Request By:
Mr. Wayne T. Rutherford
Pike County Judge/Executive
Courthouse
Main Street
Pikeville, Kentucky 41501
Opinion
Opinion By: Robert F. Stephens, Attorney General; BY: Charles W. Runyan, Assistant Deputy Attorney General
You raise questions concerning "disaster and emergency response" , which involves various functions, other than military forces functions, designed to meet the challenges of great disasters and emergencies, such as floods, fires, tornadoes, etc. You say that Pike County is one of the ten most flood-prone areas in the United States. As a mining area, you say you have more miles of railroad than in any other county. Pike County is the largest county in Kentucky. Thus the local governmental officials wish to know their authorities in such crises.
Question No. 1:
"Does a county judge/executive and/or mayor have the authority under the Constitution or Kentucky Revised Statutes during a time of extreme disaster, emergency and crises situation in the county and/or city to direct and authorize the evacuation of the area?"
KRS 39.401(1) reads:
"As used in this chapter, unless the context requires otherwise:
"(1) 'Disaster and emergency response' means the preparation for and the carrying out of all emergency functions, other than functions for which military forces are primarily responsible, to prevent, minimize, and repair injury and damage resulting from fire, flood, tornado, other natural or man caused disasters, riot, enemy attack, sabotage, explosion, power failure, energy shortages, transporation emergencies or other causes, and the threatened or impending happening of any of the above, and in order to insure that preparations and response for this state will be adequate to deal with disaster or emergencies or the threat of same. These functions include, without limitation, fire fighting services, police services, medical and health services, ambulance services rescue, search and rescue, engineering, warning services, communications, radiological, chemical and other monitoring, decontamination and neutralization, evacuation of persons from stricken areas, emergency welfare services, emergency transportation, plant protection, temporary restoration of public utility services, and other functions related to effective reaction to a disaster or emergency situation, together with all other activities necessary or incidental to the preparation for and carrying out of the foregoing functions."
A declared emergency or disaster is one designated as such by the governor's executive orders pursuant to KRS Chapter 39 or by the President of the United States pursuant to federal law. See the governor's emergency powers under KRS 39.409.
Each county (fiscal court), urban county government and city (legislative body) must establish a local organization for disaster and emergency preparedness, response and recovery consistent with a plan adopted by such legislative bodies pursuant to KRS Chapter 39. The county judge/executive of each county and the chief executive of each city or urban county government must appoint a director who shall have direct responsibility for the organization, administration and operation of such local organization, subject to the direction and control of such appointing officers. KRS 39.415.
During a time of extreme disaster or emergency, as described in KRS 39.400 and 39.401, and as so declared by the governor's executive order, or by the president of the United States pursuant to federal law, the county judge/ executive may supervise the director in ordering the evacuation of persons from a stricken area in his county [unincorporated territory]. The same would apply to the mayor within the boundaries of his city. Of course counties and cities may join in a joint effort and plan involving one or more county areas. KRS 39.415(2). Otherwise they operate within their own boundaries, generally.
Question No. 2:
"Does the county judge/executive and/or mayor have the authority to control the area and control access to the area by using county police, county sheriffs, deputies, constables, etc.?"
Pursuant to KRS 39.416, the county judge/executive in such an extreme emergency has the overall authority to assign and make available for duty the employees, property, or equipment of the county relating to fire fighting, engineering, rescue, health, medical and related services, police, transportation, construction, etc., for disaster and emergency response purposes. The same would apply to the mayor in connection with city employees and equipment. "County employees" in this narrow sense would not include constitutional officers and their deputies.
The fiscal court has the authority to enact ordinances dealing with a disaster and emergency response program and providing for population mobility and property control devices necessary for the health and safety of persons and property in the county, including emergency assistance to victims of any disaster or emergency. The county judge/executive has the authority to supervise the execution of such a county plan of control and relief. KRS 39.416. All such local effort will be under the supervision of the director of the division of disaster and emergency services of the Department of Military Affairs and of the governor whenever the latter shall deem such action necessary. KRS 39.415(4). Further, the county plan must be in accordance with any pertinent state and national plans and policies. KRS 39.416(1).
The governor has the authority to formulate plans and issue executive orders providing for traffic and related controls over highways and streets during such emergency. These plans may be extended to any political subdivision in the state. KRS 39.424 and 39.427.
It must be kept in mind that any personnel or resources sent into your county during such an emergency by the state or federal government are not subject to your supervisory control. They remain subject to state and federal orders, although are there to advise and help in your local and regional situation.
Finally, it must be understood that when in the sound judgment of fiscal court, and yourself as county judge/executive, an extreme disaster or emergency of the kind described in KRS Chapter 39 [fire, flood, tornado, etc.] is deemed to exist, and you have no outside communication, you may direct the disaster and emergency responses, as mentioned in KRS 39.416, deemed to be necessary to save lives and property, until you can communicate with the state, even though the governor has never declared such an emergency to exist by executive order. In simple words, you and the fiscal court have the responsibility to look after your county when such an emergency arises, though later, when you establish communication with the state, you must abide by controlling policies of the state or federal government in such matters.
While the dedication of local officials to the interests of their county is readily understood, in such emergencies local officials charged with emergency responsibilities must not lose sight of the fact that the local county program must be integrated and coordinated with pertinent state and federal plans and policies. In this manner the legislative policies underlying Chapter 39 can be best subserved to the good of the Commonwealth.
We appreciate your interest and concern in these matters.