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HomeMy WebLinkAbout18- Police CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION From: Lee Dean, Chief of Police Subject: Indemnity Agreement with the San Bernardino City Unified School District Dept: Police Date: 12-30-98 ORIGINAL Synopsis of Previous Council action: None. Recommended motion: Adopt resolution. /Signature Contact person: Sergeant F. Good Phone: 384-5728 Supporting data attached: Yes Ward: FUNDING REQUIREMENTS: Amount: None Source: (Acct. No.) (Acct. Description) Finance: Council Notes: IfaSIgq Agenda Item No. I CITY OF SAN BERNARDINO-REQUEST FOR COUNCIL ACTION STAFF REPORT Subject: Indemnity agreement with the San Bernardino City Unified School District. Background: In March 1997, the Department of Justice's CLETS Advisory Committee restricted school district's access to automated criminal history information based on the Central Valley v. Younger court injunction in force against DOJ. As a result, school districts could no longer run 'rap sheets' on prospective volunteers to determine their criminal history. They would be able to obtain that history only through fingerprinting at a cost of $47 per employee, or, as an alternative suggested by DOJ, through having an allied local law enforcement agency run it if that agency agreed to it. San Bernardino Unified School District's Chief Gary Underwood and SBPD Chief Lee Dean agreed that SBPD would provide the criminal histories to the school district through a structured process. This process complies with the requirements of Education Code Sections 45125.5 and 35021.1, and shortens the response time through the criminal history system by weeks or months. Financial Impact: Minimal. The School District employees perform criminal history inquiries. A SBPD supervisor reviews the results. Average time spent per month is one hour. Recommendation: At the recommendation of DOJ, this release of criminal history information should be protected by a "hold harmless" agreement to protect the City from liability. The City Attorney's Office provided a draft for such an agreement, which is attached. Council approval is respectfully requested. CITY OF SAN BERNARDINO INTER-OFFICE MEMORANDUM TO: James F. Penman, City Attorney FROM: Robert L. Simmons, Sr. Assistant City Attorney DATE: January 13, 1999 RE: Background Check Agenda Item I prepared the Agreement with the San Bernardino City Unified School District on the attached agenda item. I believe it protects the City from liability in virtually all situations. Paragraph 12 allows the Chief of Police to exercise the City's rights under the agreement, including termination. Based on the subject matter, I felt he was the proper person to do so. I believe you can sign off on this Agreement and Resolution. Robert L. Simmons Sr. Assistant City Attorney RLS',dn\jfpZ. © 1 RESOLUTION NO. 2 RESOLUTION TO AUTHORIZE EXECUTION OF AN INDEMNITY AGREEMENT WITH THE CITY OF SAN BERNARDINO AND THE SAN BERNARDINO CITY UNIFIED 3 SCHOOL DISTRICT TO PERFORM AUTOMATED RECORDS CHECKS THROUGH THE 4 CALIFORNIA LAW ENFORCEMENT TELECOMMUNICATIONS SYSTEM (CLETS). 5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY 6 OF SAN BERNARDINO DO ORDAIN AS FOLLOWS: 7 SECTION 1 The Mayor of the City of San Bernardino is hereby authorized 8 and directed to execute on behalf of said city an Indemnity Agreement with the City Unified 9 10 School District relating to access to the California Law Enforcement Telecommunications 11 Systems (CLETS), a copy of said agreement is attached hereto, marked Exhibit "A" and 12 incorporated herein by reference as fully set forth at length. 13 14 SECTION 2 The authorization to execute the above referenced agreement is 15 rescinded if the parties to the agreement fail to execute it within sixty (60) days of the passage 16 of this resolution. 17 18 19 20 21 22 23 24 25 26 0.naW ion—P ge l 27 28 Q I RESOLUTION TO AUTHORIZE EXECUTION OF AN INDEMNITY AGREEMENT WITH 2 THE CITY OF SAN BERNARDINO AND THE SAN BERNARDINO CITY UNIFIED SCHOOL DISTRICT TO PERFORM AUTOMATED RECORDS CHECKS THROUGH THE 3 CALIFORNIA LAW ENFORCEMENT TELECOMMUNICATIONS SYSTEM (CLETS). 4 1 HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor 5 and Common Council of the City of San Bernardino at a meeting thereof, held on 6 the day of , 1999, by the following vote, to wit: 7 Council Members Ayes Nays Abstain Absent 8 ESTRADA 9 10 LIEN 11 vacant — 12 SCHNETZ 13 DEVLIN 14 ANDERSON 15 MILLER 16 17 City Clerk 18 The foregoing Resolution is hereby approved this_day of 1999. 19 20 JUDITH VALLES,Mayor 21 City of San Bernardino 22 Approved as to form 23 and legal content: 24 JAMES F. PENMAN 25 City Attorney 26 21 Raol Py 2 28 I AGREEMENT FOR ALITOMATED RECORDS CHECK OF VOLUNTEERS 2 THIS AGREEMENT is entered into this of 1998 between the City of San Bernardino. a municipal corporation and the San Bernardino City Unified School 4 District. a school district under the laws of California. 5 Recital s 6 A. The San Bernardino City Unified School District(SBCUSD)often uses the services 7 of non-teaching volunteer aides in the operations of the schools within the district. 8 B. Pursuant to Education Code §35021.1 the City of San Bernardino Police Department 9 (SBPD)has been conducting automated records checks of prospective non-teaching volunteers aides 10 for the SBCUSD to ascertain whether the prospective volunteers have been convicted of an} sex 11 offense. 12 C. The City of San Bernardino Police Department wishes to continue providing the 13 automated records checks for the SBCUSD. 14 D. The automated records checks are based upon information provided by the SBCUSD 15 to the SBPD including the names. social security numbers. birth dates and addresses of the 16 volunteers. 17 E. The automated records checks are performed on the California Law Enforcement 18 Telecommunications Systems(CLETS)which is operated by the California Department of Justice. 19 F. The automated records checks must be conducted through a local law enforcement 20 agency. 21 G. The SBPD provides the services described above at no charge to the SBCUSD. 1)1) Agreement 23 The parties agree as follows: 24 1. The SBPD will perform automated records checks for the SBCUSD of volunteers 25 pursuant to the Education Code. 26 2. Either party may terminate this agreement on 15 days written notice. 27 3. Any information received under this agreement is confidential. The information will 28 only be used by the SBCUSD only for the purposes intended under the Education Code. The RLS/is[RECORDS.AGRI I I SBCUSD agrees that any of its employees who deal with the information provided under this [\v 2 agreement will be trained to maintain the confidentiality of this information. Under no 3 circumstances will any of the information provided to the SBCUSD under this agreement be 4 removed from the SBCUSD's facilities or control. 5 4. The SBCUSD acknowledges that the California Department of.lustice operates and 6 maintains the CLETS systems and the SBPD merely obtains information from the CLETS system. 7 5. The SBPD advises the SBCUSD whether the CLETS system shows whether a 8 volunteer applicant has or has not been convicted of any sex offense as defined in the Education 9 Code. 10 6. The SBCUSD acknowledges that it is possible for the CLETS system to provide 11 information to the SBPD showing that a volunteer applicant has not been convicted of a sex offense 12 when in fact the volunteer applicant has been so convicted and vice versa. 13 7. The Education Code only authorizes the disclosure to the SBCUSD of whether anon- 14 teaching volunteer aide has been convicted of a sex offense. There are many other crimes besides 15 sex offenses for which a potential volunteer may have been convicted. These other crimes can only 16 be disclosed to the SBCUSD by the State Department of Justice in response to a fingerprint check. 17 The SBCUSD in executing this agreement acknowledges that it is aware of its obligations to submit 18 the fingerprints of potential volunteers to the Department of Justice. The SBPD is not authorized 19 by law to submit fingerprints on behalf of the SBCUSD. Therefore in order to obtain a complete 20 criminal history of any potential volunteer, SBCUSD must submit an accurate set of fingerprints for 21 each potential volunteer to the Department of Justice. 22 8. SBCUSD agrees and promises to indemnify. defend and hold harmless the City of 23 San Bernardino and its officers, employees and agents, from and against all actions. claims, 24 demands, lawsuits and liability for damages to person or property that may be asserted or claimed 25 by any person, firm, entity, corporation, political subdivision, or the organization arising out or in 26 connection with the performance of this Agreement, but excluding such actions, claims. demands. 27 lawsuits and liability for damages to persons or property arising from the sole negligence or willful 28 misconduct of the City of San Bernardino, its officers, agents or employees. RLS/js IRECORDS.AGRI 2 1 9. Any notice to be given pursuant to this Agreement should be sent by first class mail 2 addressed as follows: 3 To School District: San Bernardino City Unified School District Attention: Superintendent's Office 4 777 North "F" Street San Bernardino, California 92410 5 To City: San Bernardino Police Department 6 Lee Dean, Chief of Police 710 North "D" Street 7 San Bernardino, California 92401 8 10. No change or modification of the terms or provisions of this Agreement shall be 9 deemed valid unless in writing and signed by both parties. 10 11. No waiver of any breach or default shall be construed as a waiver of any subsequent I I breach or default. 12 12. The Chief of Police or his authorized designee shall have the authority to exercise the 13 City of San Bernardino's rights under this agreement including termination of the contract on behalf Q 14 of the City of San Bernardino at his sole discretion. { 15 SAN BERNARDINO CITY UNIFIED SCHOOL DISTRICT 16 Dated: 17 BY: Authorized Representative ! 18 19 CITY OF SAN BERNARDINO 20 i 21 Dated: 22 By: JUDITH VALLES. Mayor 23 Approved as to form and Legal Content: 24 JAMES F. PENMAN, 25 City Attorney 26 i © 27 28 l 7 RLS/.is IRECORDS.AGRI 3 i NARDYyG rayJ i C I T Y O F an Bernardino R A C H E L C L A R K C I T Y C L E R K January 26, 1999 San Bernardino City Unified School District ATTN: Superintendent's Office 777 North"F" Street San Bernardino, CA 92410 Dear Mr. Superintendent: At the Mayor and Common Council meeting of January 25, 1999, the City of San Bernardino adopted Resolution 1999-15 authorizing an indemnity agreement for automated records checks. Enclosed is one (1) original agreement, and one (1) duplicate original agreement. Please sign in the appropriate locations and return the original agreement to the City Clerk's Office, ATTN: Melanie Miller,P.O. Box 1318, San Bernardino, CA, 92418 as soon as possible. Please retain the duplicate original executed contract for your files. Please be advised that said resolution will be null and void if it is not executed within sixty (60) days—March 26, 1999. If you have any questions, please do not hesitate to contact me at(909) 384-5002. Sincerely, Rachel Clark City Clerk By: Melanie Miller Senior Secretary Enclosures P. O . B O [ 1 3 1 8 B A N B E R N A R D I N 0 C A 0 2 4 0 2 1 3 0 0 N O R T H 1) S T R E E T S A N 8 E R N A R O I N 0 C A L I F O R N I A 9 2 4 1 8 . 0 0 0 1 ( 0 0 9 ) 3 4 3 - 5 0 0 2 ( 9 0 9 ) 3 8 0 . 5 1 0 2 F A X -(9 0 0 ) 3 9 4 -S 1 5 9 T 0 0 IT T Y -1 9 0 9) 3 0 4 -9 3 4 0 1999-15 y l AGREEMENT FOR AUTOMATED RECORDS CHECK OF VOLUNTEERS 2 THIS AGREEMENT is entered into this 25th of January . 1999 xx $$cbetween the City of San Bernardino. a municipal corporation and the San Bernardino City Unified School 4 District, a school district under the laws of California. 5 Recitals 6 A. The San Bernardino City Untied School District(SBCUSD) often uses the services 7 of non-teaching volunteer aides in the operations of the schools within the district. 8 B. Pursuant to Education Code §35021.1 the City of San Bernardino Police Department 9 (SBPD)has been conducting automated records checks of prospective non-teaching volunteers aides 10 for the SBCUSD to ascertain whether the prospective volunteers have been convicted of any sex 11 offense. 12 C. The City of San Bernardino Police Department wishes to continue providing the 13 automated records checks for the SBCUSD. 14 D. The automated records checks are based upon information provided by the SBCUSD 15 to the SBPD including the names. social security numbers, birth dates and addresses of the 16 volunteers. 17 E. The automated records checks are performed on the California Law Enforcement 18 Telecommunications Systems (CLETS)which is operated by the California Department of Justice. 19 F. The automated records checks must be conducted through a local law enforcement 20 agency. 21 G. The SBPD provides the services described above at no charge to the SBCUSD. '' Aereement 23 The parties agree as follows: 24 1. The SBPD will perform automated records checks for the SBCUSD of volunteers 25 pursuant to the Education Code. 26 2. Either party may terminate this agreement on 15 days written notice. 27 3. Any information received under this agreement is confidential. The information will 28 only be used by the SBCUSD only for the purposes intended under the Education Code. The RLS/is[RECORDS.AGRI I 1999-15 I SBCUSD agrees that any of its employees who deal with the information provided under this 2 agreement will be trained to maintain the confidentiality of this information. Under no 3 circumstances will any of the information provided to the SBCL'SD under this agreement be 4 removed from the SBCUSD's facilities or control. 5 4. The SBCUSD acknowledges that the California Department of Justice operates and 6 maintains the CLETS systems and the SBPD merely obtains information from the CLETS system. 7 5. The SBPD advises the SBCUSD whether the CLETS system shows whether a 8 volunteer applicant has or has not been convicted of any sex offense as defined in the Education 9 Code. 10 6. The SBCUSD acknowledges that it is possible for the CLETS system to provide 11 information to the SBPD showing that a volunteer applicant has=been convicted of a sex offense 12 when in fact the volunteer applicant has been so convicted and vice versa. 13 7. The Education Code only authorizes the disclosure to the SBCUSD of whether a non- 14 teaching volunteer aide has been convicted of a sex offense. There are many other crimes besides 15 sex offenses for which a potential volunteer may have been convicted. These other crimes can only 16 be disclosed to the SBCUSD by the State Department of Justice in response to a fingerprint check. 17 The SBCUSD in executing this agreement acknowledges that it is aware of its obligations to submit 18 the fingerprints of potential volunteers to the Department of Justice. The SBPD is not authorized 19 by taw to submit fingerprints on behalf of the SBCUSD. Therefore in order to obtain a complctc 20 criminal history of any potential volunteer, SBCUSD must submit an accurate set of fingerprints for 21 each potential volunteer to the Department of Justice. 22 8. SBCUSD agrees and promises to indemnify, defend and hold harmless the City of 23 San Bernardino and its officers, employees and agents, from and against all actions. claims. 24 demands, lawsuits and liability for damages to person or property that may be asserted or claimed 25 by any person, firm, entity, corporation, political subdivision, or the organization arising out or in 26 connection with the performance of this Agreement, but excluding such actions, claims, demands. 27 lawsuits and liability for damages to persons or property arising from the sole negligence or %%illful 28 misconduct of the City of San Bernardino, its officers, agents or employees. RLS/js[RECORDS.AGRI 2 1999-15 1 9. Any notice to be given pursuant to this Agreement should be sent by first class mail 2 addressed as follows: 3 To School District: San Bernardino City Unified School District Attention: Superintendent's Office 4 777 North "F" Street San Bernardino. California 92410 5 To City: San Bernardino Police Department 6 Lee Dean, Chief of Police 710 North "D" Street 7 San Bernardino, California 92401 8 10. No change or modification of the terms or provisions of this Agreement shall be 9 deemed valid unless in writing and signed by both parties. 10 11. No waiver of any breach or default shall be construed as a waiver of any subsequent 11 breach or default. 12 12. The Chief of Police or his authorized designee shall have the authority to exercise the 13 City of San Bernardino's rights under this agreement including termination of the contract on behalf 14 of the City of San Bernardino at his sole discretion. 15 SAN BERNARDINO CITY UNIFIED SCHOOL DISTRICT 16 Dated: 17 By: 18 Authorized Representative 19 CITY OF SAN BERNARDINO 20 21 Dated: 0/—.2(a —`J9 2222 By: JUDITffi VALLES. Mayor 23 Approved as to form and Legal Content: 24 JAMES F. PENMAN, 25 City Attorney 26 By: 2_7 28 RI,S/js IRECORDS.AGRJ 3