Sec. 7-61. - Declaration of policy and purpose.

Because of the constant possibility of the occurrence of emergencies or disasters, the purpose of this chapter is to:

(1)

Ensure that this city will be adequately prepared to respond and recover from such emergencies and/or disasters;

(2)

Provide for the common defense and to protect the public peace, health, and safety;

(3)

Protect the lives and property of the people of this city and reduce their vulnerability to harm in emergency and disaster situations;

(4)

Authorize and provide for coordination of activities relating to emergency management and disaster preparedness;

(5)

Confer upon the mayor, president of city council, upon city agencies, and authorized representatives of this city, the broad emergency powers provided in this chapter;

(6)

Provide for the rendering of mutual aid among the political subdivisions of this city and with other jurisdictions in this state and with the federal government with respect to emergency management and disaster preparedness.

(Ord. No. 98-118, § 1, 10-13-98)

Sec. 7-62. - Definitions.

As used in this chapter:

Disaster means a catastrophic condition caused by a man-made event (including, but not limited to, industrial, nuclear or transportation accident, explosion, conflagration, power failure, act of domestic terrorism, natural resource shortage or other condition, except enemy action, resulting from man-made causes, such as hazardous materials spills and "other injurious environmental contamination," natural event (including but not limited to, any hurricane, tornado, storm, flood, high water, wind-driven water, tidal wave, earthquake, landslide, mud slide, snowstorm, drought, fire, or explosion) or war-caused event (following an attack upon the United States caused by use of bombs, missiles, shellfire, nuclear, radiological, chemical or biological means, or other weapons or overt paramilitary actions, or other conditions such as sabotage) which results in substantial damage to property, the environment, and/or hardship, suffering, injury or possible loss of life.

Emergency means any situation which requires efforts and capabilities to save lives, protect property, public health and safety, or to lessen or avert the threat of a disaster in the city.

Emergency management means the mitigation, preparedness, response, and recovery functions necessary to save lives and to protect property, public health, and safety or to lessen or avert the threat of an emergency and/or disaster in any part of the city, other than functions for which the military forces, state agencies, or other federal agencies are primarily responsible. These functions include, without limitation, fire-fighting services, police services, medical and health services, rescue, engineering, warning services, communications, radiological response, chemical response or other technological response, evacuation of persons from hazardous areas or any other possible life threatening incident, emergency welfare services, emergency transportation, protection, temporary restoration of public utility services, national security and other functions related to infrastructure, together with all other activities necessary or incidental to the preparation for and carrying out of the foregoing functions. In so defining emergency management, full recognition shall be given to public law 93-288, as amended; "The Robert T. Stafford Disaster Relief and Emergency Assistance Act," public law 100-408, as amended; and "The Price Anderson Act," 4 Public Law 875 81st Congress, as amended.

Political subdivision means any councilmanic district in the city.

State of emergency means an emergency proclaimed pursuant to an emergency order by the governor and/or city limited state of emergency means an emergency proclaimed pursuant to an emergency order by the mayor as it relates only to the city. All emergency orders issued under this chapter shall indicate the nature of the emergency or disaster, the area or areas threatened, and the conditions which have brought it about and may limit the order to a geographic area or specific resources. Such an emergency order may be issued in writing subsequent to its effect so long as a written log recording the dates and times of such order is maintained by the city office of emergency management. Emergency orders shall be filed with the administrative assistant to the mayor and the director of public safety of the city. Notwithstanding the substitution of the phrase "emergency management" for the phrase "civil defense," by 58 Del. Laws, C. 558, 4, the powers of the city office of emergency management shall not in any way be restricted by reason of its new designation and the term "civil defense" may be used interchangeably with the term "emergency management" wherever it may appear in this Code.

(Ord. No. 98-118, § 1, 10-13-98)

Sec. 7-63. - City office of emergency management.

(a)

Creation. To assure the prompt, proper, and effective discharge of basic city responsibilities relating to emergency management, there is hereby formally created the city office of emergency management of the department of public safety under the office of the mayor.

(b)

Organization. The office of emergency management, within the executive branch of the city government, as of September 1998 consists of and shall be organized thereafter substantially as follows:

(1)

Director of emergency management and a part time clerical secretary. The director is recognized as an executive managerial city employee in the merit system. The director, as head of the agency, shall supervise, on a full-time basis, all fiscal, planning, administrative, operational, and other functions of the office of emergency management as assigned by law or the mayor, administrative assistant to the mayor, "AA," director of public safety, director of DEMA, regional director of FEMA, and the regional director of EPA. The director may hold other titles or positions in city government such as hazardous materials coordinator, radiological officer, SARA title III enforcement officer, city local emergency planning committee (LEPC) support staff assistant. The director, subject to the direction and control of the mayor, AA, and director of public safety, shall be the executive head of the office of emergency management and shall be responsible to the mayor, AA, director of public safety for carrying out the program for emergency management of this city. During an emergency or disaster, the mayor may delegate such powers as he or she may see fit to the director of public safety or the director of emergency management to coordinate the activities of the city that serve to prevent or alleviate the ill effects of an imminent or actual emergency or disaster and maintain liaison with emergency support agencies and organizations of other jurisdictions in the state and of the federal government and shall have such additional authority, duties, and responsibilities authorized by this chapter.

(2)

Staff. The director, with the approval of the director of public safety, may employ such personnel, within limitations of appropriations for that purpose, as may be deemed necessary to carry out the purposes of this chapter.

(3)

Facilities and Equipment. The director and other personnel of the city, office of emergency management shall be provided with appropriate office space in a facility and area identified with low vulnerability to natural and technological hazards, furniture, equipment, supplies, stationery, and services in the same manner as provided for personnel of other city agencies.

(c)

Powers and Duties. The office of emergency management is authorized and directed to:

(1)

Prepare and maintain a comprehensive plan and program for the emergency management of the city, such plan to be integrated into and coordinated with the emergency management plans of the state and federal government to the fullest possible extent;

(2)

Establish, equip, and staff a city emergency operations center;

(3)

Carry out all obligations and duties associated with city emergency or disaster response and recovery plans and execute all duties and responsibilities to secure the maximum city, state and federal emergency management assistance and emergency or disaster recovery assistance;

(4)

Apply for, accept, and expend state and federal, public, or private funds, grants, gifts, or other forms of financial assistance in order to defray the costs of the office of emergency management directly associated with implementing and maintaining emergency management capabilities including, but not limited to, expenses connected with retaining personnel and with acquiring and maintaining equipment, supplies, and other material to carry out the office of emergency management's obligations and responsibilities under the plan. All grants or payments of money by the federal government, or by any other public or private source, pursuant to any contract, agreement or otherwise, to the mayor's office for emergency management by the office of emergency management shall be appropriated to the office of emergency management for the designated purpose for which the money was paid and received, and no other. All such money shall be payable to the city treasurer and/or city finance department. The city treasurer and/or city finance department shall credit the deposit to the individual appropriation accounts for the designated use;

(5)

Enter into and perform contracts or agreements with any public or private source; procure by contract or agent such consulting, research, technical, and other services as are necessary for the office of emergency management to carry out its responsibilities under the plan and to accept and expend funds paid by private or public sources in consideration for the performance of obligations under such contracts or agreements;

(6)

Provide technical advice and assistance to city agencies, businesses, political subdivisions, and other organizations in the preparation of emergency management plans or components thereof and to periodically review such plans and suggest or require revisions;

(7)

Establish and implement or assist city agencies or organizations in the development of emergency management training and of public information programs in advance of actual emergencies or disasters to ensure adequately trained personnel and an informed public in times of need;

(8)

Supply appropriate state and local agencies, officials, and the general public with precautionary notices, watches and warnings relating to actual or potential emergencies or disasters and provide a flow of official information and instructions of the general public before, during and after an emergency or disaster;

(9)

Provide direction and control of city emergency or disaster operations;

(10)

Determine the need for, maintain information regarding, and procure materials, supplies, equipment, facilities, and services necessary for, emergency management;

(11)

Make or request copies of studies, surveys, or reports of the industries, resources, and facilities within this city as are necessary to carry out the purposes of this chapter;

(12)

Prepare, for issuance by the mayor, orders, proclamations and regulations as necessary or appropriate in responding to emergencies or disasters, and maintain a memorialized log thereof;

(13)

Cooperate with the state and federal government and any public or private agency or entity in achieving any purpose of this chapter and in implementing programs for emergency management;

(14)

Administer grant programs for eligible applicants for emergency management;

(15)

Accept and coordinate assistance provided by state and federal agencies in major disasters in accordance with the provisions of the Federal Disaster Relief Act of 1974 (Public Law 93-288, 42 U.S.C. 51212 et seq.), or any amendment or reenactment thereof;

(16)

Respond to emergencies or disasters relating to atomic energy operations or radioactive objects or materials;

(17)

Provide, from its own stockpiles or other sources, emergency or disaster operational equipment, materials, and supplies required and available for essential supplementation of those owned, acquired, and used by the city, and departments and agencies for emergency and disaster operations;

(18)

For the period during which a state of emergency or a city limited state of emergency is declared by the governor or the mayor, to incur or authorize other city agencies to incur obligations to purchase or to purchase immediately such materials and supplies as may be necessary to protect the health and safety of persons and property and provide emergency or disaster assistance to victims of a disaster. Such obligations and purchases shall be exempt from bidding provisions otherwise required by the city Charter.

(19)

Take other action necessary, incidental or appropriate for the implementation of this chapter.

(20)

Respond to emergencies or disasters relating to bomb threats and/or acts of terrorist incidents,

(d)

Radiological emergency management program.

(1)

In addition to the powers and duties of the office of emergency management set forth in this chapter, the office of emergency management shall develop, establish, and maintain a radiological emergency management program in accordance with relevant regulations and guidelines promulgated by state and federal agencies. The purpose of the program is to comply with applicable state and federal regulations and to implement all necessary and appropriate protective or remedial measures on behalf of the city with respect to a radiological incident, or threatened radiological incident, resulting from the operation of commercial nuclear generating facilities, acts of terrorism, or transport of nuclear by-products. The office of emergency management shall serve as the single point of contact for interaction between the affected facilities and other city agencies and departments, and the state and federal government.

(2)

All grants or payments of money by the state and federal government, or by any other public or private source, pursuant to any contract, agreement or otherwise, to the office of emergency management for radiological emergency management shall be appropriate to the office of emergency management for the designated purpose, and no other, for which the money was paid and received. All such money shall be payable to the city treasurer and/or the finance department. The city treasurer shall credit the deposit to a special fund to be known and designated as the "city radiological emergency management program account," and any money received for the use of the office of emergency management in connection with its duties under the city radiological emergency management program shall be paid out of the special account by the city treasurer and/or the finance department upon warrants executed by the mayor, administrative assistant or the director of public safety, for the designated use, without any further authority from city council;

(Ord. No. 98-118, § 1, 10-13-98)

Sec. 7-64. - The mayor and emergency management.

(a)

General authority of the mayor.

(1)

The mayor shall be responsible for addressing the dangers to life, health, environment, property, or public peace within the city presented by emergencies or disasters, and to this end shall have general direction and control of the office of emergency management and shall be responsible for carrying out this chapter. In the event of an emergency or disaster beyond the director of emergency management local control, the mayor may assume direct operational control over all or any part of the emergency management functions within the city.

(2)

In performing the duties of the mayor under this chapter, the mayor may issue, amend and rescind all necessary executive orders, emergency orders, proclamations and regulations; which shall have the force and effect of law.

(3)

In addition to the powers conferred upon the mayor by this chapter, a state of emergency and/or a limited city state of emergency may be proclaimed by emergency order of the mayor upon a finding that an emergency or disaster has occurred or that such occurrence or threat of that occurrence is imminent. The state of emergency and/or limited city state of emergency shall continue until the mayor finds that the threat or danger has passed or the emergency or disaster has been dealt with to the extent that conditions necessitating a state of emergency and/or a limited city state of emergency no longer exist and terminates the state of emergency and/or the limited city state of emergency by subsequent order. All orders issued under this chapter shall indicate the nature of the emergency or disaster, the geographical area or areas threatened, and the conditions which have brought the emergency or disaster about or which make possible termination of the state of emergency and/or a limited city state of emergency. An order terminating a state of emergency and/or a limited city state of emergency shall describe the reasons for termination, and shall be disseminated as promptly as is practicable by means calculated to bring its contents to the attention of the general public and, unless the circumstances attendant upon the emergency or disaster prevent or impede, shall be promptly logged with the office of emergency management. Emergency action ordered by the mayor in accordance with his or her constitutional and statutory authority shall not be invalidated because of any failure to comply with the technical requirements for the logging or filing of emergency orders.

(4)

Pursuant to sections 8-406 and 8-407 of the City Charter, the director of public safety, subject to the approval of the administrative board, shall prescribe rules for activation and operation of the city's emergency operations center by the office of emergency management, and shall prescribe regulations, subject to the approval of the administrative board, for participation in emergency center operations by other city departments, and by agencies, offices and organizations outside city government as deemed necessary by the director of public safety, in consultation with the director of emergency management.

(b)

Powers.

(1)

In addition to any other powers conferred upon the mayor by law, the mayor may:

a.

Delegate to the administrative assistant, director of public safety or the director of emergency management, or such other person any authority vested under this chapter and provide for the subdelegation of any such authority;

b.

Suspend the provision of any regulatory statute prescribing the procedures for conduct of city business, or the orders, rules, or regulations of any city agency, if strict compliance with the provisions of any statute, order, rule, or regulation would in any way prevent, hinder, or delay necessary action in coping with the emergency or disaster;

c.

Utilize all available resources of the city government as reasonably necessary to cope with the emergency or disaster;

d.

Transfer the personnel, functions, and/or responsibilities of city agencies or units for the purpose of performing or facilitating emergency or disaster services;

e.

Request voluntary restrictions or conservation of water use by public or private users of water in the city. Mandatory restrictions may be imposed by the mayor by emergency order finding that it is essential that mandatory conservation measures be implemented without delay, before any mandatory water conservation measure shall be enforceable without a state of emergency and/or a limited city state of emergency, the mayor shall hold a public hearing on the issue of said mandatory measure. If conservation measures are ordered without a state of emergency and/or a limited city state of emergency, a hearing shall be held within 14 days upon seven days' notice. Notice of the hearing shall be published at least seven days before the hearing in no less than two Delaware newspapers of general circulation. A hearing officer, who shall be appointed by the mayor, shall preside over any hearings required by this subsection, and shall make a written report and recommendation about the evidence presented at the hearing to the mayor;

f.

Request state and federal assistance as deemed necessary;

g.

On behalf of this city, enter into reciprocal aid agreements or compacts with other local jurisdictions and the state government, on a statewide basis with a neighboring jurisdictions, as deemed necessary;

h.

Cooperate with the governor and the president, heads of armed forces, state and federal agencies regarding emergency management issues, particularly in matters pertaining to national security;

i.

Take such action and give such directions to city law enforcement officers and agencies as may be reasonable and necessary for the purpose of securing compliance with this chapter;

j.

Employ such measures and make such recommendations to state or local health agencies, authorities, or boards as may be reasonably necessary for the purpose of securing compliance with this chapter or with the findings or recommendations of such health entities by reason of conditions arising from any effects from an actual or threatened emergency or disaster. With or without emergency orders, request that the Delaware emergency management agency (DEMA) through the office of emergency management provide services by the state national guard which may protect life and property from any effects from an actual or threatened emergency or disaster.

(2)

During an emergency or disaster, the mayor may:

a.

Subject to any applicable requirements for compensation, utilize any private, public, or quasi-public property if necessary to cope with the emergency or disaster;

b.

Assign and make available for duty the employees, property, or equipment of the subdivision relating to fire fighting, engineering, rescue, health, medical and related services, police, similar items or services for emergency purposes and within or outside of the physical limits;

c.

Direct and compel the evacuation of all or part of the population from any stricken or threatened area within the city if this action is necessary for the preservation of life;

d.

Prescribe routes, modes of transportation, and destinations throughout the city in connection with evacuation;

e.

Control ingress, and egress to and from a disaster area, the movement of persons within the areas, and the occupancy of premises therein;

f.

Suspend or limit the sale, dispensing or transportation of alcoholic beverages, firearms, explosives, combustibles, and hazardous materials;

g.

Notwithstanding any other provision of law, through the use of city agencies or instrumentalities thereof, to clear or remove from publicly or privately owned land or water, debris and wreckage which may threaten public health or safety, the environment, or public or private property;

h.

Establish curfews;

i.

Take appropriate measures as described in the energy emergency contingency plan in the event of an energy crisis such as an actual or impending acute shortage in useable energy resources, whether resulting from natural disasters, disruptions in fuel supplies, national defense circumstances, international trade obstructions, or other causes;

j.

Request state and federal emergency or disaster declarations;

k.

Upon a declaration of a major disaster or during an emergency, designate in a FEMA/state agreement the mayor's authorized representative ("MAR"), who shall administer federal disaster assistance programs on behalf of the city and other grant or loan recipients, and a city coordinating officer ("CCO"), who shall coordinate city efforts with those of the state and federal government;

l.

Take such other actions as she/he reasonably believes necessary to help maintain life, health, property, or public peace.

(c)

Activation of emergency or disaster response. The response and recovery aspects of the state emergency or disaster plans shall be initiated by an emergency order or memorialized in the office of emergency management log of such proclamation of a state of emergency and/or a limited city state of emergency by the mayor, or at the discretion of the director of emergency management in consultation with the administrative assistant and the director of public safety.

(d)

The office of emergency management, in consultation with the director of public safety and the mayor's chief of staff, shall promulgate rules and regulations for installation, activation, and operation of the city-wide emergency warning system for any emergency and disaster response initiated in accordance with subsection (c).

(Ord. No. 98-118, § 1, 10-13-98; Ord. No. 03-070, § 1, 2-19-04; Ord. No. 04-061, § 1, 9-2-04)

Sec. 7-65. - Miscellaneous provisions.

(a)

Orders, rules and regulations.

(1)

Other city agencies designated or appointed by the mayor may make, amend, and rescind orders, rules, and regulation necessary for emergency management purpose and for supplementing the carrying out of this chapter, but not inconsistent with any orders, rules or regulations promulgated by the mayor or by any state agency exercising a power delegated by the mayor.

(2)

All orders, rules and regulations promulgated by the mayor or other agency authorized by this chapter to make orders, rules, and regulations shall have the full force and effect of law, when issued by the mayor or any state agency or when logged and memorialized by the office of emergency management director in accordance with this chapter. All existing laws, ordinances, rules, and regulations inconsistent with this chapter shall be suspended during the period of time of the emergency or disaster and to the extent that such conflict exists.

(3)

In order to attain uniformity so far as practicable throughout the nation in measures taken to aid emergency management, all action taken under this chapter and all orders, rules, and regulations made pursuant thereto shall be taken or made with due consideration to the orders, rules, regulations, actions, recommendations, and requests of state and federal authorities relevant thereto and, to the extent permitted by law or practical, shall be consistent with such orders, rules, regulations, actions, recommendations, and requests.

(b)

Enforcement. The law enforcement authorities of this city and of the political subdivisions of this state shall enforce the orders, rules, and regulations issued pursuant to this chapter.

(c)

Authority to accept services, gifts, grants and loans. Whenever the state and federal government, and agency or any person shall offer to this city, or through this city, services, equipment, supplies, materials, or funds by way of gift, grant or loan for purposes of emergency management, this city, acting through the mayor, may authorize any officer of this city as the case may be, to receive such services, equipment, supplies, materials, or funds on behalf of this city and subject to the terms of the offer and the rules and regulations, if any, of the agency making the offer.

(d)

Political activity. No emergency management organization established under the authority of this chapter shall participate in any form of political activity nor shall it be employed directly or indirectly for political purposes.

(e)

Penalties. Except wherein specified penalties are prescribed in this chapter, whoever violates this chapter or an emergency order issued pursuant to this chapter shall upon conviction thereof be fined not less than $500.00 nor more than $2,500.00, or imprisoned for up to six months for each violation, or both such fine and imprisonment.

(Ord. No. 98-118, § 1, 10-13-98)

Sec. 7-66. - Laws suspended during emergencies or disasters.

In the case of a declaration of a state of emergency or a limited city state of emergency by the mayor, city agencies may implement their emergency or disaster assignments without regard to procedures required by other laws (except mandatory constitutional requirements) pertaining to the performance of public work, entering into contracts, incurring of obligations, employment of temporary workers, rental of equipment, purchase of supplies, and materials and expenditures of public funds.

(Ord. No. 98-118, § 1, 10-13-98)

Sec. 7-67 - Conflict with other laws.

(a)

Whenever the restrictions of any other statute, ordinance, or regulations are consistent with but more restrictive than the restrictions imposed pursuant to this chapter, such statute, ordinance, or regulations shall govern.

(b)

During a state of emergency or a limited city state of emergency, whenever the restrictions imposed pursuant to this chapter are inconsistent and in conflict with those required by any other statute, ordinance or regulations, the provisions of the emergency order imposed pursuant to this chapter shall govern.

(Ord. No. 98-118, § 1, 10-13-98)

Sec. 7-68 - Destruction of property, looting, or injury of persons during state of emergency or a limited city state of emergency; penalty; liability for conduct of another.

(a)

During a state of emergency or limited city state of emergency, whoever maliciously destroys or damages any real or personal property or maliciously injures another shall be guilty of a felony.

(b)

Whoever violates this section shall be guilty of a class C felony.

(c)

Any person over 16 years old who violates this section shall be prosecuted as an adult.

(d)

A person is guilty of an offense under this section committed by another person when:

(1)

Acting with the state of mind that is sufficient for commission of the offense, such person causes an innocent or irresponsible person to engage in conduct constituting the offense; or

(2)

Intending to promote or facilitate the commission of the offense she/he:

a.

Solicits, requests, commands, importunes, or otherwise attempts to cause the other person to commit it;

b.

Aids, counsels, agrees or attempts to aid the other person in planning or committing it; or

c.

Having a legal duty to prevent the commission of the offense, fails to make a proper effort to do so.

(e)

In any prosecution for an offense under this section in which the criminal liability of the accused is based upon the conduct of another person pursuant to this section, it is no defense that:

(1)

The other person is not guilty of the offense in question because of irresponsibility or other legal incapacity or exemption or because of unawareness of the criminal nature of the conduct in question or of the accused's criminal purpose or because of other factors precluding the mental state required for the commission of the offense; or

(2)

The other person has not been prosecuted for or convicted of any offense based on the conduct in question or has previously been acquitted thereof or has been convicted of a different offense or in a different degree or has legal immunity from prosecution for the conduct in question.

(Ord. No. 98-118, § 1, 10-13-98)

Sec. 7-69 - Immunity from civil liability.

Neither the state, nor any county in the state, nor any municipal corporation of the state, nor any other political subdivision of the state, nor any agency of any of them, nor the agents, employees, or representatives of any of them, engaged in emergency or disaster relief operation and activities in connection with any emergency or disaster pursuant to this chapter, nor any person, firm, corporation, or other entity performing work and/or furnishing material pursuant to a contract (oral or written) with the city or with any agency of any them, entered into as a result of the declaration by the governor or the mayor of an emergency order or entered into as a part of efforts to comply with this chapter, shall be liable for the death of or any injury to persons, or damage to property, as a result of such relief operations and activities and/or the performance of or attempts to perform such contract, unless such death, injury, or damage was intentional on the part of, or was caused by willful or wanton disregard of the rights of others, by the city, as the case may be, or by any agency of any of them, or by the agents, employees, or representatives of any of them or by such person, firm, corporation, or other entity engaged in such emergency or disaster relief operations and activities and/or the performance and attempted performance of such contract, as the case may be. These provisions shall not affect the right of any person to receive statutory benefits to which he/she would otherwise be entitled in the absence of this section or under the Workmen's Compensation Act (19 Del.C. Ch. 23) or under any pension law, or the right of any such person to receive any benefits or compensation under any act of Congress.

(Ord. No. 98-118, § 1, 10-13-98)

Sec. 7-70. - Construction of chapter.

This chapter is intended to protect the health, property, environment, and safety of the people of the city, and shall be liberally construed to validate any emergency or disaster action undertaken by the city in good faith for that purpose. Without limiting the general intent of this section, any emergency order shall be interpreted so as to provide the city with the maximum opportunity to obtain state and federal emergency or disaster relief assistance for the city. This article and chapter are intended to simplify and make more uniform and effective the city's ability to take preventive and remedial action to alleviate the harm to the public from threatened or actual emergencies or disaster. To that end, this article and chapter insofar as they delete any sections of this Code which specifically identify types of emergency orders the mayor may issue to protect the public shall not be construed as eliminating such authority. Rather, this article and chapter are intended to provide relevant city authorities the power to issue such emergency orders, without limitation, as are necessary to address the particular circumstances facing the city at the time of any threatened or actual emergency or disaster.

(Ord. No. 98-118, § 1, 10-13-98)