Daniel D. Creitz Erie City Attorney P.O. Box 108 Erie, Kansas 66733
Dear Mr. Creitz:
You request our opinion on two specific issues regarding a training exercise planned and executed by the city of Erie police department and volunteer fire department.
You explain that the exercise involved a hypothetical electrical accident on a low cat walk at a grain elevator located in town, and that the only people aware that it was merely an exercise rather than a real situation were the volunteer fire chief, the chief of police, the sheriff of the county in which the city of Erie is located and a representative of the grain company. On the day of the exercise, the sheriff's office dispatcher was contacted and told there had been an accident at the grain company. The volunteer fire department, two ambulances and the high-angle rescue team were dispatched, causing volunteers and equipment to respond to the "scene." Apparently, anyone listening to a scanner would have heard the call to respond, but approximately 12 minutes later a disclaimer was broadcast. Your first question is this: "Do planned training exercises of the Erie Volunteer Fire Department and the Erie Police Department, where disclaimers announcing that it is a training exercise are not broadcast over the radio until after volunteers respond to the scene, constitute false alarms, in violation of K.S.A. 1994 Supp.
K.S.A. 1994 Supp.
"(a) Giving a false alarm is:
"(1) Initiating or circulating a report or warning of an impending bombing or other crime or catastrophe, knowing that the report or warning is baseless and under such circumstances that it is likely to cause evacuation of a building, place of assembly or facility of public transport or to cause public inconvenience or alarm;
"(2) transmitting in any manner to the fire department of any city, township or other municipality a false alarm of fire, knowing at the time of such transmission that there is no reasonable ground for believing that such fire exists; or
"(3) making a call in any manner for emergency service assistance including police, fire, medical or other emergency service provided under K.S.A.
12-5301 et seq., and amendments thereto, knowing at the time of such call that there is no reasonable ground for believing such assistance is needed.
"(b) Giving a false alarm is a class A nonperson misdemeanor."
Because giving a false alarm is a crime, the provisions of K.S.A. 1994 Supp.
We believe the intent of this statute is to punish individuals who maliciously summon emergency personnel knowing there is no real emergency or who cry "bomb!" or "fire!" under such circumstances that it is likely to cause public alarm or panic. Subsection (a)(1) requires not only that a "baseless" report or warning be made, but also that the person issuing the report or warning knows it will or is likely to "cause evacuation of a building, place of assembly or facility of public transport or to cause public inconvenience or alarm." Here, the fire department was not circulating a report or warning among the public, and the circumstances described were not "likely to cause evacuation . . . or to cause public inconvenience or alarm." While a few citizens not involved in the exercise may have intercepted the dispatch and become alarmed, we do not believe that would be viewed by the courts as a circumstance likely to cause general public alarm particularly when a disclaimer was made 12 minutes after the dispatch. And, because it was a departmental exercise rather than an individual crying wolf, we do not believe the other sections of the bill are implicated either. See Minutes, House Committee on Judiciary, Feb. 21, 1984 (the stated purpose for subsection (c), which was added to the statute by L. 1984, ch. 122, sec. 1, was to deter high school students from making false 911 calls). Clearly, the statute was not intended to cover the actions with which you are concerned where the fire and police department heads planned an exercise, not to jeopardize the departments or the public, but to provide training for their respective employees.
You next ask: "What, if any, civil liability does the City of Erie and Neosho County incur by having planned training exercises of the Erie Volunteer Fire Department and Erie Police Department, with dispatch services provided by the Neosho County Sheriff's Office, where a disclaimer announcing that it is a training exercise is not broadcast over the radio until after volunteers respond to the scene, instead of broadcasting the disclaimer before dispatching volunteers to the scene?"
Although we conclude that the city of Erie fire department exercise did not constitute giving a false alarm, reference may be made to the Kansas tort claims act, K.S.A.
"Subject to the limitations of this act, each governmental entity shall be liable for damages caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment under circumstances where the governmental entity, if a private person, would be liable under the laws of this state."
K.S.A. 1994 Supp.
Thus the county, like the city, would be liable for actions of their respective employees so long as they were acting within the scope of their employment and unless their actions fall under one of the exceptions to K.S.A.
The city and county may, however, be exempt from the tort claims act with regard to their fire department training exercises. K.S.A. 1994 Supp.
In summary, the training exercise of the Erie police department and volunteer fire department described herein does not meet the definition of giving a false alarm under K.S.A. 1994 Supp.
Very truly yours,
CARLA J. STOVALL Attorney General of Kansas
Julene L. Miller Deputy Attorney General
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