2.30 STATE ORGANIZATION AND AUTHORITY

• 2.31 State Organization
• 2.32 Authority of the Governor

2.31 State Organization

A. State Military Department, Emergency Management Division.

1. Administration of state emergency management program. The state Military Department shall administer the comprehensive emergency management program of the state of Washington. RCW 38.52.005 and .010(11).

2. Adjutant General.

   1. Director of Military Department. The Adjutant General is the Director of the Military Department. RCW 38.52.010(9). Provisions regarding the appointment and duties of the Adjutant General are contained in chapter 38.12 RCW.

   2. Responsibilities. The Adjutant General shall be responsible to the Governor for carrying out the program for emergency management of the state. RCW 38.52.030 (2), (3).

2.32 Authority of the Governor

A. Proclamation of Emergency.

1. Finding the existence of an emergency. The Governor, after finding that a public disorder, disaster, energy emergency, or riot exists within this state or any part thereof which affects life, health, property, or the public peace, may proclaim a state of emergency in the area affected. RCW 43.06.010(12).

2. Area where emergency powers effective. The powers granted the Governor during a state of emergency shall be effective only within the area described in the proclamation. Id.

3. Procedural requirements.

   1. The proclamation shall be:

      i. In writing;

      ii. Signed by the Governor;

      iii. Filed with the Secretary of State. RCW 43.06.210.

   2. The Governor shall give as much public notice as practical through the news media regarding the issuance of the proclamation. Id.

4. Termination. The state of emergency shall cease to exist upon the issuance of a proclamation declaring the termination of the emergency by the Governor. Id.

   1. When termination must occur. The Governor must terminate the state of emergency when order has been restored in the area affected. Id.

B. Powers and Duties.

1. Powers pursuant to proclamation of emergency. After proclaiming a state of emergency, and prior to its termination, the Governor may, in the area described by the proclamation, issue orders that include:
   1. Prohibiting persons from being on public streets, in public parks, or at public places during curfew;
   2. Prohibiting persons from assembling;
   3. Prohibiting use of streets, highways or public ways;
   4. Prohibiting such other activities as the Governor reasonably believes should be prohibited to help preserve and maintain life, health, property or the public peace. RCW 43.06.220.

2. General supervision of emergency management functions. The Governor, through the Adjutant General, shall have general supervision and control of the emergency management functions in the Military Department. RCW 38.52.050(1).

   1. Conditions for direct operational control. In the event of a disaster beyond local control, the Governor may assume direct operational control over all or any part of the emergency functions within this state. Id.

   2. Exercise of powers without regard to procedures and formalities required by law. If the Governor has assumed direction operational control, the Governor may exercise the powers vested in RCW 38.52.070(2) in light of the exigencies of an extreme emergency situation without regard to time-consuming procedures and formalities prescribed by law (excepting mandatory constitutional requirements), including, but not limited to:

      i. Budget law limitations;

      ii. Requirements of competitive bidding and publication of notices;

      iii. Provisions pertaining to the performance of public work;

      iv. Entering into contracts;

      v. Incurring of obligations;

      vi. Employment of temporary workers;

      vii. Rental of equipment;

      viii. Purchase of supplies and materials

      ix. Levying of taxes;

      x. Appropriation and expenditures of public funds. Id.

   3. Power to enter into contracts and incur obligations. The Governor may enter into contracts and incur obligations necessary to combat such disaster, protecting the health and safety of persons and property, and providing emergency assistance to the victims of such disaster. Id.

3. Authority. The Governor is authorized and empowered to:

   1. Make, amend, and rescind the necessary orders, rules, and regulations to carry out the provisions of chapter 38.52 RCW within the limits of the authority conferred upon him or her therein and with due consideration of the plans of the federal government.

   2. Enter into mutual aid arrangements with other states or territories, or provinces of the Dominion of Canada.

   3. Coordinate mutual aid interlocal arrangements between political subdivisions of the state.

   4. Delegate any administrative authority vested under chapter 38.52 RCW and provide for subdelegation of such authority.

   5. Appoint metropolitan or regional area coordinators when practicable.

   6. Cooperate with federal officials, and with officers and agencies of other states. RCW 38.52.050(3)(e).

4. Utilization of existing services, equipment, supplies, and facilities. In carrying out the provisions of chapter 38.52 RCW, the Governor is directed to utilize the services, equipment, supplies and facilities of:

   1. Existing public departments, offices, and agencies of the state, political subdivisions, and all other municipal corporations thereof including but not limited to districts and quasi municipal corporations organized under the laws of the state of Washington. RCW 38.52.110(1).

   2. Officers and personnel required to cooperate. Officers and personnel are directed to cooperate notwithstanding any other provision of law. Id.

5. Commandeering of service and equipment after emergency proclamation by Governor. The service and equipment of as many citizens as considered necessary may be commandeered after proclamation by the Governor of the existence of a disaster. RCW 38.52.110(2).

   1. Persons authorized to command service and equipment.

      i. The Governor;

      ii. The chief executive of counties, cities, and towns; and

      iii. The emergency management directors of local political subdivisions. Id.

6. Enforcement by organizations for emergency management. It shall be the duty of every organization for emergency management and the officers thereof to execute and enforce orders, rules, and regulations made by the Governor. RCW 38.52.150(1).

7. Violations and Penalties. Criminal sanctions apply to several types of conduct during an emergency:

   1. Willfully violating any provision of an order issued by the Governor. RCW 43.06.220(3).

   2. Maliciously destroying or damaging any real or personal property or maliciously injuring another. RCW 43.06.230.

   3. Disorderly conduct. RCW 43.06.240.

   4. Refusing to leave public way or property when ordered. RCW 43.06.250.

   5. Violating a rule, regulation, or order issued under chapter 38.52 RCW. RCW 38.52.150(2).

8. Continuity of Government. “In case of the removal, resignation, death or disability of the governor,” duties automatically devolve upon the following officers, and in the following order:
   1. Lieutenant Governor
   2. Secretary of State
   3. Treasurer
   4. Auditor
   5. Attorney General
   6. Superintendent of Public Instruction
   7. Commissioner of Public Lands. Wash. Const. art. III, §10.

C. Case Law Involving Actions by the Governor During an Emergency.

1. Delegation of police power to Governor in times of emergency. The statutory powers in chapters 43.06 RCW and 38.52 RCW evidence a clear intent by the Legislature to delegate requisite police power to the Governor in times of emergency. Cougar Business Owners Ass’n v. State, 97 Wn.2d 466, 474, 647 P.2d 481 (1982).

2. Discretion to determine start and end of emergencies. The Governor has discretion to determine both the start and end of an emergency. Emergency powers are not limited to clean-up operations; actions of a preventative nature may be taken. Id. at 475-76.