the Regional Administrator to take appropriate action to implement this determination.   

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

Sincerely,

/s/

Brad J. Kieserman
Assistant Administrator
Recovery Directorate

Enclosure

cc: Andrew Velasquez, III
     Regional Administrator
     FEMA Region V

Appeal Analysis

Background

On April 27, 2011, a multiple-vortex tornado devastated portions of Tuscaloosa County.  As the tornado moved through the county, it destroyed buildings in its path including the Tuscaloosa County Emergency Operations Center (EOC).  Tuscaloosa County activated the Tuscaloosa County Emergency Operations Plan (EOP) (hereinafter “2004 EOP”)[1] and the University of Alabama (Applicant) stood up its EOC that day.  After the tornado destroyed the Tuscaloosa County EOC, the Applicant provided services to transport Tuscaloosa County Emergency Management Agency (TCEMA) staff and others to its EOC while the TCEMA worked to establish an EOC at the Alabama Fire College.  Consistent with the 2004 EOP, the Applicant also provided support from its police department to perform search and rescue activities, secure damaged areas, and maintain access for emergency response vehicles.  These search and rescue activities were performed in locations that included property not owned or leased by Applicant.  

FEMA prepared Project Worksheet (PW) 2201 for $516,367.00 to reimburse the Applicant for force account labor overtime, vehicle and equipment usage, materials, and contracted transportation services.  Pursuant to 44 C.F.R. § 206.223(a)(3), in order to be eligible for FEMA assistance, an item of work must be the legal responsibility of an eligible applicant. FEMA determined that the Applicant was eligible and that the legal responsibility for Applicant to perform the work was established by a 1994 mutual aid agreement (1994 MAA) between the Applicant, the City of Tuscaloosa, the City of Northport, the Tuscaloosa County Sherriff’s Office, and Tuscaloosa County for supplemental police service.[2]  Paragraph 5 of the MAA provides that “No party to this agreement shall be required to pay any compensation to any other party to this agreement for services rendered hereunder.”[3]

FEMA Disaster Assistance Policy (DAP) 9523.6, Mutual Aid Agreements for Public Assistance and Fire Management Assistance Section VII(C)(4) specifically provides that “When a pre-event agreement specifies that no reimbursement will be provided for mutual aid assistance, FEMA will not pay for the costs of assistance.”[4]   Based upon such, and without a legal responsibility demonstration from the Applicant that was separate from the 1994 MAA, FEMA denied funding for PW 2201.

First Appeal

The Applicant submitted a first appeal on March 9, 2012, for $516,367.00 for costs associated with search and rescue activities described in PW 2201, stating that it had the legal responsibility to perform search and rescue operations as a “Primary Agency” under the 2004 EOP.  The Applicant also asserted that the 1994 MAA “has been superseded by actions of the parties.”  The Applicant claimed that after the event, the City of Tuscaloosa and the City of Northport entered into a new mutual aid agreement, postdated to April 27, 2011 (2011 MAA), which violated the terms of the 1994 MAA, and that the City of Tuscaloosa received FEMA funding under the terms of the 2011 MAA.  Lastly, the Applicant maintained that even if the actions of the City of Tuscaloosa and the City of Northport did not supersede the 1994 MAA, FEMA should reimburse the Applicant to avoid inconsistent treatment of subgrantees.

The FEMA Region IV Regional Administrator denied the first appeal on July 20, 2012, stating that regardless of which mutual aid agreement was in effect at the time, the Applicant was a “Providing Entity”[5] as defined by DAP 9523.6 and was ineligible for FEMA assistance for the mutual aid provided.  The Regional Administrator also reiterated that the Applicant derived its legal responsibility for the work from the 1994 MAA, which states that no reimbursement to other parties will be provided for mutual aid assistance services rendered pursuant to it.

Second Appeal

The Applicant submitted a second appeal on October 5, 2012, for $516,367.00.  Title 44 Code of Federal Regulations Section 206.206(a) requires an applicant’s appeal to “contain documented justification supporting the appellant’s position.”  The Applicant used its second appeal and the supporting documents to assert the following:

  1. Based on a theory of equity and fairness, and to avoid inconsistent treatment of subgrantees, Applicant should be awarded the requested FEMA funding.
  2. FEMA relied on the incorrect agreement as the basis for denying PW 2201, the 2004 EOP superseded the 1994 MAA, and the 2004 EOP establishes legal responsibility for Applicant to be reimbursed by FEMA for the search and rescue activities that it performed.
  3. Legal responsibility is established by Alabama Code (Code), which authorizes State police officers, including Applicant’s police officers, to conduct search, rescue, and recovery operations off campus on property not owned or leased by the Applicant.

Equity and Fairness

The Applicant alleges that the Cities of Northport and Tuscaloosa entered into a backdated mutual aid agreement and received FEMA funding based upon it.  As a result, the Applicant asserts it should be reimbursed based on a theory of equity and fairness, and that a denial of funding to the Applicant would be inconsistent treatment by FEMA of the parties to the 1994 MAA.

2004 EOP

Reflecting the need for the Applicant to provide further justification, FEMA requested additional information from the Applicant to support its position that the 1994 MAA was not in effect at the time of the event.  Such documentation could have included copies of the written notice from the other parties to the 1994 MAA that they were terminating or withdrawing from it, or that the 2004 EOP, to which those other parties were signatories, superseded it.  The Applicant’s response on this point was limited to restatement of the following arguments:

  • The EOP includes a supersession provision that states “This Emergency Operations Plan supersedes, rescinds, and replaces all previous plans and operational procedures.”
  • The EOP is a “written amendment,” specifically, “ESF #15 is a written termination of the MAA by substitution of a more comprehensive plan.”
  • The City of Tuscaloosa and the City of Northport, by entering into a post-event MAA without notice to the Applicant, violated the terms of the 1994 MAA.
  • “The parties considered the EOP to be the governing document because they followed the procedures in that document in response to the disaster.”

Independent Legal Authority

In addition to requesting from the Applicant information regarding the 1994 MAA and the EOP, FEMA also requested that the Applicant submit documentation demonstrating the locations where the Applicant carried out its search and rescue operations and the legal authority in place permitting the Applicant to carry out such operations.  The Applicant responded to this request and included citations to the Code, as well as a legal opinion from the Office of the Attorney General of the State of Alabama providing the State’s interpretation of the Code as it relates to the activities of the Applicant’s police officers.

Discussion

Equity and Fairness

The Applicant asserts it should be reimbursed based on a theory of equity and fairness because it alleges that the Cities of Northport and Tuscaloosa entered into a backdated mutual aid agreement and received FEMA funding based upon it.  Beyond its assertion, the Applicant has provided no supporting documentation demonstrating a new mutual aid agreement between Northport and Tuscaloosa.  Further, FEMA has not provided funding to either of those parties pursuant to a post-event mutual aid agreement for supplemental police services.  Finally, as a federal agency with limited authority, FEMA is bound to follow its governing laws and policies and is not afforded the ability to provide relief based on theories of equity.   

2004 EOP

The Applicant maintains that the agreement governing its actions is the 2004 EOP and not the 1994 MAA.  The Applicant states that it performed the services described in PW 2201, which include search and rescue operations on property not owned or leased by the Applicant, based on the responsibilities outlined in the 2004 EOP, not in response to a mutual aid request from the City of Tuscaloosa, the City of Northport, or Tuscaloosa County.  Consequently, the Applicant argues that DAP 9523.6, Mutual Aid Agreements for Public Assistance and Fire Management Assistance is not applicable.

On June 30, 2004, four chief elected officials of the municipal and county governing bodies within Tuscaloosa County signed the 2004 EOP, which by its stated purpose, provides “guidance in mitigating, preparing for, responding to and recovering from emergencies and disasters that threaten lives and property within the various jurisdictional boundaries of Tuscaloosa County.”  The Applicant is not one of the four signatories to the 2004 EOP.  The 2004 EOP describes the roles, responsibilities, resources, and methods to be employed to ensure that emergency assistance becomes available as quickly as possible after a natural disaster, attack, or major incident that would or does exceed the daily emergency response requirements.  The 2004 EOP names the Applicant as one of four “Primary Agencies” responsible for law enforcement and security activities under Emergency Support Function (ESF) #15 including maintaining law and order; protecting life and property; guarding essential facilities, utilities and supplies; and traffic and crowd control.  The 2004 EOP does not assign roles and responsibilities to the Applicant specifically.  The 2004 EOP also designates the City of Tuscaloosa Police Department as the ESF Coordinator/Liaison.[6]

The Applicant maintains that the 2004 EOP supersedes the 1994 MAA and cites to its supersession section: 

“This Emergency Operations Plan supersedes, rescinds, and replaces all previous plans and operational procedures.  All holders of copies of any previous EOP must dispose of the entire document in a secure manner.”[7]

This argument would have greater merit if the documents being compared were the same type of agreements, the agreements could not otherwise be harmonized, or the assertion was supported by collaborating evidence from the parties involved.  However, the Applicant’s position falls short for a number of reasons.  First, the quoted section references previous operational plans and procedures, not mutual aid agreements.  The fact the 2004 EOP explicitly defines “Mutual Aid Agreement” in its glossary[8] reflects that these terms are not synonymous, a distinction that supports a conclusion that the supersession language is intended to apply only to operational plans and procedures, not mutual aid agreements.  Second, the 2004 EOP includes explicit provisions that allow for pre-existing and future mutual aid agreements to be harmonized with, rather than superseded by the EOP.  For example,

“Under certain circumstances, when emergency or disaster response and recovery operations exceed the county and/or its municipalities’ capabilities, assistance may be requested from Mutual Aid Agreements with adjoining cities, counties, the state and/or federal government.” [9]

“Should local government resources prove to be inadequate during an emergency operation, a Mutual Aid Request will be made from other local jurisdictions, higher levels of government, and other agencies in accordance with existing or emergency negotiated mutual-aid agreements and understandings.”[10]

“Available law enforcement personnel may be insufficient to respond to life threatening situations following a large-scale emergency or disaster.  Local forces may need to be augmented via mutual aid.”[11]

Finally, while the Applicant asserts that the Annex of the 2004 EOP addressing ESF #15 “is a written termination of the MAA by substitution of a more comprehensive plan,” it contains no explicit language suggesting the 2004 EOP supersedes or terminates existing local mutual aid agreements.  Moreover, even if the 2004 EOP did contain such language, as the Applicant is not a signatory to the 2004 EOP, it would not meet the explicit requirements of section 9 of the 1994 MAA that to amend or terminate the 1994 MAA, that action must be done in writing and “executed by all the parties.” [12]   

Independent Legal Authority

Reflecting the need for the Applicant to provide further demonstration as to its legal responsibility to perform the search and rescue operations, FEMA requested additional information from the Applicant to support its position.  In an email dated March 31, 2014, FEMA requested that the Applicant identify the locations where its police officers carried out the search and rescue operations and the legal authority permitting the police officers to perform these operations. In its April 21, 2014 response, the Applicant provided a map detailing the locations of the search and rescue operations performed by its police officers.  The locations included areas not owned or leased by Applicant.  Applicant cited to various sections of the Alabama Code, including sections 16-47-10, 16-47-11, and 16-47-199, to demonstrate the legal authority for its police officers to have performed these operations off of Applicant’s property.

While the Code sections cited by Applicant provided language on officer authority to keep intruders off and prevent trespass upon and damage to college or university property, or to make arrests of persons who commit disorderly conduct on the property of an institution, the language did not broadly apply to actions off of university or institution property.[13] The limited exception extending “to any place in the state”[14] was the authority of officers to make arrests off-campus for crimes committed within the boundaries of the university owned or leased property, or to pursue an offender who had committed a crime within the boundaries of the university owned or leased property. 

To ensure proper interpretation of Alabama law, in a May 12, 2014 email, FEMA requested that the Applicant submit a legal opinion from the Attorney General of the State of Alabama regarding these provisions of state law as they pertain to the Applicant’s police officers.  The Applicant replied to FEMA’s request with a State of Alabama Attorney General letter dated July 16, 2014 which concluded that “[w]hen responding to an emergency, officers of the University of Alabama Police Department are authorized to conduct search, rescue, and recovery operations off campus on property not owned or leased by the University.” [15]

Conclusion

The Applicant’s legal responsibility for the search and rescue operations performed has been established by the Office of Attorney General of the State of Alabama’s interpretation of Alabama law.  In this case, the Applicant’s police officers provided search and rescue operations on property that Applicant did not own or lease under the authority that is granted to Alabama State officers pursuant to Alabama Code.  Therefore, the Applicant is an eligible applicant with legal responsibility for off-campus property.


[1] Tuscaloosa County Emergency Operations Plan (Jun. 30, 2004).

[2] Local Mutual Aid Agreement for Supplemental Police Services between the City of Tuscaloosa, City of Northport, County of Tuscaloosa, Tuscaloosa County Sheriff’s Office, and University of Alabama (Dec. 19, 1994).

[3] Id.

[4] Disaster Assistance Policy DAP9523.6, Mutual Aid Agreements for Public Assistance and Fire Management Assistance, at 4 (Aug. 13, 2007).

[5] See id. at 7.  The “Providing Entity” would normally make a claim to and be reimbursed by a “Requesting Entity.”  Reflective of such, FEMA’s policy provides, with limited exception not applicable to this case, that “Only Requesting Entities are eligible applicants for FEMA assistance.”   In this case, however, even if the Requesting Entity had applied for Public Assistance grant funding, it would not be eligible because the MAA does not call for reimbursement for services provided under the agreement.  

[6] Tuscaloosa County Emergency Operations Plan at Law Enforcement and Security Annex.

[7] Id. at Basic Plan, Section IX.

[8] See id. at Glossary/Acronyms (defining Mutual Aid Agreement as “A legal document between jurisdictions in which there is agreement to assist each other when a large-scale emergency or disaster surpasses a single jurisdiction’s resources.”).

[9] Id. at Basic Plan, Section II(B)(5).

[10] Id. at Basic Plan, Section VII(B)(1).  Further, Section VII(B)(5) provides that all “Memorandums of Agreement/Understanding, unless otherwise provided, will remain in effect until rescinded or modified and be updated periodically”(Emphasis added).   

[11] Id. at ESF #15 Annex, Section III(B)(3).

[12] Local Mutual Aid Agreement for Supplemental Police Services between the City of Tuscaloosa, City of Northport, County of Tuscaloosa, Tuscaloosa County Sheriff’s Office, and University of Alabama (Dec. 19, 1994) (“This agreement may not be amended, modified, altered, changed, terminated, or waived except by written amendment, properly executed by all the parties.”)(Emphasis added).

[13] Ala. Code §§ 16-47-10, 16-47-11, 16-47-199 (2011).

[14] Id. at § 16-47-11.

[15] Letter from Office of the Attorney General, State of Alabama to Director, Alabama Emergency Management Agency (July 16, 2014).