EMERGENCY AND DISASTER PREPAREDNESS OUTLINE 1. Introduction. Following a disaster, city government is first level of response. Main objective is to protect life and property. Powers and immunities which apply in an emergency are dependent upon a declaration of emergency. This outline and accompanying materials provide a guide for city attorneys to customize and retain for use in emergency situations. 2. Due Process. Government may damage private property without compensating the owner as long as damage is inflicted to prevent impending danger to public health or safety. (Holtz v. Superior Court, 3 Cal. 3d 296, 305, 90 (1970)). But, when there is triable issue of fact whether emergency exists and whether due process was provided, owners may state claim for inverse condemnation when city demolishes building. (Rose v. City of Coalinga, 190 Cal.App.3d 1627, 236 (1987)). 3. Statutory Powers. To meet due process requirements, provision for hearings should be written into the local emergency plan and local ordinances. Use of the immediate vacation order available under the Uniform Code for the Abatement of Dangerous Buildings may be considered as an alternative to immediate demolition since hearing procedures contained in the uniform code. (See Attachment I of Handbook) a. State Constitution. Cities authorized to provide aid or assistance for clearing debris, wreckage or natural materials on private property, as a result of a disaster or emergency if: 1. City council finds it to be in the public interest; 2. Major disaster or emergency declared by the President of the United States; 3. City indemnified by the recipient of the aid for any claims arising out of rendering the aid; and 4. Cost of the aid or assistance eligible for federal reimbursement. Cal. Const. Art. XVI, 6 1
b. California Emergency Services Act (CESA). 1. In General. CESA provides governor may suspend laws, Cal. Gov t Code 8571, and commandeer private property at state expense. Cal. Gov t Code 8572. Defines the degrees of emergency and the effects of each type of emergency declaration. Cal. Gov t Code 8558. Contains specific provisions dealing with oil spills, highway toxic disasters, floods (including dam breaks) and nuclear power plant emergencies. (See Attachment C of Handbook) 2. Powers and Duties. a. Declarations of Emergency. Only the governing body or an official designated by ordinance of the governing body (if ratified by the governing body within seven days) may declare local emergencies. Cal. Gov t Code 8630. The governing body must review need for continuing emergency declaration at regularly scheduled meetings until the local emergency is terminated. In no event shall a review take place more than 21 days after the previous review, or if the body meets weekly, it shall review the need for continuing the local emergency at least every 14 days until the emergency is terminated. (See Attachments D, E, F, & G of Handbook.) b. State Aid. Extraordinary services to carry out mutual aid agreements constitute a charge against the state, when approved by the governor. Cal. Gov t Code 8633. Local agencies may request assistance of the Highway Patrol and other state law enforcement agencies to deal with local emergencies. Cal. Gov t Code 8598. c. Local Disaster Councils. Cities may establish local disaster councils by ordinance. Cal. Gov t Code 8610. (See Attachment B of Handbook.) d. Emergency Powers. Governing body has authority to issue and enforce orders and regulations necessary for the protection of life and property during the local emergency, including curfew zones to preserve public order and safety. Cal. Gov t Code 8634. (See Attachments M, N, 0 & P of Handbook.) 2
e. Emergency Government. CESA provides for preservation of local government during an emergency and specifies the duties and powers of local government to appoint contingency successors in office to serve when the elected or appointed incumbent is unavailable during an emergency. Cal. Gov t Code 8635-8641. (See Attachment A to Handbook.) Temporary contingent successor may be a city officer without violation of the incompatibility of offices doctrine. See Op. Att y. Gen. No. 03-1006, April 29, 2004. f. Meeting Procedures. Special rules govern duties and procedures of the governing body in holding meetings during the emergency. Cal. Gov t Code 8642, 8643. Governing body must meet as soon as possible after declaration of emergency. g. Mutual Aid. CESA establishes mutual aid regions throughout state and empowers local agencies to enter into mutual aid agreements for emergency and disaster response. Cal. Gov t Code 8615-8619. h. Extraterritorial Service. Governor has authority to order the officers and employees of local agencies to perform duties outside the territorial limits and reimburse the local agency for damage or destruction of equipment owned or leased by the local agency. Cal. Gov t Code 8653. No claim permitted for the services of personnel, use of equipment or ordinary wear and tear (except for extraordinary services under a mutual aid agreement). i. Temporary Housing. Local agencies have authority to purchase, lease or otherwise procure both sites and materials for temporary housing. Cal. Gov t Code 8654. 4. Liability Immunity. a. General Immunity. State and local agencies have immunity against claims relating to the performance or failure to perform any discretionary function or duty by any agency, officer or employee in carrying out CESA. Cal. Gov t Code 3
8655. (Immunity for discretionary acts does not apply to intentional misrepresentations relating to physical safety. Adkins v. State, 50 Cal.App.4th 1802, 1816-17(1996)) (See Attachment J of Handbook.) b. Extraterritorial Immunity. Same privileges and immunities apply when a local agency performs emergency functions outside its territorial limits as would apply if inside its territorial limits. Cal. Gov t Code 8656. c. Volunteers and Conscripts. Volunteers and conscripted emergency workers have the same legal immunities as officers and employees of the local agency. Cal. Gov t Code 8657. An agency is also immune for injuries to such emergency workers. (See Attachments J & K of Handbook.) d. Inmates. Local agencies have immunity from liability for acts performed in removing endangered inmates from jails and correctional facilities for their protection. Cal. Gov t Code 8658. If confinement in a place of safety is not possible, inmates may be released without liability. e. Malpractice. Doctors, nurses, hospitals, dentists and pharmacists rendering services at the request of any responsible state or local official or agency also have immunity (except for willful acts or omissions). Cal. Gov t Code 8659. C. Elements of Local Emergency Plan. 1. Emergency plans address continuity of government, the emergency services of governmental agencies, mobilization of resources, mutual aid, and public information. Cal. Gov t Code 8560. 2. Federal Guidelines. Federal Emergency Management Agency s (FEMA) State and Local Guide for All-Hazard Emergency Operations Planning, Pub. No. SLG 101 (September 1996). See http://www.fema.gov/pdf/rrr/slg101.pdf. Compliance with the guide is necessary for the local agency to 4
qualify for federal funding from the Emergency Management Assistance Program. A detailed checklist, called the crosswalk, guides the preparation of local plans and specifies its contents. See Section F.4 below and Attachment W regarding the new unfunded federal mandate for a Local Hazard Mitigation Plan. Local emergency plan should coordinate with National Incident Management System (NIMS). 3. State Regulations. Local emergency plan should coordinate with State Emergency Management Plan and State Emergency Management System (SEMS). See http://www.oes.ca.gov. D. Brown Act Emergency Provisions (See Attachment H). 1. Brown Act provides for city councils to immediately meet to address emergency situations involving matters upon which prompt action is necessary due to the disruption or threatened disruption of public facilities. Cal. Gov t Code 54956.5. Emergency situations means work stoppage, crippling disaster or other activity which severely impairs public health and/or safety. Cal. Gov t Code 54956.5. 2. Notice Requirements. Such meetings can be held without the otherwise required 24-hour public notice and/or posting of agenda. One hour telephone notice must be given to each newspaper of general circulation and each radio and television station previously requesting notice of meetings. However, if the telephone system is not functional, the pre-meeting notice requirement is waived and notice of the meeting, its purpose and any action taken is to be given to the media as soon as possible after the meeting. Cal. Gov t Code 54956.5. 3. Other Requirements. a. Closed Sessions. 5
E. Other Laws. Meetings to address emergencies are subject to all special meeting requirements but no closed sessions may be held during such a meeting. Cal. Gov t Code 54956.5. b. Posting Minutes. After the meeting, the minutes, the action taken, the roll call vote and a list of persons to whom notice was given are to be publicly posted for a minimum of ten days. Cal. Gov t Code 54956.5. 1. Disaster Service Workers. All public employees are disaster service workers subject to such disaster service activities as may be assigned to them by their superiors or by law. Cal. Gov t Code 3100-3109. 2. Workers Compensation. Workers compensation rules apply to disaster service workers. Cal. Lab. Code 3211.9 et seq., 3352.94, 4351 et seq., 4453, 4702. (See Attachment K) 3. Chief Executive Powers. City may provide by ordinance for a chief executive to exercise complete authority and all police power vested in the city by the Constitution and general laws during periods of great public calamity, such as extraordinary fire, flood, storm, epidemic, earthquake, sabotage or enemy attack. Cal. Gov Code 38791. 4. Police Chief Powers. Police chief has all powers and protections of sheriffs for suppression of riot, public tumult, disturbance of the peace or resistance against the laws or public authorities.... Cal. Gov t Code 41601. 5. Sheriff Powers. Sheriff has special powers in an emergency as ex officio 6
director of emergency services. Cal. Gov t Code 26620 et seq. 6. Expenditures. Special rules apply for the expenditure of funds and provision of extraterritorial services in the event of emergency. Cal. Gov t Code 53019 et seq. 7. Contracting Authority. In case of emergency or disaster, city council may adopt resolution by four-fifths vote to authorize immediate expenditure of public money to safeguard life, health or property. Cal. Pub. Cont. Code 20168. Competitive bidding and other requirements of the Local Agency Public Construction Act are suspended. City must comply with specific emergency contracting procedures. Cal. Pub. Cont. Code 22050. 8. Municipal Utilities. Municipal utility districts may adopt resolution to suspend notice and bid requirements for emergency work. Cal. Pub. Util. Code 12753. 9. Natural Disaster Assistance Act. Natural Disaster Assistance Act provides for state assistance in repair, restoration or replacement of public works of local agencies in an amount up to 75% of the costs not covered by federal assistance. Cal. Gov t Code 8680 et seq. 10. Shelter. City council may declare a shelter crisis and use public parks, buildings and other facilities for emergency shelter purposes. Cal. Gov t Code 8698 et seq. City liability for injuries arising from conditions, acts or omissions directly related to the provision of emergency housing is limited to gross negligence, reckless, or intentional conduct. 11. Hazardous Substance Spills. 7
Special rules apply to declarations of local emergencies by local health officer due to release or spill of hazardous substances. Cal. Health & Safety Code 101075 et seq. 12. Hazardous Material Transportation and Handling. Counties authorized to regulate the handling, transportation, storage, etc. of hazardous materials and substances. Health & Safety Code 25500 et seq. Cities may, by ordinance, assume responsibility. Statute requires business plans for emergency response to spills and releases, reporting requirements for incidents, and powers of inspection. 13. Small Craft Vessels and Harbors. Cities may adopt emergency rules and regulations to govern small craft vessels and harbors in emergencies for a period of up to 60 days, unless extension authorized by the state Department of Harbors. Cal. Harb. & Nav. Code 660. 14. Joint Powers Agreements. Joint powers agreements may be used to establish disaster preparation and response agencies with adjoining agencies. Cal. Gov t Code 6500 et seq. F. Additional Information. 1. FEMA. Check website for press releases, regulations and forms. http://www.fema.gov. 2. State OES. Check website for press releases, regulations and forms. http://www.oes.ca.gov. 3. Immunity stemming from remedial repairs in earth movement situations is provided by Gov t Code 865, 866 and 867. Attachment V. 8
4. New Federal requirement to develop a Local Hazard Mitigation Plan (LHMP). Attachment W. Section 322 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act or the Act), 42 U.S.C.5165, enacted under 104 the Disaster Mitigation Act of 2000, (DMA 2000) P.L., 106-390. 9