Category Archives: Response

Texas AG Issues Notifications Following Price Gouging During Harvey

Texas AG Issues Formal Demands Following Price Gouging During Harvey

The Texas Attorney General has notified 127 gas stations of price gouging during Hurricane Harvey.

During Hurricane Harvey, there was a lot of alleged price gouging of necessities. This not only impacted the costal area, but also more interior areas that never saw a direct impact from the storm. On October 30, 2017, The Attorney General’s Consumer Protection Division sent notices to 127 gas-stations in Texas that charged in excess of $3.99 per gallon of gasoline. The notice provided to each business gives the individuals a chance to resolve the issue before proceeding to the litigation stage. This aren’t the only business likely to receive notices though. The AG’s Office is still investigating complaints received from consumers during this timeframe.

The Texas Attorney General’s Office is using the Texas Deceptive Trade Practices Act (or “DTPA” for short) to go after price gouging. The DTPA is what consumers and the state often use to control unscrupulous businesses in Texas. The DTPA allows for stiff civil penalties and injunctive relief to prevent business from maintaining deceptive or unfair trade practices. Price Gouging is only one of many practices prohibited. Often, this list of prohibited practices is called simply “the laundry list,” because there are so many things.

Read the Full AG’s Press Release Here

Emergency Management Law’s Post on the AG’s Established Price Gouging Hotline

Photo courtesy of the Department of Defense.

Disaster Declaration Renewed for Portions of Texas

Disaster Declaration Renewed for Portions of Texas

Friday, Governor Abbott extended the state disaster declaration for 60 Texas Counties.

On Friday, the Governor Greg Abbott renewed the state level Disaster Declaration for 60-counties in the Gulf Coast region. Generally, disaster declarations have a 30-day shelf life–or earlier if the state legislature decides the state of disaster should be terminated. [1] After that, it requires a renewal to ensure the disaster conditions still exist. [2] It is unclear though whether more than one renewal is required.

The current language of Tex. Gov’t Code §418.014(c) is somewhat vague though. The section states that “A state of disaster may not continue for more than 30-days unless renewed by the governor.”

Though it may sound specific at first, the code seems to leave the issue of subsequent renewals open for interpretation. There are two ways this could be potentially read: (a) the 30-day rule is for the initial declaration, with the first renewal having potentially perpetual duration; or (b) declaration must be renewed every 30-days, or risk expiring.

There is essentially no case law to help determine what the section really intends to convey. It’s likely that the legislature didn’t foresee a disaster striking that would require more than 30-days of response & initial recovery.

Read the Renewed Declaration & Proclamation by clicking here.

References:

[1] Tex. Gov’t Code §418.014(c)

[2] Tex. Gov’t Code §418.014(b), (c).

CBP & ICE Statement on Hurricane Harvey

CBP & ICE Statement on Hurricane Harvey

The U.S. Immigration and Customs Enforcement (“ICE”) & U.S. Customs and Border Protection (“CBP”) will not be conducting routine non-criminal immigration enforcement operations at evacuations sites or assistance centers such as food banks or shelters. The intent is to ensure everyone is focused on the safety and security during the response efforts. However, the agencies will remain vigilant to any criminal activity that seeks to take advantage of the disruption caused by Hurricane Harvey.

Read the full statement from CBP & ICE by clicking here.

Video: Texas State & National Guard Deploy to Support Hurricane Harvey Recovery

Video: Texas State & National Guard Deploy to Support Hurricane Harvey Recovery

Did you know that there is a difference between the State and National Guard? It’s true!

The State Guard is another military force under the command of the Texas Adjutant General. There are army, air, and maritime components to the Texas State Guard. However, they primarily serve within Texas for disaster response.

The National Guard is organized and able to serve both the State government and–when called upon–federal government times of national emergency or conflict. This would include deployments to places like Iraq, Kuwait, or Afghanistan.

As a side note, the Texas State Guard has a JAG Corps that mobilizes to assist the Texas National Guard on operations within the state. Many sitting Judges and seasoned lawyers volunteer to serve in the Texas State Guard as JAG Officers.

DoD Immediate Response Authority

DoD Immediate Response Authority

Though there are a plethora of issues surrounding use of the Military in a disaster; under the Immediate Response Authority, military commanders are allowed to provide limited assistance in life-threatening situations for limited durations.

What Is the Immediate Response Authority?

Defense Support of Civil Authorities (“DSCA”) is the federal policy that allows Department of Defense (“DoD”) resources—be it personnel, equipment, or facilities—to support entities at the state and local level to respond to disasters and other emergency conditions. [1] Under this program is the

Click to Read Full Article.

A handout aerial image released by the US Army on 15 September 2013 shows 2nd General Support Aviation Battalion, 4th Combat Aviation Brigade, 4th Infantry Division, soldiers evacuating fifth-grade students from Firewood Elementary. Courtney of Daily Mail UK. Click Image to read the full article.

Immediate Response Authority (“IRA”). Normally, a request for use of DoD assets to preform DSCA missions (i.e. respond to a crisis or emergency) requires the President or Secretary of Defense to approve a written request from the supported entity. [2] However, IRA allows for this request process to be short-circuited in some circumstances. IRA allows for military commanders to respond

to a DSCA request from local civil authorities under “imminently serious conditions [ ] if time does

not permit approval from higher authority….” [3] The key here is that the power to provide this response is temporary and limited to only situations which are aimed to “prevent human suffering, or mitigate great property damage.” [4] DSCA missions under IRA will generally end when the whole reason why the request was submitted in the first place ceases to exist. [5] Though a request cannot be denied for lack of agreement to, generally requesting jurisdictions should be prepared to reimburse the federal government for use of DoD assets under IRA. [6] There are some exceptions that would require a fact intensive analysis under other federal regulations and statutes.

What Does This Mean for the Emergency Manager?

First, this is not the source of authority that allows for military installations to enter into mutual aid agreements with local civil authorities. These types of mutual aid requests are considered to be “DSCA mutual aid” or “automatic aid” request and governed by DoD Instruction 6055.06 “DoD Fire and Emergency Services Program”. [7] Even under that program, we’re talking basic Fire & Medical first responders to support; not other uniformed personnel or equipment. IRA allows for the uniformed personnel and equipment, such as non-Fire or EMS personnel, aviation assets (such as helicopters) and engineering assets (such as bridges and boats) to possibly be used in a dire needs circumstance. What is important for the Emergency Manager in a military town, is to be sure they know who to talk to in these two circumstances. A good working relationship and talking to the lawyers and Staff Judge Advocates (the Military Commander’s in-house counsel) early can help iron out how and what to do when minutes count.

References

[1] 32 CFR §185.3 (West 2016).

[2] 32 CFR §185.4(c)-(d) (West 2016).

[3] 32 CFR §184.4 (g) (West 2016).

[4] 32 CFR §184.4 (g) (West 2016).

[5] 32 CFR §184.4(g)(2) (West 2016).

[6] 32 CFR §184.4(g)(3) (West 2016).

[7] DoDI 6055.06, DoD Fire and Emergency Services Program, 27 (Dec. 21, 2006). See generally 42 USCA §5195 (2016) (Policy purpose gives the sense that congress intends to allow federal to local mutual aid agreements in some circumstnaces).

United Methodist Church Disaster Response

United Methodist Church Disaster Response

The United Methodist Church does a lot with disaster response and long term recovery operations. So much, you would wonder why we don’t  know more about them.

On Monday night I had the pleasure of listening to Rev. Laraine Waughtal speak about the projects that the Central Texas Conference of the United Methodist Church is doing following so many disasters. To be brief, the presentation was enlightening. I had the opportunity to get a better idea of what the United Methodist Church is doing in response to disasters.

Background

umns12_222_1_lightboxb-555x388Rev. Laraine Waughtal is the Coordinator of Disaster Response for the Central Texas Conference of the United Methodist Church. The Conference covers a vast area that generally stretches from
Waco, North to Fort Worth, West towards (but not including Abilene), East towards Corsicana, and South into Round Rock. To date, this is one of the more active conferences when it comes to disaster relief efforts (only rivaled by Oklahoma with its frequent tornados and Louisiana with the frequent flooding). The organization is funded by donations from members of and donors to the United Methodist Church. The CTCUMC’s Disaster Relief efforts are receive additional funding and support from the national level United Methodist Committee On Relief (“UMCOR”). Learn more about what UMCOR does on the national and international stage by clicking here.

What is important to note, is that all of the contributions to Disaster Relief efforts made to umcorCTCUMC go directly to those causes. There is only one full-time staff member (Rev. Waughtal) and her salary is paid by the church. All others are volunteers. This means all the donations go straight into running disaster relief operations. This is very important because in many non-profit organizations, there is such an expensive administrative overhead cost that sometimes a good portion of the money ends up going to pay the salaries of the managers or full-time staff to keep the organization running. Sometimes, once an organization gets so large, it becomes a necessary evil. However, some organizations–which have made news headlines–almost spend too much money and time building the organization and lose sight of the mission that started them. Not with CTCUMC’s Disaster Relief mission.

Bringing it Back to the Law

So how does this relate to the law? Easy. Non-profits (including churches) have to deal with the legal aspects of training, liability, insurance coverage, and taxation (yes, they still have to file paperwork to maintain tax-free status). Now how does this apply to emergency management law? If the Church (besides the United Methodist Church) run a clinic, hospital, homeless shelter, food pantry, or other community based operation that is damaged during a disaster; they could be eligible for help from FEMA through the Public Assistance Programs. There are some very stringent qualifications for Public Assistance Projects; however despite these qualifications, having the ability to help get the community program back on track after a disaster can lend a sigh of relief to a non-profit’s leadership facing the prospect of closure.

One of the interesting things is that FEMA does help provide some case management services after a presidential disaster declaration (learn more about FEMA Case Management Grants and Programs here). However, if there is no presidential disaster declaration, it can be left up to the state to take care of the unmet needs of the disaster survivors. An interesting note–not really reported elsewhere–CTCUMC has managed over 600 long term recovery cases (i.e. connecting people with resources) after the West, Texas explosion in 2013. If that is not all the cases that came out of the incident, it is a substantial majority of them. If and when FEMA makes Case Management Grants available to states, the fact that non-profits like the United Methodist Church are providing case management services, means they could possibly be eligible for the grants. Though it would not be much, it would help offset some of the costs associated with caring for volunteers caring for disaster survivors (yes–for those of you who never realized it– volunteers actually come with their own costs).

Take a look at CTCUMC’s Disaster Relief website and some of what they do here.

State Employees Can Take Paid Leave to Volunteer in a Disaster

State Employees Can Take Paid Leave to Volunteer in a Disaster

Texas allows state employees to take paid administrative leave to volunteer with the Red Cross during a disaster.

For many years the state of Texas has allowed for State employees to take paid administrative leave to volunteer with the Red Cross during a disaster. Can’t believe it? It’s true! In fact, It’s written into Texas statute (Tex. Gov’t Code § 661.907). Granted, the code has been expanded over the years, but here’s the upshot: State employees who are certified by the American Red Cross as Disaster Service Volunteer, may take up to 10 days paid administrative leave per year when three conditions are met: (1) at the request of the Red Cross, (2) the employee’s supervisor authorizes it, and (3) the governor approves it. Further, there can only be up to 350 state employees on this paid administrative leave at any one time.

So what does this mean? This means that there is an incentive for state employees to get involved with their community  to help themselves and their communities become disaster ready. In my opinion, those who volunteer during disaster response are more likely to be ready when one comes their way. Granted, they aren’t going to be 110% ready, but the mindset will have at least set in once that this could likely happen to them.

The next question becomes: why don’t major corporations do this? The fact is that they likely do to some degree. The question will always boil down to “who is going to pay the workman’s comp if the volunteer gets hurt while on this paid administrative leave?” The Texas Labor Code does allow for Disaster Volunteers to be covered by state workman’s compensation plans if strict time line and conditional requirements are met. Really, it’s going to boil down to what the volunteer’s and the corporation’s insurance carriers think about it.

So next time you’re at the DMV and get really mad at the person behind the counter, realize that they may actually be the same person that comes to help you after disaster strikes.

Texas Adds 20 Counties to the Presidential Disaster Declaration

Texas Adds 20 Counties to the Presidential Disaster Declaration

FEMA released the Presidential Disaster Declaration for 20 more counties Texas impacted by severe weather, tornados, and flooding the state has experienced since May 4th.

The Federal Emergency Management Agency released a statement regarding the Presidential Disaster Declaration for the State of Texas, adding twenty counties. The additional counties include: Bastrop, Blanco, Caldwell, Denton, Eastland, Fort Bend, Gaines, Guadalupe, Henderson, Hidalgo, Johnson, Milam, Montague, Navarro, Rusk, Smith, Travis, Wichita, Williamson and Wise. (This is in addition to Harris, Hays, and Van Zandt counties which received a disaster declaration late last month). As many may know the State has experienced severe storms, tornados, straight-line winds, and flooding since May 4th, and is still ongoing. The declaration makes grants available for temporary housing and home repairs, low-cost loans to cover uninsured property losses and other programs individuals and business owners can use to recover from the disaster’s impacts.

Individual Assistance (Households and Businesses)

The declaration makes grants available for temporary housing and home repairs, low-cost loans to cover uninsured property losses and other programs individuals and business owners can use to recover from the disaster’s impacts. For specifics on what you may qualify for it is important to visit www.disasterassistance.gov or call 1-800621-FEMA (3362). The toll-free number will operate between 7AM and 9PM seven days a week until further notice. Below are summaries of the programs available, it is important to note though, you must apply to FEMA for the assistance, it is not an automatically applied for you.

Rental Assistance for Temporary Housing: Initial assistance may be provided for up to three months for homeowners and at least one month for renters.  Assistance may be extended if requested after the initial period based on a review of individual applicant requirements.

Home Repair/Fixture Replacement Grants: Grants for home repairs and replacement of essential household items not covered by insurance to make damaged dwellings safe, sanitary and functional.

Immediate Personal Property Replacement Grants: Grants to replace personal property and help meet medical, dental, funeral, transportation and other serious disaster-related needs not covered by insurance or other federal, state and charitable aid programs.

Unemployment Compensation: Unemployment payments up to 26 weeks for workers who temporarily lost jobs because of the disaster and who do not qualify for state benefits, such as self-employed individuals.

Low Interest Loans for Uninsured Losses: Low-interest loans to cover residential losses not fully compensated by insurance.  Loans available up to $200,000 for primary residence; $40,000 for personal property, including renter losses.  Loans available up to $2 million for business property losses not fully compensated by insurance.

Low Interest Small Business, Non-Profit & Agricultural Loans: Loans up to $2 million for small businesses, small agricultural cooperatives and most private, non-profit organizations of all sizes that have suffered disaster-related cash flow problems and need funds for working capital to recover from the disaster’s adverse economic impact.  This loan in combination with a property loss loan cannot exceed a total of $2 million.

Low Interest Agricultural Property Loss Loans: Loans up to $500,000 for farmers, ranchers and aquaculture operators to cover production and property losses, excluding primary residence.

Other Miscellaneous Assistance: Crisis counseling, income tax assistance for filing casualty losses, legal advice assistance, veteran’s benefits, and social security matters.

Public Assistance

Federal funding has also been made available for some local governments and select non-profits (on a cost sharing basis) for emergency work and repair/replacement of facilities damaged by the severe weather and flooding. Local governments and select non-profits can find out more about application procedures at the federal and state applicant briefings hosted by recovery officials in the near future. Local governments can apply for assistance in:

Cost Sharing of Expenses from Lifesaving Measures Taken: Payment of not less than 75 percent of the eligible costs for emergency protective measures, including direct federal assistance, taken to save lives and protect property and public health. Emergency protective measures assistance is available to state and eligible local governments on a cost-sharing basis.

Cost Sharing of Repair/Replacement of Public Infrastructure: Payment of not less than 75 percent of the eligible costs for repairing or replacing damaged public facilities, such as roads, bridges, utilities, buildings, schools, recreational areas and similar publicly owned property, as well as certain private non-profit organizations engaged in community service activities.

Cost Sharing of Hazard Mitigation Projects During Recovery: Payment of not more than 75 percent of the approved costs for hazard mitigation projects undertaken by state and local governments to prevent or reduce long-term risk to life and property from natural or technological disasters.

Texas Receives Presidential Disaster Declaration

Texas Receives Presidential Disaster Declaration

FEMA released the Presidential Disaster Declaration for Texas early this morning due to the severe weather, tornados, and flooding the state has experienced since May 4th.

Early this morning, the Federal Emergency Management Agency released a statement regarding the Presidential Disaster Declaration for the State of Texas (which includes Harris, Hays, and Van Zandt counties). As many may know the State has experienced severe storms, tornados, straight-line winds, and flooding since May 4th, and is still ongoing. The declaration makes grants available for temporary housing and home repairs, low-cost loans to cover uninsured property losses and other programs individuals and business owners can use to recover from the disaster’s impacts.

Individual Assistance (Households and Businesses)

Though damage assessments are ongoing (which may cause more counties to be added to the disaster declaration) the federal assistance programs have been made available for individuals in: (i) Harris, (ii) Hays, and (iii) Van Zandt counties. The declaration makes grants available for temporary housing and home repairs, low-cost loans to cover uninsured property losses and other programs individuals and business owners can use to recover from the disaster’s impacts. For specifics on what you may qualify for it is important to visit www.disasterassistance.gov or call 1-800621-FEMA (3362). The toll-free number will operate between 7AM and 9PM seven days a week until further notice. Below are summaries of the programs available, it is important to note though, you must apply to FEMA for the assistance, it is not an automatically applied for you.

Rental Assistance for Temporary Housing: Initial assistance may be provided for up to three months for homeowners and at least one month for renters.  Assistance may be extended if requested after the initial period based on a review of individual applicant requirements.

Home Repair/Fixture Replacement Grants: Grants for home repairs and replacement of essential household items not covered by insurance to make damaged dwellings safe, sanitary and functional.

Immediate Personal Property Replacement Grants: Grants to replace personal property and help meet medical, dental, funeral, transportation and other serious disaster-related needs not covered by insurance or other federal, state and charitable aid programs.

Unemployment Compensation: Unemployment payments up to 26 weeks for workers who temporarily lost jobs because of the disaster and who do not qualify for state benefits, such as self-employed individuals.

Low Interest Loans for Uninsured Losses: Low-interest loans to cover residential losses not fully compensated by insurance.  Loans available up to $200,000 for primary residence; $40,000 for personal property, including renter losses.  Loans available up to $2 million for business property losses not fully compensated by insurance.

Low Interest Small Business, Non-Profit & Agricultural Loans: Loans up to $2 million for small businesses, small agricultural cooperatives and most private, non-profit organizations of all sizes that have suffered disaster-related cash flow problems and need funds for working capital to recover from the disaster’s adverse economic impact.  This loan in combination with a property loss loan cannot exceed a total of $2 million.

Low Interest Agricultural Property Loss Loans: Loans up to $500,000 for farmers, ranchers and aquaculture operators to cover production and property losses, excluding primary residence.

Other Miscellaneous Assistance: Crisis counseling, income tax assistance for filing casualty losses, legal advice assistance, veteran’s benefits, and social security matters.

Public Assistance

Federal funding has also been made available for local governments and select non-profits (on a cost sharing basis) for emergency work and repair/replacement of facilities damaged by the severe weather and flooding in: (i) Cooke, (ii) Gaines, (iii) Grimes, (iv) Harris, (v) Navarro, and (vi) Van Zandt counties. Local governments and select non-profits can find out more about application procedures at the federal and state applicant briefings hosted by recovery officials in the near future. Local governments can apply for assistance in:

Cost Sharing of Expenses from Lifesaving Measures Taken: Payment of not less than 75 percent of the eligible costs for emergency protective measures, including direct federal assistance, taken to save lives and protect property and public health. Emergency protective measures assistance is available to state and eligible local governments on a cost-sharing basis.

Cost Sharing of Repair/Replacement of Public Infrastructure: Payment of not less than 75 percent of the eligible costs for repairing or replacing damaged public facilities, such as roads, bridges, utilities, buildings, schools, recreational areas and similar publicly owned property, as well as certain private non-profit organizations engaged in community service activities.

Cost Sharing of Hazard Mitigation Projects During Recovery: Payment of not more than 75 percent of the approved costs for hazard mitigation projects undertaken by state and local governments to prevent or reduce long-term risk to life and property from natural or technological disasters.

Read the Press Release on the Disaster Declaration here.

Visit FEMA’s Disaster Assistance Website here.

Visit a list of all assistance available for application on diasterassistance.gov here.

Minimizing Liability for Displaced Children Post-Disaster

Minimizing Liability for Displaced Children Post-Disaster

How can a local agency minimize their liability while caring for children displaced after a disaster? Possibly by shortening the timeframe the children are in their custody.

After a disaster or emergency, families can become separated from each other. This causes a serious issue when trying to protect children from potential neglect and abuse at the hands of one’s own agency. Though claims of abuse can end up unfounded, the mere threat of a lawsuit and the publicity that would follow it would be enough to scar any local government or public safety agency for generations. So how do you minimize the risk the agency is exposed to while trying to reunite families after a disaster? One of the easiest things to do is get the families reunited faster. Now, the National Center for Missing and Exploited Children (NCME) has developed a system to assist local agencies with doing just that.

Three systems available to state and local authorities:

1. The National Emergency Child Locator Center

The National Emergency Child Locator Center is activated during presidentially declared disasters. In the event of a natural disaster, the center will: (i) establish a toll-free hotline to receive reports, (ii) create a website to provide information about displaced children, (iii) deploy staff to gather information about displaced children, (iv) provide information to public about additional resources available, (v) partner with law enforcement agencies at various levels, and (vi) refer reports of displaced adults to the Attorney General’s designated authority.

Visit the Site here.

2. The National Emergency Family Registry and Locator System (NEFRLS)

The National Emergency Family Registry and Locator System was established to facilitate the reunification of families separated as a result of a presidentially-declared emergency or major disaster. NEFRLS is a web-based system enables authorities to provide a nationally accessible system that allows displaced adults to voluntarily register and share specific information on their post-disaster well-being or location with specified family members or friends. Registration is voluntary and can be done either online or via a toll-free phone number. No citizenship or immigration status questions are asked when registering.

Visit the site here.

3. The Unaccompanied Minors Registry

the Unaccompanied Minors Registry allows the public to report information related to children who have been separated form their parents as the result of disaster. This tool enables NCMEC to provide assistance to local law enforcement and assist in the reunification of displaced children with their parents or legal guardians. Reporting is done on the NCMEC’s secured (SSL) website and is encrypted.

Visit the site here.