You have been very quiet in regards to FEMA’s latest misadventures. Makes me wonder if there is activity going on in the background regarding legal action, etc.
Executive Summary: Department of Homeland Security, Federal Emergency Management Agency’s implementation, management and execution of the National Flood Insurance Program and the associated Pilot Inspection Program appear to be in direct conflict with specific laws, rules and regulations. Federal Emergency Management Agency (FEMA) employees exceeded their authority by issuing two extensions of the Pilot Inspection Program for flood insurance without agency specified approval. The employees have unilaterally modified requirements found in the Code of Federal Regulations, without agency approval or authority, and applied those modifications in the performance of their duties regarding floodplain management issues in Monroe County, Florida. The employees have mandated that a local government and its citizens be burdened with the responsibility, without funding, for administrative, permitting and enforcement of the Endangered Species Act – a federal responsibility. The employees have issued specific threats of retaliation if the local government did not comply with multiple mandates not authorized by Congress and not codified in US law. The same FEMA employees have also engaged in a long history of abusive behavior using threats and intimidation to coerce a local government and its citizens into compliance with a floodplain management policy that is punitive and inconsistent and presents the appearance of misconduct.
This complaint is in regards to improprieties associated with the FEMA, National Flood Insurance Program, Pilot Inspection Program as codified in 44 CFR 59.30, Subchapter B: Insurance and Hazard Mitigation, Part 59: General Provisions, Subpart C: Pilot Inspection Program.
Who committed the wrongdoing (person, company or organization)?
Mr. Major Phillip May, FEMA Region IV Office Administrator
Mr. Brad Loar, FEMA Region IV Office Mitigation Director
Mr. Prasad Inmula, FEMA Region IV Office, Flood Mitigation Specialist
Possibly other employees
What exactly did the individual or entity do?
Failed to adhere or comply with Executive Order 13132
[Executive Order (“EO”) 13132 click on that link to see it]
Failed to comply with specific aspects of 44 CFR 59.30
[44 CFR 59.30 - A pilot inspection
procedure. - Code of ... click on that link to see it]
Abuse of authority/exceeding authority
Communication of threats; use of intimidation tactics
Punitive, discriminatory, inconsistent policy
Creation of hostile environment
Where did the activity take place?
FEMA Region IV Office, Atlanta, Georgia, and Monroe County, Florida
Pilot Inspection Program notice was initiated on December 28, 2000 with continuous interaction between FEMA Region IV Office and Monroe County since that date
How was the activity committed?
During meetings, via formal and informal correspondence including emails
Do you know why the person committed the alleged wrongdoing?
Who else has knowledge of the alleged wrongdoing?
William Craig Fugate, FEMA Director, Congresswoman Ros-Lehtinen, various Monroe County elected officials, employees and affected citizens, local newspaper reporters
Allegation I – Violation of Executive Order 13132
On April 14, 2011, Mr. Brad Loar, FEMA Region IV Office, Mitigation Director, sent the Mayor of Monroe County, Florida, a letter that stated Monroe County, Florida “must implement and enforce” specific aspects of the Endangered Species Act. This new and unfunded requirement mandates that Monroe County perform administrative, permitting and enforcement responsibilities in support of the Endangered Species Act at a cost to Monroe County that could approach $64,000,000 with an estimated annual cost of $400,000. In a letter dated December 2, 2011, Mr. Brad Loar threatened Monroe County and its citizens with removal from the National Flood Insurance Program if Monroe County did not comply with FEMA’s mandate regarding the management responsibilities of the Endangered Species Act delegated to Monroe County by FEMA. FEMA Region IV Office’s long history of threats and intimidation was articulated in a December 7, 2011 letter from Congresswoman Ros-Lehtinen to Craig Fugate, FEMA Director. FEMA’s decision to mandate unfunded requirements to a local government is in direct violation of Executive Order 13132.
Allegation II – Violation of Executive Order 13132
In a letter dated January 9, 2012, Mr. Major Phillip May unilaterally changed the requirements for Monroe County, Florida’s participation in the National Flood Insurance, Pilot Inspection Program. Very specific requirements for the community responsibilities were previously identified in 44 CFR 59.30. The original community responsibilities for floodplain management requirements found in 44 CFR 59.30 were clarified/modified by Mr. Brad Loar in a letter to Monroe County dated October 7, 2008. The January 9, 2012 mandate by Mr. May and the associated requirements apply additional administrative and management burdens on Monroe County creating additional costs to Monroe County, Florida and its citizens. Additionally Mr. May is mandating that Monroe County enforce aspects of the floodplain management efforts that are out of Monroe County’s realm of authority.
Allegation III – Failed to comply with 44 CFR 59.30
The Pilot Inspection Program requirements, as found in 44 CFR 59.30 Subpart C, specifies in Section 2 “The Federal Insurance Administrator may extend the implementation of the inspection procedure with a new termination date upon the recommendation of the Regional Administrator.” Mr. Brad Loar, a GS-15 employee, notified Monroe County the Pilot Inspection Program was being extended in a letter dated October 7, 2008. 44 CFR Part 2 – Subpart A Organization, Functions, and Delegations of Authority §2.2, Regional Offices (c) Delegated authorities states that “In addition, the authorities of the Federal Insurance Administrator as set forth in §2.31 are not delegated to the Regional Directors.” (emphasis added). By extending the Pilot Inspection Program without the approval of the Federal Insurance Administrator and without appropriate delegated authority, Mr. Brad Loar exceeded and abused his authority in the performance of his duties. In doing so, Mr. Loar created severe hardships on citizens of Monroe County and required that Monroe County expend a significant amount of local funding to continue 44 CFR 59.30 Subpart C mandated floodplain management efforts as well as new requirements mandated by Mr. Loar. Please note that Mr. David Maurstad, Federal Insurance Administrator, resigned on September 13, 2008 and a replacement had not been named when Mr. Brad Loar signed the extension letter on October 7, 2008.
Allegation IV – Failed to comply with 44 CFR 59.30
44 CFR 59.30 specifies in Section 2 “The Federal Insurance Administrator may extend the implementation of the inspection procedure with a new termination date upon the recommendation of the Regional Administrator. Mr. Major Phillip May, a SES employee and FEMA Region IV Administrator extended the inspection procedure in a letter to Monroe County dated January 9, 2012. 44 CFR Part 2 – Subpart A Organization, Functions, and Delegations of Authority §2.2, Regional Offices (c) Delegated authorities states that “In addition, the authorities of the Federal Insurance Administrator as set forth in §2.31 are not delegated to the Regional Directors.” (emphasis added). By extending the Pilot Inspection Program without the approval of the Federal Insurance Administrator and without appropriate delegated authority, Mr. Major Mays exceeded and abused his authority in the performance of his duties. Monroe County is currently expending local funding while assessing the latest extension of the Pilot Inspection Program and the new mandates Mr. May has placed on Monroe County.
Allegation V – Retaliation
Mr. Major Phillip May extended the Pilot Inspection Program and associated inspection procedure less than 30 days after the Director of FEMA received a letter from a Member of Congress that expressed indignation regarding a December 7, 2011 letter from Mr. Brad Loar, FEMA Region IV Office to Monroe County. Contained within Mr. May’s letter were new, burdensome and unfunded requirements not authorized by 44 CFR 59.30 as well as threats to place Monroe County on probation or actual suspension from the National Flood Insurance Program if deem non-compliant. Mr. May’s timing, new unauthorized requirements and threats to suspend Monroe County from the National Flood Insurance Program appear to be retaliatory in nature.
Allegation VI – Abuse of authority, inconsistent policy, gross mismanagement
A history of threats and intimidation by FEMA Region IV employees of Monroe County elected officials, its employees and citizens is well documented in official correspondence. This history of abuse is clearly articulated by a Member of Congress in a letter to FEMA Director dated December 7, 2011. A survey, interviews with local officials in the FEMA Region IV area of responsibility, comparative analysis and review of efforts by Mr. May and Mr. Loar to adjudicate floodplain management issues within the FEMA Region IV Office area of responsibility (eight states) reveals a pattern of very inconsistent, discriminatory and punitive application of floodplain management policy. It should be noted that inconsistent application of floodplain management policy is even occurring within Monroe County, Florida when the incorporated locations are compared with the unincorporated locations.
As one of many examples, in a letter to Monroe County dated Oct. 7, 2008 signed by Mr. Loar, in which he identified the extension of the Pilot Inspection Program, and required that Monroe County accomplish the following to complete the Pilot Inspection Program:
Provide to FEMA a list of insured buildings incorrectly rated as pre-FIRM (Flood Insurance Rate Map) and a list of post-FIRM buildings that the community identifies as possible violations;
Inspect insured buildings at the request of policyholders who received a notice from the insurer that an inspection is necessary in order to renew the policy; and
Demonstrate to FEMA that the community is undertaking measures to remedy the violation to the maximum extent possible for insured post-FIRM buildings that the community inspects and determines to violate the community’s floodplain management regulations.
Please note Mr. Loar’s requirements deviated from the initial requirements provided in 44 CFR 59.30. Regardless of Mr. Loar’s mandated deviations, Monroe County worked diligently during the period from October 2008 until January 2012 to meet the requirements as identified by Mr. Loar. This effort included frequent communications and continuous oversight by the FEMA Region IV Office. There is substantial documentation of correspondence between Monroe County and Mr. Brad Loar and Ms Susan Wilson, FEMA Region IV Office during this period of time. The documentation identifies that Monroe County transmitted over 5,000 letters to insurance carriers, conducted an unprecedented number of home inspections, both internal and external, and corrected a large number of floodplain management code violations in an effort to meet the 2008 compliance requirements identified in Mr. Loar’s letter.
In his January 9, 2012 letter to the Monroe County Mayor and Board of County Commissioners, Mr. Major Phillip May unilateral modified the requirements for the inspection procedure to include:
Continue to identify potential floodplain management enclosure violations; inspect the potential violations; and remedy the violations to the maximum extent possible
Submit a detailed compliance plan no later than March 1, 2012, to the Regional Office, outlining how the County will complete the Inspection Procedure by June 28, 2013
Submit quarterly progress reports to the Regional Office.”
Additionally, Mr. May identified to Monroe County that, even though Monroe County followed the intent of the requirements identified in Mr. Loar’s 2008 Pilot Inspection Program extension letter, the efforts did not constitute community compliance with the mandates of the floodplain regulations. Mr. May now states that Monroe County must submit additional plans and progress reports, perform an inspection on all properties, regardless of status of participation in the National Flood Insurance Program, regardless
of the number of properties that are “in the pipeline” awaiting insurance carrier notification or property owner response. Monroe County officials have no authority to mitigate issues of responsiveness between private insurance carriers and their customers. Regardless, Mr. May is holding Monroe County accountable for such delays and is attributing this deficiency as justification for extending the Pilot Inspection Program. Please note that an Oct. 7, 2008 letter, Mr. Loar specifically stated that as a requirement for compliance, Monroe County must “Inspect insured buildings at the request of policyholders who received a notice from the insurer that an inspection is necessary in order to renew the policy”. Monroe County followed this requirement to the letter. At no time during the period of October 2008 and January 2012 did the FEMA Region IV Office identify that any or all of Monroe County’s efforts were deficient or non-compliant. Just the opposite occurred in which Mr. Loar threatened probation and suspension in a September 30, 2009 letter if Monroe County attempted to deviate from the process that Mr. Loar defined or approved.
In another example of FEMA Region IV Office mismanagement and abusive tactics, Mr. Loar’s December 2, 2011 letter regarding the Endangered Species Act was the first communication to Monroe County in over six months regarding the issue, despite the concerns formally expressed to FEMA Region IV Office by Monroe County in April, 2011. Mr. Loar’s letter also provided less than 30 days for Monroe County to fund and implement the Endangered Species Act mandate contained in Mr. Loar’s letter. Mr. Loar also threatened that if the mandate was not complied with in what can only be defined as a very unreasonable time period, FEMA Region IV office would begin procedures to suspend Monroe County from the National Flood Insurance Program. Thousands of Monroe County residents are dependent on the FEMA flood insurance program in order to retain their mortgage standings with financial institutions.
On March 29, 2011, Mr. Prasad Inmula, FEMA Region IV Office sent an email to Dianne Bair, Monroe County Growth Management and directed a variance to the flood- plain management program issued by Monroe County for Debra and Rory Brown be rescinded. Monroe County issued the variance in order to allow the Brown’s severely disabled son, Darren Brown, to live in an enclosure below a stilted home that is five feet below the base flood elevation. In the email, Mr. Inmula ordered Monroe County to:
Immediately cease issuing variances
Research and review all variances previously issued; rescind such variances and analyze them on a case by case basis
Submit to this office on a monthly basis, a Floodplain Management Variance Report (copy attached)
This is another example of the FEMA Region IV Office exceeding their authority and adding unfunded requirements to Monroe County’s limited staff and budget without regard to Executive Order 13132 and specific requirements identified in 44 CFR 59.30. This also illustrates an apparent ignorance or disregard for the American with Disabilities Act.
Please note the FEMA Region IV Office later reversed their previous decision in regards to disallowing a disabled son to live with his parents. It should be also noted the FEMA Region IV Office was made fully aware of another variance granted by Monroe County in 2004 for a high profile couple. FEMA Region IV never objected to that variance.
In a September 30, 2009 letter Mr. Loar responded to an inquiry from Mr. Roman Gastesi, Monroe County Administrator regarding the repealing of locally generated inspection program specifics in which Monroe County had exceeded the requirements of 44 CFR 59.30 in a show of good faith. Mr. Loar identified that two items Monroe County wanted to remove from the existing inspection program are not related to the Pilot Inspection Program which were:
Requiring property owners to obtain an inspection report if they sell or transfer title to a property
Requiring property owners with below flood elevation enclosures to obtain an inspection report if they seek a building permit and to remediate (sic) any identified noncompliant aspects of enclosures prior to issuance of a building permit
Mr. Loar then stated that Monroe County should not repeal these compliance measures, even though unintended consequences had been created by Monroe County’s additional inspection effort. He further stated “If these measures are repealed, we will request that the County provide us with alternative measures to identify and take enforcement action against non-compliant enclosures in non-insured buildings.”
Mr. Loar’s response interfered with a local government’s attempt to resolve a local issue, knowing fully well the issue was outside the parameters of 44 CFR 59.30 and his authority. Please note the State of Florida later passed legislation (House Bill 407) that stopped lower enclosure inspections when applying for a building permit. In a letter from Mr. Loar, dated October 14, 2011 to Christine Hurley, Monroe County Growth Management Division Director, Mr. Loar acknowledged the passage of House Bill 407 but did not request the County provide FEMA with alternative measures to identify and take enforcement action and did not further discuss the removal of the inspection procedure by the Florida legislature.
Summary: The allegations of wrongdoing by FEMA government employees found in this complaint are valid and fully documented as a matter of public record. Ten years of FEMA Region IV Office’s free reign over Monroe County, Florida allowed abuse of authority, multiple violations of an Executive Order and numerous other activities that are, at a minimum, questionable. The continued overreach by FEMA Region IV Office employees has now resulted in FEMA threatening to remove Monroe County from the National Flood Insurance Program if Monroe County does not submit to demands that Monroe County provide, at local taxpayer’s expense, administrative, permitting and enforcement responsibilities in support of the Endangered Species Act.
Felt no call for a long time to hold forth on FEMA and the Keys (County).Whose work product is the attachment? Some of what I saw in a look-over sort of reminds me of Phil Shannon’s positions in some ways. Am going to take some time later to go through the attachment slowly. Perhaps I will be told to publish it, but I think first I would need to know whose work product it is, and what, if anything, it being done to take it farther?As for me generally re FEMA, I get something every now and then from Citizens Not Serfs, the last one maybe a month ago, saying they have been working hard behind the scenes, talking to legal counsel, I think. I tried so hard to get Phil to sue FEMA, he had the means to bankroll it, John November wanted it, would have busted his [butt] doing it. I tried to get Phil to hire Lee Rohe, after Lee had tried to persuade Phil to hire him. Phil just didn’t like litigation, was all I could come up with, and he was certain FEMA’s pilot would end toward the end of 2010, as I recall the timing, but I wasn’t convinced and apparently FEMA did not walk away from the Keys re downstairs enclosures. I said at several candidate forums, and often on my blogs, that if I were put on the County Commission, I would sue FEMA in Federal Court for the people of the Keys, as a dissident county commissioner, sort of like a stockholders derivative lawsuit. I told the County Commission, if it litigated with FEMA over the settlement between it and the environmentalists, over the issuance of federal flood insurance in environmental sensitive areas, which was encouraging development there, the County should make it a double-header suit, and bring in the downstairs enclosures/pilot side of the FEMA-Keys rumble, too. I begged the people who took over Citizens Not Serfs after Phil died to hire John November back, he was interested, he told me the day he “testified” before the county commission about the new state law he had a big hand in getting passed, curtailing to some degree what code enforcement/building inspectors could look for and report after someone pulled a building permit, say, to re-roof or build a new driveway. I also encouraged Citizens Not Serfs to hire Lee Rohe when they announced after Phil’s passing that they were looking for a lawyer to litigate.
I followed up:
Thanks for answering my questions, I need to study on and ponder yours even more, although it does come to me to say Bob Shillinger might be interested in seeing what you have put together with a lot of effort and research. I imagine he would love to turn FEMA’s world upside down. The county commissioners and Roman Gastesi and Christine Hurley might be interested, too, for same reason. Will be back to you.