In the Matter of CITY OF MIAMI BEACH, FLORIDA

February 10, 2025

CBCA 8205-FEMA

In the Matter of CITY OF MIAMI BEACH, FLORIDA

Juan Ramón Mestas, Deputy Chief, Fire Operations, and Emergency Manager, of City

of Miami Beach, Miami Beach, FL, appearing for Applicant; and Henry J. Hunnefeld, First

Assistant City Attorney, Freddi Mack, Senior Assistant City Attorney, and John Rigling,

Consultant, City of Miami Beach, Miami Beach, FL, counsel for Applicant.

Cassie Sykes, Recovery Appeals Officer, and Melody Cantrell, Recovery Legal

Liason, Florida Division of Emergency Management, Tallahassee, FL, appearing for

Grantee; and Caleb Keller, Senior Attorney, and Suhail Chhabra, Deputy General Counsel,

Florida Division of Emergency Management, Tallahassee, FL, counsel for Grantee.

Ramoncito J. deBorja and Rebecca J. Otey, Office of Chief Counsel, Federal

Emergency Management Agency, Department of Homeland Security, Washington, DC,

counsel for Federal Emergency Management Agency.

Before the Arbitration Panel consisting of Board Judges BEARDSLEY (Chair), RUSSELL,

and VOLK.

VOLK, Board Judge, writing for the Panel.

In this arbitration, the City of Miami Beach, Florida (applicant or City) seeks

$2,358,235 in public assistance (PA) funding for overtime costs of City police officers

responding to the COVID-19 pandemic. The Federal Emergency Management Agency

(FEMA) denied reimbursement, determining that the City failed to demonstrate that the

police officers’ activities qualified as eligible emergency protective measures. We conclude

that some, but not all, of the overtime hours for which the City seeks reimbursement are

supported by adequate documentation and eligible for PA funding.

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Background

On March 25, 2020, the President of the United States declared COVID-19 a major

disaster in Florida, enabling applicants such as the City to request PA funding from FEMA

to reimburse costs for emergency protective measures undertaken during the incident period,

which ran from January 20, 2020, to May 11, 2023. This arbitration is limited to police

overtime costs incurred by the City during March 2020.

FEMA guidance in effect at that time provided that emergency protective measures

undertaken to “[e]liminate or lessen immediate threats to lives, public health, or safety” were

eligible for PA funding. Public Assistance Program and Policy Guide (PAPPG) (Apr. 2018)

at 57. The PAPPG provided a non-exhaustive list of eligible emergency protective measures

that may be undertaken to “save lives or protect public health or safety.” Id. at 58. That list

included “[s]ecurity, such as barricades, fencing, or law enforcement.” Id.

In addition to the PAPPG, FEMA issued guidance specific to COVID-19. In a fact

sheet applicable to work performed from January 20, 2020, through September 14, 2020,

FEMA urged officials to act “pursuant to public health guidance.” FEMA’s Exhibit A,

Coronavirus (COVID-19) Pandemic: Eligible Emergency Protective Measures Fact Sheet

at 1 (May 10, 2023) (COVID-19 Fact Sheet) (“FEMA urges officials to, without delay, take

appropriate actions that are necessary to protect public health and safety pursuant to public

health guidance and conditions and capabilities in their jurisdictions.”). The COVID-19 Fact

Sheet provided a non-exhaustive list of emergency protective measures for which FEMA

indicated it may provide assistance. Id. at 2-3. That list included “[s]ecurity and law

enforcement.” Id. at 3.

The City requested $2,358,235 in PA funding for overtime expenditures for the City’s

police officers during March 2020. The City calculated this amount based on the overtime

hours recorded by the police officers under an overtime code created by the City to track

hours relating to the COVID-19 pandemic.

After the City submitted its request, FEMA asked the City to provide descriptions of

the work performed by each employee and how the work was directly related to COVID-19

emergency protective measures.

In response, the City provided FEMA with

contemporaneous activity logs from the police officers and the following summary of their

overtime activities:

•

Police personnel were involved with enforcement of county and city

ordinances and security, to include management, control, and reduction

of immediate threats to public health and safety.

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•

Police personnel were assigned to patrol several citywide sites (e.g.,

boardwalks, piers, parks, an open-air mall, and restaurants) and enforce

social distancing, gathering size limitations, closures, and curfews.

•

Police personnel were redirected from their regular duties to provide

services to include personal protective equipment (PPE) and supplies

distribution for COVID-19, tasks for compliance with county and city

ordinances, decontamination of the police headquarters and/or

substations, and staffing security checkpoints in strategic areas.

Applicant’s Request for Arbitration at 2.

In an August 2023 determination memorandum, FEMA denied the City’s

reimbursement request. FEMA found that most of the claimed activities were a continuation

of routine services provided by the police department such as patrolling, traffic control, and

administrative duties. FEMA also found that if the City’s request included work for any

eligible emergency protective measure, that work was not adequately documented. FEMA

denied the City’s first appeal on the same grounds, and the City requested arbitration.

Discussion

FEMA first argues that the City’s claimed work activities are not eligible emergency

protective measures under FEMA’s COVID-19 policies. FEMA explains that the City’s

request for reimbursement “primarily focuses on measures to enforce social distancing (e.g.,

patrolling areas such as boardwalks, piers, parks, an open-air mall, and restaurants to enforce

city and county ordinances, and CDC guidelines).” FEMA contends that these costs are

ineligible for PA because “measures to enforce social distancing are not listed as [emergency

protective measures] in any of FEMA’s applicable policies” and because the City’s social

distancing enforcement activities were “mitigation efforts to reduce a future event,” rather

than “the direct result of the disaster.” We disagree.

Another Board panel recently considered similar arguments in the City’s arbitration

request relating to costs incurred by its fire department. In City of Miami Beach, Florida,

CBCA 7878-FEMA, 24-1 BCA ¶ 38,689, at 188,102-03, the City assigned lifeguards to

enforce beach closures and social distancing ordinances. FEMA argued that these activities

were not eligible emergency protective measures because they were not a direct result of the

disaster. The panel disagreed, explaining that social distancing enforcement activities

lessened immediate threats to lives and public health. Id. at 188,103. We reach the same

conclusion.

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Contrary to FEMA’s position, the City police officers’ enforcement of social

distancing ordinances in March 2020 was an eligible emergency protective measure under

the plain language of the applicable guidance. As discussed above, both the PAPPG and

FEMA’s COVID-19 Fact Sheet identified security and law enforcement within

non-exhaustive lists of eligible emergency protective measures. The COVID-19 Fact Sheet

began by “urg[ing] officials to, without delay take appropriate actions that are necessary to

protect public health and safety pursuant to public health guidance.” The City used its law

enforcement personnel to do as FEMA urged. Nothing in the guidance suggests that eligible

law enforcement costs would not include social distancing enforcement activities.

We also disagree with FEMA’s argument that the City’s social distancing

enforcement activities were “mitigation efforts to reduce a future event,” rather than the

direct result of the disaster. The social distancing requirements that the City’s officers

enforced would not have existed but for COVID-19. These activities were undertaken to

“save lives or protect public health or safety,” PAPPG at 58, during the COVID-19 disaster,

not to mitigate some distinct future event.

FEMA relies on some of its own second appeal decisions, the most relevant of which

is Jackson County, FEMA-4528-DR-MS (Sept. 27, 2023). In that matter, Jackson County,

Mississippi, sought reimbursement for the costs of security contractors that it hired to patrol

beaches and enforce social distancing requirements. FEMA denied the request and the

County’s appeals. FEMA’s reasoning in Jackson County is generally the same as its position

in this arbitration. While FEMA’s position in this arbitration may be entirely consistent with

the position it has taken in other matters, we are not persuaded that its position comports with

a plain reading of the applicable guidance. We conclude that overtime costs for the City’s

police officers to enforce social distancing ordinances during March 2020 were eligible

emergency protective measures.

That conclusion does not fully resolve this arbitration, as FEMA challenges whether

the $2,358,235 requested by the City is recoverable even if the police officers’ social

distancing enforcement activities are eligible emergency protective measures. Based on its

review of the City’s documentation, FEMA found that most of the claimed activities were

a continuation of routine services provided by the police department such as patrolling,

traffic control, and administrative duties. FEMA argues that the City fails to present

adequate documentation to support recovery of its claimed costs and that the City’s

expenditures constitute ineligible increased operating costs for the City’s police department,

rather than costs of eligible emergency protective measures. We agree with these arguments

in part.

In our review of the police officers’ activity logs, we find that the logs often do not

establish that the officer was actually engaged in enforcement of social distancing

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requirements or any other activity specific to COVID-19. For example, the description in

one officer’s logs, though recorded under the City’s COVID-19 overtime code, stated

“Spring Break 2020.” This indicates that the hours most likely should have been recorded

under the overtime code that the City uses to record overtime work related to events and

visitors for spring break, which the City acknowledges requires significant police overtime

during March in a normal year. Applicant’s Exhibit 15 at CMB 449-63.

Many of the activity logs indicate only a location or patrol area. E.g., Applicant’s

Exhibit 15 at CMB 584 (“OCEAN DRIVE FOOT BEAT”), CMB 566 (“Area 3 North . . .

Bravo Shift”). Other logs provide only a general description of the officer’s duties without

any indication that they were performing an activity specific to COVID-19. E.g., id. at

CMB 641 (“CID Major Crimes”); Applicant’s Exhibit 16 at CMB 851 (“PEU SUPERVISOR . . . Normal Duties”). The costs for these hours are not recoverable.

Nonetheless, a significant number of the City’s activity logs are sufficient to establish

that the officer was engaged in social distancing enforcement or other eligible COVID-19

work. E.g., Applicant’s Exhibit 15 at CMB 521 (“Conducting COVID 19 Social Distancing

and mask CDC Guidelines enforcement”), CMB 464 (“5-10 Street Beach Closure . . . Beach

Closure/COVID-19 Restriction”).

The City’s claimed costs are eligible for PA funding only to the extent that they are

supported by an activity log (within Applicant’s Exhibits 15 to 22) affirmatively indicating

—on the log’s face—that the officer’s time was spent enforcing social distancing

requirements or performing other eligible work specific to COVID-19, as opposed to simply

patrolling or conducting other routine police activities. If the activity log is not clear on its

face, or if it is not clear what portion of a block of time was spent on activities specific to

COVID-19, the costs of those hours are not recoverable. We return the matter to the parties

to evaluate which hours and costs claimed by the City meet these criteria.

Decision

Social distancing enforcement activities undertaken by the City’s police officers

during March 2020 were emergency protective measures and are eligible for PA funding, but

the City’s claimed costs are recoverable only to the extent that they are supported by an

activity log affirmatively indicating—on its face—that the officer’s time was spent enforcing

social distancing requirements or performing other eligible work specific to COVID-19.

Daniel B. Volk

DANIEL B. VOLK

Board Judge

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Erica S. Beardsley

ERICA S. BEARDSLEY

Board Judge

Beverly M. Russell

BEVERLY M. RUSSELL

Board Judge