Senate Bill No. 694
(By Senators Kessler and White)
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[Introduced March 23, 2009; referred to the Committee on the
Judiciary; and then to the Committee on Finance.]
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A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §15-5-28, relating to
mutual aid agreements; establishing a statewide intrastate
mutual aid system; setting forth legislative findings;
authorizing the Director of the Division of Homeland Security
and Emergency Management to propose a statewide mutual aid
agreement; establishing procedures to allow local
jurisdictions to elect not to participate; establishing
procedures to amend the mutual aid agreement; creating a
Statewide Mutual Aid Committee; and establishing procedures
for comment for changes to the agreement and the reenactment
of the agreement.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §15-5-28, to read as follows:
ARTICLE 5. DIVISION OF HOMELAND SECURITY AND EMERGENCY MANAGEMENT.
§15-5-28. Statewide Mutual Aid System.
(a) The Legislature hereby finds that emergencies transcend
political jurisdictional boundaries and that intergovernmental
coordination is essential for the protection of lives and property
and for the best use of available assets, both public and private.
The purpose of this section is to create a system of intrastate
mutual aid between participating political subdivisions in the
state. The system shall provide for mutual assistance among the
participating political subdivisions in the prevention of, response
to, and recovery from, any disaster that results in a formal state
of emergency in a participating political subdivision, subject to
that participating political subdivision's criteria for
declaration. The system shall provide for mutual cooperation among
the participating subdivisions in conducting disaster-related
exercises, testing, or other training activities outside actual
declared emergency periods. This section provides no immunity,
rights, or privileges for any individual responding to a state of
emergency that is not requested or authorized to respond by a
participating political subdivision. Participating political
subdivisions will be ensured, to the fullest extent possible,
eligibility for state and federal disaster funding.
(b) The statewide Intrastate Mutual Aid Committee is hereby created. The committee shall consist of eleven members from
various different public safety entities and other governmental
entities who shall be appointed by the Director of the Division of
Homeland Security and Emergency Management. The director, or his
or her designee, shall chair the committee. This committee shall
be multidisciplinary and representative of emergency management and
response disciplines as well as local government. It shall be the
committee's responsibility to hold, at a minimum, annual meetings
to review the progress and status of statewide mutual aid, assist
in developing methods to track and evaluate activation of the
system and to examine issues facing participating political
subdivisions regarding the implementation of this legislation. The
committee may be chaired by the Director of the West Virginia
Division of Homeland Security and Emergency Management. The
committee may prepare an annual report on the condition and
effectiveness of mutual aid in the state, make recommendations for
correcting any deficiencies and submit that report to the
appropriate legislative committee or other governing body. Members
of the committee shall serve a maximum two-year term, with
recommendation for appointment coming from each respective
association.
(c) Upon the enactment of this legislation, all political
subdivisions within the state are members of the statewide Mutual
Aid System:
Provided, That a political subdivision within the state may elect not to participate or to withdraw from the system
upon the enactment of an appropriate resolution by its governing
body declaring that it elects not to participate in the Statewide
Mutual Aid System. A copy of any such resolution shall be provided
to the Division of Homeland Security and Emergency Management.
(d) This section does not preclude participating political
subdivisions from entering into supplementary agreements with
another political subdivision and does not affect any other
agreement to which a political subdivision may currently be a party
to, or decide to be a party to.
(e) "Emergency responder" as used in this article, shall mean
anyone with special skills, qualifications, training, knowledge,
and experience in the public or private sectors that would be
beneficial to a participating political subdivision in response to
a locally declared emergency as defined in any applicable law or
ordinance or authorized drill or exercises; and who is requested
and authorized to respond. Under this definition, an emergency
responder may be required to possess a license, certificate,
permit, or other official recognition for his or her expertise in
a particular field or area of knowledge. An emergency responder
could include, but is in no way limited to, the following:
Law-enforcement officers, firefighters, emergency medical services
personnel, physicians, nurses, other public health personnel,
emergency management personnel, public works personnel, local emergency debris removal teams, those persons with specialized
equipment operations skills or training, or any other skills needed
to provide aid in a declared emergency.
(f) It shall be the responsibility of each participating
political subdivision with jurisdiction over and responsibility for
emergency management within that certain subdivision to do all of
the following:
(1) Identify potential hazards that could affect the
participant using an identification system common to all
participating jurisdictions.
(2) Conduct joint planning, intelligence sharing, and threat
assessment development with contiguous participating political
subdivisions, and conduct joint training at least biennially.
(3) Identify and inventory the current services, equipment,
supplies, personnel, and other resources related to planning,
prevention, mitigation, response, and recovery activities of the
participating political subdivision.
(4) Adopt and implement the National Incident Management
System approved by the State of West Virginia.
(g) A participating political subdivision may request
assistance of other participating political subdivisions in
preventing, mitigating, responding to, and recovering from
disasters that result in locally declared emergencies or in concert
with authorized drills or exercises as allowed under this section. Requests for assistance shall be made through the chief executive
officer of a participating political subdivision, or his or her
designee, directly to the Division of Homeland Security and
Emergency Management for response. Requests may be verbal or in
writing. Verbal requests will be followed up with a written
request as soon as is practical or such number of days as the
state, in its discretion, may dictate.
(h) The obligation of a participating political subdivision to
provide assistance in the prevention of, response to and recovery
from a locally declared emergency or in authorized drills or
exercises is subject to the following conditions:
(1) A participating political subdivision requesting
assistance must have either declared a state of emergency in the
manner outlined in this section or authorized drills and exercises;
(2) A responding participating political subdivision may
withhold resources to the extent necessary to provide reasonable
protection and services for its own jurisdiction;
(3) Emergency response personnel of a responding participating
political subdivision shall continue under the command and control
of their responding jurisdiction to include medical protocols,
standard operating procedures, and other protocols, but shall be
under the operational control of the appropriate officials within
the National Incident Management System of the participating
political subdivision receiving the assistance; and
(4) Assets and equipment of a responding participating
political subdivision shall continue under the control of the
responding jurisdiction, but shall be under the operational control
of the appropriate officials within the National Incident
Management System of the participating political subdivision
receiving the assistance.
(i) If a person or entity holds a license, certificate or
other permit issued by a participating political subdivision or the
state evidencing qualification in a professional, mechanical, or
other skill and the assistance of that person or entity is
requested by a participating political subdivision, the person or
entity shall be deemed to be licensed, certified, or permitted in
the political subdivision requesting assistance for the duration of
the declared emergency or authorized drills or exercises and
subject to any limitations and conditions the chief executive of
the participating political subdivision receiving the assistance
may prescribe by executive order or otherwise.
(j) (1) Any requesting political subdivision shall reimburse
the participating political subdivision rendering aid under this
system and in accordance with procedures developed by the
Intrastate Mutual Aid Committee, provided the request for aid is
authorized by the Division of Homeland Security and Emergency
Management. A participating political subdivision providing
assistance may determine to donate assets of any kind to a receiving participating political subdivision. Requests for
reimbursement shall be in accordance with procedures developed by
the State Intrastate Mutual Aid Committee.
(2) Should a dispute arise between parties to the system
regarding reimbursement, involved parties will make every effort to
resolve the dispute within thirty days of written notice of the
dispute by the party asserting noncompliance. In the event that
the dispute is not resolved within ninety days of the notice of the
claim, either party may request the dispute be solved through
arbitration. Any arbitration under this provision shall be
conducted under the commercial arbitration rules of the American
Arbitration Association.
(k) The State Intrastate Mutual Aid Committee shall develop
comprehensive guidelines and procedures that address, including,
but are not limited to, the following: Projected or anticipated
costs, checklists for requesting and providing assistance, record
keeping for all participating political subdivisions, reimbursement
procedures, and other necessary implementation elements along with
the necessary forms for requests and other records documenting
deployment and return of assets.
(1) Personnel of a participating political subdivision
responding to or rendering assistance for a request who sustain
injury or death in the course of, and arising out of, their
employment are entitled to all applicable benefits normally available to personnel while performing their duties for their
employer. Responders shall receive any additional state and
federal benefits that may be available to them for line-of-duty
deaths.
(m) All activities performed under this section are deemed
hereby to be governmental functions. For the purposes of
liability, all persons responding under the operational control of
the requesting political subdivision are deemed to be employees of
the requesting participating political subdivision. Neither the
participating political subdivisions nor their employees, except in
cases of willful misconduct, gross negligence, or bad faith shall
be liable for the death of or injury to persons, or for damage to
property when complying or attempting to comply with the Statewide
Mutual Aid System.
(n) Whenever the law-enforcement officials of any political
subdivision are rendering outside aid pursuant their lawful
authority, and with the approval of the Director of the West
Virginia Division of Homeland Security and Emergency Management,
and under the authority of a state of emergency as officially
proclaimed by the Governor, such law-enforcement officials shall
have the same authority, powers, duties, rights, privileges, and
immunities as if they were performing their law-enforcement duties
in the political subdivisions in which they are normally employed.
The authority vested in the law-enforcement official, in accordance with this section, shall vest upon reporting in person to the
Emergency Management Agency official in charge and on duty at the
county or city of destination assignment. The law-enforcement
official shall act under the authority, supervision, and control of
the highest ranking law-enforcement official within the assigned
outside jurisdiction. Law enforcement and powers of arrest
authority will not attach to the law-enforcement official while in
transit from his or her jurisdiction of origin en route to his or
her assigned jurisdiction under intrastate mutual aid assistance.
(o) This act shall become effective on its passage and
approval by the Governor.
NOTE: The purpose of this bill is to establish a statewide
intrastate mutual aid system; setting forth legislative findings;
authorize the Director of the Division of Homeland Security and
Emergency Management to propose a state-wide mutual aid agreement;
establish procedures to allow local jurisdictions to elect not to
participate; establish procedures to amend the mutual aid
agreement; create a Statewide Mutual Aid Committee; and establish
procedures for comment for changes to the agreement and the
reenactment of the agreement.
This section is new; therefore, strike-throughs and
underscoring have been omitted.