Immediate Threat

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4488
Applicant	Atlantic City
Appeal Type	Second
PA ID#	001-02080-00
PW ID#	GMP 186962, 187077
Date Signed	2022-11-09T17:00:00

Summary Paragraph

Atlantic City (Applicant) requested $253,648.58 for GMP 186962 and $336,745.82 for GMP 187077 in Public Assistance funding for costs associated with FAL overtime for its police officers who covered duties for other officers who were out due to COVID-19.  FEMA issued a Determination Memorandum, for each GMP, denying the costs associated with FAL overtime because the work was not tied to eligible emergency protective measures.  The Applicant appealed FEMA’s determination for each GMP, contending that there was an error in the information reported which formed the basis for the determinations.  The State of New Jersey Division of State Police, Recovery Bureau (Recipient) forwarded each appeal with its supporting letter.  The FEMA Region II Regional Administrator denied each appeal, finding that the information provided did not support that the FAL overtime incurred for either GMP was related to eligible emergency work.  The Applicant submits its second appeal for FAL overtime costs for each GMP, reiterating its first appeal arguments, and provides a list of activities its police department performed in support of its claim for each GMP.  FEMA requested the Applicant provide additional information, including detailed labor records, but did not receive a response.

Authorities and Second Appeals

• Stafford Act § 403(a), 406(a)(2)(C).
• 44 C.F.R. §§ 206.223(a)(1), 206.225(a)(3)(i).
• PAPPG, at 19, 24, 25, 57, 158.
• FP 104-21-0003, at 8.

Headnotes

• FEMA is authorized to provide emergency protective measures to save lives and protect public health and safety.  For emergency protective measures to be eligible, the Applicant is responsible for showing the work is required due to an immediate threat resulting from the declared incident.
  • The Applicant did not demonstrate the work performed and associated FAL overtime cost was an eligible emergency protective measure required due to an immediate threat resulting from the declared incident.

Conclusion

The Applicant has not demonstrated that its claimed FAL costs are related to emergency protective measure work required due to an immediate threat.  Therefore, these appeals are denied.

Appeal Letter

Appeal Analysis

Background

On March 25, 2020, the President declared a major disaster declaration for the State of New Jersey in response to the coronavirus (COVID-19) pandemic for the incident period of January 20, 2020, and continuing.  Atlantic City (Applicant) requested Public Assistance (PA) for Grants Manager Project (GMP) 186962 totaling $253,648.58 for force account labor (FAL) overtime work incurred between June 21 through December 31, 2020, and GMP 187077 totaling $336,745.82 for work incurred between January 1 through April 31, 2021.  The Applicant stated its police department incurred overtime costs for emergency operation center activities, security, law enforcement, barricading and patrolling, and responding to COVID-19 emergency calls.  On September 28, 2021, FEMA issued a Determination Memorandum (DM) denying reimbursement of all costs associated with GMP 186962; and on November 4, 2021, it issued a DM denying reimbursement of all costs associated with GMP 187077.[1]   FEMA determined the costs were ineligible for PA funding because the work for each GMP was not tied to eligible emergency protective measures.

First Appeal

The Applicant appealed FEMA’s denial of GMP 186962 and 187077, stating that there was an error in the information reported which led to FEMA being unable to determine if the overtime was directly related to COVID-19.  For each project, the Applicant provided revised descriptions on the FAL overtime summary sheets, stating its officers were covering patrol duties for officers out due to COVID-19.  The State of New Jersey Division of State Police, Recovery Bureau (Recipient) transmitted the first appeal for GMP 186962 on December 17, 2021, and transmitted the first appeal for GMP 187077 on January 18, 2022.  The Recipient supported both appeals and recommended FEMA reconsider its decision.  In separate letters dated February 11, 2022, the FEMA Region II Regional Administrator denied each appeal, finding that the information provided did not support the overtime incurred was related to eligible emergency work. 

Second Appeal

The Applicant submits its second appeals in separate letters dated April 11, 2022, contesting FEMA’s determinations that the claimed FAL overtime was not related to eligible emergency work.  In support, the Applicant states that the duties performed by its officers relating to COVID-19 included: security and law enforcement; communications of general health and safety information to the public; search and rescue to locate and recover members of the population requiring assistance; emergency medical transport; enforcement of COVID-19 Executive Orders; providing protective services to hospital emergency rooms, temporary treatment shelters, and triage centers during patient surges; providing additional preventive patrol or other measures to targets of opportunity resulting from the emergency; and providing added security to critical infrastructure components.  

The Applicant maintains that the requested FAL overtime is directly related to COVID-19.  The Applicant further states the claimed overtime was for the backfill of officers who tested positive for or were quarantined due to exposure or out sick with symptoms of COVID-19 to ensure the continuation of essential services.  The Recipient transmitted the second appeals for GMP 186962 and GMP 187077 in separate letters dated April 11, 2022, with its support.

On July 12, 2022, FEMA sent a request for information (RFI) to the Recipient and the Applicant requesting additional detailed information in support of both its second appeals, including timesheets, daily activity/call logs, or other similar spreadsheets.  The Applicant did not respond.

 

Discussion

FEMA is authorized to provide emergency protective measures to save lives and protect public health and safety.[2]  The work must be required due to an immediate threat resulting from the declared incident and, for COVID-19 declarations, done in accordance with the guidance of or at the direction of appropriate public health officials.[3]  The burden to fully substantiate an appeal with documented justification falls on the applicant and hinges on the applicant’s ability not only to produce its own records, but to clearly explain how those records support the appeal.[4]  Overtime costs for backfill employees are eligible even if the backfill employee is not performing eligible work as long as the employee that he/she is replacing is performing eligible emergency work.  FEMA policy defines a backfill employee as a replacement employee who performs the regular duties of other personnel.[5] 

In its second appeals, the Applicant states the overtime claimed is due to the backfill of officers who tested positive for COVID-19, quarantined due to exposure, or were out sick with symptoms of COVID-19.  Because the individuals that the backfill employees replaced were not performing eligible emergency work, the overtime costs on appeal are only eligible if the backfill employees themselves were performing eligible work.  Although the Applicant provided a list of activities and explanation of the overtime work performed, the activities described are primarily functions performed as part of a police department’s normal operations.  The Applicant did not respond to FEMA’s RFI to provide documentation distinguishing potential eligible emergency work performed from normal operations for the positions.  The lack of description for the claimed work prevents FEMA from determining whether the tasks performed included emergency protective measures eligible for PA funding.  Therefore, the Applicant has not demonstrated that its claimed FAL overtime costs are related to emergency protective measure work required due to an immediate threat resulting from the declared COVID-19 pandemic.  

 

Conclusion

The Applicant has not demonstrated that its claimed FAL costs are related to emergency protective measure work required due to an immediate threat.  Therefore, these appeals are denied.

 

[1] The original Determination Memorandum (DM) issued on September 28, 2021 was rescinded and replaced by the DM issued on November 4, 2021 to correct a typographical error only.  The Applicant did not update its initial appeal as a result of the new DM.

[2] Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act § 403(a), Title 42, United States Code (42 U.S.C) §§ 5170b(a) (2018); Title 44 Code of Federal Regulations (44 C.F.R.) § 206.225(a) (2019).

[3] 44 C.F.R. §§ 206.223(a)(1), 206.225(a)(3)(i); Public Assistance Program and Policy Guide, FP 104-009-2, at 19 (Apr. 1, 2018) [hereinafter PAPPG];  FEMA Policy FP-104-21-0003, Coronavirus (COVID-19) Pandemic: Safe Opening and Operation Work Eligible for Public Assistance (Interim) (Version 2), at 4 (Sept. 8, 2021); Fact Sheet, Coronavirus (COVID-19) Pandemic: Eligible Emergency Protective Measures, at 1-2 (Mar. 19, 2020).

[4] See FEMA Second Appeal Analysis, City of Sweetwater, FEMA-1345-DR-FL, at 3 (Aug. 15, 2017); FEMA Second Appeal Analysis, Dep’t of Transp., FEMA-4068-DR-FL, at 5 (Aug. 5, 2016).

[5] PAPPG, at 24, 158.