B-125617, DEC 6, 1973, 53 COMP GEN 410

B-125617, DEC 6, 1973, 53 COMP GEN 410

STATES - FIRE FIGHTING SERVICES - GOVERNMENT REIMBURSEMENT LIABILITY REIMBURSEMENT BY THE GENERAL SERVICES ADMINISTRATION TO THE ST. LOUIS COMMUNITY FIRE PROTECTION DISTRICT (CFPD) AND OTHER SEPARATE DISTRICT AND LOCAL FIRE DEPARTMENTS FOR THE SUPPLEMENTAL EXPENSES INCURRED DUE TO EQUIPMENT LOSSES AND PAYROLL COSTS FOR PERSONNEL CALLED TO DUTY TO RESPOND TO A FIRE AT THE MILITARY PERSONNEL RECORDS CENTER IS NOT AUTHORIZED SINCE THE CENTER IS LOCATED WITHIN THE AREA COVERED BY THE ST. LOUIS CFPD, WHICH AS A POLITICAL SUBDIVISION UNDER MISSOURI LAW HAS THE STATUTORY DUTY TO RENDER FIRE FIGHTING SERVICES WITHOUT COST, A DUTY THAT EXTENDS TO THE PROPERTY OF THE UNITED STATES IN VIEW OF THE GOVERNMENT'S SOVEREIGN IMMUNITY FROM TAXATION. ALTHOUGH THE RECORD CENTER LAY OUTSIDE THE BOUNDARIES OF THE SURROUNDING DISTRICT AND LOCAL FIRE DEPARTMENTS, AND GSA HAS THE AUTHORITY TO CONTRACT FOR THEIR SERVICES, THEIR OBLIGATION TO RESPOND TO THE CENTER FIRE AROSE OUT OF MUTUAL AGREEMENTS WITH CFPD.

TO THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, DECEMBER 6, 1973:

THIS IS IN REPLY TO YOUR ADMINISTRATION'S LETTERS OF AUGUST 1 AND SEPTEMBER 10, 1973, CONCERNING THE AUTHORITY OF THE GENERAL SERVICES ADMINISTRATION (GSA) TO REIMBURSE LOCAL FIRE DEPARTMENTS FOR CERTAIN COSTS INCURRED AS A RESULT OF THE FIRE AT THE MILITARY PERSONNEL RECORDS CENTER (CENTER), OVERLAND, MISSOURI, JULY 12 TO 16, 1973.

THE CENTER, UNDER THE CUSTODY AND CONTROL OF GSA, IS LOCATED IN A SIX STORY WAREHOUSE-TYPE STRUCTURE WITH A GROSS AREA OF OVER 1.5 MILLION SQUARE FEET. THE CIRCUMSTANCES OF THE FIRE AND THE RESPONSE BY THE VARIOUS FIRE DEPARTMENTS WERE SET FORTH IN YOUR LETTER AS FOLLOWS:

WITHIN MINUTES AFTER THE DISCOVERY OF THE FIRE, ELEMENTS OF THE COMMUNITY FIRE PROTECTION DISTRICT OF ST. LOUIS COUNTY RESPONDED TO THE FIRE. BECAUSE OF THE SIZE OF THE BUILDING AND THE RAPID SPREAD OF FIRE, APPROXIMATELY FORTY OTHER SEPARATE DISTRICT AND LOCAL FIRE DEPARTMENTS WERE CALLED FOR ASSISTANCE. BY THE AFTERNOON OF JULY 13, SOME FIREMEN WERE ABLE TO ENTER THE SIXTH FLOOR TO FIGHT THE FIRE FROM THE INTERIOR. BY DAYLIGHT ON JULY 14 THE FIRE WAS CONTAINED TO A SMALL AREA ON THE SIXTH FLOOR. THE FIRE WAS CONSIDERED EXTINGUISHED ON MONDAY, JULY 16 AFTER THE ENTIRE SIXTH FLOOR WAS DESTROYED.

THE LOCATION OF THE CENTER IS WITHIN THE BOUNDARIES OF THE COMMUNITY FIRE PROTECTION DISTRICT BUT OUTSIDE THE BOUNDARIES OF THE OTHER FIRE DEPARTMENTS WHICH RESPONDED TO THE FIRE. HOWEVER, IN ORDER TO PROVIDE ASSISTANCE IN EMERGENCY CONDITIONS, ALL OF THE FIRE DEPARTMENTS INVOLVED IN EXTINGUISHING THE BLAZE HAD PREVIOUSLY ENTERED INTO A MUTUAL AID AGREEMENT PURSUANT TO SECTION 70.210 TO 70.320, INCLUSIVE, OF THE REVISED STATUTES OF MISSOURI FOR THE INTERCHANGE OF FIRE FIGHTING SERVICES. UNDER THE TERMS OF THE AGREEMENT, PARTIES THERETO ARE NOT ENTITLED TO RECEIVE COMPENSATION, OR BECOME OBLIGATED TO PAY FOR ANY SERVICES PERFORMED UNDER THE AGREEMENT. FURTHER, THE AGREEMENT PROVIDED THAT ANY PARTY MAY TERMINATE ITS OBLIGATIONS THEREUNDER BY GIVING 30 DAYS NOTICE.

SPECIFICALLY YOU ASK WHETHER GSA MAY REIMBURSE THE FIRE DEPARTMENTS INVOLVED FOR SUPPLEMENTAL EXPENSES INCURRED AS A RESULT OF THE FIRE, I.E., EQUIPMENT LOSSES AND PAYROLL COSTS OVER AND ABOVE THE COST OF PERSONNEL WHO WOULD HAVE BEEN ON DUTY NOTWITHSTANDING THE FIRE.

OUR DECISIONS HAVE UNIFORMLY HELD THAT A CHARGE AGAINST APPROPRIATED FUNDS FOR FIREFIGHTING SERVICES RENDERED BY A POLITICAL SUBDIVISION IN CONNECTION WITH FIRES IN OR ON FEDERAL PROPERTY LOCATED WITHIN THE TERRITORIAL AREA OF RESPONSIBILITY OF THAT SUBDIVISION IS PRECLUDED WHERE THERE IS NO LEGAL OBLIGATION UPON THE UNITED STATES TO PAY FOR SUCH SERVICES. THESE HOLDINGS ARE PREDICATED UPON THE PREMISE, STATED GENERALLY, THAT WHERE THERE EXISTED A STATUTORY DUTY OF A MUNICIPALITY, FIRE DISTRICT OR COUNTY TO RENDER FIREFIGHTING SERVICES TO PROPERTY WITHIN ITS LIMITS WITHOUT COST TO THE OWNERS OF THE PROPERTY, SUCH DUTY EXTENDED TO PROTECTING THE PROPERTY OF THE UNITED STATES LOCATED WITHIN SUCH LIMITS WITHOUT CHARGE THEREFOR.

AS WE STATED IN 49 COMP. GEN. 284, 286 (1969), THE DUTY TO PROVIDE FIRE PROTECTION "EXTENDS TO PROTECTING THE PROPERTY OF THE UNITED STATES LOCATED WITHIN SUCH LIMITS AND, CONSEQUENTLY, SINCE THE GOVERNMENT IS THUS LEGALLY ENTITLED TO FIRE PROTECTION OR FIREFIGHTING SERVICE, THERE IS NO AUTHORITY TO CHARGE APPROPRIATED FUNDS WITH THE COST THEREOF." A CHARGE TO APPROPRIATED FUNDS FOR FIREFIGHTING SERVICES TO WHICH THE UNITED STATES IS LEGALLY ENTITLED WOULD, IN EFFECT, BE A PAYMENT IN LIEU OF TAXES WHICH WOULD BE IN CONTRAVENTION OF THE GOVERNMENT'S SOVEREIGN IMMUNITY FROM TAXATION. 24 COMP. GEN. 599 (1945); 26 ID. 382 (1946); 32ID. 91 (1952).

THE ABOVE PRINCIPLES ARE SUMMARIZED IN 45 COMP. GEN 1 (1965), WHICH RECOGNIZES A POSSIBLE EXCEPTION IN THE CASE OF A "FEDERAL ENCLAVE," WHICH IS NOT INVOLVED IN THE INSTANT SITUATION.

A FIRE PROTECTION DISTRICT IS A "POLITICAL SUBDIVISION" UNDER MISSOURI LAW, AND HENCE FALLS WITHIN THE SCOPE OF THE PRINCIPLES ENUMERATED ABOVE. VERNON'S ANNOTATED MISSOURI STATUTES, SECTIONS 70.210 AND 321.010. THERE IS THUS NO AUTHORITY FOR THE UNITED STATES TO MAKE ANY PAYMENT TO THE COMMUNITY FIRE PROTECTION DISTRICT OF ST. LOUIS COUNTY FOR FIREFIGHTING SERVICES RENDERED NOR TO CONTRACT WITH THE DISTRICT FOR FUTURE SERVICES. 35 COMP. GEN. 311 (1955); B-125617, APRIL 11, 1956.

THE SITUATION REGARDING THE SURROUNDING DISTRICT AND LOCAL FIRE DEPARTMENTS IS SOMEWHAT DIFFERENT IN THAT THE RECORDS CENTER LAY OUTSIDE THEIR BOUNDARIES AND THEIR OBLIGATION TO RESPOND TO THE FIRE AROSE OUT OF CONTRACT RATHER THAN STATUTE. NEVERTHELESS, WE ARE UNABLE TO CONCLUDE THAT THESE DIFFERENCES, IN THE CIRCUMSTANCES HERE PRESENT, COMPEL A DIFFERENT RESULT. WE BELIEVE THAT THE DECISIONS CITED ABOVE STAND FOR THE PROPOSITION THAT A FIRE DEPARTMENT WHICH IS LEGALLY OBLIGATED TO PROVIDE ITS SERVICES TO A GIVEN GEOGRAPHICAL AREA MUST PROVIDE THOSE SERVICES EQUALLY TO ALL PROPERTY WITHIN THAT AREA, INCLUDING FEDERAL PROPERTY (WITH THE POSSIBLE EXCEPTION OF THE "FEDERAL ENCLAVE" MENTIONED ABOVE). THE SOURCE OF THE OBLIGATION, WHETHER STATUTE OR AGREEMENT, CANNOT ALTER ITS NATURE. IN THE INSTANT CASE, THE MUTUAL AID AGREEMENTS HAD THE EFFECT OF EXTENDING THE AREA OF RESPONSIBILITY OF EACH SIGNATORY DEPARTMENT OR DISTRICT. TO THE EXTENT THAT THE UNITED STATES IS A BENEFICIARY UNDER THESE AGREEMENTS, IT IS MERELY AN INCIDENTAL ONE. NOR DOES THE FACT THAT THE AGREEMENTS COULD BE TERMINATED UPON 30 DAYS NOTICE ALTER THE FACT THAT THEY WERE IN FULL FORCE AND EFFECT AT THE TIME OF THE FIRE. OF COURSE IN THE EVENT THAT THE MUTUAL AID AGREEMENTS SHOULD BE TERMINATED OR RENEGOTIATED TO EXCLUDE THE RECORDS CENTER, GSA WOULD BE AUTHORIZED TO CONTRACT WITH THE SURROUNDING FIRE DISTRICTS AND DEPARTMENTS (BUT NOT WITH THE ST. LOUIS COMMUNITY FIRE PROTECTION DISTRICT) FOR APPROPRIATE FIRE PROTECTION FOR THE CENTER IN THE FUTURE. CF. 45 COMP. GEN. 1 (1965).

IN LIGHT OF THE FOREGOING WE MUST CONCLUDE THAT THERE IS NO LEGAL BASIS UPON WHICH PAYMENT BY THE UNITED STATES TO ANY OF THE FIRE DISTRICTS OR DEPARTMENTS RESPONDING TO THE RECORDS CENTER FIRE MAY BE AUTHORIZED.