Legal preparedness is an essential component of effective public health emergency response at all levels of government. Law plays a critically important role in authorizing and regulating enhanced government powers that are needed to address significant emerging threats to the public’s health in real time. During the 2009 H1N1 influenza outbreak, federal government officials and various state and local governments triggered an array of enhanced powers through declarations of emergency laws.1 The impact of federal and state emergency laws on governments’ ability to respond to declared emergencies has been the subject of extensive analysis and scholarship. 2–Reference Barnett, Taylor, Hodge and Links4 The impact of the same types of laws at the local level has received markedly less attention even though localities are routinely on the front lines of emergency response efforts. As 1 commentator recently noted, “Like politics, all disasters are local.”5 This is particularly true in the context of large, diffuse threats affecting multiple localities simultaneously. In these instances, localities may lack opportunities to benefit from focused federal and state resources, personnel, and guidance. As the H1N1 influenza outbreak illustrated, localities must be prepared to address directly their population’s public health needs in large- and small-scale emergencies.
Although milder and less deadly than initially feared, the 2009 H1N1 influenza outbreak provides a cautionary tale concerning the importance of local legal preparedness. Epidemiological evidence of a growing influenza outbreak began to coalesce around the third week of April 2009. As illustrated in Figure 1, federal, state, and local governments responded quickly with various emergency declarations. On April 26 the US Department of Health and Human Services (DHHS) declared a federal public health emergency, granting a range of enhanced powers to government actors.6 By May 5, at least 10 states had issued emergency, disaster, or public health emergency declarations. A number of localities also declared states of emergency, invoking new and enhanced powers to address the impact of H1N1 at the local level.1 The scope and breadth of these local emergency laws are not well known, largely because they have not been systematically studied in the modern era.
FIGURE 1 Emergency, disaster, and public health declarations in response to H1N1. (Last updated May 27, 2009.)
Beginning in October 2008, the Centers for Law and the Public’s Health: A Collaborative at Johns Hopkins and Georgetown Universities surveyed the emergency preparedness laws of 20 diverse localities across the United States. This research was undertaken pursuant to support from the Office of the Assistant Secretary of Preparedness and Response in DHHS to assess the legal issues affecting the local deployment and use of volunteer health professionals (VHPs) to respond to local emergencies. Our research broadly examined the state of emergency preparedness laws at the local level. In this article, we discuss our study methodology, results, and key findings on several topics including the effect of local home rule on emergency powers, enhanced legal preparedness among local city and county governments, variations in types of local emergency declarations, and limitations of local liability protections for individuals involved in emergency responses. The H1N1 outbreak at the culmination of our study provided an additional lens in which to view and measure local legal preparedness, as noted in our key findings.
METHODOLOGY
To address liability and other legal issues concerning the deployment of registered VHPs in locally declared emergencies, we undertook a comprehensive legal survey of the laws in 20 localities (ie, cities, counties, city-counties) throughout the United States. Local jurisdictions were selected based on their geographic diversity, population size, and, in some cases, their recent experiences with high-profile emergencies (eg, New Orleans, New York City, Oklahoma City). A final, tertiary consideration in the selection of these localities was the online availability of their municipal laws.
The selected localities also vary widely with respect to their governmental organization and structure. As illustrated in Figure 2, among the localities selected, 14 (70%) jurisdictions are cities, 3 (15%) are counties, and 3 (15%) are consolidated city-counties.7 Because New York City is unique among US cities in that it includes multiple boroughs that are structurally analogous to counties, we discuss it as if it were a consolidated city-county for our analysis even though it is legally considered a city under New York State law.
FIGURE 2 Twenty selected localities.
Research for the legal survey was conducted by accessing local emergency laws through publicly available databases, including Municode and AMLegal; examining publicly available resources (eg, home rule charters) provided by cities and counties or by local volunteer organizations; and searching via LexisNexis and Westlaw—electronic databases that compile state and federal laws—in limited instances in which underlying state laws needed to be assessed to better understand local provisions. Even at the local level, where governments regulate a relatively smaller scope of activity than their federal or state counterparts, an enormous body of emergency law exists. In assessing local legal preparedness, our research focuses on 4 key topics: local home rule, emergency declarations, definitions of volunteers, and liability protections.
Although our research was comprehensive, our findings and conclusions are subject to several limitations. The scope of the research is limited to an examination of local ordinances, regulations, and orders, but not state laws except in limited instances when local provisions needed to be clarified with respect to state law or in which local laws referred directly to state law. In addition, judicial (or case) law for each jurisdiction was not examined, which can provide legal guidance in areas such as civil liability. Finally, by confining our study to localities whose laws are accessible through public online databases, our survey sample may have included localities that tend to have stronger home rule powers than a random selection of US localities. In this regard, our findings may be less generalizable for smaller cities and counties or those that lack the independent legal authority of localities with stronger home rule powers.
RESULTS
Threats to the public’s health, like the H1N1 influenza outbreak, can strain existing health care resources disrupting the normal provision of public health and medical services. Laws that normally promote health in nonemergencies can actually impede the protection of health during emergencies.Reference Hodge and Anderson3 To address these legal impediments and other policy challenges, local governments are often endowed with special emergency powers triggered by official emergency declarations. These declarations are the lynchpin of emergency responses that require reshaping the legal environment to prioritize important response objectives.Reference Hodge and Anderson3
A key objective is ensuring an adequate emergency response workforce. This can pose an immense challenge during large, diffuse incidents such as pandemic influenza when the normal public health and medical workforce must not only deal with a deluge of new patients but also confront the impact of the emergency on themselves and their families. In such instances, deployment and use of VHPs can be paramount. The ability to recruit and coordinate VHPs in local response efforts are contingent in part upon how terms such as volunteer are defined under local law and the availability of local liability protections. Ultimately, the ability of localities to invoke emergency powers, deploy VHPs, and provide liability protections stems from their local home rule power.
Degree of Home Rule
Home rule refers to the degree of self-governance held by a dependent political unit (eg, city, county, consolidated city-county) as contrasted with its state host.8, Reference Briffault9 Home rule allows localities to take legislative or other action on issues of local concern without relying upon a specific grant of authority from the state. We classified each of the localities studied as having “strong” or “weak” home rule powers based on numerous factors, including the degree to which state constitutions allow home rule, the classification of localities under state statutes, the adoption of home rule charters, and how localities describe their home rule powers under ordinances and home rule charters. Fifteen (75%) of the localities we surveyed feature strong home rule powers.7 As noted above, localities included in this study have a stronger degree of home rule on average compared to that of localities across the United States. This is an unintended consequence of the selection process, due in part to our inclusion of larger localities whose municipal codes are available online.
Local Definitions of Emergencies
Local laws frequently empower local government officials to declare states of emergency, disaster, or other crises in variously defined circumstances similar to state declarations. When invoked, these declarations grant enhanced powers to mayors, city managers, emergency managers, and public health or public safety authorities to respond to emergencies in real time. As illustrated in Figure 3, of the 20 localities surveyed, 19 (95%) authorize local officials to declare either an emergency or a disaster.7
FIGURE 3 Localities defining emergency and/or disaster.
Similar to state-based emergencies,2 local definitions of emergencies vary widely. The term emergency is defined in 17 (85%) of the jurisdictions we studied.7 Local laws tend to define emergency broadly to encompass any event that threatens the public’s health or safety. For example, Burlington, Vermont, defines emergency as a “demand on local government services which exceeds or threatens to exceed the city’s response capability or an unexpected and/or unusual problem confronting the community which is threatening to life or property.”10 In contrast, definitions of disaster, which exist in 10 (50%) of the surveyed localities, tend to be more specific, often enumerating a list of potential triggering events.7 In Cook County, Illinois, for example, disaster is defined as a threat of widespread or severe harm resulting from, among numerous other occurrences, fire, water contamination, epidemic, infestation, critical shortages of essential fuels and energy, and public health emergencies.11
Several cities and counties also define types of incidents other than emergency and disaster. In some instances, these definitions address prominent local issues. New Orleans, for example, provides for the declaration of flooding,12 whereas Philadelphia provides for the declaration of an air pollution emergency.13 Many of the jurisdictions provide more than 1 type of declaration. Ordinances in Augusta, Maine, for example, define manmade disaster, natural disaster, war-caused disaster, and disaster emergency, in addition to general definitions of local emergency and disaster.14 Interestingly, none of the 20 localities surveyed specifically define public health emergency or like terms; however, emergency definitions in at least 15 localities are broad enough to apply to outbreaks of a serious pathogen like H1N1.7 San Francisco, for example, declared an emergency in response to the spread of H1N1.15 Notwithstanding the various types of emergency and disaster declarations, the term emergency is used generically in reference to declarations for the sake of narrative clarity in the following sections.
Local Definitions of Volunteers
The involvement of VHPs in emergency response efforts is tied to key legal issues, including whether local laws authorize their deployment and use, and, as discussed below, offer liability protections to volunteers. How localities legally define the term volunteer directly affects the extent to which local governments can protect VHPs from liability in declared emergencies. Only 2 (10%) of the surveyed localities explicitly define volunteer.7 Burlington, Vermont, defines emergency management volunteer as a person registered and assigned to participate in emergency management activities by the director of the office of emergency management.16 The City of Dallas broadly defines volunteer as “any person contributing service, equipment, or facilities to the emergency management organization without compensation.”17
Other localities define terms similar to volunteer, which could encompass VHPs. One example is Little Rock, Arkansas, whose ordinances define qualified emergency services worker as a duly qualified and registered emergency services volunteer worker.18 Little Rock requires these volunteers to be registered with accredited local and state offices of emergency services.18 Even in those localities that do not define volunteer or an analogous term, other local provisions may effectively provide the same benefits for VHPs. Baltimore County, Maryland, for example, includes volunteer workers in the definition of county employee, but only for purposes of civil liability.19
The majority of the localities surveyed do not explicitly define volunteer or provide guidance about whether the locality recognizes a class of volunteers under local law for deployment and liability purposes.7 In some instances, however, state law may define volunteers to encompass locally deployed VHPs for purposes of coordination and liability. For example, Tucson does not define volunteer, but Arizona state law defines emergency worker as any person who is registered and certified with a local or state emergency management organization to engage in authorized emergency management activities (emphasis added).20 Similarly, New York City ordinances do not define volunteer, but New York State law defines city employees to include volunteers expressly authorized to participate in city-sponsored volunteer programs.21 This has important implications concerning the liability of registered New York City volunteers, such as New York City Medical Reserve Corps.22
Local Liability Protections During Locally Declared Emergencies
Health professionals and others who volunteer during emergencies may face potential liability for negligence or intentional torts committed while performing their emergency response duties. The threat of civil liability is a pervasive concern for VHPs and factors heavily into deciding whether to volunteer.Reference Hodge and Anderson3 A patchwork of liability protections at the federal and state levels provide some liability protections for registered VHPs deployed by state governments.2 Some of these protections apply to locally deployed VHPs, but some do not, thus raising the need for locally based liability protections, particularly in locally declared emergencies.
Of the 20 localities studied, ordinances in 11 (55%) jurisdictions provide some type of liability protection for locally deployed VHPs during locally declared emergencies under 3 primary themes: general immunity, sovereign immunity, and indemnification.7 In some instances, state-based Good Samaritan laws may also provide liability protection to VHPs when deployed by localities. However, these laws and the scope of their protections vary significantly.Reference Hodge, Pepe and Henning23 Good Samaritan laws generally apply to extemporaneous assistance efforts such as when a doctor provides emergency medical aid at the scene of an accident. Whether these laws apply to VHPs who provide organized assistance in emergency response efforts is not clear. Finally, although Good Samaritan laws may provide some background liability protection for VHPs through state statutes or judicially created protections, these laws were not featured in our survey of localities.
General immunity laws provide the most extensive shield from liability by totally negating liability lawsuits against a volunteer engaging in a particular activity. General immunity provisions exist in 4 (20%) of the surveyed localities (Billings, MT, Dallas, Denver, Laredo, TX).7 For example, under Dallas ordinances, no emergency management volunteer is liable for any damage sustained to persons or property as the result of actions taken during response efforts, unless the actions constitute willful misconduct, gross negligence, or bad faith.24 Legal provisions in Billings and Denver do not directly mention VHPs, but they would likely fall under liability protections provided to city “agents” (generally understood to encompass any actor who performs a function for and with the authorization of another actor or institution).25, 26
Another source of liability protection, sovereign immunity, is a long-standing legal principle that restricts lawsuits against government, including localities, their officers, and their employees, subject to exceptions.2 Sovereign immunity is available only in certain cities and counties based on state law and the degree of home rule. Six (30%) localities extend sovereign immunity coverage through local ordinances to volunteers generally, VHPs specifically, or both.7 This is accomplished by explicitly providing volunteers the same benefits and immunities as city employees, or by defining volunteers as city or county employees for the purposes of civil liability protections. An example of the former is provided by Burlington, Vermont, ordinances that authorize the mayor to deploy citizen volunteers during emergencies and extend to such persons the privileges and immunities provided for regular city employees and other registered emergency management workers.27 Likewise, Gwinnett County, Georgia, provides all duly assigned volunteers, whether compensated or not, the same immunities provided to county employees.28
A final source of liability protection, indemnification, refers to the practice of a locality paying the costs associated with successful lawsuits against VHPs arising from authorized response efforts. Two (10%) of the surveyed localities provide indemnification (New York City and Seattle) for VHPs implicated in lawsuits for their noncriminal actions during emergencies.29, 30 In many instances, the indemnifier (ie, the locality) also provides legal representation to volunteers during litigation. 30–32 For example, Seattle defends legal claims made against registered volunteers and pays any resulting judgments or settlements.30 The same basic protection is afforded to locally registered and deployed VHPs in New York City (although through state law), who are considered municipal employees under New York State law.21 New York State law requires cities to provide civil liability defense for all municipal employees.22 In the event that damages result from trial or settlement, the city must indemnify and “save harmless” its employees in the amount of the damages.33
DISCUSSION
The recent experiences of San Francisco (1 of the localities surveyed) demonstrates the salience of our findings. On April 30, 2009, San Francisco Mayor Gavin Newsom declared a state of emergency to address the outbreak of H1N1.15 This is not the first time Mayor Newsom has declared a state of emergency; during his time in the mayor’s office, emergency declarations have been issued in response to various incidents including a landslide and an oil spill.34, 35 In fact, this is not even the first declaration of emergency issued under his command regarding influenza. In 2004, in response to a shortage of flu vaccine, Mayor Newsom declared a state of emergency to direct health care providers in the city and county to limit flu shots only to individuals in certain high-risk categories.36
San Francisco’s declaration in response to the H1N1 influenza outbreak authorized a host of potential enhanced response powers, including the mobilization of emergency services of any San Francisco official or employee; requisition of necessary personnel, materials, facilities and equipment of any department; and acquisition (and commandeering) of vital supplies and equipment for public use.37, 38 San Francisco emergency laws provide the authority for the mayor to promulgate or suspend local orders and regulations39 and endow VHPs with substantial liability protections40 during declared emergencies. Although the mayor did not invoke each of these profound powers, their availability allows the city to be prepared to respond affirmatively to the outbreak. These and other critical responses among local governments during emergencies are directly tied to legal authorities, as discussed through several key issues below.
Effect of Home Rule on Local Liability Protections
The degree of home rule correlates significantly with the degree to which local laws address the civil liability of locally deployed VHPs. Our survey indicated that 9 of the 15 (60%) localities characterized as having strong home rule address the liability of locally deployed VHPs through local laws. In contrast, only 1 of the 5 (20%) localities characterized as having weak home rule powers (Burlington, VT) legally addresses the liability of volunteers.27 As may be expected, the strongest liability protections provided by these localities are found among those jurisdictions with the strongest home rule powers. Localities with the strongest home rule have the broadest legal authority to address matters of local concern, including the creation of legal policies that are conducive to emergency preparedness. Likewise, localities with weak home rule are susceptible to considerably greater control by the state, which can negate the need for local ordinances to address policies that are already being addressed at the state level.
Enhanced Preparedness Power Among City-County Local Governments
Emergency preparedness laws in the consolidated city-county governments we studied often provide greater and more sophisticated emergency powers at the local level than the balance of our study sample. Denver, Philadelphia, San Francisco, and New York City (which effectively operates like a consolidated city-county) are large, heavily populated cities. It is expected that issues such as liability for locally deployed volunteers are addressed in localities of this size, given the greater potential for emergencies to arise within their jurisdiction that are distinct from state-based emergencies. Local officials in each of these jurisdictions are, however, also granted extensive, temporary rule and law-making powers in declared emergencies. In New York City, “[w]henever the mayor declares that a state of emergency exists, the mayor may order and promulgate all or any of the emergency measures with such limitations and conditions as he or she may deem appropriate” through the duration of the emergency.41 Similarly broad power is vested in the mayor and director of the office of emergency management under Philadelphia and Denver ordinances, respectively.42, 43 Officials in each of these consolidated city-counties may have the authority to modify in real time the liability protections afforded to volunteers during and after an emergency. In San Francisco, as noted above, the mayor is actually granted this power explicitly under San Francisco ordinances.40
In contrast to the expansive emergency powers of the surveyed consolidated city-countries, officials in some other large cities, such as Miami and Tucson, Arizona, have much less authority to handle large-scale disasters; instead, such powers are respectively provided to county or state officials. For large-scale disasters and emergencies, such as hurricanes or acts of terrorism, the Miami-Dade County Office of Emergency Management performs civil defense, mitigation, preparedness, disaster response, and recovery functions within the territorial limits of Miami-Dade County, which includes the City of Miami.44 In Tucson, emergency management laws are geared almost exclusively to empower county officials—in this case, Pima County—to organize and carry out preparedness activities.45
Variation in Emergency Declarations at the Local Level
Although localities seek authority to invoke emergency powers to address anticipated and unanticipated threats to the public’s health, the diversity of local emergency definitions can create coordination problems and confusion if multiple, variously defined declarations are invoked simultaneously. This phenomenon, which also exists for states,2 has been described as the dilemma of “dual declarations.”Reference Hodge and Anderson3 Dual declarations are possible in the 8 (40%) localities that define both emergency and disaster or another type of crisis, as illustrated in Figure 3. Dual declarations may authorize redundant or conflicting emergency powers for different government actors. Emergency management forces may be authorized to coordinate responses to fires, whereas public health authorities are authorized to coordinate responses to communicable disease outbreaks and law enforcement authorities are authorized to coordinate responses to emergencies that involve rioting and civil unrest. If a locality issues multiple declarations in response to the same event, then the potential for confusion over control and authority is profound. Similar problems can arise when different localities in the same state addressing the same emergency rely upon divergent declarations. Interjurisdictional coordination problems may impede the efforts of VHPs who lack experience working within a particular area or lack prior knowledge about channels of emergency management authority.
Because no locality we studied specifically defines public health emergency, these localities must rely on other types of emergency declarations to respond to significant public health threats, such as future instances of rapidly spreading (and potentially more deadly) infectious diseases. Responding to a more deadly H1N1-type outbreak will require multifaceted responses from localities (eg, public health personnel distributing prophylaxis, medical personnel performing triage and care, public safety personnel maintaining order, potential social distancing measures). In localities that rely on multiple emergency declarations, sometimes by different agencies and officials, the potential threat of uncoordinated responses or uncertainty regarding liability protection coverage may be substantial in the absence of extensive legal preparedness.
Limitations of Local Liability Protections
Local liability protections evince localities’ recognition of the need to provide some level of liability protection for locally deployed VHPs who may not qualify for coverage under overarching state emergency laws. As with liability protections provided by state emergency laws, however, local liability protections are limited. In fact, many of the local liability protections we studied provide narrower coverage than state provisions. For example, many states’ volunteer protection acts provide civil liability protection to all volunteers (typically defined as unpaid individuals who volunteer for governmental or nonprofit entities).46 Some states, such as Oklahoma, provide broad coverage under volunteer protection acts to volunteer medical professionals in the Medical Reserve Corps.47 Local legal provisions, however, generally only furnish liability protections to VHPs organized and deployed by the city or county. San Francisco’s extension of sovereign immunity to volunteers who join response efforts is conditioned on volunteers taking an oath in a form prescribed by the San Francisco Disaster Council.48 From a practical standpoint, VHPs may need to comply with registration and deployment requirements set forth by localities and not assume that localities will provide coverage as permissively as states.
CONCLUSIONS
Localities represent the front line of emergency preparedness and must address an array of legal challenges before and during declared emergencies. Our research has identified strengths and weaknesses among the surveyed localities in relation to their level of legal preparedness and ability to respond in a timely and effective manner to emerging local public health threats. This research provides the basis for 4 primary findings concerning local legal emergency preparedness. First, the degree of local home rule correlates significantly with the degree to which local laws address the civil liability of locally deployed VHPs. The availability of liability protection is an important issue that is closely related to the ability of localities to ensure an adequate emergency response workforce through the use of VHPs. In instances in which localities lack strong home rule power, liability protection for locally deployed VHPs may be provided under state law. The expansive emergency power of consolidated city-county governments is a second finding with substantial implications for legal preparedness. In the consolidated city-counties we surveyed, government officials have open-ended emergency powers similar to those provided to officials at the state level to modify the legal environment in real time to facilitate important response objectives.
The third finding is the diverse assortment of emergency declarations among the localities. These declarations are critically important in triggering the legal authority needed to respond to emergencies. The majority of local governments included in our research have the power to issue a disaster, emergency, or other type of declaration; however, the ability to declare multiple, variously defined declarations creates potential coordination challenges. Finally, the type and scope of liability protections for VHPs vary considerably among the selected localities. Some localities have taken innovative approaches to providing liability protection to registered and locally deployed VHPs, but protections at the local level are often more limited than protections found in state and federal laws.
All together these findings illustrate the diversity and innovation in legal emergency preparedness among localities. Although beneficial in many respects, this variation further intensifies the need for predisaster planning, exercises, and coordination (Table 1).
TABLE 1 Summary of Major Findings Across Localities
Authors' Disclosures
The authors report no conflicts of interest.
Acknowledgments
This research was undertaken by the Centers for Law and the Public’s Health: A Collaborative at Johns Hopkins and Georgetown Universities with funding support from the Assistant Secretary for Preparedness and Response (ASPR) of the US Department of Health and Human Services. The authors gratefully acknowledge the contributions of Anna Flynn and Craig Jaques for their research, editing, and formatting assistance.
