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Working with FEMA so you can get paid, and keep it
F
ollowing the ice storm of 2000, Scott County was sued for more than $1 million by a private contractor that alleged that the county owed the money by virtue of a contract for debris clean-up. FEMA refused to pay the contractor the amount owed according to the terms of the contract. After three years of litigation (and about $75,000 in attorneys’ fees), Scott County settled for about $200,000, paid from the County General Fund. This article is written to warn all Arkansas county judges — so history does not repeat itself. Emergency Status: When your county suffers a disaster and emergency response is needed, without question the first priority is taking care of life and property. FEMA recognizes this situation but ... the matter quickly turns to a non-emergency clean-up operation. That’s where FEMA gets real sticky about its rules. WARNING: Follow the FEMA rules, or FEMA will allow you to suffer the consequences of your own choice not to follow the FEMA rules.
County Law Update
know and follow the rules. Include in any contract with any contractor an agreement that the contract will agree to accept as full and final payment the amount FEMA chooses for reimbursement. That way, the county will not end up stuck with a deficiency. MIKE RAINWATER
Document, Document, DocRisk Management ument: After a major disaster Legal Counsel strikes, you will be dealing with FEMA for a long time. FEMA staff that you will be working with will change. FEMA rules will change. Items that have been approved at one level will be denied at another level. The only protection you have is to document everything that is humanly possible to document. Else, you may not be able to prove that a later FEMA audit is shorting the county from money needed to pay for the clean-up costs incurred by the county. The county needs to be able to prove how many cubic yards were in each load the county wants FEMA to pay for. This means an accounting system must be established on the front end — so you can prove it on the back end.
After the Initial Emergency: After the first response, the financial reality of a disaster looms large. Planning and preparing for financial cost recovery aspects of a disaster will pay dividends. Listen to the advice and warnings by FEMA and state Office of Emergency Services officials. Do not Pictures: Yes, a picture is worth a thousand words. Estabtake off on your own. Do not be a pioneer. Find out about lish an inspection site at each disposal location where each and follow FEMA rules. load of debris can be recorded. Use a video camera to film each load coming through. The same is true for emergency Private General Contractors: There are two basic ways repair work. Take pictures of the roadways being cleared as to proceed with clean-up: 1) the county can contract with an emergency. Put disposable cameras in vehicles that might a third party to serve as the contractor for the clean-up op- be called out to do emergency repairs and train people to eration or 2) the county can serve as its own self-contractor use them. While you’re at it, put a whole emergency fiand subcontract with various persons or entities to do the nancial kit in a baggy in the glove compartments of your work. Do not sign a contract with a private general contrac- vehicles. It can include a disposable camera and a couple tor to oversee the county’s clean-up work for the county of forms where staff can list the location of the emergency without knowing the FEMA rules. For example, FEMA work, what staff are on location between what hours, and rules require competitive bidding if the county chooses to whether any equipment was used. A picture and this kind of contract with a third party for the non-emergency portion on-the-spot documentation will be worth its weight in gold of the clean-up work. Sole-source contracts are prohibited. five years later when an auditor asks you what happened at If you fail to follow FEMA’s rules, FEMA will refuse to pay a specific site. the money and your county could end up in the same situAccount Codes: Set up an emergency accounting code ation Scott County found itself in after the 2000 ice storm. structure. Even a rudimentary coding system with a code Generally, it seems to work better when the county serves as its own general contractor for non-emergency clean-up op- for each department or division for charging time and costs erations, and then contracts with sub-contractors for tasks for an emergency is a good idea. As the emergency response as needed. There are certainly many qualified disaster cleanSee “FEMA” on Page 24 > > > up contractors and sub-contractors. Just make sure you COUNTY LINES, SPRING 2017
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