HOUSE . .
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. . No. 5052
The
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In the Year Two Thousand and Eight.
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An
Act facilitating the formation of statewide mutual aid agreements for public
works agencies.
Be it enacted by the Senate and House of Representatives in General Court
assembled, and by the authority of the same, as follows:
SECTION
1. Chapter 40 of the General Laws is hereby
amended by inserting after section 4I the following new section:-
Section 4J. (a) As used
in this section the following terms shall, unless the context clearly requires
otherwise, have the following meanings:-
“Committee”, the statewide municipal mutual assistance advisory committee established pursuant to subsection (c).
“Mutual assistance agreement”, the
statewide municipal mutual assistance agreement for public works, 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 event of public works incidents that require
assistance from one or more additional municipalities; provided, however, that
said mutual assistance agreement shall not establish or apply to mutual aid agreements
among public safety agencies.
“Governmental unit”, a city, town, county, district.
(b) The committee may establish
a mutual assistance agreement for public works activities 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. Every municipality in the commonwealth shall be eligible
to participate in
the mutual assistance agreement; provided, however, that to participate, the
city manager in the case of a city under a Plan E form of government, the mayor
and city council in the case of all other cities, the board of selectmen in the
case of a town shall sign the mutual assistance agreement. Other
governmental units not under the direction and control of a municipality,
including governmental units located adjacent to a member municipality under
the jurisdiction of another state may be eligible to participate in the statewide
mutual aid agreement pursuant to terms and conditions established by the
committee.
(c) There shall be a statewide municipal
mutual assistance advisory committee consisting of 20 members to be appointed
by the governor, 1 of whom shall be the secretary of the executive office of
public safety, or his designee, who shall serve ex officio, 1 of whom shall be a
representative of the Massachusetts highway association, 1 of whom shall be a
representative of the New England chapter of the American public works association,
1 of whom shall be a representative of the New England water environment association,
1 of whom shall be a representative of New England water works association, 1
of whom shall be a representative of the Massachusetts tree wardens association
1 of whom shall be a representative of the Massachusetts municipal association,
1 of whom shall be a representative of the
Berkshire regional planning commission
who shall serve ex officio, 1 of whom shall be a representative of the Cape Cod commission who
shall serve ex officio, 1 of whom shall be a representative of the central Massachusetts regional planning commission
who shall serve ex officio, 1 of whom shall be a representative of the Franklin regional council of governments who
shall serve ex officio, 1 of whom shall be a representative of the Martha's Vineyard commission
who shall serve ex officio, 1 of whom shall be a representative of the
Merrimack Valley planning commission who
shall serve ex officio, 1 of whom shall be a representative of the Metropolitan Area planning council who shall
serve ex officio, 1 of whom shall be a representative of the Montachusett regional planning commission who
shall serve ex officio, 1 of whom shall be a representative of the Nantucket
planning and economic development commission who shall serve ex
officio, 1 of whom shall be a representative of the Northern Middlesex council of governments
who shall serve ex officio, 1 of whom shall be a representative of the Old Colony planning council who shall
serve ex officio, 1 of whom shall be a representative of the Pioneer Valley planning commission who shall
serve ex officio, and 1 of whom shall be a representative of the southeastern regional planning and economic
development district who shall serve ex officio.
The
committee shall develop procedural plans, protocols and programs for intrastate
cooperation to be used by public works agencies in response to an
incident.
(d) Each participating governmental unit shall
identify no less than 1, but no more than 3 points of contact within its public
works agency, and shall provide for contacts consistent with the governmental
unit’s so-called continuation of operation or continuation of governance plan.
(e) 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 or independently; or (2) conduct public works incident
response or recovery related exercises, testing or training.
(f) A request for assistance to a participating
governmental unit shall be made by and to the city manager in the case of a
city under a Plan E form of government, the mayor and city council in the case
of all other cities, the board of selectmen in the case of a town or 1 of the 3
designated points of contact. An oral request may be allowed but shall be
followed in writing no later than 24 hours after the oral request. All requests
shall include:(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.
(g) 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.
(h) The dispatch of public works resources under
the 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.
(i) Reimbursement for any and all public works
services performed under the municipal mutual assistance agreement may be
waived in writing by a participating municipality prior to 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.
(j) Notwithstanding section 4A of chapter 40 of
the general laws, the city manager in the case of a city under a Plan E form of
government, the mayor and city council in the case of all other cities, the
board of selectmen in the case of a town may 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.
(k) 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.