Wednesday, May 26, 2010

The Independent FEMA's Office of the General Counsel

From April 1, 1979 until March 1, 2003, the independent Executive Branch agency FEMA had its own Office of the General Counsel. It was headed by a number of personnel including George Jett, Spence Perry, George Watson, Katherine Newman, Patricia Gormley, John Carey, Ernest Abbott, and at the end of its days by Michael Brown and David Trissel. Some of these individuals were in an acting capacity. The position of the GC was career reserved until the administration of George H.W. Bush. None of these individuals were appointed by the President and confirmed by the Senate. Five were Presidentially appointed and a number were non-career SES. This office was underfunded and understaffed throughout my time in FEMA from 1979-1999. I could rank these people in overall competence but will not because each had specific strengths and weaknesses which sometimes became critical to damaging or helping FEMA survive in the milieu of bureacratic infighting in Washington. I tried, sometimes unsuccessfully, to keep the focus of the OFFICE on FEMA programs, functions, and activities and their successful implementation or rejection of challenges to them. Why me? Will in a way I helped create FEMA even though relatively junior in the Civil Service heirarchy. In 1977 President Carter created a Presidential Reorganization Project that led to the creation of FEMA and I attened periodic meetings of lawyers working on issues related to that reorganization and after April 1, 1979 until September 10, 1979, actually headed the HUD legal team that became a formal part of the already established OGC operations of FEMA but not administratively centralized. This did occur finally at FEMA's I street, N.W. location after FEMA lost out in a battle for the Winder Building on 17th Street (a building that originally housed the telegraph offices of the Union Army where President Lincoln read telegraphed messages throughout the Civil War).
My point in stating these facts is not just history but also to provide a brief intro to critical legal and administrative decisions that impacted FEMA throughout its history as an independent agency. Over time several will be discussed in this blog.
One of the key decisions supported by all of the individuals who ran FEMA OGC over the years was that the Office would never SELF-INITIATE a formal legal opinion to a client unless asked for that opinion in writing. There are arguments both as to the wisdom and stupidity of this policy but that is not my purpose here. In fact, IMO Congress should draft an statute like the CFO and CIO statutes that deals with the position and responsibilty of Department and Agency General Counsels. FEMA now has an Office of the Chief Counsel that reports to the General Counsel of DHS.
In the fall of 1998 I prepared a short note to the General Counsel and staff of OGC that dealt with programmatic legal issues. The text follows and you can draw your own conclusions:

"Next spring on April 1, 1999, FEMA completes its first 20 years as a federal agency. No General Counsel of FEMA has addressed, and more importantly no FEMA official has requested the General Counsel to address, a number of issues that over the years have impacted [IMO] programs and operations of what is now the RESPONSE AND RECOVERY Directorate portfolio. Perhaps, between now and next April, these issues could either be addressed in legal opinions, 1 or 2 per month, or a determination be made that only a legislative solution exists. [And of course this did NOT happen]

The following list briefly discusses legal issues not comprehensively addressed in written OGC opinions presently impacting on program operations in a manner that could prevent efficient and effective implementation of current FEMA policies.

1. What restrictions exist on the Director's authority to pre-deploy FEMA personnel or mission assign other departments and agencies prior to the declaration of a disaster or emergency?

2. What authority does FEMA have to directly respond to events that are disasters or emergencies where STATE or local government is overwhelmed or non-operative?

3. What is the Director's discretion to provide non-financial assistance to STATE and local governments during disasters and emergencies?

4. What legal limits exist on the Director's furnishing financial assistance to the federal, STATE, and/or local law enforcement community?

5. What training and protective gear must be provided under OSHA to FEMA personnel prior to their employment in potentially contaminated areas?

6. Is FEMA excluded by any federal, state, or local law from providing humanitarian assistance, including financial, in any particular type of class of events that might otherwise be considered a disaster or emergency?

7. What is the inter-play between the Robert T. Stafford Act and the Price-Anderson Act?

8. Whate are the specific sections of the statutes and executive orders delegating Presidential authority that provide response and recovery authority?

9. Did the repeal of the Federal Civil Defense Act of 1950 (Public Law 920 of the 81st Congress) have any direct legal impact on RESPONSE AND RECOVERY programs, functins, or activities or operations?

10. Does new Title V of the Robert T. Stafford Act give the Director any new authority that is potentially applicable to the RESPONSE AND RECOVERY DIRECTORATE programs, functions, and authorities?

11. Should other departments and/or agencies decline or fail to carry out their statutory or executive order roles in emergency preparedness, mitigation, response or recovery is FEMA legally the saftey net?

12. Are there any present legal gaps in the Director's authority that could cripple (i.e. make ineffective or inefficient) the operations of FEMA in a disaster or emergency?

13. Do any of the statutes vesting authority in the Director or Response and Recovery Directorate by delegation so far not utilized in planning, preparedness, mitigiation, response or recovery?"

It would be interesting to know if any of the topics listed above could be considered addressed even partially over a decade later. One might add of course what authority exists elsewhere in DHS to assist FEMA in its disaster response and recovery operations.

A second policy of FEMA's independent OGC that was effectively in force during my service and modified only by GC Pat Gormley was the policy of never identifying other legal authorities that might be of assistance to FEMA in its programs, functions, and activities when the client requested an opinion under a specific statute! This policy and its implications will be discussed in a later post. Ah yes stovepipes exist even in the legal world of the federal government.