As countless news stories attest, so many people and entities have stepped up to help our western NC communities. That includes local governments and their staff from all over the State, who are providing invaluable assistance. Lots of questions have come up about what specifically a local government can do to help—“Can we send equipment and personnel? What about money? Can we collect money and purchase items to donate? Can we transfer title to surplus property? Who authorizes the aid? Are our costs reimbursable? ….” The good news is there are lots of legal avenues for local governments to assist other local governments. But there are some legal limitations and processes to be mindful of, even in an emergency situation.

Legal Framework for Local Government Assistance

The NC Constitution requires that all public funds of a local government (including tax revenue, fees, grants, donations, and all other revenue sources) be expended for the benefit of that local government’s citizens. It is the public purpose requirement, NC Const. Art. V, Sect. 2(1), and it means that a local government cannot expend funds or deploy other resources to benefit others unless there is also a direct benefit to the local government’s citizens. See, e.g., Airport Authority v. Johnson, 226 NC 1 (1946); Briggs v. Raleigh, 195 NC 225 (1928); State v. Club Properties, 275 NC 328 (1969).  A separate but related constitutional provision, NC Const. Art. V, Sect. 7(2), specifies that no activities may be undertaken by a unit of government unless authorized by law (ie. general law, charter provision, or local act).

The General Assembly has recognized that there are situations in which helping another government entity can benefit the citizens of the assisting local government. It has granted local governments statutory authority to provide certain assistance to other local governments during emergency situations through mutual aid agreements, with or without receiving direct compensation in return. It has also authorized the transfer or donation of certain property that is no longer needed to other local governments. There are limits to this authority, though. A local government does not have authority to provide a monetary donation to another unit.

Mutual Aid

Mutual aid among governments refers to cooperative arrangements where two or more governments provide support to one another. This support can take various forms, such as sharing resources, expertise, and information, or coordinating responses to disasters. It benefits the citizens of all parties to the agreement because of the agreement’s reciprocal nature. A government may provide aid to another and in return receive aid when needed. Even the possibility of receiving the reciprocal aid is typically enough of a benefit to the assisting local government to satisfy the public purpose clause. Mutual aid contracts allow the parties to pool resources which improves overall readiness for emergencies. They promote increased efficiency through coordinated responses and faster resource deployment, ensuring timely support during crises. Additionally, mutual aid contracts help mitigate risks by reducing the burden on any single party.

State law authorizes local governments to enter mutual aid for a few different purposes. The legislature has determined that assisting other local governments under these circumstances, with or without monetary or in kind renumeration, satisfies the public purpose requirement. Again, it is the reciprocal nature of these arrangements that benefits both the assisting and requesting local government’s citizens.

State Building Code Mutual Aid. G.S. 160D-1107 authorizes two or more counties or municipalities to provide mutual aid assistance in the administration and enforcement of State and local laws related to the State Building Code. Mutual aid contracts may include provisions “addressing the scope of aid provided, for reimbursement or indemnification of the aiding party for loss or damage incurred by giving aid, for delegating authority to a designated official or employee to request aid or to send aid upon request, and any other provisions not inconsistent with law.”

Public Enterprise Mutual Aid. G.S. 160A-318 authorizes municipalities, counties, water and sewer authorities, metropolitan sewage districts, sanitary districts, or private utilities companies to enter into contracts with each other to provide mutual aid assistance in restoring electric, water, sewer, or gas services in the event of natural disasters or other emergencies. The contracts may “include provisions for furnishing personnel, equipment, apparatus, supplies and materials; for reimbursement or indemnification of the aiding party for loss or damage incurred by giving aid; for delegating authority to a designated official or employee to send aid upon request; and any other provisions not inconsistent with law.”

Fire Mutual Aid. G.S. 58-83-1 authorizes a county, municipality, fire protection district, or sanitary district fire department to send firemen and apparatus to assist outside their territorial boundaries.

Law Enforcement Mutual Aid. There are several statutory provisions that allow for local law enforcement mutual aid. This 2021 Guide from the North Carolina Sheriffs’ Association provides a detailed overview of these statutes. The provision most likely to be invoked when providing aid to another jurisdiction during Helene is G.S. 160A-288 (made applicable to counties by G.S. 153A-212). It allows the head of any law enforcement agency (e.g. police chief, sheriff), or their designee, to temporarily aid another law enforcement agency if requested in writing by the head of the requesting agency, unless specifically prohibited or limited by an ordinance adopted by the unit’s governing board. The local government does not need to execute a mutual aid agreement for a local law enforcement agency to provide this aid. But, as discussed below, there may be good reasons to execute an agreement to cover issues such as liability and reimbursements that are not directly addressed by the statute.

Emergency Response Mutual Aid. G.S. 166A-19.72(c) authorizes the chief executive (ie. manager, administrator, mayor, or board chair) of a county or municipality, with the concurrence of the unit’s governing board, to execute mutual aid agreements for reciprocal emergency management aid and assistance. The agreements must be consistent with the State emergency management program and plans, whose purpose is to

• • Reduce vulnerability of people and property of this State to damage, injury, and loss of life and property.
  • Prepare for prompt and efficient rescue, care, and treatment of threatened or affected persons.
  • Provide for the rapid and orderly rehabilitation of persons and restoration of property.
  • Provide for cooperation and coordination of activities relating to emergency mitigation, preparedness, response, and recovery among agencies and officials of this State and with similar agencies and officials of other states, with local and federal governments, with interstate organizations, and with other private and quasi‐official organizations. G.S. 166A-19.1.

The mutual aid agreements may cover “the furnishing or exchange of such supplies, equipment, facilities, personnel, and services as may be needed; the reimbursement of costs and expenses for equipment, supplies, personnel, and similar items; and on such terms and conditions as deemed necessary.” Other terms may be negotiated by the parties, consistent with the State emergency management program and plans.

Important Considerations and Process Requirements when Providing Mutual Aid Assistance During an Emergency

A local government may proceed under any of these statutes, as appropriate, to provide aid to another local government during an emergency, but it must stay within the limits of the granted authorities and follow all process requirements. It may not provide aid that exceeds the scope of these authorities. The following are key considerations for a local government in rendering mutual aid assistance:

1. Capacity. A local governing board and local law enforcement agency owes its first duty to its own citizens. In rendering mutual aid to another local government, local officials must ensure they have sufficient capacity to address their own unit’s needs. They must always prioritize the needs of their own citizens in making this determination.

2. Authority to Authorize Assistance. Generally, the local government’s governing board must decide whether to provide mutual aid assistance to another local government. The board may delegate certain decision-making to the mayor, board chairperson, manager, or other employee or official. The emergency response mutual aid statute (G.S. 166A-19.72) assigns this decision to the chief executive of the local government, but with the approval of the governing board.

There is an exception for law enforcement emergency mutual aid. The law allows the head of a law enforcement agency (e.g. police chief, sheriff) to make this decision. G.S. 160A-288. The governing board may adopt an ordinance limiting or prohibiting the law enforcement agency from providing the aid. If the board adopts such an ordinance, the head of the law enforcement agency must abide by the specified limitations. Also, the head of the law enforcement agency may not exceed the authority assigned to them in the law enforcement mutual aid statutes. More general aid from a local government must derive from the emergency response mutual aid authority, as determined by the local government’s governing board.

3. Liability. There are several liability issues that arise when a unit lends personnel, equipment, and supplies to another entity. My colleague, Becca Fisher-Gabbard, addresses many of those issues and risk mitigation strategies here.

4. Written Agreements. As detailed above, some statutes require a written mutual aid agreement; others do not. If Federal Emergency Management Agency (FEMA) funding is sought, at a minimum the requesting local unit will need to memorialize both the request for aid and the mutual aid commitment in writing and the assisting local government will need to supply documentation of eligible costs. In an emergency, negotiating and executing detailed mutual agreements may be tough. The good news is that many local governments have prepared in advance.

State Mutual Aid Agreement. The State has promulgated a State Mutual Aid Agreement that is applicable to the State and local governments. All 100 counties and many municipalities have signed this agreement. A local government that has signed this agreement may provided requested assistance, consistent with the statutory authority cited above, to other local governments that have signed the agreement.

Local Mutual Aid Agreements. Local governments may execute their own mutual aid agreements with one or more other local governments. These are often used to address longer-term needs following an emergency. The National Incident Management System Guideline for Mutual Aid states that the following should be covered in a mutual aid agreement:

• • • Detail the purpose and scope of the agreement
    • Describe the benefits to all parties of the agreement (to meet the public purpose requirement)
    • Recite authority to execute the agreement
    • Define key terms
    • Identify governance structures and operations oversight
    • Address recognition of licensure and certifications (if applicable)
    • Address tort liability, indemnification, and insurance
    • Establish protocols for interoperable communications
    • Address workers’ compensation
    • Detail deployment notification requirements
    • Address compensation and reimbursement

If the assisting local government requests reimbursement and the requesting local government wants to pay for the services rendered with FEMA grant funds, both units will have to follow certain federal processes, too.

Law Enforcement Mutual Aid. Recall that a law enforcement agency may provide mutual aid without a written agreement. The same is true for fire mutual aid. But if the assisting agency wants to be reimbursed, it will need to memorialize that agreement in writing with the requesting agency. And if the requesting agency wants to use FEMA grant funds to pay for the assisting agency, it will need to follow the FEMA public assistance requirements outlined below. A written agreement can also address issues that the statutes do not, such duration of assistance, command and control, and liability for damages to equipment while rendering aid.

NCWaterWarn Mutual Aid. The NCWaterWARN Mutual Aid and Assistance Program provides a rapidly deployable team in response to emergencies impacting member utilities. Local governments who are members of the NC Rural Water Association may execute the mutual aid agreement and provide mutual aid to other water and wastewater utilities.

5. Reimbursement. The nature of mutual aid is that it does not require the assisting local government to get reimbursed to satisfy the public purpose requirement. The mutual aid agreement and/or relevant statutory provisions are sufficient to satisfy it. As a practical and financial matter, though, a local government may require reimbursement for more extensive use of personnel or other resources. An assisting local government must carefully consider whether reimbursement is necessary before providing aid. Even in an emergency there are certain process requirements that must be followed to qualify for reimbursement, particularly if FEMA grants are involved.

According to FEMA’s Public Assistance Program, if an applicant (local government) lacks enough resources to respond to an incident, it can request assistance from another jurisdiction through a mutual aid agreement. FEMA identifies the applicant seeking help as the Requesting Entity and the jurisdiction supplying the assistance as the Providing Entity. FEMA provides Public Assistance (PA) funding to the Requesting Entity because they are legally responsible for the response efforts. FEMA does not provide PA funding directly to the Providing Entity. The Requesting Entity pays the Providing Entity.

Process Requirements for Reimbursement. For mutual aid to qualify for FEMA reimbursement, the following requirements must be met:

Emergency Declaration. A disaster must be declared by the US President or the state governor to activate FEMA’s public assistance grant program.

Request for Assistance. For the work done by the Providing Entity to qualify for reimbursement, the Requesting Entity must have formally requested the resources that were provided. FEMA recognizes that some states, like North Carolina, have a state-coordinated mutual aid program. The request is made through the state system and FEMA allows the State to pay the Providing entity on behalf of the local government and seek reimbursement from FEMA.

Documentation. The Requesting Entity or State, if applicable, must provide a description of the services requested and received, along with documentation of associated costs (e.g., labor, equipment, supplies, or materials) to FEMA in support of a request for PA funding. The Providing Entity must document required information, in accordance with FEMA requirements. That requires coordination between the Requesting and Providing entities and among personnel (manager, department heads, law enforcement head, finance staff) within the Providing Entity.

Written Mutual Aid Agreement. If the Requesting and Providing Entities don’t have a written agreement, or if their agreement doesn’t mention reimbursement, they can make a verbal agreement about what resources will be provided and the terms, conditions, and costs involved. This agreement should align with how they’ve handled mutual aid in the past. For example, if the Requesting Entity usually doesn’t reimburse the Providing Entity, they shouldn’t agree to do so just for this incident. Prior to funding, the Requesting Entity must write down the verbal agreement, have it signed by authorized representatives from both entities, and send it to FEMA, ideally within 30 days of the Applicant’s Briefing.

Costs eligible for reimbursement. Mutual aid resources are eligible when used for Emergency Work, emergency utility restoration (regardless of whether it is deemed Category B or F) or certain grant management activities. Emergency Work encompasses debris removal (Category A) and emergency protective measures (Category B). (Rebecca Badgett details the specifics of these categories here.)

Mutual aid work is subject to the same eligibility criteria as contract work. Costs to transport the Providing Entity’s equipment and personnel to the declared area are eligible. The Providing Entity’s straight-time and overtime labor are eligible, including fringe benefits. If the Providing Entity backfills deployed personnel (fills in to perform regular non-emergency work for Requesting Entity), overtime for backfill personnel is eligible even if they are not performing eligible work. However, straight-time for backfill personnel is ineligible.

FEMA reimburses the use of equipment provided to a Requesting Entity based on either the terms of the agreement or set equipment rates. FEMA provides PA funding to repair damage to this equipment the same way as it provides PA funding to repair damage to Applicant-owned equipment.

FEMA will not reimburse the Providing Entity for costs related to preparing to deploy; dispatch operations outside the receiving State; training and exercises; and support for long-term recovery and mitigation operations.

6. Coordinating Mutual Aid. Identifying specific needs and who is available to meet those needs during an emergency is a daunting task. To lesson this burden on affected units, the State has established a system to facilitate the provision of mutual aid during a declared emergency. The N.C. Division of Emergency Management (NCEM) coordinates the aid and record keeping. Logistics and reimbursement are handled between NCEM and county emergency managers. The appropriate NCEM Regional Coordination Center works with other NCEM staff and the local government or other entity providing aid to coordinate resource delivery and reimbursement of costs. Requests for personnel, equipment, and supplies are logged to WebEOC by the county’s emergency manager. (Municipalities must submit their requests to the county’s emergency manager for submittal to WebEOC.) The State typically seeks reimbursement from FEMA for eligible costs and pays the assisting local government according to the terms set out in the State’s mutual aid agreement.

Whether using the State system, NCWaterWARN, or executing agreements with individual local governments, local units in crisis often turn to other networks to help coordinate assistance. Local government professional organizations, the NC League of Municipalities, the NC Association of County Commissioners, the NC Association of Regional Councils of Government, the UNC School of Government, and others can play an important role in matching requests with available help and providing other technical assistance.

7. No Direct Financial Assistance Authorized. It is important to note that none of the statutes cited above authorize a local government to provide direct monetary assistance to another local government. That means that a local government cannot appropriate money and donate those funds to another government’s relief efforts. It also means that a local government may not collect funds through its own fundraiser and then appropriate the monies to another local government. (Nothing prevents local government employees, acting as private individuals, from undertaking these activities, though.)

Donating Surplus Property

Instead of loaning equipment or supplies, a local government may wish to donate items that it owns and no longer needs. G.S. 160A-274 authorizes a governmental unit to “exchange with, lease to, lease from, sell to, or purchase from any other governmental unit any interest in real or personal property” with or without consideration. A governmental unit is defined to include a county, municipality, school administrative unit, sanitary district, fire district, the State, or any other public district, authority, department, agency, board, commission, or institution. In granting this authority, the legislature has deemed it a public purpose to convey this property to another local government because it establishes a mutual opportunity for all local government entities to procure needed property at reduced or no cost. The governing board must authorize any conveyance under this statute. Here is a link to a step-by-step guide to the process and a sample board resolution. (Note that there is a constitutional provision that limits the ability of school boards to act under this statutory authority, unless the conveyance is to another public school.)

Similarly, G.S. 160A-280 allows a local government to donate personal property to other local governments, nonprofits or “sister-cities,” which are local governments located outside North Carolina. Click here for property disposal procedures under this statute. For conveyances to local governments within North Carolina, it makes more sense to proceed under G.S. 160A-274.

Local Government Acting as Pass-Through Entity for Community Contributions

The local government is a key member of a community ecosystem. It is natural in times of crisis for citizens of that community to look to the local government to play a leadership role. Many local governments across the state are currently serving as collection points for community donations to assist western North Carolina local governments and their citizens. Local government staff, with the approval of the governing board, may serve this pass-through function.

There are some process requirements and limitations if a local government receives cash donations when acting in this custodial capacity. Although the funds do not belong to the local government, the Local Government Budget and Fiscal Control Act requires that they be deposited in the local government’s bank account, according to G.S. 159-32. The local governing board does not budget these funds. The finance officer must disburse the funds to the intended recipient party. A local government does not have statutory authority to accept cash donations and then use the funds to purchase items for other local governments. Given these restrictions and process requirements, it may be easier for a local government to direct cash donations to other community partners to collect and manage.