Force Account Labor & Equipment Costs

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4499
Applicant	Jackson County
Appeal Type	Second
PA ID#	029-99029-00
PW ID#	GMP 547430
Date Signed	2023-03-24T16:00:00

Summary Paragraph

During the incident period of January 20, 2020, and continuing, the coronavirus (COVID-19) pandemic resulted in a major disaster declaration for the State of Oregon. Jackson County (Applicant) requested $84,081.12 in Public Assistance (PA) funding for force account labor (FAL), force account equipment, materials, and contracts related to operating vaccine clinics between January 11, 2021, and February 16, 2021. FEMA prepared Grants Manager Project (GMP) 547430 to capture the costs incurred and to document the request. The Applicant explained that the activities on which it may spend the funds have statutory limitations and that employees use a separate code in their timesheets for COVID-19 related activities. FEMA denied the straight-time FAL hours as they were done by budgeted employees. The Applicant filed a first appeal, arguing that the straight-time FAL is eligible as the employees were reassigned from normal duties that were funded by statutorily excluded sources. The Oregon Office of Emergency Management (Recipient) forwarded the first appeal in support of the Applicant. FEMA Region 10 Regional Administrator (RA) partially granted the Applicant’s appeal, granting costs for two temporary employees conducting clinic duties. The RA denied the remaining straight time–756 hours, at a cost of $47,433.20–finding it was emergency work done by budgeted employees, which is ineligible. The Applicant filed a second appeal reiterating first appeal arguments while providing an accounting of its employees’ hours. The Recipient forwarded the appeal in support of the Applicant’s position.

Authorities and Second Appeals

• Stafford Act § 403.
• 44 C.F.R. §§ 206.225(a), 206.228(a)(2)(iii).
• PAPPG, at 23, 24.
• COVID-19 Pandemic: Medical Care Eligible for Public Assistance (Interim) (Version 2), at 6, 7.

Headnotes

• Straight-time of a permanent employee funded from an external source (such as a grant from a Federal agency or statutorily dedicated funds) is eligible if the employee is reassigned to perform eligible Emergency Work that the external source does not fund.

Conclusion

FEMA finds that the straight-time FAL of 20 permanent employees are eligible because the employees were funded from an external source and were reassigned to perform eligible emergency work at the vaccine clinics that the external source did not fund. However, straight-time FAL associated with three audit employees is ineligible as the Applicant has not demonstrated the employees were funded from non-statutorily dedicated funding sources. Therefore, this appeal is partially granted in the amount of $36,902.83.

Appeal Letter

Appeal Analysis

Background

During the incident period of January 20, 2020, and continuing, the coronavirus (COVID-19) pandemic resulted in a major disaster declaration for the State of Oregon.[1] Due to the pandemic, Jackson County (Applicant) requested $84,081.12 in Public Assistance (PA) funding for force account labor (FAL), force account equipment, materials and contracts related to operating vaccine clinics between January 11 and February 16, 2021. FEMA prepared Grants Manager Project (GMP) 547430 to capture the costs incurred and document the request.

On August 12, 2021, the Applicant submitted a memorandum to FEMA, outlining its justification for why straight-time FAL costs from employees who worked in departments funded by statutorily dedicated sources but were reassigned to work at the vaccine clinics, should be considered eligible for PA. The Applicant stated that the straight-time hours of employees who were reassigned to perform emergency protective measures were funded by external sources (statutorily dedicated funds) that could not be used to fund COVID-19 emergency work.[2] The Applicant noted that this met the requirements of FEMA policy allowing for funding of straight-time FAL costs for reassigned employees.[3] On January 11, 2022, FEMA sent an email requesting clarification on the funding sources for employees reassigned from the Roads, Parks, Expo/Fair, and Internal Audit departments to vaccine clinic duties. Additionally, FEMA asked how or whether those employees tracked their vaccine clinic hours versus regular work hours. The Applicant responded on January 12, 2022, confirming that employees would code COVID-19 related operations with the vaccine clinic in their timesheets differently than normal responsibilities.

In a Determination Memorandum dated February 16, 2022, FEMA partially approved the project. However, FEMA denied $47,771.27 in straight-time FAL, finding only overtime labor was eligible for emergency work performed by permanent, budgeted employees. FEMA also found that the claim did not meet eligibility criteria for providing PA funds to cover straight-time FAL costs of reassigned employees funded from a statutorily dedicated source.

First Appeal

The Applicant, in a letter dated March 2, 2022, appealed FEMA’s denial. The Applicant stated that the straight-time FAL hours fell within FEMA’s policy for reassigned employees as the employees were funded from sources that could not fund COVID-19 work. The Applicant provided an example of road employees hired and funded by Vehicle Use/Gas Tax revenue which Oregon Constitution expressly designates for roadwork and cannot be used for any other purpose, who performed work related to vaccine clinics. The Oregon Department of Emergency Management (Recipient), in a letter dated April 25, 2022, forwarded the Applicant’s appeal with a letter of support, reiterating the Applicant’s position.

The FEMA Region 10 Regional Administrator, in a letter dated July 15, 2022, partially granted the Applicant’s first appeal, finding two employees were temporary employees, and awarded $338.07 for 16.5 hours. However, FEMA found that the Applicant had not demonstrated that the permanent budgeted reassigned employees were funded from an external source and those costs were therefore ineligible.

Second Appeal

In a letter dated September 9, 2022, the Applicant filed a second appeal, reiterating first appeal arguments and requesting funding for the remaining hours and costs denied on first appeal: 756 hours of straight-time FAL, totaling $47,433.20. Additionally, the Applicant provided payroll breakdowns for four employees, representing a sample of its documentation, showing how these employees charged their hours based on business unit codes. Three of the four represented were from the Roads, Parks, and Fair/Expo departments, while the fourth was from Internal Audits. The documentation included the business unit code ordinarily used by each employee (e.g., 3902010000 for roads administration) as well as the business unit code for COVID-19 work (3902012418) and delineated hours attributable to each code. The Recipient, in a letter dated November 1, 2022, forwarded the Applicant’s second appeal to FEMA, supporting the Applicant’s position.

 

Discussion

FEMA may provide funding for emergency protective measures to save lives and protect public health and safety.[4] Work and associated costs to distribute and administer COVID-19 vaccines may be eligible for PA.[5] Eligible work and costs include additional staff, if necessary, including medical and support staff not paid for by another funding source and consistent with FEMA PA labor policies.[6] Straight-time FAL of a permanent employee funded from an external source (such as a grant from a Federal agency or statutorily dedicated funds) is eligible if the employee is reassigned to perform eligible emergency work that the external source does not fund.[7] 

Here, the Applicant reassigned 23 permanent employees from various departments to work in COVID-19 vaccine clinics during the period of January 11 through February 16, 2021. Reassigned employees coded the hours related to COVID-19 emergency protective measures separately from their normal duty hours with a specific business unit code. The Applicant provided the provisions of state law that restrict funding for the majority of employees reassigned to COVID-19 clinics. For example, revenue from the gas and vehicle use tax is what funds the employees in the Roads Department. Per the state constitution, such revenue may only be used to fund road work.[8] The Applicant also cited relevant constitutional provisions and state statutes for the Parks and Expo/Fair Departments, dedicating revenue for specific purposes and prohibiting the reallocation of this revenue for non-department work. Therefore, the Applicant has substantiated that the statutorily dedicated funds for 20 of its reassigned permanent employees cannot be used to fund emergency work (vaccine clinic work). Therefore, PA funding for these costs, totaling $36,902.83, is eligible.

However, the Applicant has not demonstrated that funding for the labor costs of three employees from Internal Audits, whose funding comes from multiple sources, is eligible for PA. The Applicant acknowledged in a memorandum explaining how the funding is statutorily excluded that it’s impractical to delineate the percentage of employee salaries paid from each funding source. Therefore, the FAL straight-time for these three employees, which totaled $10,530.37, is ineligible for PA funding.

 

Conclusion

FEMA finds that the straight-time FAL of 20 permanent employees are eligible because the employees were funded from an external source and were reassigned to perform eligible emergency work at the vaccine clinics that the external source did not fund. However, straight-time FAL associated with three audit employees is ineligible as the Applicant has not demonstrated the employees were funded from non-statutorily dedicated funding sources. Therefore, this appeal is partially granted in the amount of $36,902.83.

 

[1] The President declared a federal disaster declaration (FEMA-4499-DR-OR) on March 28, 2020.

[2] Memorandum from Cnty. Auditor, Jackson Cnty., Or., to FEMA COVID Emergency File, at 2 (Aug. 12, 2021) [hereinafter Auditor Memorandum]

[3] Id. at 2, referring to FEMA Public Assistance Program and Policy Guide, FP 104-009-2, at 24 (Apr. 2018) [hereinafter PAPPG].

[4] Robert T. Stafford Disaster Relief and Emergency Assistance Act § 403, Title 42, United States Code § 5170b (2018); Title 44 Code of Federal Regulations § 206.225(a) (2019).

[5] FEMA Policy (FP) 104-21-0004, Coronavirus (COVID-19) Pandemic: Medical Care Eligible for Public Assistance (Interim) (Version 2), at 6 (Mar. 15, 2021).

[6] FP 104-21-0004, at 7.

[7] PAPPG, at 24.

[8] See Auditor Memorandum, at Exhibit 1, Constitution of Oregon, Article IX § 3a, at 33 (2020).