Oak Bluffs officials defend hurricane response
Oak Bluffs emergency management director Peter Martell Tuesday gave selectmen a detailed debriefing of the emergency response to hurricane Earl, which included an order to close roads and businesses prior to the expected passage of the storm east of Nantucket late on the night of Sept. 3.
Selectmen supported Mr. Martell. They also criticized Edgartown officials for their decision to modify that town's road and business advisories, which included pushing the closing time back from 2 pm to 8 pm.
Not everyone who attended the meeting Tuesday agreed with the selectmen. Buster Giordano, co-owner of Giordano's restaurant, a summer anchor on Circuit Avenue, questioned the exercise of town authority.
The impending arrival of the storm set off a flurry of activity and public announcements — and mixed messages. What some towns described as a travel and business advisory, Oak Bluffs described as a road and business closure.
Tuesday, Mr. Martell outlined the town's response over several days leading up to the forecast arrival of the storm, on Friday, September 3.
He said that during a September 2 meeting of Island emergency management directors, town officials, police, and shelter organizers, the group acted with the best information available at the time.
"We had a lengthy discussion and decided to collectively close all roads and businesses on the Island at 2 pm," Mr. Martell said. He emphasized the hard work of everyone involved in emergency planning. "The hurricane plan worked," Mr. Martell said.
Selectman Gail Barmakian commended Mr. Martell and the emergency management team, but she questioned the travel ban and order to close businesses.
"What I do question is the appropriateness of the response," Ms. Barmakian said. "I understand the need to be prepared, but there's also a need, especially in the few hours before it's supposed to hit, to update, and be willing to modify. There's a balance of interests."
"You have to understand," Mr. Martell responded, "from our point of view, we're all running around doing last minute stuff, it's very difficult. The Code Red messaging is slightly involved, it takes anywhere from 30 to 45 minutes to get a notice out. There's just some things you can't fix. We do the best we can. We weren't about to change our time at the last minute."
Before the selectmen, Mr. Martell emphasized that he had the authority to act. He cited three documents that he said could be used in times of emergency to justify road or business closures.
These included Chapter 639 of the Acts of 1950, often referred to as the old Civil Defense Act, Massachusetts General Laws, Section 40, Chapter 37a, and a declaration of emergency.
Chapter 37a does not mention hurricanes or other natural disasters, but cites the authority of selectmen to impose a curfew "if satisfied that a riot or other form of civil disorder is occurring or there is a danger that it may occur."
Mr. Martell quoted from the Declaration of Emergency, which he said is a summary of the Civil Defense Act.
"A governor or local chief executive declaration of emergency does not directly affect the operation of private enterprises. The declaration may be accompanied by a request to stay off the roads, to release employees early, and to request a staggered arrival at work in order to promote public safety, but such action is usually in the form of a request, not an order. In extreme circumstances, roads may be ordered closed to all but emergency traffic, as occurred during and immediately following the Blizzard of 1978," Mr. Martell said, reading from the document.
"A hurricane, I would consider as an extreme circumstance," Mr. Martell told selectmen. "So the chairman of the board does have the right to order the roads closed."
A search of Massachusetts state web sites, including the Governor's office and the Massachusetts Emergency Management Agency (MEMA) sites, does not yield any document with the title cited by Mr. Martell. A document titled "Governor's Authority for State of Emergency," posted on the MEMA site, uses exactly the same language quoted by Mr. Martell, except the phrase "or local chief executive," does not appear.
An examination of relevant state laws by The Times (Sept. 8, "In Earl's aftermath, a storm of controversy,) found that the declaration of a local state of emergency is a financial mechanism that allows towns to make emergency purchases without going through the time-consuming normal business procedures of bidding and procurement. It also allows them to seek reimbursement for emergency expenses from state and federal governments.
The authority to declare a local state of emergency rests with the chairman of the local board of selectmen, with advice from the emergency management director. A local state of emergency carries no authority for town government to close roads or businesses. That authority rests with the governor, according to state law.
In conversations with The Times, police officials in several Island towns said it was their understanding they did not have the authority to enforce road closures, and several said they never intended to order people off the roads.
All four selectmen present (selectman Ron DiOrio did not attend) criticized Edgartown officials. Chairman Duncan Ross said Oak Bluffs received 10 minutes' advance notice of Edgartown's decision to push the road and business advisory back to 8 pm.
"Weather reports we had were that the storm was going to be here at 6 pm to 8 pm," Mr. Ross said. "We decided to stick to the agreement all of the towns made the day before."
"It was really disappointing that the other towns made those changes without consulting us," selectman Greg Coogan said. "It may be six towns, but it's one Island. I really think of Edgartown in particular, that was an unfair way to treat us."
On the day of the storm, even as shops and restaurants remained open In Edgartown, and residents were free to travel up-Island, Oak Bluffs' police officers, at the direction of Mr. Ross, ordered restaurants to close. Police revisited establishments in the afternoon to enforce the closure.
In the case of the Lookout Tavern and Deon's Restaurant, Mr. Ross personally went to the businesses and ordered them to close.
In the time reserved for public comment, Mr. Giordano questioned the mandatory business closings.
"I'm still confused," Mr. Giordano said. "I don't understand the interpretation of mandatory. If you owned a business and you were doing the right thing and you closed, you were punished. But if you didn't close you were rewarded, because you were open, and you were making more money."
"There was confusion because of the fact that Edgartown changed the rules," Mr. Ross said. "People in restaurants in Edgartown, I'm told, called people in restaurants in Oak Bluffs, and said 'it's been changed,' which it hadn't been."
Mr. Ross said he plans to meet with restaurant owners to clarify issues surrounding mandatory business closings. "In the future, especially with alcohol, which is where we have most of our jurisdiction, if they do not obey what they are supposed to do, they will be told that there will be a suspension of their license."
Following the meeting, Mr. Ross was asked if he is confident the board of selectmen has the authority to close roads and businesses in advance of a natural disaster.
"Not as confident as I was last week," Mr. Ross said. "I think when it comes to roads we can do an advisory. That's basically what we were doing, was an advisory because we weren't arresting anybody for being on the roads. I think that only the governor has the power to close the roads. We do have the power to say to restaurants, no serving of alcohol — that I do know. In a state of emergency, do we have the right to close businesses? I honestly don't know anymore, I was convinced last week that we did. We are certainly looking into it."
Mr. Ross said the board has asked town counsel Ron Rappaport for a definitive answer on the authority to close roads and businesses."
Mr. Ross closed the meeting with praise for Mr. Martell's service. "In spite of all the problems, the town of Oak Bluffs is very fortunate to have Peter Martell as the emergency management director, because he put his heart and soul into it," he said.