HOUSE DOCKET, NO. 3255 FILED ON: 1/14/2009
HOUSE . . . . . . . . . . . . . . . No. 1963
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The Commonwealth of Massachusetts
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In the Year Two Thousand Nine
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An Act facilitating the formation of Statewide Mutual Aid Agreements for Public Work Agencies..
Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
Chapter 40 of the General Laws is hereby amended by inserting
the following new section:—
Chapter 40, Section 4J. The Statewide Municipal Mutual
Assistance Program
(a)(i) “The statewide municipal mutual assistance agreement
for public works” is defined as a comprehensive statewide agreement
entered into by participating governmental units for the
facilitation and provision of sharing of public works resources
across jurisdictional lines in the case of public works incidents
that require assistance from one or more additional municipalities.
(ii) “Governmental unit” is defined as a city, town, county, district
as defined in Section 1A, however constituted, water or
sewer commission established under the provisions of
chapter 40N or pursuant to a special law, fire district, or other
political entity of the Commonwealth or its municipalities.
(b) There shall be a statewide mutual assistance agreement
developed for Public Works activities, by the Statewide Municipal
Mutual Assistance Advisory Committee within 90 days of the
enactment of this statute, that covers public works services, personnel,
equipment, supplies and facilities to prepare for, prevent,
mitigate, respond to and recover from incidents that require assistance
from additional municipalities, consistent with the provisions
herein. Nothing in this section shall establish or apply to
mutual aid agreements among local public safety agencies. All
351 municipalities of the Commonwealth shall be automatically
enrolled in the statewide municipal mutual assistance agreement,
however, to continue participation in the program, the chief executive
officer of a city or town, or as otherwise specified by statute
or charter must sign the mutual assistance agreement within 180
days of the enactment of the legislation. If a community does not
execute the agreement it is assumed that the community will not
be a participant. Participation shall exist for a period of ten years.
Other governmental units not under the direction and control of a
commonwealth municipality shall be authorized to sign on to the
statewide mutual aid agreement on a form filed with and prescribed
by the Statewide Municipal Mutual Assistance Advisory
Committee. In addition, governmental units from a municipality
directly adjacent to a commonwealth municipality, but in another
state, shall be able to sign on to the statewide mutual aid agreement,
if duly authorized, on a form prescribed by the Statewide
Municipal Mutual Assistance Advisory Committee.
(c) There will be an annual open enrollment period for those
communities who are not part of the Statewide Municipal Mutual
Assistance Program. The date of the open enrollment period and
any other requirements will be established by the Statewide
Municipal Mutual Assistance Advisory Committee. In addition, a
community may opt out of the program at any time by informing
the Statewide Mutual Assistance Advisory Committee, in writing,
of its intent to terminate participation in the program. This
request for removal from the program shall be executed by the
chief executive officer of al city or town, or as otherwise specified
by statute or charter.
(d) There shall be a Statewide Municipal Mutual Assistance
Advisory Committee that shall consist of one appointee made by
the following parties: the Massachusetts Highway Association, the
New England Chapter of the American Public Works Association
(Massachusetts Representative), the New England Water Environment
Association (Massachusetts Representative), New England
Water Works Association (Massachusetts Representative), the
Massachusetts Tree Wardens Association and the Massachusetts
Municipal Association. One appointee from the Executive Office
of Public Safety and one member from each of the state’s
Regional Planning Agencies shall serve as Ex-officio members.
(e) The Statewide Municipal Mutual Assistance Advisory Committee
shall develop procedural plans, protocols and programs for
intrastate cooperation to be used by public works agencies in
response to an incident.
(f) Each participating governmental unit shall identify no less
than one, but no more than three points of contact within its public
works agency, and shall provide for contacts consistent with the
governmental unit’s so-called continuation of operation/continuation
of governance plan.
(g) A participating governmental unit may request the assistance
of one or more participating governmental units to:
(1) Manage public works incident response or recovery if they
do not possess the ability to do so effectively, independently; or
(2) Conduct public works incident response or recovery related
exercises, testing or training.
(h) A request for assistance to a participating governmental unit
shall be made by and to: the chief executive officer of a city or
town, or as otherwise specified by statute or charter, or one of
three designated points of contact. An oral request shall be allowable
but must be followed in writing no later than twenty-four
hours after the oral request is made.
The request must include the following information:
(1) A description of the public works incident response and
recovery functions for which assistance is needed.
(2) The amount and type of public works services, equipment,
supplies, materials, personnel, and other resources requested and a
point of contact at the location.
(3) The place and time where assistance is needed and where
the point of contact will be.
(i) The responding governmental unit shall not be required to
respond to a request and may choose to do so only if responding
would not jeopardize the participating municipality's own reasonable
protection.
(j) The dispatch of public works resources under the statewide
mutual assistance agreement shall operate under the direction of
their parent agency. Tactical operational control of resources shall
be under the direction and control of the requesting jurisdiction.
The administration and coordination of the statewide mutual aid
agreement shall be the responsibility of the Statewide Municipal
Mutual Assistance Advisory Committee.
(k) Reimbursement for any and all public works services performed
under the statewide municipal mutual assistance agreement
is presumed, but may be waived in writing by a participating
municipality prior or subsequent to responding to an incident
through a supplemental agreement. This section shall not provide
for reimbursement of any kind outside of what is agreed to by the
individual governmental units.
(l) Notwithstanding section 4A of chapter 40 of the general
laws, the chief executive officer of a city or town, or as otherwise
specified by statute or charter,, is hereby authorized to enter into
supplemental agreements on behalf of such unit with other governmental
units to further define the rights and responsibilities of
each party for the provision of mutual aid pursuant to the
statewide municipal mutual assistance agreement established
herein.
(m) While in transit to, returning from, and during a mutual
assistance response for another governmental unit, a participating
public works employee of a governmental unit, or volunteer
acting officially under the authorization of the governmental unit,
that is a party to the statewide municipal mutual assistance agreement
shall maintain the right of indemnification granted by law, or
by his home governmental unit, should it exist, for all claims
arising out of any action within the scope of employment in accordance
with the statewide municipal mutual assistance agreement
pursuant to this section.
(n) All public works employees and equipment requested and
deployed pursuant to the statewide municipal mutual assistance
agreement shall be covered for liability, immunity, employee
benefits, worker’s compensation and insurance, by their employer, as
if they were in their own jurisdiction. Participating governmental
units may, by supplemental agreement with one or more participating
governmental units, address issues such as but not limited
to pay and benefits for government unit employees and volunteers,
insurance, indemnification, injury compensation and other
operational matters related to services provided under a mutual
aid response.
(o) Barring a supplemental agreement to the contrary, public
works employees shall receive the same compensation as if they
were operating in their own jurisdiction while performing services
under the statewide municipal mutual assistance agreement.
(p) All activities performed under the statewide municipal
mutual assistance agreement by governmental units are hereby
declared to be governmental functions. Neither the parties, nor,
except in cases of willful misconduct, gross negligence, or bad
faith, their personnel complying with or reasonably attempting to
comply with the mutual aid agreement or any ordinance, rule, or
regulation enacted or promulgated pursuant to the provisions of
this section shall not be held liable for the death of or injury to
persons or for damage to property as a result of any such activity.
(q) Public works employees of a governmental unit that is a
party to the statewide municipal mutual assistance agreement shall
be granted recognition of their respective jurisdiction, authority,
licenses or permits outside their original jurisdiction while operating
under the statewide municipal mutual assistance agreement.
(r) This section shall not affect inter-local agreements established
pursuant to section 4A of chapter 40 of the general laws.
(s) The Statewide Municipal Mutual Assistance Committee
shall develop and make available to participating governmental
units forms to facilitate requests for aid, and to facilitate record
keeping of movement of public works equipment and personnel.