After the Governor declares a State disaster emergency in New York, does the State get command and control of local fire companies and other local emergency resources, or do those stay under local control?

Subject

Legal architecture of New York's disaster emergency framework under Executive Law Article 2-B; mechanism by which the State assumes command and control over local fire companies and other local emergency resources after a State disaster emergency declaration; allocation of financial responsibility; effect of § 29-a executive-order suspensions on conflicting State laws.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/96-F12_pw.pdf

Plain-English summary

The chief of the State Disaster Preparedness Commission asked the AG to clarify the structure of New York's emergency-response statutes after a State disaster emergency is declared. Three specific questions: (1) how does the Governor get command over local paid and volunteer fire companies, (2) does Executive Law § 29 give the Governor general authority over local public and private resources, and (3) can a § 29-a executive order temporarily suspend conflicting provisions of the Environmental Conservation Law and the General Municipal Law on fire response and mutual aid?

The AG walked through Article 2-B's architecture. The default is local-first: local chief executives can declare a local emergency under § 24 and exercise extensive emergency powers using the municipality's own facilities, equipment, supplies, and personnel (§ 25(1)). Municipalities can request mutual aid from each other (§ 25(3)). The Governor steps in only when the local response is inadequate, either at a local executive's request (§ 24(7)) or on the Governor's own initiative (§ 20(2)(b)); the Governor then declares a State disaster emergency under § 28(1).

The State command-and-control question turns on what happens after that declaration. The Disaster Preparedness Commission (DPC), an executive department commission of agency heads and gubernatorial appointees (§ 21(1)), must decide whether to create a "temporary disaster relief organization" under § 21(3)(f). If the DPC finds that a municipality cannot manage local operations and the Governor approves, the temporary organization assumes direction of local operations. It can then use "local resources," which by reference to § 23(7)(b)(4) and (15) includes local government and fire district fire companies and departments, both paid and volunteer. This is the only mechanism by which the State gets actual command of local fire companies.

On the second question, the AG read Executive Law § 29 narrowly. Section 29 lets the Governor direct State agencies to provide emergency assistance to localities and lists four categories of help; the fourth catch-all clause refers to "their facilities, equipment, supplies and personnel," and the AG construed "their" as referring to the State agencies, not local entities. So § 29 does not give the Governor any free-standing power over local resources outside the § 21(3)(f) temporary-organization framework. Local fire companies stay under local control unless and until a § 21(3)(f) takeover happens.

On the third question, Executive Law § 29-a authorizes the Governor, after consulting the DPC, to issue an executive order temporarily suspending specific provisions of any State statute, local law, ordinance, rule, or regulation if compliance would prevent, hinder, or delay action necessary to cope with a disaster. Suspensions are limited to 30-day periods, renewable for additional 30-day periods, must be published in the State Bulletin, and can be terminated by concurrent resolution of the Legislature. So yes, an Article 2-B suspension can reach conflicting provisions of the Environmental Conservation Law and the General Municipal Law if the conflict would impede disaster response.

The AG also clarified financial responsibility. Local governments bear the costs of their disaster responses, even after a State declaration; State reimbursement through the contingency reserve fund (§ 29-e) and the governmental emergency fund is discretionary. When a § 21(3)(f) temporary organization is created, the statute explicitly says "the state shall not be liable for any expenses incurred in using such municipality's resources."

Currency note

This opinion was issued in 1996. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What is the Disaster Preparedness Commission (DPC)?
A standing executive commission chaired by a Governor designee and including the heads of major State agencies (police, transportation, environmental conservation, health, military and naval affairs, social services, and others) plus gubernatorial appointees from local government. The DPC researches and coordinates State disaster preparedness and, in an active disaster, can establish a temporary disaster relief organization. Its day-to-day administration is run by the State Emergency Management Office (SEMO) under the Division of Military and Naval Affairs.

When does the Governor get command over local fire companies? Only when (1) a State disaster emergency has been declared, (2) the DPC has created a temporary disaster relief organization under § 21(3)(f), (3) the DPC has found that the municipality cannot manage local operations, and (4) the Governor has approved the direction of local operations by the temporary organization. At that point the temporary organization can use local resources, including paid and volunteer fire companies, under § 23(7)(b)(4) and (15). Anything short of that, and local fire companies stay under local control.

Why doesn't § 29 cover local fire companies?
Because § 29 is a State-resources statute. It authorizes the Governor to direct State agencies to provide assistance to localities and lists the kinds of assistance State agencies can render. The fourth clause's reference to "their facilities, equipment, supplies and personnel" is, in context, about State agencies' own facilities and personnel. Reading "their" to include local fire companies would convert § 29 into a sweeping takeover authority that overlapped with and overpowered the carefully calibrated § 21(3)(f) mechanism.

Who pays for the response?
Local governments pay for their own emergency responses by default. When a State disaster emergency has been declared and a temporary disaster relief organization assumes control of local operations, the statute is explicit that the State will not be liable for expenses incurred in using the municipality's resources. State reimbursement is available only on a discretionary basis through the contingency reserve fund (§ 29-e), the governmental emergency fund, and federal disaster relief that may flow through.

Can the Governor suspend other State laws to deal with the disaster? Yes, under § 29-a, but with limits. The suspension must target specific provisions whose compliance would prevent, hinder, or delay action necessary to cope with the disaster. It must be in writing and published in the State Bulletin. It expires after 30 days unless renewed for another 30 days. The Legislature can end any suspension by concurrent resolution. This power has been invoked many times, but the statute's brakes are real.

What is the State Civil Defense Commission (CDC)?
A separate emergency body created in 1951 for response to foreign attack and invasion (L 1951 Ch 784). When the DPC was created in 1978, the Legislature gave the Governor authority to activate civil defense forces in natural-disaster emergencies under Executive Law § 29-b. The Governor can order the CDC to participate in disaster relief operations under the command of a State civil defense director appointed by the CDC. At the county level, the chief executive can direct the county civil defense director to participate.

Background and statutory framework

Article 2-B of the Executive Law dates to the 1978 emergency-preparedness reform (L 1978 Chs 640, 641), which consolidated and replaced earlier patchwork statutes. The 1978 statute was designed with a graduated structure: local response first, with State help layered in if the locals cannot cope, with federal help available if the State and local response combined is inadequate. The AG opinion runs through that ladder section by section.

The State Civil Defense Act (L 1951 Ch 784) predates Article 2-B and survives alongside it. The CDC's primary mission is response to foreign attack (still anticipated in Cold War terms when the statute was written), but Executive Law § 29-b permits Governor activation of CDC resources in natural-disaster emergencies as well.

The 1993 New York State Emergency Assistance Program (L 1993 Ch 603), codified at Executive Law § 29-e, added a reimbursement mechanism for natural disasters that cause "significant economic distress" to municipalities. A § 29-e declaration permits a municipality to apply to SEMO for reimbursement from the State's Contingency Reserve Fund for extraordinary reconstruction-or-repair costs. The 1996 opinion treated this as supplemental to and not a replacement for the basic State-supports-locals framework of Article 2-B.

The principle that "their" in § 29 refers to State agencies, not local entities, has been carried forward in subsequent practice and AG opinions. The Governor's emergency powers in New York are substantial but channeled through specific procedural mechanisms; the 1996 opinion's structural reading remains useful guidance for how those mechanisms fit together.

Citations

• Executive Law Article 2-B (disaster emergency framework)
• Executive Law § 20 (purposes and definitions)
• Executive Law § 21 (Disaster Preparedness Commission)
• Executive Law § 21(3)(f) (temporary disaster relief organization)
• Executive Law § 23 (local disaster preparedness plans; "local resources")
• Executive Law § 24 (local state of emergency)
• Executive Law § 25 (use of municipal resources; mutual aid)
• Executive Law § 28 (State disaster emergency declaration; federal assistance)
• Executive Law § 29 (Governor direction of State agencies)
• Executive Law § 29-a (executive-order suspension of conflicting laws)
• Executive Law § 29-b (civil defense forces in disasters)
• Executive Law § 29-e (Emergency Assistance Program reimbursement)
• Statute of Local Governments § 11(1)
• Unconsolidated Laws § 9103(14), § 9120 (Civil Defense Act)
• L 1993 Ch 603; L 1978 Chs 640, 641; L 1951 Ch 784

Original opinion text

EXECUTIVE LAW, ART 2-B, 20, 21, 23, 24, 25, 28, 29, 29-a, 29-b, 29-e; STATUTE OF LOCAL GOVERNMENTS § 11(1); UNCONSOLIDATED LAWS §§ 9103(14), 9120; L 1993 CH 603; L 1978 CHS 640, 641; L 1951 CH 784. After the declaration of a State disaster emergency, the Governor, acting through the Disaster Preparedness Commission, may create a temporary disaster relief organization under Executive Law
§ 21(3)(f). Such an organization has the authority to assume control over local disaster relief efforts, and may exercise command over any local resources and emergency service organizations available under the local disaster preparedness plan. This authority extends to local paid and volunteer fire companies. November 14, 1996 Brigadier General John H. Fenimore Disaster Preparedness Commission State Campus, Bldg. 22 Albany, NY 12226-5000

Formal Opinion
No. 96-F12

Dear Brigadier General Fenimore:
You have asked us to address several questions regarding the allocation of powers and duties among the State and municipal entities charged with implementing New York's emergency preparedness laws. In 1978, the State Legislature enacted a comprehensive revision and consolidation of the State's disaster preparedness statutes. L 1978, chs 640, 641. Codified at Article 2-B of the Executive Law, these procedures embody New York State's official disaster response protocol. Article 2-B is designed so that the scope and severity of each emergency, as it arises, dictates the appropriate response, be it local, State, Federal or some combination thereof. At each level, Article 2-B establishes a clearly defined hierarchy of authority for the Governor, State agencies, local authorities and emergency service organizations involved. Under Article 2-B, local governments are considered the "first line of defense in times of disaster". See, Executive Law § 20(1)(a). The scope and magnitude of many naturally occurring emergencies permit local authorities to provide a complete and efficient response without State assistance, and in such cases Article 2-B gives local chief executives the ability to exercise comprehensive emergency powers independent of State control. Executive Law §§ 23(2)(ii), (7)(b), 24. However, Article 2-B also reflects the need to centralize disaster planning and response under a single State-wide authority. That agency is the State Disaster Preparedness Commission (DPC). The DPC is an executive department commission composed primarily of a number of State agency heads serving in an ex officio capacity and local chief executive officers appointed by the Governor. Executive Law
§ 21(1). The chairperson is designated by the Governor. Id. The DPC has responsibility for researching and coordinating all aspects of State disaster preparedness, and ultimately, it has authority to assume command of certain State and local disaster operations. Id., §§ 21(3), 29. The Division of Military and Naval Affairs serves as the DPC's executive arm, see, id., § 21(2), and the Division has established the State Emergency Management Office (SEMO) to conduct the DPC's day-to-day administrative operations and provide permanent staff resources and facilities for State disaster planning and response. Id., §§ 21(2), 29-e(1)(e). In the wake of an emergency, the chief executive officer of the affected municipality may proclaim a local state of emergency. Id., § 24(1). Upon such a declaration, Article 2-B authorizes the chief executive to issue any local emergency orders necessary to protect life and property or bring the emergency under control. Id., § 24(1)(a)-(f), (6). Local chief executives are also authorized to use "any and all facilities, equipment, supplies, personnel and other resources [of the municipality] in such manner as may be necessary to cope with the disaster or any emergency resulting therefrom". Id., § 25(1). A chief executive may also "request and accept assistance from any other political subdivision and may receive therefrom and utilize any real or personal property or the services of any personnel thereof on such terms and conditions as may mutually be agreed to by the chief executives of the requesting and assisting political subdivisions". Id., § 25(3). If an emergency is beyond the capacity of the municipalities involved, State involvement will be triggered through one of two Article 2-B mechanisms. Either a local chief executive may make a direct appeal for State assistance under section 24(7) of the Executive Law, or the Governor may make a determination on his or her own initiative that the disaster is beyond the capacity of local governments to respond adequately. Either way, the Governor may declare a State disaster emergency. Id.,
§§ 20(2)(b), 28(1). If the Governor finds that the disaster is of such severity and magnitude that effective response is beyond the capabilities of the State and the affected local governments, he or she may make a formal request for Federal assistance. Id., § 28(4). First, you ask that we review the extent of the Governor's command and control authority over paid and volunteer local fire companies and departments after declaration of a State disaster emergency. You also ask whether our conclusion would be any different if the fire companies and departments had responded to the disaster prior to the State declaration. Gubernatorial authority over paid and volunteer local fire companies and departments is predicated upon the type of Article 2-B action taken after a State declaration of a disaster emergency. Immediately after such a declaration, the DPC must decide whether it is necessary to create a temporary disaster relief organization under Executive Law § 21. This section states, in relevant part:

[U]nless it deems it unnecessary, [the DPC must] create, following the declaration of a state disaster emergency, a temporary organization in the disaster area to provide for integration and coordination of efforts among the various federal, state, municipal and private agencies involved. The commission, upon a finding that a municipality is unable to manage local disaster operations, may, with the approval of the governor, direct the temporary organization to assume direction of the local disaster operations of such municipality, for a specified period of time, and in such cases such temporary organization shall assume direction of such local disaster operations, subject to the supervision of the commission. In such event, such temporary organization may utilize such municipality's local resources, provided, however, that the state shall not be liable for any expenses incurred in using such municipality's resources.

Executive Law § 21(3)(f). (Emphasis added.)

Once created, the temporary disaster relief organization will assume direction of a local disaster response operation, and may exercise all of the powers previously available to the local chief executive under Article 2-B. This includes the ability to use any "local resources" and personnel available under the local plan. See, Executive Law § 21(3)(f), 23(7)(b). As it is used in section 21(3)(f), the term "local resources" includes local materials, facilities and services; arrangements for activating municipal and volunteer forces; and procedures under which emergency organization personnel and resources will be used. Id., 23(7)(b)(4). The term "municipal and volunteer forces" includes local government and fire district fire companies and departments. If the DPC decides that it is unnecessary to create a temporary organization, or decides that it is unnecessary for that organization to assume direction of the relief effort, it is making an implicit judgment that with some lesser measure of assistance from the State, the affected local governments can provide an adequate response to the emergency. In such instances, the DPC can only direct State operations and coordinate the State's disaster efforts with the local disaster operation. See, id., §§ 21(3)(e), 29. In answer to your first question then, after the DPC-created temporary organization has assumed direction of a State disaster operation, it may be authorized by the DPC with the approval of the Governor to assume control of any public and private paid and volunteer fire companies and departments that have been activated or are available for activation under the local disaster plan. (It makes no difference whether the fire companies and departments had responded to the disaster prior to the State declaration.) The Governor appoints the local chief executives to the DPC and is represented by the State department heads who are ex officio members of the DPC. Executive Law § 20(1)(e), 21(3)(f). You also ask whether Executive Law § 29 gives the Governor command and control authority over the resources of local governments and private entities, including fire companies and departments. We believe that the precatory language of section 29 is dispositive of this question. Executive Law § 29 states:

Upon the declaration of a state disaster emergency the governor may direct any and all agencies of the state government to provide assistance under the coordination of the disaster preparedness commission. Such state assistance may include: (1) utilizing, lending, or giving to political subdivisions, with or without compensation therefor, equipment, supplies, facilities, services of state personnel, and other resources, other than the extension of credit; (2) distributing medicine, medical supplies, food and other consumable supplies through any public or private agency authorized to distribute the same; (3) performing on public or private lands temporary emergency work essential for the protection of public health and safety, clearing debris and wreckage, making emergency repairs to and temporary replacements of public facilities of political subdivisions damaged or destroyed as a result of such disaster; and (4) making such other use of their facilities, equipment, supplies and personnel as may be necessary to assist in coping with the disaster or any emergency resulting therefrom.

Executive Law § 29. (Emphasis added.) The introductory language authorizes the Governor to order State agencies to provide emergency assistance to the DPC. Section 29 then lists the types of assistance that may be provided by State agencies. You have inquired whether the fourth clause of this section is authority for the Governor to assume control over local public and private resources. We believe that use of the term "their facilities" in the fourth clause is meant to refer to the facilities of State agencies, not those of local government or private entities. In context, this reference to making "such other use" of equipment, supplies, etc., to assist in coping with the disaster is a provision to allow State agencies, upon order of the Governor, to provide other assistance in addition to the specific categories of assistance listed in clauses 1 through 3. Nothing in either the wording of section 29 or its legislative history permits us to construe its provisions as authority for the Governor or the DPC to assume control of local resources during a disaster. Bill Jacket, L 1978 Ch 640. We believe, therefore, that gubernatorial authority over local resources public or private, can only be achieved through the activation of a section 21 temporary disaster response organization. It is section 21 alone, and not section 29, that gives the Governor, acting through the DPC-supervised temporary disaster relief organization, command and control over the resources and personnel of local governments and private entities. This includes public and private paid and volunteer fire companies and departments. You next ask us to determine who bears financial responsibility for the resources used during a disaster response. When a local disaster emergency is declared a municipality remains responsible for the costs incurred during the response. Article 2-B makes no provision for automatic State reimbursement of local disaster operations. While local governments may seek State assistance in the form of disbursements from the contingency reserve fund (see, Executive Law § 29-e), the governmental emergency fund, or from such other funds as may be available (see, id., § 28[4]), such allocations are purely discretionary (id., §§ 28[4]
["the governor . . . may make available . . . sufficient funds to provide the required state share of grants made under any federal program for meeting disaster related expenses"], and 29-e), and they cannot be viewed as anything more than a supplement to the municipality's primary financial role. Supplies, manpower or other aid are provided to one municipality by another pursuant to whatever arrangements are made and agreed upon by the requesting and providing municipalities. See, Executive Law § 25(3). In instances where the State supplies resources, manpower or other assistance under Executive Law § 29, it does so at its own expense, since such aid is provided only when a State disaster emergency is declared, which in turn is predicated upon a decision that the local government is unable to respond adequately. When a State disaster emergency is declared, the local governments are to bear the costs incurred, pending any funds which may be available under State and Federal disaster relief programs. In the event an Article 2-B temporary disaster relief organization has been created, the Legislature has clearly provided that "the state shall not be liable for any expenses incurred in using such municipality's resources". Executive Law § 21(3)(f). Finally, you ask whether a gubernatorial declaration of a disaster emergency supersedes potentially conflicting provisions in the Environmental Conservation Law and General Municipal Law dealing with fire response and mutual aid. Executive Law § 29-a states that:

Subject to the state constitution, the federal constitution and federal statutes and regulations, and after seeking the advice of the commission, the governor may by executive order temporarily suspend specific provisions of any statute, local law, ordinance, or orders, rules or regulations, or parts thereof, of any agency during a state disaster emergency, if compliance with such provisions would prevent, hinder, or delay action necessary to cope with the disaster.

Executive Law § 29-a(1).

Article 2-B limits such suspensions to 30-day periods and 30-day renewal periods, and it requires the publication of all suspensions in the State Bulletin. Id., § 29-a(2)(a). The State Legislature retains the authority to terminate such executive orders at any time by concurrent resolution. Executive Law
§ 29-a(4). These provisions clearly outline the Legislature's intent to authorize the Governor, acting within constitutional parameters, to supersede temporarily conflicting provisions of State law when necessary to cope with a disaster. See, Bill Jacket, L 1978 ch 640; see also, Statute of Local Governments
§ 11(1).
Very truly yours,

DENNIS C. VACCO
Attorney General