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HomeMy WebLinkAbout2010-356 RESOLUTION NO. 2010-356 1 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE CITY OF SAN BERNARDINO TO ENTER INTO A MEMORANDUM OF UNDERST ANDING WITH THE BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES (ATF) TO FORM THE SAN BERNARDINO A TF ARSON TASK FORCE. 3 4 5 6 7 and the City of San Bernardino wish to enter into a Memorandum of Understanding (MOU) to 8 9 10 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. That the Bureau of Alcohol, Tobacco, Firearms and Explosives (A TF) form the San Bernardino A TF Arson Task Force; SECTION 2. The City Manager or his designee is hereby authorized and directed to 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 execute said MOU, a copy of which is attached and incorporated herein as Exhibit "A"; SECTION 3. Said MOU will be to form the San Bernardino ATF Arson Task Force until either party elects to terminate the agreement pursuant to Section "Duration" of the MOU; SECTION 3. The authorization to execute the above referenced Memorandum of Understanding is rescinded if it is not executed within one hundred and twenty (120) days of the passage of this resolution. II II II II IIII IIII II II I I I I III I I I I I I I I I I I II III I 1 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 2010-356 , , RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITV0F SAN BERNARDINO AUTHORIZING THE CITY OF SAN BERNARDINO TO ENTER INTO A MEMORANDUM OF UNDERSTANDING WITH THE BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES (ATF) TO FORM THE SAN BERNARDINO A TF ARSON TASK FORCE. I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a j oint regular meeting thereof, held on day of November , 2010, by the following vote, to wit: the 1st ABST AIN ABSENT NAYS AYES COUNCIL MEMBERS: x MARQUEZ x DESJARDINS x BRINKER SHORETT x x KELLEY JOHNSON x x MCCAMMACK ~~h~ Rac 1 G. Clark, City Clerk City of San Bernardino The foregoing Resolution is hereby approved this 1I'ry day of November, 2010. Approved as to form: JAM SF. PENMAN, City Attorney 2 2010-356 Exhibit "A" . MEMORANDUM OF UNDERSTANDING BETWEEN THE BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES (ATF), And CITY OF SAN BERNARDINO FIRE DEPARTMENT This Memorandum ofDnderstanding ("MOD") is entered into by and between the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") and the City of San Bernardino Fire Department as it relates to the San Bernardino ATF Arson Task Force (herein referred to as the "Task Force"). BACKGROUND Because of the large number of fires that have been committed in the Inland Empire and within the City of San Bernardino, local and federal law enforcement has agreed to combine resources in order to effectively attempt to reduce the number of arsons for profit within the Inland Empire. It is necessary to establish a task force that will pro actively address what is believed to be a small, prolific and very dangerous group of criminals who utilize either fires/arson and or explosives for profit, hate crimes, revenge, crime concealment, vandalism and terrorist incidents. AUTHORITY Offenses investigated and enforced pursuant to this MOD are those falling within ATF's jurisdiction. 18 U.S.C. Chapter 40; 27 CFR Part 555. MISSION The mission of the task force is to focus on the reduction of violent crime that has been committed by acts of arson and explosives within the City of San Bernardino, California and its surrounding area to include the entire Inland Empire. The mission will be generally accomplished through a maximum effort of investigation, arrest, detention and enhanced prosecution of criminally active violent offenders. Specifically, efforts will focus on individuals who commit arson, arson for profit, and hate crimes that can be either prosecuted in State and or Federal Court. ACTIVITIES AND DUTIES The Task Force will perform the activities and duties described below: a. Intensive enforcement of all arson and explosive laws, both state and federal. This is likely to result in discovering criminal violations committed by violent offenders/organizations, felons convicted of arson for profit, arson, and explosives laws, and, individuals prohibited from possession of firearms. Page 1 2010-356 Active and aggressive investigations of all fires that are committed within the Inland Empire and in the City of San Bernardino, to include all fires committed by minors and adults within the City of San Bernardino. Additionally, the Task Force will jointly work all fires at houses of worship and all property owned by houses of worship as defined by the National Church Fire Task Force Directive issued by the United States Attorney General and Department of Justice. MEASUREMENT OF SUCCESS The success of this initiative and its performance will be measured by the participating agencies' willingness to share pertinent information, overall performance of the task force and crime statistics. PHYSICAL LOCATION Officers/agents assigned to this Task Force by their employer shall be referred to as task force officers (TFOs). TFOs will be assigned to the ATF Riverside Field Office/San Bernardino Satellite Office and will be located at 3801 University Avenue, Suite 670, Riverside, California 92501. SUPERVISION AND CONTROL The day-to-day supervision and administrative control ofTFOs will be the mutual responsibility of the participants, with the A TF Special Agent in Charge or his/her designee having operational control over all operations related to this Task Force. Each TFO shall remain subject to their respective agencies' policies, and shall routinely report to their respective agencies regarding matters umelated to this agreement/task force. With regard to matters related to the Task Force, TFOs will be subject to Federal law and Department of Justice (DOJ) and A TF orders, regulations and policy, including those related to standards of conduct, sexual harassment, equal opportunity issues and Federal disclosure laws. Failure to comply with this paragraph could result in a TFO's dismissal from the Task Force. PERSONNEL, RESOURCES AND SUPERVISION To accomplish the objectives of the Task Force, ATF will assign two Special Agents to the Task Force. ATF will also, subject to the availability of funds, provide necessary funds and equipment to support the activities of the ATF Special Agents and officers assigned to the Task Force. This support may include: office space, office supplies, travel funds, funds for the purchase of evidence and information, investigative equipment, training, and other support items. Each participating agency agrees to make available to their assigned task members any equipment ordinarily assigned for use by that agency. In the event ATF supplies equipment (which may include vehicles, weapons or radios), TFOs must abide by any applicable A TF property orders or policy, and may be required to enter into a separate agreement for their use. Page 2 2010-356 To accomplish the objectives of the Task Force, the San Bernardino Fire Department agrees to detail a minimum of one (1) fulltime TFO to the Task Force for a period of not less than two (2) years. All TFOs shall qualify with their respective firearms by complying with A TF' s Firearms and Weapons Policy. SECURITY CLEARANCES All TFOs will undergo a security clearance and background investigation, and A TF shall bear the costs associated with those investigations. TFOs must not be the subject of any ongoing investigation by their department or any other law enforcement agency, and past behavior or punishment, disciplinary, punitive or otherwise, may disqualify one from eligibility to join the Task Force. ATF has final authority as to the suitability ofTFOs for inclusion on the Task Force. DEPUTATIONS ATF, as the sponsoring Federa11aw enforcement agency, may request at its sole discretion that the participating agency's TFOs be deputized by the U.S. Marshals Service to extend their jurisdiction, to include applying for and executing Federal search and arrest warrants, and requesting and executing Federal grand jury subpoenas for records and evidence involving violations of Federal laws. Such requests will be made on an individual basis as determined by A TF. The participating agencies agree that any Federal authority that may be conferred by a deputation is limited to activities supervised by ATF and will terminate when this MOU is terminated or when the deputized TFOs leave the Task Force, or at the discretion of ATF. ASSIGNMENTS, REPORTS AND INFORMATION SHARING An ATF supervisor or designee will be empowered with designated oversight for investigative and personnel matters related to the Task Force and will be responsible for opening, monitoring, directing and closing Task Force investigations in accordance with ATF policy and the applicable United States Attorney General's Guidelines. Assignments will be based on, but not limited to, experience, training and performance, in addition to the discretion of the ATF supervisor. All investigative reports will be prepared utilizing ATF's investigative case management system (N- Force), utilizing ATF case report numbers. The participating agency will share investigative reports, findings, intelligence, etc., in furtherance of the mission of this agreement, to the fullest extent allowed by law. For the purposes of uniformity, there will be no duplication of reports, but rather a single report prepared by a designated individual which can be duplicated as necessary. Every effort should be made to document investigative activity on ATF Reports of Investigation (ROI), unless otherwise agreed to by ATF and the participating agency. This section does not preclude the necessity of individual TFOs to complete forms required by their employing agency. Page 3 2010-356 Information will be freely shared among the TFOs and A TF personnel with the understanding that all investigative information will be kept strictly confidential and will only be used in furtherance of criminal investigations. No information gathered during the course ofthe Task Force, to include informal communications between TFOs and A TF personnel, may be disseminated to any third party, non-task force member by any task force member without the express permission ofthe ATF Special Agent in Charge or his/her designee. Any public requests for access to the records or any disclosures of information obtained by task force members during Task Force investigations will be handled in accordance with applicable statutes, regulations, and policies pursuant to the Freedom of Information Act and the Privacy Act and other applicable federal and/or state statutes and regulations. INVESTIGATIVE METHODS The parties agree to utilize Federal standards pertaining to evidence handling and electronic surveillance activities to the greatest extent possible. However, in situations where state or local laws are more restrictive than comparable Federal law, investigative methods employed by state and local law enforcement agencies shall conform to those requirements, pending a decision as to a venue for prosecution. The use of other investigative methods (search warrants, interceptions of oral communications, etc.) and reporting procedures in connection therewith will be consistent with the policy and procedures of ATF. All Task Force operations will be conducted and reviewed in accordance with applicable ATF and Department of Justice policy and guidelines. None of the parties to this MOD will knowingly seek investigations under this MOD that would cause a conflict with any ongoing investigation of an agency not party to this MOD. It is incumbent upon each participating agency to notify its personnel regarding the Task Force's areas of concern and jurisdiction. All law enforcement actions will be coordinated and cooperatively carried out by all parties to this MOD. INFORMANTS A TF guidelines and policy regarding the operation of informants and cooperating witnesses will apply to all informants and cooperating witnesses directed by TFOs. Informants developed by TFOs may be registered as informants oftheir respective agencies for administrative purposes and handling. The policies and procedures of the participating agency with regard to handling informants will apply to all informants that the participating agency registers. In addition, it will be incumbent upon the registering participating agency to maintain a file with respect to the performance of all informants or witnesses it registers. All information obtained from an informant and relevant to matters within the jurisdiction of this MOD will be shared with all parties to this MOD. The registering agency will pay all reasonable and necessary informant expenses for each informant that a participating agency registers. Page 4 2010-356 DECONFLICTION Each participating agency agrees that the deconfliction process requires the sharing of certain operational information with the Task Force, which, if disclosed to unauthorized persons, could endanger law enforcement personnel and the public. As a result of this concern, each participating agency agrees to adopt security measures set forth herein: a. Each participating agency will assign primary and secondary points of contact. b. Each participating agency agrees to keep its points of contact list updated. The points of contact for this Task Force are: Bureau of Alcohol, Tobacco, Firearms and Explosives: RAC Keith Krolczyk City of San Bernardino Fire Department: Captain John Pavan City of San Bernardino Fire Department: Fire Marshal/Div. Chief Doug Dupree EVIDENCE Evidence shall be maintained by the lead agency having jurisdiction in the court system intended for prosecution. Evidence generated from investigations initiated by a TFO or A TF special agent intended for Federal prosecution will be placed in the ATF designated vault, using the procedures found in ATF orders. JURISDICTION/PROSECUTIONS Cases will be reviewed by the A TF Special Agent in Charge or his/her designee in consultation with the participating agency and the United States Attorney's Office and appropriate State's attorney offices, to determine whether cases will be referred for prosecution to the U.S. Attorney's Office or to the relevant State's attorney's office. This determination will be based upon which level of prosecution will best serve the interests of justice and the greatest overall benefit to the public. Any question that arises pertaining to prosecution will be resolved through discussion among the investigative agencies and prosecuting entities having an interest in the matter. In the event that a state or local matter is developed that is outside the jurisdiction of ATF or it is decided that a case will be prosecuted on the state or local level, A TF will provide all relevant information to state and local authorities, subject to Federal law. Whether to continue investigation of state and local crimes is at the sole discretion of the state or local participating agency. USE OF FORCE All full time TFOs will comply with A TF and the Department of Justice's (DOl's) use of force policies. TFOs must be briefed on A TF' s and DOl's use of force policy by an A TF official, and will be provided with a copy of such policy. Page 5 2010-356 MEDIA Media relations will be handled by ATF and the U.S. Attorney's Office's public information officers in coordination with each participating agency. Information for press releases will be reviewed and mutually agreed upon by all participating agencies, who will take part in press conferences. Assigned personnel will be informed not to give statements to the media concerning any ongoing investigation or prosecution under this MOU without the concurrence of the other participants and, when appropriate, the relevant prosecutor's office. All personnel from the participating agencies shall strictly adhere to the requirements of Title 26, United States Code, S 6103. Disclosure of tax return information and tax information acquired during the course of investigations involving National Firearms Act (NF A) firearms as defined in 26 U.S.c., Chapter 53 shall not be made except as provided by law. SALARY/OVERTIME COMPENSATION During the period of the MOU, participating agencies will provide for the salary and employment benefits of their respective employees. All participating agencies will retain control over their employees' work hours, including the approval of overtime. ATF may have funds available to reimburse overtime to the State and Local TFO's agency, subject to the guidelines of the Department of Justice Asset Forfeiture Fund. This funding would be available under the terms of a memorandum of agreement (MOA) established pursuant to the provisions of 28 U.S.C. section 524. The participating agency agrees to abide by the applicable Federal law and policy with regard to the payment of overtime from the Department of Justice Asset Forfeiture Fund. The participating agency must be recognized under State law as a law enforcement agency and their officers/ troopers/investigators as sworn law enforcement officers. If required or requested, the participating agency shall be responsible for demonstrating to the Department of Justice that its personnel are law enforcement officers for the purpose of overtime payment from the Department of Justice Asset Forfeiture Fund. This MOU is not a {undin!! document. In accordance with these provisions and any MOA on asset forfeiture, the A TF Special Agent in Charge or designee shall be responsible for certifying reimbursement requests for overtime expenses incurred as a result of this agreement. AUDIT INFORMATION Operations under this MOU are subject to audit by ATF, the Department of Justice's Office ofthe Inspector General, the Government Accountability Office, and other Government-designated auditors. Participating agencies agree to permit such audits and to maintain all records relating to Department of Justice Asset Forfeiture Fund payments for expenses either incurred during the course ofthis Task Force or for a period of not less than three (3) years and, if an audit is being conducted, until such time that the audit is officially completed, whichever is greater. Page 6 2010-356 FORFEITURES/SEIZURES All assets seized for administrative forfeiture will be seized and forfeited in compliance with the rules and regulations set forth by the U.S. Department of Justice Asset Forfeiture guidelines. When the size or composition of the item(s) seized make it impossible for ATF to store it, any of the participating agencies having the storage facilities to handle the seized property agree to store the property at no charge and to maintain the property in the same condition as when it was first taken into custody. The agency storing said seized property agrees not to dispose of the property until authorized to do so by ATF. The MOU provides that proceeds from forfeitures will be shared, with sharing percentages based upon the U.S. Department of Justice Asset Forfeiture policies on equitable sharing of assets, such as determining the level of involvement by each participating agency. Task Force assets seized through administrative forfeiture will be distributed in equitable amounts based upon the number of full-time persons committed by each participating agency. Should it become impossible to separate the assets into equal shares, it will be the responsibility of all the participating agencies to come to an equitable decision. If this process fails and an impasse results, ATF will become the final arbitrator of the distributive shares for the participating agencies DISPUTE RESOLUTION In cases of overlapping jurisdiction, the participating agencies agree to work in concert to achieve the Task Force's goals and objectives. The parties to this MOU agree to attempt to resolve any disputes regarding jurisdiction, case assignments and workload at the lowest level possible. LIABILITY ATF acknowledges that the United States is liable for the wrongful or negligent acts or omissions of its officers and employees, including TFOs, while on duty and acting within the scope of their federal employment, to the extent permitted by the Federal Tort Claims Act. Claims against the United States for injury or loss of property, personal injury, or death arising or resulting from the negligent or wrongful act or omission of any Federal employee while acting within the scope of his or her office or employment are governed by the Federal Tort Claims Act, 28 U.S.c. sections 1346(b), 2672-2680 (unless the claim arises from a violation of the Constitution of the United States, or a violation of a statute of the United States under which other recovery is authorized). Except as otherwise provided, the parties agree to be solely responsible for the negligent or wrongful acts or omissions of their respective employees and will not seek financial contributions from the other for such acts or omissions. Legal representation by the United States is determined by the United States Department of Justice on a case-by-case basis. ATF cannot guarantee the United States will provide legal representation to any State or local law enforcement officer. Page 7 2010-356 Liability for any negligent or willful acts of any agent or officer undertaken outside the terms of this MOD will be the sole responsibility of the respective agent or officer and agency involved. DURATION This MOD shall remain in effect until it is terminated in writing (to include electronic mail and facsimile). All participating agencies agree that no agency shall withdraw from the Task Force without providing ninety (90) days written notice to other participating agencies. If any participating agency withdraws from the Task Force prior to its termination, the remaining participating agencies shall determine the distributive share of assets for the withdrawing agency, in accordance with Department of Justice guidelines and directives. The MOD shall be deemed terminated at the time all participating agencies withdraw and ATF elects not to replace such members, or in the event ATF unilaterally terminates the MOD upon 90 days written notice to all the remaining participating agencies. MODIFICATIONS This agreement may be modified at any time by written consent of all participating agencies. Modifications shall have no force and effect unless such modifications are reduced to writing and signed by an authorized representative of each participating agency. ENDORSEMENTS This agreement shall be effective on the date of signature by all participating parties. Parties to this agreement may terminate their participation at any time upon written notification of their intent to withdraw to all other parties in agreement. In witness whereof, the parties have hereunto executed this memorandum of understanding. Bureau of Alcohol, Tobacco, Firearms and Explosives John A. Torres Special Agent in Charge Date City of San Bernardino Fire Department Approved as to form: James F. Penman, City Attorney By: Michael J. Conrad Fire Chief Date Page 8 2010-356 MEMORANDUM OF UNDERSTANDING BETWEEN THE BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES (ATF), And CITY OF SAN BERNARDINO FIRE DEPARTMENT This Memorandum ofDnderstanding ("MOD") is entered into by and between the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") and the City of San Bernardino Fire Department as it relates to the San Bernardino ATF Arson Task Force (herein referred to as the "Task Force"). BACKGROUND Because of the large number of fires that have been committed in the Inland Empire and within the City of San Bernardino, local and federal law enforcement has agreed to combine resources in order to effectively attempt to reduce the number of arsons for profit within the Inland Empire. It is necessary to establish a task force that will pro actively address what is believed to be a small, prolific and very dangerous group of criminals who utilize either fires/arson and or explosives for profit, hate crimes, revenge, crime concealment, vandalism and terrorist incidents. AUTHORITY Offenses investigated and enforced pursuant to this MOD are those falling within A TF' s jurisdiction. 18 U.S.C. Chapter 40; 27 CFR Part 555. MISSION The mission of the task force is to focus on the reduction of violent crime that has been committed by acts of arson and explosives within the City of San Bernardino, California and its surrounding area to include the entire Inland Empire. The mission will be generally accomplished through a maximum effort of investigation, arrest, detention and enhanced prosecution of criminally active violent offenders. Specifically, efforts will focus on individuals who commit arson, arson for profit, and hate crimes that can be either prosecuted in State and or Federal Court. ACTIVITIES AND DUTIES The Task Force will perform the activities and duties described below: a. Intensive enforcement of all arson and explosive laws, both state and federal. This is likely to result in discovering criminal violations committed by violent offenders/organizations, felons convicted of arson for profit, arson, and explosives laws, and, individuals prohibited from possession of firearms. Page 1 2010-356 Active and aggressive investigations of all fires that are committed within the Inland Empire and in the City of San Bernardino, to include all fires committed by minors and adults within the City of San Bernardino. Additionally, the Task Force will jointly work all fires at houses of worship and all property owned by houses of worship as defined by the National Church Fire Task Force Directive issued by the United States Attorney General and Department of Justice. MEASUREMENT OF SUCCESS The success of this initiative and its performance will be measured by the participating agencies' willingness to share pertinent information, overall performance of the task force and crime statistics. PHYSICAL LOCATION Officers/agents assigned to this Task Force by their employer shall be referred to as task force officers (TFOs). TFOs will be assigned to the ATF Riverside Field Office/San Bernardino Satellite Office and will be located at 3801 University Avenue, Suite 670, Riverside, California 92501. SUPERVISION AND CONTROL The day-to-day supervision and administrative control ofTFOs will be the mutual responsibility of the participants, with the A TF Special Agent in Charge or his/her designee having operational control over all operations related to this Task Force. Each TFO shall remain subject to their respective agencies' policies, and shall routinely report to their respective agencies regarding matters umelated to this agreement/task force. With regard to matters related to the Task Force, TFOs will be subject to Federal law and Department of Justice (DOJ) and A TF orders, regulations and policy, including those related to standards of conduct, sexual harassment, equal opportunity issues and Federal disclosure laws. Failure to comply with this paragraph could result in a TFO's dismissal from the Task Force. PERSONNEL, RESOURCES AND SUPERVISION To accomplish the objectives ofthe Task Force, ATF will assign two Special Agents to the Task Force. ATF will also, subject to the availability of funds, provide necessary funds and equipment to support the activities of the ATF Special Agents and officers assigned to the Task Force. This support may include: office space, office supplies, travel funds, funds for the purchase of evidence and information, investigative equipment, training, and other support items. Each participating agency agrees to make available to their assigned task members any equipment ordinarily assigned for use by that agency. In the event ATF supplies equipment (which may include vehicles, weapons or radios), TFOs must abide by any applicable A TF property orders or policy, and may be required to enter into a separate agreement for their use. Page 2 2010-356 To accomplish the objectives of the Task Force, the San Bernardino Fire Department agrees to detail a minimum of one (1) fulltime TFO to the Task Force for a period of not less than two (2) years. All TFOs shall qualify with their respective firearms by complying with ATF's Firearms and Weapons Policy. SECURITY CLEARANCES All TFOs will undergo a security clearance and background investigation, and A TF shall bear the costs associated with those investigations. TFOs must not be the subject of any ongoing investigation by their department or any other law enforcement agency, and past behavior or punishment, disciplinary, punitive or otherwise, may disqualify one from eligibility to join the Task Force. ATF has final authority as to the suitability ofTFOs for inclusion on the Task Force. DEPUTATIONS ATF, as the sponsoring Federal law enforcement agency, may request at its sole discretion that the participating agency's TFOs be deputized by the U.S. Marshals Service to extend their jurisdiction, to include applying for and executing Federal search and arrest warrants, and requesting and executing Federal grand jury subpoenas for records and evidence involving violations of Federal laws. Such requests will be made on an individual basis as determined by ATF. The participating agencies agree that any Federal authority that may be conferred by a deputation is limited to activities supervised by ATF and will terminate when this MOU is terminated or when the deputized TFOs leave the Task Force, or at the discretion of ATF. ASSIGNMENTS, REPORTS AND INFORMATION SHARING An ATF supervisor or designee will be empowered with designated oversight for investigative and personnel matters related to the Task Force and will be responsible for opening, monitoring, directing and closing Task Force investigations in accordance with ATF policy and the applicable United States Attorney General's Guidelines. Assignments will be based on, but not limited to, experience, training and performance, in addition to the discretion of the A TF supervisor. All investigative reports will be prepared utilizing ATF's investigative case management system (N- Force), utilizing ATF case report numbers. The participating agency will share investigative reports, findings, intelligence, etc., in furtherance ofthe mission of this agreement, to the fullest extent allowed by law. For the purposes of uniformity, there will be no duplication of reports, but rather a single report prepared by a designated individual which can be duplicated as necessary. Every effort should be made to document investigative activity on ATF Reports of Investigation (ROI), unless otherwise agreed to by A TF and the participating agency. This section does not preclude the necessity of individual TFOs to complete forms required by their employing agency. Page 3 2010-356 Information will be freely shared among the TFOs and ATF personnel with the understanding that all investigative information will be kept strictly confidential and will only be used in furtherance of criminal investigations. No information gathered during the course of the Task Force, to include informal communications between TFOs and A TF personnel, may be disseminated to any third party, non-task force member by any task force member without the express permission of the ATF Special Agent in Charge or hislher designee. Any public requests for access to the records or any disclosures of information obtained by task force members during Task Force investigations will be handled in accordance with applicable statutes, regulations, and policies pursuant to the Freedom of Information Act and the Privacy Act and other applicable federal and/or state statutes and regulations. INVESTIGATIVE METHODS The parties agree to utilize Federal standards pertaining to evidence handling and electronic surveillance activities to the greatest extent possible. However, in situations where state or local laws are more restrictive than comparable Federal law, investigative methods employed by state and local law enforcement agencies shall conform to those requirements, pending a decision as to a venue for prosecution. The use of other investigative methods (search warrants, interceptions of oral communications, etc.) and reporting procedures in connection therewith will be consistent with the policy and procedures of ATF. All Task Force operations will be conducted and reviewed in accordance with applicable ATF and Department of Justice policy and guidelines. None of the parties to this MOD will knowingly seek investigations under this MOD that would cause a conflict with any ongoing investigation of an agency not party to this MOD. It is incumbent upon each participating agency to notify its personnel regarding the Task Force's areas of concern and jurisdiction. All law enforcement actions will be coordinated and cooperatively carried out by all parties to this MOD. INFORMANTS A TF guidelines and policy regarding the operation of informants and cooperating witnesses will apply to all informants and cooperating witnesses directed by TFOs. Informants developed by TFOs may be registered as informants of their respective agencies for administrative purposes and handling. The policies and procedures ofthe participating agency with regard to handling informants will apply to all informants that the participating agency registers. In addition, it will be incumbent upon the registering participating agency to maintain a file with respect to the performance of all informants or witnesses it registers. All information obtained from an informant and relevant to matters within the jurisdiction ofthis MOD will be shared with all parties to this MOD. The registering agency will pay all reasonable and necessary informant expenses for each informant that a participating agency registers. Page 4 2010-356 DE CONFLICTION Each participating agency agrees that the deconfliction process requires the sharing of certain operational information with the Task Force, which, if disclosed to unauthorized persons, could endanger law enforcement personnel and the public. As a result of this concern, each participating agency agrees to adopt security measures set forth herein: a. Each participating agency will assign primary and secondary points of contact. b. Each participating agency agrees to keep its points of contact list updated. The points of contact for this Task Force are: Bureau of Alcohol, Tobacco, Firearms and Explosives: RAC Keith Krolczyk City of San Bernardino Fire Department: Captain John Payan City of San Bernardino Fire Department: Fire Marshal/Div. Chief Doug Dupree EVIDENCE Evidence shall be maintained by the lead agency having jurisdiction in the court system intended for prosecution. Evidence generated from investigations initiated by a TFO or ATF special agent intended for Federal prosecution will be placed in the ATF designated vault, using the procedures found in ATF orders. JURISDICTION/PROSECUTIONS Cases will be reviewed by the A TF Special Agent in Charge or his/her designee in consultation with the participating agency and the United States Attorney's Office and appropriate State's attorney offices, to determine whether cases will be referred for prosecution to the U.S. Attorney's Office or to the relevant State's attorney's office. This determination will be based upon which level of prosecution will best serve the interests of justice and the greatest overall benefit to the public. Any question that arises pertaining to prosecution will be resolved through discussion among the investigative agencies and prosecuting entities having an interest in the matter. In the event that a state or local matter is developed that is outside the jurisdiction of A TF or it is decided that a case will be prosecuted on the state or local level, A TF will provide all relevant information to state and local authorities, subject to Federal law. Whether to continue investigation of state and local crimes is at the sole discretion of the state or local participating agency. USE OF FORCE All fulltime TFOs will comply with ATF and the Department of Justice's (DOl's) use of force policies. TFOs must be briefed on A TF' s and DOl's use of force policy by an A TF official, and will be provided with a copy of such policy. Page 5 2010-356 MEDIA Media relations will be handled by ATF and the U.S. Attorney's Office's public information officers in coordination with each participating agency. Information for press releases will be reviewed and mutually agreed upon by all participating agencies, who will take part in press conferences. Assigned personnel will be informed not to give statements to the media concerning any ongoing investigation or prosecution under this MOU without the concurrence of the other participants and, when appropriate, the relevant prosecutor's office. All personnel from the participating agencies shall strictly adhere to the requirements of Title 26, United States Code, ~ 6103. Disclosure of tax return information and tax information acquired during the course of investigations involving National Firearms Act (NFA) firearms as defined in 26 U.S.C., Chapter 53 shall not be made except as provided by law. SALARY/OVERTIME COMPENSATION During the period of the MOU, participating agencies will provide for the salary and employment benefits of their respective employees. All participating agencies will retain control over their employees' work hours, including the approval of overtime. ATF may have funds available to reimburse overtime to the State and Local TFO's agency, subject to the guidelines of the Department of Justice Asset Forfeiture Fund. This funding would be available under the terms of a memorandum of agreement (MOA) established pursuant to the provisions of 28 U.S.C. section 524. The participating agency agrees to abide by the applicable Federal law and policy with regard to the payment of overtime from the Department of Justice Asset Forfeiture Fund. The participating agency must be recognized under State law as a law enforcement agency and their officers/ troopers/investigators as sworn law enforcement officers. If required or requested, the participating agency shall be responsible for demonstrating to the Department of Justice that its personnel are law enforcement officers for the purpose of overtime payment from the Department of Justice Asset Forfeiture Fund. This MOU is not a fundim! document. In accordance with these provisions and any MOA on asset forfeiture, the ATF Special Agent in Charge or designee shall be responsible for certifying reimbursement requests for overtime expenses incurred as a result of this agreement. AUDIT INFORMATION Operations under this MOU are subject to audit by ATF, the Department of Justice's Office of the Inspector General, the Government Accountability Office, and other Government-designated auditors. Participating agencies agree to permit such audits and to maintain all records relating to Department of Justice Asset Forfeiture Fund payments for expenses either incurred during the course of this Task Force or for a period of not less than three (3) years and, if an audit is being conducted, until such time that the audit is officially completed, whichever is greater. Page 6 2010-356 FORFEITURES/SEIZURES All assets seized for administrative forfeiture will be seized and forfeited in compliance with the rules and regulations set forth by the U.S. Department of Justice Asset Forfeiture guidelines. When the size or composition of the item(s) seized make it impossible for ATF to store it, any of the participating agencies having the storage facilities to handle the seized property agree to store the property at no charge and to maintain the property in the same condition as when it was first taken into custody. The agency storing said seized property agrees not to dispose of the property until authorized to do so by ATF. The MOU provides that proceeds from forfeitures will be shared, with sharing percentages based upon the U.S. Department of Justice Asset Forfeiture policies on equitable sharing of assets, such as determining the level of involvement by each participating agency. Task Force assets seized through administrative forfeiture will be distributed in equitable amounts based upon the number of full-time persons committed by each participating agency. Should it become impossible to separate the assets into equal shares, it will be the responsibility of all the participating agencies to come to an equitable decision. If this process fails and an impasse results, A TF will become the final arbitrator of the distributive shares for the participating agencies DISPUTE RESOLUTION In cases of overlapping jurisdiction, the participating agencies agree to work in concert to achieve the Task Force's goals and objectives. The parties to this MOU agree to attempt to resolve any disputes regarding jurisdiction, case assignments and workload at the lowest level possible. LIABILITY ATF acknowledges that the United States is liable for the wrongful or negligent acts or omissions of its officers and employees, including TFOs, while on duty and acting within the scope of their federal employment, to the extent permitted by the Federal Tort Claims Act. Claims against the United States for injury or loss of property, personal injury, or death arising or resulting from the negligent or wrongful act or omission of any Federal employee while acting within the scope of his or her office or employment are governed by the Federal Tort Claims Act, 28 U.S.c. sections 1346(b), 2672-2680 (unless the claim arises from a violation of the Constitution of the United States, or a violation of a statute of the United States under which other recovery is authorized). Except as otherwise provided, the parties agree to be solely responsible for the negligent or wrongful acts or omissions of their respective employees and will not seek financial contributions from the other for such acts or omissions. Legal representation by the United States is determined by the United States Department of Justice on a case-by-case basis. ATF cannot guarantee the United States will provide legal representation to any State or local law enforcement officer. Page 7 2010-356 Liability for any negligent or willful acts of any agent or officer undertaken outside the terms of this MOD will be the sole responsibility of the respective agent or officer and agency involved. DURATION This MOD shall remain in effect until it is terminated in writing (to include electronic mail and facsimile). All participating agencies agree that no agency shall withdraw from the Task Force without providing ninety (90) days written notice to other participating agencies. If any participating agency withdraws from the Task Force prior to its termination, the remaining participating agencies shall determine the distributive share of assets for the withdrawing agency, in accordance with Department of Justice guidelines and directives. The MOD shall be deemed terminated at the time all participating agencies withdraw and A TF elects not to replace such members, or in the event ATF unilaterally terminates the MOD upon 90 days written notice to all the remaining participating agencies. MODIFICATIONS This agreement may be modified at any time by written consent of all participating agencies. Modifications shall have no force and effect unless such modifications are reduced to writing and signed by an authorized representative of each participating agency. ENDORSEMENTS This agreement shall be effective on the date of signature by all participating parties. Parties to this agreement may terminate their participation at any time upon written notification of their intent to withdraw to all other parties in agreement. In witness whereof, the parties have hereunto executed this memorandum of understanding. bacco, Firearms and Explosives o es Special Agent in Charge Date City of San Bernardino Fire Department Approved as to form: James F. Penman, City Attorney By: Page 8