In view of the existing and increasing possibility of the occurrence of disasters of unprecedented size and destructiveness and large-scale threats, resulting from terrorism, enemy attack, sabotage or other hostile action, or from fire, flood, earthquakes or other natural or man-made causes and in order to insure that preparations of this state will be adequate to deal with the disasters and large-scale threats, and generally to provide for the common defense and to protect the public peace, health and safety and to preserve the lives and property of the people of the state, it is found and declared to be necessary: (1) To create the Division of Homeland Security and Emergency Management and to authorize the creation of local and regional organizations for emergency services in the political subdivisions of the state; (2) to confer upon the Governor and upon the executive heads of governing bodies of the political subdivisions of the state the emergency powers provided herein; (3) to provide for the rendering of mutual aid among the political subdivisions of the state and with other states and to cooperate with the federal government with respect to the carrying out of emergency services and homeland security functions; and (4) to establish and implement comprehensive homeland security and emergency management plans to deal with such disasters and large-scale threats. It is further declared to be the purpose of this article and the policy of the state that all homeland security and emergency management funds and functions of this state be coordinated to the maximum extent with the Secretary of the Department of Military Affairs and Public Safety and with the comparable functions of the federal government including its various departments and agencies, of other states and localities and of private agencies of every type, so that the most effective preparation and use may be made of the nation's and this state's manpower, resources and facilities for dealing with any disaster or large-scale threat that may occur.
(a) "Emergency services" means the preparation for and the carrying out of all emergency functions, other than functions for which military forces are primarily responsible, to protect, respond and recover, to prevent, detect, deter and mitigate, to minimize and repair injury and damage resulting from disasters or other event caused by flooding, terrorism, enemy attack, sabotage or other natural or other man-made causes. These functions include, without limitation, fire-fighting services, police services, medical and health services, communications, radiological, chemical and other special weapons defense, evacuation of persons from stricken areas, emergency welfare services, emergency transportation, existing or properly assigned functions of plant protection, temporary restoration of public utility services and other functions related to the health, safety and welfare of the citizens of this state, together with all other activities necessary or incidental to the preparation for and carrying out of the foregoing functions. Disaster includes the imminent threat of disaster as well as its occurrence and any power or authority exercisable on account of a disaster that may be exercised during the period when there is an imminent threat thereof;
(b) "Local organization for emergency services" means an organization created in accordance with the provisions of this article by state or local authority to perform local emergency services function;
(c) "Mobile support unit" means an organization for emergency services created in accordance with the provisions of this article by state or local authority to be dispatched by the Governor to supplement local organizations for emergency services in a stricken area;
(d) "Political subdivision" means any county or municipal corporation in this state;
(e) "Board" means the West Virginia Disaster Recovery Board created by this article;
(f) "Code" means the Code of West Virginia, one thousand nine hundred thirty-one, as amended;
(g) "Community facilities" means a specific work or improvement within this state or a specific item of equipment or tangible personal property owned or operated by any political subdivision or nonprofit corporation and used within this state to provide any essential service to the general public;
(h) "Disaster" means the occurrence or imminent threat of widespread or severe damage, injury, or loss of life or property resulting from any natural or terrorist or man-made cause, including weapons of mass destruction, fire, flood, earthquake, wind, snow, storm, chemical or oil spill or other water or soil contamination, epidemic, air contamination, blight, drought, infestation or other public calamity requiring emergency action;
(i) "Disaster recovery activities" means activities undertaken prior to, during or following a disaster to provide, or to participate in the provision of, emergency services, temporary housing, residential housing, essential business activities and community facilities;
(j) "Essential business activities" means a specific work or improvement within this state or a specific item of equipment or tangible personal property used within this state by any person to provide any essential goods or service deemed by the authority to be necessary for recovery from a disaster;
(k) "Person" means any individual, corporation, voluntary organization or entity, partnership, firm or other association, organization or entity organized or existing under the laws of this or any other state or country;
(l) "Recovery fund" means the West Virginia Disaster Recovery Trust Fund created by this article;
(m) "Residential housing" means a specific work or improvement within this state undertaken primarily to provide dwelling accommodations, including the acquisition, construction or rehabilitation of land, buildings and improvements thereto, for residential housing, including, but not limited to, facilities for temporary housing and emergency housing, and such other nonhousing facilities as may be incidental or appurtenant thereto;
(n) "Temporary housing" means a specific work or improvement within this state undertaken primarily to provide dwelling accommodations, including the acquisition, construction or rehabilitation of land, buildings and improvements thereto, for temporary residential shelters or housing for victims of a disaster and such other nonhousing facilities as may be incidental or appurtenant thereto; and
(o) "Secretary" means the Secretary of the West Virginia Department of Military Affairs and Public Safety.
(b) A Director of the Division of Homeland Security and Emergency Management shall be appointed by the Governor, by and with the advice and consent of the Senate. The Governor shall consider applicants for Director who at a minimum: (1) Have at least five years managerial or strategic planning experience; (2) are knowledgeable in matters relating to public safety, homeland security, emergency management and emergency response; and (3) have at a minimum, a federally issued secret level security clearance or have submitted to or will submit to a security clearance investigation for the purpose of obtaining, at a minimum, a federally issued secret level security clearance.
(c) The Director may employ such technical, clerical, stenographic and other personnel, fix their compensation and make expenditures within the appropriation to the Division or from other funds made available for the purpose of providing homeland security and emergency management services to carry out the purpose of this article. Employees of the Division of Homeland Security and Emergency Management shall be members of the State Civil Service System and all appointments of the office, except those required by law to be exempt, shall be a part of the classified service under the Civil Service System.
(d) The Director and other personnel of the Division of Homeland Security and Emergency Management shall be provided with appropriate office space, furniture, equipment, supplies, stationery and printing in the same manner as provided for personnel of other state agencies.
(e) The Director, subject to the direction and control of the Governor through the Secretary of the Department of Military Affairs and Public Safety, shall be executive head of the Division of Homeland Security and Emergency Management and shall be responsible to the Governor and the Secretary of the Department of Military Affairs and Public Safety for carrying out the program for homeland security and emergency management in this state. The Director in consultation with the Secretary of the Department of Military Affairs and Public Safety shall coordinate the activities of all organizations for homeland security and emergency management within the state and maintain liaison with and cooperate with homeland security, emergency management and other emergency service and civil defense agencies and organizations of other states and of the federal government, and shall have additional authority, duties and responsibilities authorized by this article as may be prescribed by the Governor or the Secretary of the Department of Military Affairs and Public Safety.
(f) The Director shall have the power to acquire in the name of the state by purchase, lease or gift, real property and rights or easements necessary or convenient to construct thereon the necessary building or buildings for housing and homeland security and emergency management control center.
(a) There is hereby created the West Virginia disaster recovery board. The board shall advise the governor and the director on all matters pertaining to emergency services and to perform such other duties as set forth in this article. The board shall be composed of nine members, seven of whom shall be appointed by the governor by and with the advice and consent of the Senate, and one of whom shall be the governor or his or her designee, who shall be chairman of the board and one of whom shall be the secretary of the department of public safety or his or her designee. The successor of each such appointed member shall be appointed in the same manner as the original appointments were made. No more than four of the appointed board members shall at any one time belong to the same political party: Provided, That each congressional district of this state shall be represented by a member of the board.
(b) The provisions of this subsection apply to the seven members appointed by the governor. They shall be appointed for overlapping terms of three years and until their respective successors have been appointed and have qualified. For the purpose of original appointments, three members shall be appointed for a term of three years, two members shall be appointed for a term of two years, and two members shall be appointed for a term of one year. Members may be reappointed for any number of terms. Before entering upon the performance of his or her duties, each member shall take and subscribe to the oath prescribed by section five, article four of the constitution of this state. Vacancies shall be filled by appointment by the governor for the unexpired term of the member whose office shall be vacant and such appointment shall be made within sixty days of the occurrence of such vacancy. Members shall receive no compensation for the performance of their duties as members, but shall be entitled to be reimbursed for all reasonable and necessary expenses actually incurred in the performance of their duties.
(c) A majority of the members of the board constitutes a quorum and meetings shall be held at the call of the chairman. No vacancy or absence in the membership of the board shall impair the rights of a quorum by a vote of the majority participating in such meeting to exercise all the rights and perform all the duties of the board and the authority.
(d) Upon the occurrence of a disaster requiring immediate action by the board, meetings of the board may be held by telephone conference call or other electronic communications and shall be exempt from the notice requirements of article nine-a, chapter six of this code. Any action taken pursuant to a vote of the board at any such meeting shall not be subject to invalidation by a person adversely affected by such action.
(e) The board shall annually elect one of the appointed members as vice chairman, and shall appoint one of its appointed members as secretary-treasurer. The member appointed as secretary-treasurer shall give bond in the sum of fifty thousand dollars in the manner provided in article two, chapter six of this code.
(f) All expenses incurred by the board shall be payable solely from funds of the board or from funds appropriated for such purpose by the Legislature and no liability or obligation shall be incurred by the board beyond the extent to which moneys are available from funds of the board or from such appropriations.
(g) Due to the fact that a natural disaster could strike any part of the state at any time, it is necessary to effectuate a means to immediately implement the provisions of this article. Therefore, until the board has been appointed the governor shall have the authority to:
(1) Accept and expend any private funds and expend no more than one million dollars of the governor's contingency fund for fiscal year one thousand nine hundred ninety to provide disaster relief as authorized in this article for any counties where disasters may occur before the board is appointed; and
(2) Report to the board when it is appointed on moneys expended and actions taken so that the board may include this information in its annual report required by section twelve of this article.
The board shall have the power, upon its own determination that a disaster has occurred or is about to occur in this state, to disburse funds from the disaster relief recovery trust fund created pursuant to section twenty-four of this article to any person, political subdivision or local organization for emergency services in such amounts and in such manner, and to take such other actions, as the board may determine is necessary or appropriate in order to provide assistance to any person, political subdivision or local organization for emergency services responding to or recovering from the disaster, or otherwise involved in disaster recovery activities.
The board is hereby granted, has and may exercise all powers necessary or appropriate to carry out and effectuate the purposes set forth in section four-b of this article. The authority has the power:
(1) To accept appropriations, gifts, grants, bequests and devises from any source, public or private, for deposit into the recovery fund, and to use or dispose of the same to provide assistance to any person, political subdivision or local organization for emergency services responding to or recovering from a disaster, or otherwise involved in disaster recovery activities;
(2) To make and execute contracts, leases, releases and other instruments necessary or convenient for the exercise of its power;
(3) To make, and from time to time, amend and repeal bylaws for the governance of its activities not inconsistent with the provisions of this article;
(4) To sue and be sued;
(5) To acquire, hold and dispose of real and personal property;
(6) To enter into agreements or other transactions with any federal or state agency, political subdivision or person;
(7) To provide for the deposit of any funds or assets of the West Virginia disaster relief recovery trust fund with the state board of investments for investment;
(8) To procure insurance against any loss in connection with its property in such amounts, and from such insurers, as may be necessary or desirable;
(9) To use the recovery trust fund to pay the costs incurred by any state department or agency for the purpose of obtaining property appraisals and other certifications necessary to justify the involvement of the federal emergency management agency and to allow its determination of a presidentially declared disaster;
(10) To establish, or assist in the establishment of, temporary housing and residential housing by, with or for political subdivisions declared to be in a disaster area by the federal emergency management agency or other agency or instrumentality of the United States or by the governor of this state;
(11) To enter into purchase, lease, or other arrangements with an agency of the United States or this state for temporary housing or residential housing units to be occupied by disaster victims and make such units available to any political subdivision or persons;
(12) To assist political subdivisions, local organizations for emergency services and nonprofit corporations in acquiring sites necessary for temporary housing or residential housing for disaster victims and in otherwise preparing the sites to receive and use temporary housing or residential housing units, including payment of transportation charges, by advancing or lending funds available to the board from the recovery fund;
(13) To make grants and provide technical services to assist in the purchase or other acquisition, planning, processing, design, construction, or rehabilitation, improvement or operation of temporary housing or residential housing: Provided, That no such grant or other financial assistance shall be provided except upon a written finding by the board that such assistance and the manner in which it will be provided constitute a disaster recovery activity;
(14) To make or participate in the making of insured or uninsured construction and permanent loans or grants for temporary housing or residential housing, community facilities and essential business activities: Provided, That no such loan or grant shall be made except upon a written finding by the board that the loan or grant and the manner in which it will be provided constitute a disaster recovery activity and that the loan or grant is not otherwise available, wholly or in part, from a private or public lender upon reasonably equivalent terms and conditions; and
(15) Do all acts necessary and proper to carry out the powers granted to the board under this article.
In performing his duties under this article, the governor is authorized to cooperate with the federal government, other states and private agencies in all matters pertaining to the provisions of emergency services for this state and the nation.
In performing his duties under this article to effect its policy and purpose, the governor is further authorized and empowered:
(1) To make, amend and rescind the necessary orders, rules and regulations to carry out the provisions of this article within the limits of the authority conferred upon him herein, with due consideration of the plans of the federal government.
(2) To prepare and implement a comprehensive plan and program for the provision of emergency services in this state, such plan and program to be integrated into and coordinated with comparable plans of the federal government and of other states to the fullest possible extent, and to coordinate the preparation of such plans and programs by the political subdivisions of this state, such plans to be integrated into and coordinated with the state plan and program to the fullest possible extent.
(3) In accordance with such state plan and program, to procure supplies and equipment, to institute training and public information programs, to take all other preparatory steps including the partial or full mobilization of emergency services organizations in advance of actual disaster and to insure the furnishing of adequately trained and equipped emergency services personnel in time of need.
(4) To make such studies and surveys of industries, resources and facilities in this state as may be necessary to ascertain the capabilities of the state for providing emergency services and to plan for the most efficient emergency use thereof.
(5) On behalf of the state, to enter into mutual aid arrangements with other states and to coordinate mutual aid plans between political subdivisions of this state.
(6) To delegate the administrative authority vested in him under this article, to provide for the delegation or transfer or both of the authority vested in the director under the provisions of this article, to any other person as the governor in his discretion may direct, and to provide for the subdelegation of any such authority.
(7) To appoint a disaster recovery team composed of departmental heads, members of the executive, political subdivision representatives, technicians, members of the public and other representatives, the composition of which team shall reflect the character and extent of the disaster itself.
(8) To appoint, in cooperation with local authorities, metropolitan area directors when practicable.
(9) To cooperate with the president and the heads of the armed forces, the civil defense agency of the United States and other appropriate federal officers and agencies and with the officers and agencies of other states in matters pertaining to the civil defense of the state and nation, including the direction and control of (a) blackouts and practice blackouts, air raid drills, mobilization of emergency services and civil defense forces and other tests and exercises; (b) warnings and signals for drills or attacks and the mechanical devices to be used in connection therewith; (c) the effective screening or extinguishing of all lights and lighting devices and appliances; (d) shutting off water mains, gas mains, electric power connections and the suspension of all other utility services; (e) the conduct of civilians and the movement and cessation ofmovement of pedestrians and vehicular traffic during, prior and subsequent to drills or attack; (f) public meetings or gatherings; and (g) the evacuation and reception of the civilian population.
(a) The provisions of this section are operative only during the existence of a state of emergency or state of preparedness. The existence of a state of emergency or state of preparedness may be proclaimed by the Governor or by concurrent resolution of the Legislature if the Governor in the proclamation, or the Legislature in the resolution, finds that an attack upon the United States has occurred or is anticipated in the immediate future, or that a natural or man-made disaster of major proportions has actually occurred or is imminent within the state, or that an emergency exists or may be imminent due to a large-scale threat beyond local control, and that the safety and welfare of the inhabitants of this state require an invocation of the provisions of this section.
(b) Any state of emergency or state of preparedness, whether proclaimed by the Governor or by the Legislature, terminates upon the proclamation of the termination by the Governor, or the passage by the Legislature of a concurrent resolution terminating the state of emergency or state of preparedness: Provided, That in no case shall a state of preparedness last longer than thirty days.
(c) So long as a state of emergency or state of preparedness exists, the Governor has and may exercise the following additional emergency powers:
(1) To enforce all laws and rules relating to the provision of emergency services and to assume direct operational control of any or all emergency service forces and helpers in the state;
(2) To sell, lend, lease, give, transfer or deliver materials or perform functions relating to emergency services on terms and conditions he or she prescribes and without regard to the limitations of any existing law and to account to the State Treasurer for any funds received for the property;
(3) To procure materials and facilities for emergency services by purchase, condemnation under the provisions of chapter fifty-four of this code or seizure pending institution of condemnation proceedings within thirty days from the seizing thereof and to construct, lease, transport, store, maintain, renovate or distribute the materials and facilities. Compensation for property so procured shall be made in the manner provided in chapter fifty-four of this code;
(4) To obtain the services of necessary personnel, required during the emergency, and to compensate them for their services from his or her contingent funds or other funds available to him or her;
(5) To provide and compel the evacuation of all or part of the population from any stricken or threatened area within the state and to take steps that are necessary for the receipt and care of the evacuees;
(6) To control ingress and egress to and from a disaster area or an area where large-scale threat exists, the movement of persons within the area and the occupancy of premises therein;
(7) To suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business or the orders, rules of any state agency, if strict compliance therewith would in any way prevent, hinder or delay necessary action in coping with the emergency;
(8) To use available resources of the state and of its political subdivisions that are reasonably necessary to cope with the emergency;
(9) To suspend or limit the sale, dispensing or transportation of alcoholic beverages, explosives and combustibles; (10) To make provision for the availability and use of temporary emergency housing; and
(11) To perform and exercise other functions, powers and duties that are necessary to promote and secure the safety and protection of the civilian population.
(d) The declaration of a state of preparedness has the same effect as a declaration of a state of emergency for the purposes of the Emergency Management Assistance Compact established in section twenty-two of this article and the Statewide Mutual Aid Systems set forth in section twenty-eight of this article.
Personnel of mobile support units while on duty, whether within or without the state, shall: (1) If they are employees of the state, have the powers, duties, rights, privileges and immunities and receive the compensation incidental to their employment; (2) if they are employees of a political subdivision of the state and whether serving within or without such political subdivision, have the powers, duties, rights, privileges and immunities and receive the compensation incidental to their employment; and (3) if they are not employees of the state or a political subdivision thereof, be entitled to compensation by the state at the same rate as is paid members of circuit court juries and to the same rights and immunities as are provided by law for the employees of this state. All personnel of mobile support units shall, while on duty, be subject to the operational control of the authority in charge of emergency service activities in the area in which they are serving and shall be reimbursed for all necessary travel and subsistence expenses actually incurred.
The state shall reimburse a political subdivision for the compensation paid and necessary travel, subsistence and maintenance expenses actually incurred of employees of such political subdivision while serving as members of a mobile support unit and for all payments for death, disability or injury of such employees incurred in the course of duty and for all losses of or damage to supplies and equipment of such political subdivision resulting from the operation of such mobile support unit.
Each local organization for emergency services shall consist of a director and a local emergency services council and such other members as may be required. The director shall be appointed by the executive officer or governing body of the political subdivision to serve at the will and pleasure of the executive officer or governing body and such political subdivisions are authorized to provide adequate compensation for him. The local council shall consist of five members, appointed by the executive officer or governing body of the political subdivision: Provided, That not more than three members thereof shall be members of the same political party. Council members shall serve a term of years staggered to provide continuity of service in accordance with local needs, without compensation, but shall be reimbursed for the reasonable and necessary expenses actually incurred in the performance of their duties.
The executive officer or governing body of the political subdivision shall have general direction and control of the local emergency services organization and shall be responsible for carrying out the provisions of this article. The director, subject to the direction and control of such executive officer or governing body, shall be executive head of the local emergency services organization and shall be directly responsible to the executive officer or governing body for the organization, administration and operation of the local emergency services program. The local council shall advise the director on all matters pertaining to emergency services. Each local organization shall perform emergency service functions within the territorial limits of the political subdivisions within which it is organized and, in addition, conduct such functions outside of such territorial limits as may be required pursuant to the provisions of sections nine and ten of this article.
In carrying out the provisions of this article each political subdivision in which any disaster as described in section one of this article occurs shall have the power to enter into contracts and incur obligations necessary to combat such disaster, protect the health and safety of persons and property and provide emergency assistance to the victims of such disaster. Each political subdivision is authorized to exercise its powers under this section in light of the exigencies of extreme emergency situations without regard to time-consuming procedures and formalities prescribed by law (excepting mandatory constitutional requirements) pertaining to the performance of public work, entry into contracts, incurring of obligations, employment of temporary workers, rental of equipment, purchase of supplies and materials, levying of taxes and appropriation and expenditure of public funds.
The director of each local organization may, subject to the approval of the governor, enter into mutual aid agreements with emergency service and civil defense agencies or organizations in other states for reciprocal aid and assistance in case of disaster too great to be dealt with unassisted.
Any such organization may, within the limits of the funds made available for the purpose by the local political subdivisions included in the region or by the state, employ necessary personnel and fix their compensation, if any. Any such regional organization may be dissolved, reorganized or rearranged by the governor whenever in his discretion such action is necessary.
(b) Any requirement for a license to practice any professional, mechanical or other skill does not apply to an authorized emergency service worker who shall, in the course of performing his or her duties, practice such skill during an emergency.
(c) As used in this section, "duly qualified emergency service worker" means:
(1) Any duly qualified full or part-time paid, volunteer or auxiliary employee of this state, or any other state, territory, possession or the District of Columbia, of the federal government, of any neighboring country or political subdivision thereof or of any agency or organization performing emergency services in this state subject to the order or control of or pursuant to the request of the state or any political subdivision thereof.
(2) Duly qualified instructors and properly supervised students in recognized educational programs where emergency services are taught. A recognized educational program shall include any program in an educational institution existing under the laws of this state and such other educational programs as shall be established by the Division of Homeland Security and Emergency Management or otherwise under this article.
(3) A member of any duly qualified mine rescue team designated by a mine operator pursuant to the provisions of section thirty-five, article one, chapter twenty-two-a of this code who is performing or engaging in emergency rescue services.
(d) A duly qualified emergency service worker performing his or her duty in this state pursuant to any lawful agreement, compact or arrangement for mutual aid and assistance to which the state or a political subdivision is a party shall possess the same powers, duties, immunities and privileges he or she would possess if performing the same duties in his or her own state, province or political subdivision thereof.
(b) Whenever the federal government or any agency or officer thereof shall offer to any authority, corporation, partnership or other entity, public or private or the state, or through the state to any political subdivision thereof, services, equipment, supplies, materials or funds by way of gift, grant or loan, for purposes relating to homeland security or emergency services, the state, after consultation and in coordination with the Secretary and acting through the Governor, or a political subdivision after consultation and in coordination with the Secretary and acting with the consent of the Governor and through its executive officer or governing body, may accept the offer. Upon acceptance, the Governor of the state or executive officer or governing body of the political subdivision may authorize any officer of the state or of the political subdivision, as the case may be, to receive services, equipment, supplies, materials or funds on behalf of the state or the political subdivision and subject to the terms of the offer and the rules and regulations, if any, of the agency making the offer.
(c) Whenever any person, firm or corporation shall offer to the state or to any political subdivision thereof, services, equipment, supplies, materials or funds by way of gift, grant or loan, for purposes relating to homeland security or emergency services, the state, after consultation and in coordination with the Secretary and acting through the Governor, or the political subdivision after consultation and in coordination with the Secretary and acting through its executive officer or governing body, may accept the offer. Upon acceptance, the Governor of the state or executive officer or governing body of the political subdivision may authorize any officer of the state or of the political subdivision, as the case may be, to receive services, equipment, supplies, materials or funds on behalf of the state or the political subdivision and subject to the terms of the offer.
(d) The Governor may require any agency, authority, corporation, partnership or other entity to furnish a report, in both written and electronic form, detailing the source and receipt of all services, equipment, supplies, materials or funds for purposes relating to homeland security or emergency services as a condition of receiving these from the state. Within ten days of the receipt of any reports required under this subsection, the Governor shall furnish copies thereof to the Legislature.
(b) Each person who is appointed to serve in an organization for homeland security or emergency services shall undergo a background check and shall, before entering upon his or her duties, take an oath, in writing, before a person authorized to administer oaths in this state, which shall be substantially as follows:
"I,_________________, do solemnly swear or affirm that I will support and defend the Constitution of the United States and the Constitution of West Virginia against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or evasion; that I am not a convicted felon; and that I will faithfully and competently discharge the duties upon which I am about to enter.
"I do further swear or affirm that I do not advocate, nor am I a member of any political party or organization that advocates, the overthrow of the government of the United States or this state by force or violence; while I am a member of the (name of organization) I will not advocate or become a member of any political party or organization that advocates the overthrow of the government of the United States or this state by force or violence."
Any state employee who is a certified disaster service volunteer of the American Red Cross may be granted leave from his or her state employment with pay, for not more than fifteen work days in each year, to participate in specialized disaster relief services for the American Red Cross. Leave shall be granted under this section upon the request of the American Red Cross for the services of that employee and only upon the approval of that employee's immediate supervisor. Leave shall be granted without loss of pay, annual leave, sick leave, earned overtime compensation, seniority or compensatory time. The state shall compensate an employee granted leave under this section at the employee's regular rate of pay for those regular work hours during which the employee is absent from his or her state employment. Any supervisor granting leave to an employee for purposes of participating in specialized disaster relief shall make a report to the governor which includes the name of the employee and the cost of salary and benefits of that employee during the period of the leave. The governor shall keep a record of the total cost of the salary and benefits of employees who have been granted leave and in no event shall the total cost for all state agencies exceed one hundred thousand dollars: Provided, That upon approval of the governor and repayment of the cost to the employing agency, from the civil contingent fund, leave may be granted in an excess of a total cost of one hundred thousand dollars if a state of emergencyhas been proclaimed pursuant to section six of this article.
(a) No person acting on behalf or under the authority of the state or a political subdivision of the state may do any of the following during any federal or state declared state of emergency:
(1) Prohibit or restrict the otherwise lawful possession, use, carrying, transfer, transportation, storage or display of a firearm or ammunition;
(2) Seize, confiscate, or authorize the seizure or confiscation of any otherwise lawfully-possessed firearm or ammunition unless:
(A) The person acting on behalf of or under the authority of the state or political subdivision is:
(i) Defending himself or another from an assault; or,
(ii) Arresting a person in actual possession of a firearm or ammunition for a violation of law; or,
(B) The firearm or ammunition is being seized or confiscated as evidence of a crime; or,
(3) Require registration of any firearm or ammunition.
(b) The prohibitions of subsection (a)(1) do not prohibit the state or an authorized state or local authority from ordering and enforcing an evacuation or general closure of businesses in the affected area during a declared state of emergency.
(c) Any individual aggrieved by a violation of this section may seek relief in an action at law or in equity for redress against any person who subjects such individual, or causes such individual to be subjected, to an action prohibited by this section.
(d) In addition to any other remedy at law or in equity, an individual aggrieved by the seizure or confiscation of a firearm or ammunition in violation of this section may bring an action for the return of such firearm or ammunition in the circuit court of the county in which that individual resides or in which such firearm or ammunition is located.
(a) In addition to disaster prevention measures as included in the state, local, regional and interjurisdictional disaster plans, the Governor shall consider on a continuing basis steps that could be taken to prevent or reduce the harmful consequences of disasters. At his or her direction, and pursuant to any other authority and competence they have, state agencies, including, but not limited to, those charged with responsibilities in connection with floodplain management, stream encroachment and flow regulation, weather modification, fire prevention and control, air quality, public works, land use and land-use planning and construction standards, shall make studies of disaster prevention-related matters. The Governor, from time to time, shall make such recommendation to the Legislature, political subdivisions and other appropriate public and private entities as may facilitate measures for prevention or reduction of the harmful consequences of disasters.
(b) At the request of and in conjunction with the Office of Emergency Services, the divisions of energy, natural resources and highways and any state department insured by the Board of Risk and Insurance Management shall keep land use and construction of structures and other facilities under continuing study and identify areas which are particularly susceptible to severe land shifting, subsidence, flooding or other catastrophic occurrences. Such studies shall concentrate on means of reducing or avoiding the dangers caused by such occurrences and the consequences thereof.
(a) Community participation in the National Flood Insurance Program is important to manage and mitigate the special flood hazard areas in West Virginia. Therefore, all state, county, municipality and local floodplain managers should be adequately trained in floodplain management.
(b) Commencing July 1, 2012, each floodplain manager in the state is required to complete six hours of training in floodplain management annually to maintain good standing with the West Virginia Division of Homeland Security.
(c) A governmental unit that has a floodplain manager who fails to obtain the required training shall suspend the floodplain manager from his or her floodplain management responsibilities until the training requirement is met.
(d) A governmental unit that has a floodplain manager who fails to obtain the required training shall transfer its floodplain management responsibilities and all associated fees to a governmental unit that has a floodplain manager in good standing.
The "Emergency Management Assistance Compact" is hereby approved, ratified, adopted, enacted into law and entered into by the state of West Virginia with all other jurisdictions legally joining therein in accordance with its terms, in a form substantially as follows:
EMERGENCY MANAGEMENT ASSISTANCE COMPACT
ARTICLE I - PURPOSE AND AUTHORITIES
This compact is made and entered into by and between the participating member states which enact this compact, hereinafter called party states. For the purposes of this agreement, the term "states" is taken to mean the several states, the Commonwealth of Puerto Rico, the District of Columbia, and all United States territorial possessions.
The purpose of this compact is to provide for mutual assistance between the states entering into this compact in managing any emergency or disaster that is duly declared by the governor of the affected state(s), whether arising from natural disaster, technological hazard, man-made disaster, civil emergency aspects of resources shortages, community disorders, insurgency or enemy attack.
This compact shall also provide for mutual cooperation in emergency-related exercises, testing or other training activities using equipment and personnel simulating performance of any aspect of the giving and receiving of aid by party states or subdivisionsof party states during emergencies, such actions occurring outside actual declared emergency periods. Mutual assistance in this compact may include the use of the states' National Guard forces, either in accordance with the National Guard Mutual Assistance Compact or by mutual agreement between states.
ARTICLE II - GENERAL IMPLEMENTATION
Each party state entering into this compact recognizes many emergencies transcend political jurisdictional boundaries and that intergovernmental coordination is essential in managing these and other emergencies under this compact. Each state further recognizes that there will be emergencies which require immediate access and present procedures to apply outside resources to make a prompt and effective response to such an emergency. This is because few, if any, individual states have all the resources they may need in all types of emergencies or the capability of delivering resources to areas where emergencies exist.
The prompt, full, and effective utilization of resources of the participating states, including any resources on hand or available from the federal government or any other source, that are essential to the safety, care and welfare of the people in the event of any emergency or disaster declared by a party state, shall be the underlying principle on which all articles of this compact shall be understood.
On behalf of the governor of each state participating in the compact, the legally designated state official who is assignedresponsibility for emergency management will be responsible for formulation of the appropriate interstate mutual aid plans and procedures necessary to implement this compact.
ARTICLE III - PARTY STATE RESPONSIBILITIES
(a) It shall be the responsibility of each party state to formulate procedural plans and programs for interstate cooperation in the performance of the responsibilities listed in this article. In formulating such plans, and in carrying them out, the party states, insofar as practical, shall:
(1) Review individual state hazards analyses and, to the extent reasonably possible, determine all those potential emergencies the party states might jointly suffer, whether due to natural disaster, technological hazard, man-made disaster, emergency aspects of resource shortages, civil disorders, insurgency or enemy attack.
(2) Review party states' individual emergency plans and develop a plan which will determine the mechanism for the interstate management and provision of assistance concerning any potential emergency.
(3) Develop interstate procedures to fill any identified gaps and to resolve any identified inconsistencies or overlaps in existing or developed plans.
(4) Assist in warning communities adjacent to or crossing the state boundaries.
(5) Protect and assure uninterrupted delivery of services,medicines, water, food, energy and fuel, search and rescue, and critical lifeline equipment, services and resources, both human and material.
(6) Inventory and set procedures for the interstate loan and delivery of human and material resources, together with procedures for reimbursement or forgiveness.
(7) Provide, to the extent authorized by law, for temporary suspension of any statutes or ordinances that restrict the implementation of the above responsibilities.
(b) The authorized representative of a party state may request assistance of another party state by contacting the authorized representative of that state. The provisions of this agreement shall only apply to requests for assistance made by and to authorized representatives. Requests may be verbal or in writing. If verbal, the request shall be confirmed in writing within thirty days of the verbal request. Requests shall provide the following information:
(1) A description of the emergency service function for which assistance is needed, such as but not limited to fire services, law enforcement, emergency medical, transportation, communications, public works and engineering, building inspection, planning and information assistance, mass care, resource support, health and medical services, and search and rescue.
(2) The amount and type of personnel, equipment, materials and supplies needed, and a reasonable estimate of the length of timethey will be needed.
(3) The specific place and time for staging of the assisting party's response and a point of contact at that location.
(c) There shall be frequent consultation between state officials who have assigned emergency management responsibilities and other appropriate representatives of the party states with affected jurisdictions and the United States government, with free exchange of information, plans and resource records relating to emergency capabilities.
ARTICLE IV - LIMITATIONS
Any party state requested to render mutual aid or conduct exercises and training for mutual aid shall take such action as is necessary to provide and make available the resources covered by this compact in accordance with the terms hereof: Provided, That it is understood that the state rendering aid may withhold resources to the extent necessary to provide reasonable protection for such state.
Each party state shall afford to the emergency forces of any party state, while operating within its state limits under the terms and conditions of this compact, the same powers (except that of arrest unless specifically authorized by the receiving state), duties, rights, and privileges as are afforded forces of the state in which they are performing emergency services. Emergency forces will continue under the command and control of their regular leaders, but the organizational units will come under theoperational control of the emergency services authorities of the state receiving assistance. These conditions may be activated, as needed, only subsequent to a declaration of a state of emergency or disaster by the governor of the party state that is to receive assistance or commencement of exercises or training for mutual aid and shall continue so long as the exercises or training for mutual aid are in progress, the state of emergency or disaster remains in effect or loaned resources remain in the receiving state(s), whichever is longer.
ARTICLE V - LICENSES AND PERMITS
Whenever any person holds a license, certificate or other permit issued by any state party to the compact evidencing the meeting of qualifications for professional, mechanical or other skills, and when such assistance is requested by the receiving party state, such person shall be deemed licensed, certified, or permitted by the state requesting assistance to render aid involving such skill to meet a declared emergency or disaster, subject to such limitations and conditions as the governor of the requesting state may prescribe by executive order or otherwise.
ARTICLE VI - LIABILITY
Officers or employees of a party state rendering aid in another state pursuant to this compact shall be considered agents of the requesting state for tort liability and immunity purposes; and no party state or its officers or employees rendering aid in another state pursuant to this compact shall be liable on accountof any act or omission in good faith on the part of such forces while so engaged or on account of the maintenance or use of any equipment or supplies in connection therewith. Good faith in this article shall not include willful misconduct, gross negligence or recklessness.
ARTICLE VII - SUPPLEMENTARY AGREEMENTS
Inasmuch as it is probable that the pattern and detail of the machinery for mutual aid among two or more states may differ from that among the states that are party hereto, this instrument contains elements of a broad base common to all states, and nothing herein contained shall preclude any state from entering into supplementary agreements with another state or affect any other agreements already in force between states. Supplementary agreements may comprehend, but shall not be limited to, provisions for evacuation and reception of injured and other persons and the exchange of medical, fire, police, public utility, reconnaissance, welfare, transportation and communications personnel, and equipment and supplies.
ARTICLE VIII - COMPENSATION
Each party state shall provide for the payment of compensation and death benefits to injured members of the emergency forces of that state and representatives of deceased members of such forces in case such members sustain injuries or are killed while rendering aid pursuant to this compact, in the same manner and on the same terms as if the injury or death were sustained within their ownstate.
ARTICLE IX - REIMBURSEMENT
Any party state rendering aid in another state pursuant to this compact shall be reimbursed by the party state receiving such aid for any loss or damage to or expense incurred in the operation of any equipment and the provision of any service in answering a request for aid and for the costs incurred in connection with such requests: Provided, That any aiding party state may assume, in whole or in part, such loss, damage, expense or other cost, or may loan such equipment or donate such services to the receiving party state without charge or cost: Provided, however, That any two or more party states may enter into supplementary agreements establishing a different allocation of costs among those states. Article VIII expenses shall not be reimbursable under this provision.
ARTICLE X - EVACUATION
Plans for the orderly evacuation and interstate reception of portions of the civilian population as the result of any emergency or disaster of sufficient proportions to so warrant, shall be worked out and maintained between the party states and the emergency management/services directors of the various jurisdictions where any type of incident requiring evacuations might occur. Such plans shall be put into effect by request of the state from which evacuees come and shall include the manner of transporting such evacuees, the number of evacuees to be receivedin different areas, the manner in which food, clothing, housing and medical care will be provided, the registration of the evacuees, the providing of facilities for the notification of relatives or friends, and the forwarding of such evacuees to other areas or the bringing in of additional materials, supplies and all other relevant factors. Such plans shall provide that the party state receiving evacuees and the party state from which the evacuees come shall mutually agree as to reimbursement of out-of-pocket expenses incurred in receiving and caring for such evacuees, for expenditures for transportation, food, clothing, medicines and medical care, and like items. Such expenditures shall be reimbursed as agreed by the party state from which the evacuees come. After the termination of the emergency or disaster, the party state from which the evacuees come shall assume the responsibility for the ultimate support of repatriation of such evacuees.
ARTICLE XI - IMPLEMENTATION
(a) This compact shall become operative immediately upon its enactment into law by any two states; thereafter, this compact shall become effective as to any other state upon its enactment by such state.
(b) Any party state may withdraw from this compact by enacting a statute repealing the same, but no such withdrawal shall take effect until thirty days after the governor of the withdrawing state has given notice in writing of such withdrawal to thegovernors of all other party states. Such action shall not relieve the withdrawing state from obligations assumed hereunder prior to the effective date of withdrawal.
(c) Duly authenticated copies of this compact and of such supplementary agreements as may be entered into shall, at the time of their approval, be deposited with each of the party states and with the federal emergency management agency and other appropriate agencies of the United States government.
ARTICLE XII - VALIDITY
This compact shall be construed to effectuate the purposes stated in Article I hereof. If any provision of this compact is declared unconstitutional, or the applicability thereof to any person or circumstances is held invalid, the constitutionality of the remainder of this compact and the applicability thereof to other persons and circumstances shall not be affected thereby.
ARTICLE XIII - ADDITIONAL PROVISIONS
Nothing in this compact shall authorize or permit the use of military force by the National Guard of a state at any place outside that state in any emergency for which the President is authorized by law to call into federal service the militia, or for any purpose for which the use of the Army or the Air Force would in the absence of express statutory authorization be prohibited under Section 1385 of Title 18, United States Code.
ARTICLE XIV - REPORTING TO LEGISLATURE
The director of the office of emergency services shall, on orbefore the first day of January, one thousand nine hundred ninety-seven, provide to the joint committee on government and finance copies of all mutual aid plans and procedures promulgated, developed or entered into after the effective date of this section. The director shall annually thereafter provide the joint committee on government and finance with copies of all new or amended mutual aid plans and procedures on or before the first day of January of each year.
(a) If any section, subsection, subdivision, provision, clause or phrase of this article or the application thereof to any person or circumstance is held unconstitutional or invalid, such unconstitutionality or invalidity shall not affect other sections, subsections, subdivisions, provisions, clauses or phrases or applications of the article, and to this end each and every section, subsection, subdivision, provision, clause and phrase of this article is declared to be severable. The Legislature hereby declares that it would have enacted the remaining sections, subsections, provisions, clauses and phrases of this article even if it had known that any section, subsection, subdivision, provision, clause and phrase thereof would be declared to be unconstitutional or invalid, and that it would have enacted this article even if it had known that the application thereof to any person or circumstance would be held to be unconstitutional or invalid.
(b) The provisions of subsection (a) of this section shall be fully applicable to all future amendments or additions to this article, with like effect as if the provisions of said subsection (a) were set forth in extenso in every such amendment or addition and were reenacted as a part thereof.
(a) There is hereby created a special trust fund which shall be designated and known as the "West Virginia Disaster Recovery Trust Fund" to be administered by the West Virginia disaster recovery board. The recovery fund shall consist of (i) any appropriations, grants, gifts, contributions or revenues received by the recovery fund from any source, public or private, and (ii) all income earned on moneys, properties and assets held in the recovery fund. When any funds are received by the board from any source, they shall be paid into the recovery fund, and shall be disbursed and otherwise managed in the manner set forth in this article. The recovery fund shall be treated by the auditor and treasurer as a special revenue fund and not as part of the general revenues of the state.
(b) All moneys, properties and assets acquired by the West Virginia disaster recovery board shall be held by it in trust for the purposes of carrying out its powers and duties, and shall be used and re-used in accordance with the purposes and provisions of this article. Such moneys, properties and assets shall at no time be commingled with other public funds. Disbursements from the recovery fund shall be made only upon the written requisition of the chairman accompanied by a certified resolution of the board. If no need exists for immediate use or disbursement, moneys, properties and assets in the recovery fund shall be invested or reinvested by the board as provided in this article.
No portion of the recovery fund shall inure to the benefit of or be distributable to members of the West Virginia disaster recovery board or other private persons except that the board shall be authorized and empowered to make loans or grants and exercise its other powers as specified in this article in furtherance of its purpose: Provided, That no such loans or grants shall be made to and no property shall be purchased or leased from, or sold, leased or otherwise disposed of to, any member or officer of the board except as provided under subsection (d), section five, article two, chapter six-b of this code.
The board shall not be required to pay any taxes and assessments to the state or any political subdivision of the state upon any of its moneys, properties or assets or upon its obligations or other evidences of indebtedness pursuant to the provisions of this article, or upon any moneys, funds, revenues or other income held or received by the West Virginia disaster recovery board.
The board shall prepare and transmit to the Legislature annually as of the thirtieth day of June a report of its disaster recovery activities. The report shall include the number of requests for distributions, the number of distributions made and the amount of each distribution; a listing by source and amount of moneys, properties and assets that have been contributed to the recovery fund since the thirtieth day of June of the preceding year; the outstanding balance of the recovery fund; and an itemized list of any administrative costs incurred.
(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 Governor. The Director of the Division of Homeland Security and Emergency Management, 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 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.
(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 to the Division of Homeland Security and Emergency Management through the designated county emergency management director by the chief executive officer of a participating political subdivision, or his or her designee 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 Statewide 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 Statewide 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 Statewide Intrastate Mutual Aid Committee shall develop comprehensive guidelines and procedures that address, including, but not limited to, the following: Projected or anticipated costs, checklists for requesting and providing assistance, recordkeeping 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.
(l) 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.
(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.
Note: WV Code updated with legislation passed through the 2015 Regular Session
The WV Code Online is an unofficial copy of the annotated WV Code, provided as a convenience. It has NOT been edited for publication, and is not in any way official or authoritative.