Chapter 323, Mutual Aid, and Evacuations… Presented by Randi Wind Milsap, General Counsel...

Chapter 323, Mutual Aid,

andEvacuations…

Presented by Randi Wind Milsap, General CounselWisconsin Department of Military Affairs(608) 242-3072 | [email protected]

March 2010

Oh My!

Repealing 166, Codifying 323

• Chapter 323 effective on October 21, 2009 • Why not the same chapter number?

• Logically reorganized• Language modernized• Separate subchapters• Some substantive changes

Chapter 323 –

Defining Disaster

• Disaster is defined as:• “A severe or prolonged, natural or human-caused, occurrence that threatens or negatively impacts life, health, property, infrastructure, the environment, the security of this state or a portion of this state, or critical systems, including computer, telecommunications, or agricultural systems.” (§323.02(6), Stats.)

Chapter 323 –

Substantive Changes

•Gubernatorial declaration is not to exceed 60 days unless extended by a joint resolution of the legislature (§323.10, Stats.)

• Duration of local emergency declaration has not changed

•Specifically allows for a state of emergency to be declared if an “imminent threat of disaster exists”. (§§ 323.10 and 323.11, Stats.)

•Applies to gubernatorial and local declarations

Chapter 323 –

Substantive Changes, cont’d.

• Permits the governor to designate the Department of Administration (DOA) as the lead agency for computer or telecomm emergencies (§323.10, Stats.)– DOA may provide computer or telecomm

assistance to local governments


• Encourages public works mutual assistance (§323.13(1)(d), Stats.)

• An individual may not simultaneously serve as head of emergency management for two or more counties (§323.14(1)(a)3., Stats.)

• If a local unit of government declares an emergency and intends to use volunteer health care practitioners, that government must notify the Department of Health Services of intent (§323.14(3), Stats.)

Chapter 323 –


• Creates statutory framework for regional structural collapse team(s) (§323.72, Stats.)

• No more than 4 teams•Provides state workers’ compensation and liability coverage to team members• Provides liability exemption to sponsoring municipalities• No fiscal note

Chapter 323 –

Tribes under 323

• Intent is to encourage tribal participation

•Tribal eligibility added to the Wisconsin Disaster Fund

•Eligibility was in place under WEM 7

• Change in EPCRA law

• Encourages tribal participation in public assistance mutual aid (§323.13(1)(d), Stats.)

Chapter 323 –

Volunteers under 323

• Use of volunteers expanded to include use during an imminent threat of disaster (§323.12 & 323.40, Stats.)

• State agencies may register or pre-register volunteers (§323.18, Stats.)

• Volunteer health practitioners (§257.03, Stats.)• WEAVR registry

Chapter 323 –

Volunteers under 323, cont’d.

• Volunteer of local unit of government

• Reckless, wanton or intentional misconduct not covered (323.41(4), Stats.)• Labor may not be compensated, however:

o Allows for reimbursement of travel, lodging, or meals without loss of status (§323.40(3), Stats.)

• Must register in writing

Chapter 323 –

Volunteers under 323, cont’d.

• Reimbursement of local units of government (§323.42, Stats.)

• Local unit shall be reimbursed the excess of $1 per capita population per event

Chapter 323 –

Equipment Providers, etc. under 323

• Separate section (§323.45, Stats.)• A person who provides equipment, materials, facilities, labor, or services is not liable for civil action if providing:

• Under direction of named official; and• In response to a disaster or federal/governor declared emergency (no local declaration necessary)•Reckless, wanton, or intentional conduct not covered

Chapter 323 –

Work in Progress

• Not a perfect document but better organized and easier to understand

• Intent is to make statutory changes as needed

• Duration timeframe for public health emergency may be expanded

Chapter 323 –

Mutual Aid in WisconsinMutual Aid – Page 1

Types of Mutual AidMutual Aid –

• Neighbor helping neighbor• Intergovernmental agreements• Regional or statewide mutual aid agreements• Interstate mutual aid agreements• Public-private cooperation

Mutual Aid- Generally• Intergovernmental Cooperation (§66.0301,

Stats.)– Includes the State (its departments or agencies),

any City, Village, Town, County, and others – Also includes tribes “to the extent of its lawful

powers and duties” (§66.0301(2), Stats.)

Interstate Cooperation• Includes the State, any City, Village, Town,

County, and others• May contract with municipalities or a tribe of

another state – Must be submitted to the Attorney General to

determine proper form and compatibility with WI laws. (90 days constitutes approval)

– Attorney General will submit to Governor– If for joint exercise of fire fighting or EMS, it may

take effect before approval (§66.0303(3)(b), Stats)

INTERSTATE MUTUAL AID (LE)• Law enforcement and “Border County” (§175.46

Stats.) – Any WI county that has land within 5 miles from any land

of physically adjacent state– Any county of physically adjacent state that is within 5

miles of any WI land • A WI LE agency may enter into a mutual aid

agreement with a LE agency in a physically adjacent state (MN, IA, IL or MI)

• Act with some or all arrest or other police authority within a border county

Scope of Employment• GENERALLY, personnel dispatched remain

employees of aiding municipality.• EXCEPTION: Law enforcement personnel while

acting in response to a request for assistance in WI, shall be deemed employees of the requesting agency/municipality. – “Border County” in adjacent state, LE personnel

remain employees of original employing agency

Payment - Generally

• Generally, if there is an agreement under §66.0301, the terms of agreement prevail.– Agreement can include no payment for

assistance• If no agreement exists, the municipality

requesting assistance is responsible for personnel and equipment costs if the aiding municipality requests payment – Permissive

Gubernatorial State of EmergencyIntrastate

• A municipality or person acting under ICS may request assistance from an EM Program, EMS, Fire Dept, or Local Health Dept

• The municipality requesting assistance is responsible for personnel and equipment costs to the extent that federal, state and 3rd party reimbursement is available

• Subject to request for payment by the aiding municipality (permissive)

• Personnel and equipment must meet state plan requirements

Interstate Mutual Assistance Compact (EMAC)

• Provides mutual assistance between party states in managing emergencies declared by the Governor of the affected state. (§ 323.80, Stats.)

• Deploying personnel considered agent agents of requesting state for tort liability and immunity for good faith acts– Personnel injured treated the same as if injured in own

state for WC purposes. • Requesting state shall reimburse requesting state

– Aiding state may donate services for no cost

Mutual Aid Trends• MABAS -Mutual Aid Box Alarm System (§323.13(1)(d), Stats.)• Public Works Mutual Aid System (§323.13(1)(d), Stats.)

• Generally provides aid at no charge to stricken unit – Does not bar recovery from responsible parties or third

parties– Does not bar recovery for presidential disaster declarations

• Right of refusal to render mutual aid• Minimum insurance coverage

• Comprehensive liability, property damage, and personal injury• Indemnification and hold harmless

The Future of Mutual AidMutual Aid –

• EMAC-lite• Interstate assistance without a

Governor’s Declaration• WI/MN Agreement in place 10/2009• FEMA Region V template being drafted

• Supplemental Interstate agreements• Regional Hazardous Materials Team

providing services in adjacent states

Considering EvacuationsEvacuations –

Police Powers of the Fire Chief

• §213.095 Stats. provides authority to:

1) Suppress any disorder and order persons to leave a fire or first aid scene

2) Enter property and premises to do what is reasonably necessary to extinguish fire or aid persons at first aid scene

Evacuations –

Peace Maintenance

• §59.28 Stats. provides:• Sheriffs…, undersheriffs, and deputies… shall keep and preserve the peace…, quiet, and suppress all affrays, routs, riots, unlawful assemblies, and insurrections

Evacuations –

Creative Solutions

• Emergency detention – Chapter 51•Emergency protective placement – Chapter 55•JIPS/CHIPS•Release•“Ciardo” solution

Evacuations –

Forcible Evacuations

• Carefully weigh an individual’s constitutional rights vs. safety

• A political decision

• Seek creative solutions

Evacuations –

Other Considerations

• Pet rescue – The three P’s• Persons with disabilities• Homeless and transient populations• Evacuation impacts from other states• Securing safety perimeters• Safe return to evacuated areas

Evacuations –

Questions or Comments?

Chapter 323? Mutual Aid?

Evacuations?

Chapter 323, Mutual Aid, and Evacuations… Presented by Randi Wind Milsap, General Counsel...

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