Request By:
Mr. Wilbur R. Buntin, Jr.
Executive Director
Department of Military Affairs
Division of Disaster and Emergency Services
State E.O.C. Building, Boone Center
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Reid C. James, Assistant Attorney General
This is in response to your request for an opinion of this office relative to Kentucky Revised Statutes Chapter 39, dealing with National and State Defense. You specifically query:
1) Whether a local civil preparedness director, acting on behalf of a local unit of government, may enter into binding mutual aid agreements with local governments in an adjacent state,
2) If such an agreement is developed, must the state governments in question be parties to the agreement, and,
3) What prohibitions regarding local government activity affect such agreements?
The Kentucky legislature has provided that each city, county, or metropolitan government will establish a local organization for disaster and emergency relief under the control of the county judge/executive or chief executive officer of the city or metropolitan government. KRS 39.415(1). These local organizations are empowered to respond to emergency situations within their territorial boundaries, and outside those boundaries where required pursuant to statute. Such local units may also join in a cooperative, interjurisdictional program in lieu of establishing separate organizations where certain statutory criteria are met. KRS 39.415(2). KRS 39.415(4), provides for the managerial and jurisdictional direction of all local organizations to reside in "the director of the division and of the governor whenever the latter shall deem such action necessary."
One of the statutorily enumerated purposes of this chapter is to provide for mutual aid among the counties and cities of Kentucky, and with other states and the federal government. KRS 39.400(3). The adjutant general of Kentucky is empowered, as director of emergency services, to enter into reciprocal aid agreements with other states and the federal government on a statewide or local basis pursuant to executive order of the governor or an act of the legislature. KRS 39.401(4),.407(1),.407(9). The governor has full authority to make, amend, and rescind the necessary executive orders to establish and carry out such agreements. KRS 39.408.
These agreements are limited, however, to "the furnishing or exchange of food, clothing, medicine, and other supplies, engineering services, emergency housing, police services, national or state guards while under the control of the state, health, medical, and related services, fire fighting, rescue, transportation, and construction services and equipment, personnel necessary to provide or conduct these services, and such other supplies, equipment, facilities, personnel, and services as may be needed . . ." KRS 39.407(9).
KRS 39.414(2) specifically provides,
The director of each local organization for disaster and emergency response may assist in negotiation of reciprocal mutual aid agreements between the governor and the adjoining states . . . or political subdivisions thereof, and shall carry out arrangements or any such agreement relating to the local and political subdivision.
It is therefore our opinion that a local civil preparedness director may not enter into binding agreements with local governments in an adjacent state on his own intiative, but may assist the governor, or adjutant general, as his approved agent, to establish such agreements. The power of the director of a local organization to develop mutual aid agreements is limited to agreements between his organization and other agencies or jurisdictions within Kentucky. KRS 39.414(1).
Where such an agreement is developed, all of the state governments involved should be parties to the agreement. KRS 39.450 provides the form of the compact to be followed in establishing such a mutual aid agreement. In this way the comprehensive plan for emergency response within each state does not become unbalanced, and the support of the state is guaranteed to the local subdivision.
As to prohibitions regarding local government activity, it is to be noted that the local director of each organization is subject to the direction and control of the appointing officer or governmental body. KRS 39.415(1). This officer or governing body is empowered to contract with the state for the lease or loan of property in carrying out the purposes of this chapter. KRS 39.426; KRS 39.430. A close working relationship should therefore exist between the local director and the appointing body. However neither the local director nor that body may act in a way inconsistent with the order, rules, and regulations promulgated by the governor or any state agency exercising a delegated power. KRS 39.427(1).
I trust that we have satisfactorily answered your inquiries in this matter.