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HomeMy WebLinkAbout2002-304 lun 1 2 3 4 5 6 RESOLUTION NO. 2002-304 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE CHIEF OF POLICE TO EXECUTE A MEMORANDUM OF AGREEMENT AND AN OVERTIME REIMBURSEMENT AGREEMENT WITH THE FEDERAL BUREAU OF INVESTIGATION FOR PARTICIPATING IN THE INLAND EMPIRE TASK FORCE ON TERRORISM (IETFOT). BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE 7 CITY OF SAN BERNARDINO AS FOLLOWS: 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SECTION I: That the Mayor and Common Council of the City of San Bernardino authorize the Chief of Police to execute a Memorandum of Agreement and overtime reimbursement between the City of San Bernardino and the Federal Bureau of Investigation to reimburse the Police Department for overtime expenditures associated with participation in the Inland Empire Task Force on Terrorism. SECTION 2: That the Mayor and Common Council of the City of San Bernardino authorize the Chief of Police to renew the overtime reimbursement agreement annually during the course of the Police Department's participation in the Inland Empire Task Force on Terrorism. SECTION 3: The authorization to execute the above referenced agreement is rescinded if it is not signed by both parties with one hundred-twenty (120) days of the passage of this resolution. III III III III III .' 2002-304 1 2 3 4 5 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE CHIEF OF POLICE TO EXECUTE A MEMORANDUM OF AGREEMENT AND AN OVERTIME REIMBURSEMENT AGREEMENT WITH THE FEDERAL BUREAU OF INVESTIGATION FOR PARTICIPATING IN THE INLAND EMPIRE TASK FORCE ON TERRORISM (IETFOT). 6 I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and 7 Common Council of the City of San Bernardino at a j t. regular meeting thereof, held on 8 9 the 23rd day of September , 2002, by the following vote, to wit: 10 Council Members Ayes Nays X - X - X X X X ~ Abstain Absent 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ESTRADA LIEN McGINNIS DERRY SUAREZ ANDERSON McCAMMACK G~L~1J U<Lk-lc City Clerk The foregoing resolution is hereby approved this ,J}S" day of September, 2002. .A~~~//jL Approved as to form and legal content: James F. Penman, City Attorney BY: Ot~1-f~~ () , Wendy McCammack Mayor Pro Tern City of San Bernardino RUG-12-2002 17:10 909 2486560 P.02/~1 2002-304 . REIMBURSEMENT AGREEMENT BETWEEN THE FEDERAL BUREAU OF INVESTIGATION AND SAN BERNARDINO POLICE DEPARTMENT Pursuant to Fiscal Year 2002 appropriations as authorized by Congress, overtime to police officers assigned to this task force, for expenses necessary far detection, investigation, and prosecution of crimes against the United States is authorized subject to the limits set forth in the budget for this task farce as approved by the Counterterrorism Division, FBI and subject to specific provisions and conditions as set forth in this Reimbursement Agreement. Therefore, it is hereby agreed between the Federal Bureau of Investigation (FBI) and the San Bernardino Police Department (SBSD) (hereinafter referred to as "agency") that: 1. The FBI will reimburse the agency for overtime payments made to officers assigned full time to the Inland Empire Task Force on Terrorism (1ETFOT). The agency will have one (1) full time detective assigned to the 1ETFOT and the number of agency officer's entitled to reimbursement in Fiscal Year 2002 shall not exceed one (1). 2. Requests for reimbursement shall be made on a monthly basis and should be forwarded to FBI Headquarters as soon as practicable after the first of the month which follows the month for which reimbursement is requested. Such requests should be forwarded by the appropriate agency supervisor(s) to the FBI Task Force Squad Supervisor and Assistant Director in Charge for their review, approval, and submission. 3. Overtime payments shall be made payable to and mailed directly to the agency by the FBI. 4. Overtime reimbursement will be calculated at the usual rate for which the individual officers time would be compensated in the absence of this agreement. However, the FBI will only reimburse the agency for overtime paid to the Officer who works full time in support of IETFOT in Fiscal Year 2002 (October 1, 2001 to September 30, 2002) up to a total amount of ~10,091.76 per officer per year. Additionally, reimbursement for anyone month period shall not exceed $840.98 per Officer. 5. Each request for consideration shall include the name, rank, identification number, overtime compensation rate, number of reimbursable hours claimed and the dates of those hours for each officer for whom reimbursement is sought. Each reimbursement request must be accompanied by a certificate signed by an appropriate supervisor of the submitting department that AUG-12-2002 17:10 909 ~4~b~b~ ~.~~/ll 2002-304 the request has been personally reviewed, that the information described in this paragraph is accurate, and the personnel for whom reimbursement is claimed were assigned full time to IETFOT cases. 6. This agreement may be modified at any time by written consent of the parties. This agreement may be terminated at any time by either party and shall not extend beyond September 30, 2 002 . PETER S. BOBINSKI ~~ONTRA lNG OFFICER ~ /.. " . BUREAU OF INVESTIGATlO :~~"-4 Date: Z/j 'Of' Office of the Chief Contracting Officer, FBI .. By: ~. tIlL- Ronald I. Iden Assistant Director in Charge Federal Bureau of Investigation Los Angeles, California Date: (r/z~(c--- By: Date: l()- 0).,- "'L. Chief Garr t W. Zirnmon San Bernard'n Police Department San Bernardino, California RUG-12-2002 17:10 909 2486560 P.04/11 2002-304 LOS ANGELES - RIVERSIDE RESIDENT AGENCY INLAND EMPIRE TASK FORCE ON TERRORISM MEMORANDUM OF AGREEMENT PREAMBLE This Memorandum of Agreement (MOA) is entered into by the Federal Bureau of Investigation (FBI) and the San Bernardino Police Department (SBPD) and outlines a cooperative effort to combat terrorism. ARTICLE ONE: Purpose of MOA This MOA establishes and delineates the mission and structure of the Inland Empire Task Force on Terrorism (IETFOT) in addressing the complex problem of terrorism affecting The City of San Bernardino and the County of San Bernardino, California. The purpose of this MOA is to set out a common understanding of the policies and procedures the SBPD and the FBI will follow in providing law enforcement service to the citizens of the County of San Bernardino and the United States of America. ARTICLE TWO: MISSION OF THE IETFOT The IETFOT will investigate terrorist organizations-planning or carrying out terrorist acts occurring in or affecting the County of San Bernardino and will apprehend individuals committing such violations. The organizations to be investigated will be specifically identified and agreed upon beforehand by IETFOT member agencies. All parties agree to abide by the Attorney General's Guidelines on General Crimes, Racketeering Enterprise and Domestic Security/Terrorism Investigations (AG Guidelines) and the Attorney General Guidelines for FBI Foreign Intelligence Collection and Foreign Counterintelligence Investigations as they pertain to International Terrorism matters. In addition, it is understood that personnel of the SBPD shall be required to utilize only those investigative techniques consistent with their given standards and procedures. AUG-12-2002 17:11 909 2486560 P.05/11 2002-304 , ARTICLE THREE: ORGANIZATIONAL STRUCTURE AND MANAGEMENT OF THE TASK FORCE A. MEMBERS The lETFOT shall consist of a combined body of investigators from each participating agency. E. IDENTIFICATION OF OBJECTIVES The Assistant Director in Charge (ADlC) of the FBI and the Police Chief of the San Bernardino Police Department, or their designees, shall identify, agree upon, and articulate specific organizations and investigative objectives or matters assigned to the IETFOT. C. DIRECTION OF IETFOT AND RESOURCE CONTROL Responsibility for the overall policy and direction of the IETFOT shall rest with an Assistant Special Agent in Charge (ASAC) of the FBI, who will closely coordinate with the Chief of Police of the SBPD or their designees, on matters of mutual concern relating to such policy and direction, thus ensuring the absence of conflict. Specific control over their IETFOT resources and the continued dedication of these resources to the IETFOT shall be retained by the participating agency heads, who will be kept fully apprized of all investigative developments by their respective subordinates. D. SUPERVISION OF IETFOT Day-to-day supervision for matters assigned to the IETFOT shall be the responsibility of the designated FBI Supervisory Special Agent (SSA) in conjunction with the designated supervisory personnel of the San Bernardino Police Department. Responsibility for the conduct of the IETFOT members shall remain with the respective agency heads. All IETFOT personnel will keep their respective superiors completely informed of pertinent developments. E, PHYSICAL LOCATION AND SUPPORT Subject to availability, the FBI will provide office space for all IETFOT members and support staff. In addition, the FBI will provide all necessary secretarial, clerical, automation and technical support for the IETFOT. 'AUG-12-2002 17: 11 909 2485550 P. 05/1.1 2002-304 F. COMMITMENT OF PERSONNEL The FBI will assign an SSA (1) and six (6) Special Agents. SBPD will assign one (1) Detective from the SBPD Intelligence Unit. All members of the IETFOT will be assigned full-time to the IETFOT, Continued assignment of members will be made at the discretion of their respective agencies consistent with FBI and SBPD guidelines. ARTICLE FOUR: VEHICLES The IETFOT agrees to provide the SBPD task force member with a vehicle. The purpose of these vehicles is for surveillance, case management and investigation in connection with any IETFOT investigation. The vehicle provided by the FBI can be used for official use only in connection with matters investigated by the IETFOT. In furtherance of the mission of the IETFOT and in compliance with existing FBI policy for operation of U.S. Government vehicles, the FBI hereby agrees and authorizes members of the SBPD participating in the IETFOT to operate vehicles owned or leased by the FBI. The SBPD agrees to be responsible for tortious acts or omissions on the part of the SBPD or their employees, and for .any liability resulting from use of FBI owned or leased vehicles utilized by the SBPD Task Force member, and for any damage to said vehicles as a result of any action or omission on the part of the SBPD or their employees. ARTICLE FIVE: RECORDS AND REPORTS All IETFOT investigative records will be maintained at the Riverside Resident Agency office of the FBI. Investigative reports will be prepared on FBI forms. Decisions for placement of all or part of said investigative records into SBPD files or data bases shall rest with supervisory personnel of the FBI and the SBPD in compliance with applicable standards and procedures governing the respective parties. Classified information shall not be placed in SBPDfiles. ,AUG-12-2002 17:11 909 2486560 P.07/11 2002-304 ARTICLE SIX: SECURITY CLEARANCE/DEPUTATION Due to various United states, Department of Justice and FBI regulations and laws regarding classified information, prospective members of the IETFOT who do not possess Top Secret clearances previously granted by the FBI/DOJ will be subjected to full background investigation(s) with assignment contingent upon receipt of appropriate security clearances(s). All non-FBI personnel will be sworn in as Special Deputy United states Marshals. Security clearances will be granted for any applicable and relevant SBPD managers or Supervisors up to, and including, the Chief of Police. Investigative restrictions imposed by the SBPD shall not be voided by deputation of their respective personnel. All members of the IETFOT shall agree not to disclose any classified or sensitive information to non IETFOT members without the express permission of the FBI and shall agree to execute any applicable nondisclosure agreements, as may be necessary or required by the FBI. ARTICLE SEVEN: INVESTIGATIVE EXCLUSIVITY It is agreed that matters designated to be handled by the IETFOT will not knowingly be subject to non-IETFOT law enforcement efforts. Recognizing the amount of specialized entities within each member agency, it is incumbent upon each agency to make proper internal notification regarding IETFOT existence, including its areas of concern. All information developed by the individual member agency, in the course of investigations prior to the IETFOT, will be referred to the IETFOT for review and coordination, with approval of the command staff of each member agency. The non-specialized entities of each member agency handle a myriad of different law violations: therefore, IETFOT members should make an effort to keep abreast of law enforcement developments within their respective agencies, to ensure information involving IETFOT members is referred to the IETFOT. It is also agreed there shall be no unilateral action taken on the part of any participating agency relating to IETFOT investigations. All law enforcement actions will be coordinated and cooperatively carried out. AUG-12-2002 17:12 2002-304 909 2486560 P.08/11 ARTICLE EIGHT: SALARY/COMPENSATION Salaries of IETFOT members will be paid by their respective agencies. Overtime incurred in the performance of IETFOT responsibilities, when allowable under federal law and to the extent that federal funding is available for such purposes, will be reimbursed by the FBI so long as a separate overtime agreement is executed between the parties. Otherwise, overtime shall be compensated in accordance with applicable SBPD overtime provisions and shall be subject to the prior approval of appropriate personnel. The FBI shall report to the SBPD supervisor all payments made to non-FBI IETFOT members inCluding but not limited to overtime. ARTICLE NINE: PROSECUTION IETFOT investigations will conform to the requirements of federal prosecution rules and regulations and will generally be prosecuted in federal courts. It is recognized, however, that specific circumstances may, on a case-by-case basis, indicate that prosecution should be in a state court. The criteria for making such decisions will focus upon achieving the greatest overall benefit to law enforcement and the public, and effecting the greatest impact on terrorism. ARTICLE TEN: INFORMANTS/EXPENSES The IETFOT will abide by the Attorney General's Guidelines on the Use of Informants and Confidential Sources. To the extent that SBPD standards and procedures impose any greater restrictions upon the use of their informants and cooperating witnesses, such personnel shall be bound by those restrictions. Subject to appropriate FBI approvals, the FBI agrees to pay any reasonable and necessary expenses incurred by the IETrOT. The SBPD agrees that prior to incurring such expenses, it will consult with the FBI's designated representative to ensure anticipated expenses will be in furtherance of IETFOT goals and objectives. .AUG-12-2002 17: 12 909 2486560 P.09/1) 2002-304 ARTICLE ELEVEN: FORFEITURE Any forfeiture realized as a result of cases worked by the IETrOr will be handled in accordance with applicable federal law and FBI guidelines. FBI guidelines will govern the sharing of seized and/or forfeited assets. ARTICLE TWELVE: MEDIA No members of the IETFor will discuss or otherwise reveal information relating to IETFOT investigations, or other FBI related investigations known to them, to any media representatives. All media releases on IETFOT matters will be mutually agreed upon and coordinated jointly. ARTICLE THIRTEEN: LIABILITY Unless specifically addressed by the terms of this MOU, the parties agree to be responsible for the negligent or wrongful acts or omissions of their respective employees. Legal representations by the United states is determined by the Department of Justice (DOJ) on a case-by-case basis. The FBI cannot guarantee the United states will provide legal representation to any Federal or state law enforcement officer or employee. Congress has provided that the exclusive remedy for the negligent or wrongful act or omission of an employee of the United states government, acting within the scope of his/her employment, shall be an action against the United states under the Federal Tort Claims Act (FTCA), 28 U.S.C. Section 1346(b), and Sections 2671 - 2680. For the limited purpose of defending claims arlslng out of IETFOT activity, state officers who have been specifically deputized and who are acting within the course and scope of their official duties and assignments pursuant to this MOU, may be considered an "employee" of the United States government as defined in 28 U.S.C. Section 2671. See 5 U.S.C. Section 3374 (c) (2) . Under the Federal Employees Liability Reform and Tort Compensation, Act of 1998 (commonly known as the Westfall Act), 28 U.S.C., Section 2679(b) (11, the Attorney General or his/her .AUG-12-2002 17:12 2002-304 909 2486560 P.10/11 designee may certify that an individual defendant acted within the scope of his employment at the time of the incident giving rise to the suit. id., 28 U.S.C. Section 2679(d) (2). The United States can then be substituted for the employee as the sole defendant with respect to any tort claims. 28 U.S.C. Section 2679 (d) (2). If the United States is substituted as defendant, the individual employee is thereby protected from suits in his official capacity. If the Attorney General declines to certify that an employee was acting within the scope of employment, "the employee may at any time before trial petition the court to find and certify that the employee was acting within the scope of his office or employment." 28 U.S.C. Section 2679 (d) (3). Liability for any negligent or willful acts of IETFOT members, undertaken outside the terms of this MOU will be the sole responsibility of the respective employee and agency involved. Liability for violations of federal constitutional law rests with the individual federal agent or officer pursuant to Bivens v. Six Unknown Named Aqents of the Federal Bureau of Narcotics. 403 U.S. 388 (1971) or pursuant to 42 D.S.C. Section 1983 for state officers or cross-deputized federal officers. Both state and federal officers enjoy qualified immunity from suit for constitutional torts, "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzqerald. 457 U.S. 800 (1982). IETFOT officers may request representation by the U. S. Department of Justice for civil suits against them in their individual capacities for actions taken within the scope of employment. 28 C.F.R. Sections 50.15, 50.16. An employee may be provided representation "when the actions for which representation is requested reasonably appear to have been performed within the scope of the employee's employment and the Attorney General, or his/her designee, determines that providing representation would otherwise be in the interest of the United States." 28 C.F.R. Section 50.15(a). A IETFOT officer's written request for representation should be directed to the Attorney General and provided to the Chief Division Counsel (CDC) of the FBI division coordinating the task force. The CDC will then forward the representation request to the FBI's office of General Counsel (OGC) together with a letterhead memorandum concerning the factual basis for the I i ' .RUG-12-2002 17:13 9092486560 P.11/11 2002-304 lawsuit. FBI/OGC will then forward the request to the Civil Division of DOJ together with an agency recommendation concerning scope of employment and Department representation. 28 C.F.R. Section 50.15 (a) (3). If an IETFOT Officer is found to be liable for a constitutional tort, he/she may request indemnification from DOJ to satisfy an adverse judgement rendered against the employee in his/her individual capacity. 28 C.F.R. Section 50.15 (cl (4). The criteria for payment are substantially similar to those used to determine whether a federal employee is entitled to DOJ representation under 28 C.F.R. Section 50.1S(a). ARTICLE FOURTEEN: DURATION OF THE TASK FORCE The IETFOT will continue for an indefinite period but participation may be terminated at any time upon the written notice of either party to this Memorandum of Agreement. SIGNATORIES: ~. {fItJ RONALD I. IDEN ASSISTANT DIRECTOR IN CHARGE Federal Bureau of Investiqation Los Angeles, California GARRETT W. CHIEF OF PO San Bernardi San Bernardino, olice Department California Office of the Chief Contracting Officer Federal Bureau of Investigation Washington, D.C. PETER S. BOBINSKI :ONTR~CTjNG OFACER ~:[DEf,:iL BUREAU OF INVESTIGATION '/re