Standard of Care

After Congress passed the Homeland Security Act in November 2002, industry leaders everywhere called their in-house counsel and asked them one question: What does this mean to our business? Work visas, trade restrictions, disaster preparation—all issues, to name only a few, now governed by the newly designed Department of Homeland Security (DHS). Clearly, a new type of legal expertise was required.

Enter John Farmer Jr. He doesn’t just know the rules—as senior counsel to the 9/11 Commission, he helped write them.

“It’s interesting because it’s new,” the New Jersey attorney general from 1999 to 2002 says of homeland security law. “It’s a different kind of legal practice and it presents a whole different type of challenge.”
Education has been his first mission. After the 9/11 Commission disbanded in 2004, Farmer remembers addressing a meeting of general counsels. They appeared bleary-eyed and weren’t taking any notes until he mentioned “standard of care.” At that point, everybody sat up and grabbed their pens.

“The Commission made so many recommendations that were more highly publicized, such as the total reorganization of intelligence, that the private-sector impact of the Commission’s report went largely unreported,” says Farmer, who practices at Arseneault Whipple Farmer Fassett & Azzarello in Chatham. “So there has been a good deal of surprise that the standard was out there. Now it’s becoming more widely known and the question really has become: What do we need to do as a company to meet that standard?”

The standard states that private companies owe their employees and the public a certain level of preparedness in the event of a terrorist attack or natural disaster. How will the company protect its employees and customers? How will it maintain continuity if portions of the business need to shut down? How will it take care of its supply chain issues?

The transition hasn’t been easy. The chemical industry, for one, is still struggling with the new oversight.
“The doctrine [the government mandates is] that you use the least dangerous chemical that still enables you to make your product,” Farmer says. “Industry strongly resists that idea since in some cases entire factories would need to be retooled and the costs would be prohibitive. That battle is still being played out.”

Farmer started his career clerking for the Hon. Alan B. Handler, associate justice on the New Jersey Supreme Court, after graduating from Georgetown University Law Center in 1986. “Before every argument day, we would have a conference with Justice Handler and talk about every case,” Farmer says. “[Handler] would bat ideas off of us and have us take positions that we might not necessarily agree with and make the arguments in favor of them. It was a tremendous learning experience.”

After his time with Handler he worked for two years at the private law firm Riker Danzig, and after that served for four years as an assistant U.S. attorney, prosecuting criminal cases. Then his career took a dramatic turn. A colleague whose wife worked for Gov. Christine Todd Whitman suggested he interview for a job on her staff. “At the U.S. Attorney’s Office you’re really not involved in politics at all, so I thought it was a strange suggestion. But I decided it was a good time in my life to try something different.”

He became Whitman’s chief counsel. After two years, Whitman asked him to replace the outgoing Peter G. Verniero as attorney general. “In New Jersey, the attorney general is an appointed position,” says Farmer. “In most states it’s an elected position. Needless to say, if I had to run for office I never would’ve become attorney general!” He pauses to laugh. “I never had any kind of ambition of being in the governor’s office or chief counsel, but attorney general is a great job. I was happy to take it.”

He handled a number of sticky issues while in office—most prominently an investigation into state police racial profiling practices—but nothing like the challenge of 9/11. That morning, Farmer was hosting a national conference in Atlantic City on police-community relations. When he found out about the World Trade Center being hit, he sped back to Trenton at 90 mph with a police escort. “I raced to meet with Muslim community leaders in Jersey City to do two things: to assure them that we were not empowering vigilante activity against the Muslim community, and to tell them that we needed their help in attempting to solve the crimes of Sept. 11 and to interdict anything else that might be coming our way.”

The rest of the year was a whirlwind. Besides his normal duties supervising more than 600 attorneys, he became the first chairman of the New Jersey Domestic Security Preparedness Task Force. He left office in January 2002, a year after Whitman resigned as governor to head the U.S. Environmental Protection Agency.
Later that year, he was appointed senior counsel for the National Commission on Terrorist Attacks Upon the United States, more widely known as the 9/11 Commission. He would remain in that position until 2004. His work, and that of the commission, received wide acclaim.

“Part of my responsibility was to assess the current state of our preparedness—both governmental and private sector,” he says. His conclusion: the country needs a baseline standard to follow. While on the commission he worked closely with the American National Standards Institute to formulate a standard, and has been helping leaders in the private sector comply with it ever since.

“For many businesses, you’re taking a risk that’s non-quantifiable and weighing that against the very real cost of preparing for a disaster that may never happen,” says Farmer. “So I think there’s been some resistance in the private sector to spending the necessary money.”

An argument can be made, in fact, that preparations for the millennium terrorist attacks that never occurred enabled New Jersey to respond quickly to the 9/11 attacks by setting up an emergency center in Liberty State Park across the Hudson River from Manhattan.

“The plans were already in place,” he says. “In Trenton, the governor signed a declaration of a state of emergency, mobilizing all the ambulances in the state. Police units ran shuttle boats across the river all day and night, bringing people back and forth.”

Farmer’s pitch is that the DHS is asking for nothing they shouldn’t already be considering in terms of risk management. “In looking at potential incidents,” Farmer says, “businesses and the government should adopt an all-hazards approach. In other words, once the incident occurs, whatever it is, it doesn’t really matter at that point. Whether it was because of an attack or a storm, the damage does the same and our response to it should be similar. So I view this as a natural outgrowth of what businesses should have been doing all along in terms of risk management.”

For the most part, Farmer likes what he’s seeing. “What has been developing is a culture of preparedness that didn’t exist before,” he says. “People are aware that if something happens, in all likelihood they’re going to have to know what to do themselves. It will take some time before the first responders arrive, and that time might be critical as to whether they survive. There’s an awareness in the general public that they really need to pay attention to these issues. So what I’ve seen is a transformation in culture, and I think it’s a tremendously positive development.”