Loading...
HomeMy WebLinkAbout2006-078 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 2006-78 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT FOR THE SAN BERNARDINO POLICE DEPARTMENT TO PARTICIPATE AS A MEMBER OF THE FEDERAL BUREAU OF INVESTIGATION'S GANG IMPACT TEAM TASK FORCE. BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1: The Mayor and Common Council of the City of San Bernardino authorizes the Mayor, or his designee, to execute an agreement between the City of San Bernardino Police Department and the Federal Bureau of Investigation authorizing the San Bernardino Police Department to participate as a member of a Gang Impact Team operating in the Inland Empire. SECTION 2: The authorization to execute the above referenced memorandum of understanding is rescinded if it is not executed within sixty (60) days of the passage or this resolution. III III III III III III III III 2006-78 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SA:\! BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT FOR THE SAN BERNARDINO POLICE DEPARTMENT TO PARTICIPATE AS A MEMBER OF THE FEDERAL BUREAU OF INVESTIGATION'S GANG IMPACT TEAM TASK FORCE. I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and joint Common Council of the City of San Bernardino at a regular meeting thereof, held on the 20th day of March , 2006, by the following vote, to wit: Absent Abstain Ayes Navs x x x x x x x Council Members ESTRADA BAXTER McGINNIS DERRY KELLEY JOHNSON McCAMMACK Q,~~ h Lu~ "-- City Clerk The foregoing resolution is hereby approved this ~--day of March ,2006. Approved as to form and legal content: JAMES F. PENMAN, City Attorney 2006-78 ORlGlNAL MEMORANDUM OF UNDERSTANDING (MOUI This Memorandum of Understanding (MOU) is being executed by the below listed agencies: Federal Bureau of Investigation San Bernardino County Sheriff's Office Bureau of Alcohol, Tobacco, Firearms, and Explosives San Bernardino County District Attorney's Office, Bureau of Investigations San Bernardino Probation Department (FBI) (SBSO) (BATFE) (SBDAO) (SBPD) Nothing in this MOU should be construed as limiting or impeding the basic spirit of cooperation which exists between the participating agencies listed above. I. PURPOSE This MOU establishes and delineates the mission of the Gang Impact Team, herein after referred to as GIT, as a joint cooperative effort. Additionally, the MOU formalizes relationships between and among the participating agencies in order to foster an efficient and cohesive unit capable of addressing the organized street gang problem within and around the targeted area. It is the desire of the participating agencies to achieve maximum inter-agency cooperation in a combined law enforcement effort aimed at reducing the most violent criminal activity within the communities served. II. MISSION The mission of GIT is to identify and target for prosecution high-level street gang members operating throughout San Bernardino County. GIT will enhance the effectiveness of federal/state/local law enforcement resources through a well coordinated initiative seeking the most effective investigative/prosecutive avenues by which to convict and incarcerate dangerous offenders. III . ORGANIZATIONAL STRUCTURE A. Composition GIT will consist of a combined enforcement body of agencies participating in this MOU. These participating agencies will provide full-time assigned personnel, as set forth below: SBSO: Special Agent (SA) Craig P. McNamara SA Scott Bowman Corporal Detective To Be Decided (TBD) Sheriff Deputy To Be Decided (TBD) SA Mike Cote Investigator To Be Determined (TBD) FBI: BAT FE : SBDAO: 2006-78 SBPD USAO: Probation Officer (TBD) Assistant United States Attorney (TBD) B. Direction All participants acknowledge that GIT is a joint operation in which all agencies act as partners in the operation of the task force. An Executive Board, made up of the heads of the participating entities, will be responsible for the policy and direction of GIT. The Executive Board will meet periodically in order to collectively provide policy oversight. Membership on the Executive Board can be delegated by the law enforcement agency head to a subordinate. C. Supervision The day to day operation and administrative control of GIT will be the responsibility of the FBI Case Agent, overseen by the FBI Supervisory Special Agent (SSA). The daily management of GIT will be closely coordinated with the Executive Board. Responsibility for the conduct of GIT members, both personally and professionally, shall remain with the respective agency heads. IV. PROCEDURES A. Personnel Continued assignment of personnel to GIT will be based upon performance and will be the discretion of the respective agency heads/supervisors. Each participating agency, upon request, will be provided with an update as to the program, direction, and accomplishments of GIT. B. Deputization All local and state law enforcement personnel designated to GIT, subject to a limited background inquiry, will be federally deputized, with the FBI securing the required deputization authorization. These deputizations will remain in effect throughout the tenure of each investigator's assignment to GIT or until termination of the task force, whichever occurs first. (NOTE: Full backQround investiQations and Top Secret security clearances are required in those instances where the SSTF will be housed in FBI space and all members will have unescorted access.) Personnel from participating agencies will receive a ~omprehensive briefing on FBI field office security policy and 2006-78 procedures. During the briefing, each individual will execute non-disclosure agreements (SF-312 and FD-868). Upon departure from GIT, personnel from participating agencies will execute non- disclosure agreements (SF-312 and FD-868) and will be given a security debriefing. C. Investigations All GIT investigations will be initiated in accordance with United States Attorney General Guidelines on General Crimes, Racketeering Enterprise, and Domestic Security/Terrorism Investigations (AG Guidelines). The investigative methods employed will be consistent with the policies and procedures of the FBI and the AG Guidelines. However, in situations where the statutory or common law of California is more restrictive than comparable Federal law, the investigative methods employed by state and local law enforcement agencies shall conform to the requirements of such statutory or common law pending a decision as to venue for prosecution. D. Prosecution The criteria for determining whether to prosecute a particular violation in state or federal court will focus upon achieving the greatest overall benefit to law enforcement and the public. Any question which arises pertaining to prosecutive jurisdiction will be resolved through discussion among all investigative agencies and prosecutive entities having an interest in the matter. V. ADMINISTRATIVE A. Case Assignments The FBI Case Agent assigned to GIT will oversee the prioritization and assignment of targeted cases and related investigative activity in accordance with the stated objectives and direction of GIT. Cases will be assigned to investigative teams based on experience, training, performance, expertise, and existing case load. B. Records and Reports All investigative reporting will be prepared in compliance with existing FBI policy. Subject to pertinent legal and/or policy restrictions, copies of pertinent documents created by each member of the task force will be made available for inclusion in the respective investigative agencies' files as appropriate. FBI forms (FD-302 and Electronic Communication) will be prepared by all GIT task force members. All investigative files 2006-78 will be maintained at the FBI Riverside Resident Agency (RA) space, Riverside, California. C. Evidence and Undercover Operations All evidence and original recordings (audio and video) acquired during .the course of GIT investigations will be maintained by the FBI. The FBI's rules and policies governing the submission, retrieval, and chain of custody will be adhered to by GIT personnel. All GIT undercover operations will be conducted and reviewed in accordance with FBI guidelines and the Attorney General's Guidelines on Undercover Operations. D. Investigative Exclusivity Matters designated to be handled by GIT will not knowingly be subject to non-Task Force law enforcement efforts. It is incumbent upon each agency to make proper internal notification regarding GIT existence, including its areas of concern. There shall be no unilateral action taken on the part of any participating agency relating to GIT investigations. All law enforcement action will be coordinated and conducted in a cooperative matter. GIT investigative leads outside the FBI's Riverside RA territory will be communicated to other FBI offices for appropriate investigation. E. Informants and Cooperating Witnesses The United States Attorney General Guidelines and the FBI's guidelines regarding the operation of informants and cooperating witnesses will apply to all informants and cooperating witnesses directed by members of GIT. The FBI agrees, subject to funding availability, to pay informants/cooperating witnesses' expenses in accordance with FBI policies and procedures and which are determined by the FBI to be reasonable and necessary. An appropriate FBI informant/cooperating witness file will be opened wherein all information furnished by the informant/cooperating witness will be maintained. In addition, any recommendations for payments to this informant/cooperating witness will also be documented therein. F. Staff Briefings Periodic briefings on GIT investigations will be provided to the heads of the participating agencies or their designees. 2006-78 VI. MEDLI\ All media releases pertaining to GIT investigations and/or arrests will be coordinated and made jointly by all participants of this MOU. No unilateral press releases will be made by any participating agency without the prior approval of the other participants. No information pertaining to GIT itself will be released to the media without mutual approval of all participants. VII. EOUIPMENT A. Vehicles Each GIT member will be assigned a vehicle from their respective departments. Each of these vehicles will be maintained by each respective department. In the event that a local agency does not have a "Covert" vehicle available for assignment to their task force member(s), the FBI will provide a covert rental car for each full time task force member subject to available funding. B. Communications The FBI will provide handheld radios as needed to each GIT member to ensure uniform communications. The FBI will also provide a cellular telephone to task force members whose agency does not assign one as a regular course of business subject to available funding. C. Office Equipment The FBI will provide office equipment and supplies necessary to carry out the administrative operation of the taskforce. The FBI will provide other equipment necessary to support the taskforce. The provision of all equipment will be subject to available funding. VI I I. FUNDING Each participating agency agrees to provide the full time services of its respective personnel for the duration of this operation. Participating agencies agree to assume all personnel costs for their task force representatives, including salaries, overtime payments, and fringe benefits consistent with their respective agency. Subject to funding availability and legislative authorization, the FBI will reimburse to participating local and state agencies the cost of overtime worked by GIT members assigned full time to the task force, providing overtime expenses were incurred as a result of GIT related duties. Separate Contract Reimbursable Agreements (CRAs) will be executed by the FBI and each participating agency 2006-78 consistent with regulations and policy. IX. 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 representation by the United States is determined by DOJ on a case-by-case basis. The FBI cannot guarantee the United States will provide legal representation to any federal, state or local law enforcement officer. 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 employment, shall be an action against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. ~ 1346(b), ~~ 2671- 2680. For the limited purpose of defending claims arising out of taskforce activity, state or local law enforcement officers who have been specially 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. ~ 2671. See 5 U.S.C. ~ 3374 (c) (2). Under the Federal Employees Liability Reform and Tort Compensation Act of 1988 (commonly known as the Westfall Act), 28 U.S.C. ~ 2679(b) (1), the Attorney General or her 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. rd., 28 U.S.C. ~ 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. ~ 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. ~ 2679(d)(3). Liability for any negligent or willful acts of TASK FORCE employees, 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 2006-78 Bivens v. Six Unknown Named Aqents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) or pursuant to 42 U.S.C. ~ 1983 for state and local 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). Task force 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. ~~ 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] designee determines that providing representation would otherwise be in the interest of the United States." 28 C.F.R. ~ 50.15(a). A task force 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 the General Counsel (OGC) together with a Letterhead memorandum concerning the factual basis for the 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. ~ 50.15(a) (3). If a task force officer is found to be liable for a constitutional tort, he/she may request indemnification from DOJ to satisfy an adverse judgment rendered against the employee in his/her individual capacity. 28 C.F.R. ~ 50.15(c) (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. ~ 50.15(a). X. DURATION This MOU shall remain in effect until terminated as specified below. Continuation of this MOU shall be subject to the availability of necessary funding. This agreement may be modified at any time by written consent of all involved agencies. This agreement may be terminated at any time by any of the participating agencies, including the FBI. The participating agencies may withdraw from this agreement at any time by providing a 30 day written notice of its intent to withdraw to all other participating agencies. Upon the termination of GIT and the MOU, all equipment will be returned to the supplying agencies. 2006-78 C/lft {IV,; m ((,c-- LJ/ /,jc>t. Michael A. Billdt Chief of Police San Bernardino Police Department Date 2006-78 XI. MODIFICATIONS This agreement may be modified at any time by written consent of all involved agencies. Modifications to this MOU shall have no force and effect unless such modifications are reduced to writing and signed by an authorized representative of each participating agency. Weis Agent in Charge Bureou ~~90'ion Ga Penrod Sheriff-Coroner San Bernardino Coun~heriff'S Department /M# 'k rrrfth ~ Ml e S Chief San Bernardino District Attorney's Office, Bureau of Investigations Jody P. Special Federal Date /~ /~ .#t:, Date /-ZS--tY(.. Date John A. Torres Special Agent in Charge Bureau of Alcohol, Tobacco, Firearms, and Explosives Date All MOUs should be approved by Robert F. Lasky Supervisory Special Agent Federal Bureau of Investigation Washington D. C. Headquarters Date 200E-78 a.\\. I (( ~.... CLIJ\ ) ' J_~~(~ Michelle Scra~ . '-_~ I Deputy Cnlef r,c))(.':hc" " PCV(" / I San Bernardino Count y P roba t ion CE..':-12attmen t 7 -l-U- ,,-- ,+-" Date SUBMISSION/ROUTING: The MOU should be submitted to the Safe Streets and Gang Unit (SSGU) for initial review. Thereafter the SSGU will obtain the necessary approvals from OGe entities and return an approved final copy to the submitting Field Office for execution by the participating agencies. NOTE: The wording as set forth in sections. IV. V - e & E. VI. VIII. X and XI is mandatory! A liability section IX is required. The wording as set forth in the example section IX is preferred but may be modified with the approval of appropriate OGe reviewing entities.