Loading...
HomeMy WebLinkAboutFEDERAL BUREAU OF INVESTIGATION OCVCTFINSURANCE NOT RROUIRED N-2022-193 WORK MAY PROMED CLERK OF COUNCIL DA7Ea JUL 19 2022 FOR OFFICIAL USE ONLY (cwA(tynutr . fIrnS� t FEDERAL BUREAU -OF INVESTIGATION ORANGE COUNTY VIOLENT CRIME TASK FORCE (OCVCTF) MEMORANDUM OF UNDERSTANDING PARTIES 1. This Memorandum of Understanding (MOU) is entered into by and between the Federal Bureau of Investigation (FBI) and the Santa Ana Police Department (SAPD). In the alternative, FBI and SAPD may hereinafter be referred to cumulatively as the "Parties." Nothing in this MOU should be construed as limiting or impeding the basic spirit of cooperation which exists between these agencies. AUTHORITIES 2. Authority for the FBI to enter into this agreement can be found at Title 28, United States Code (U.S,C.), Section (§) 5.93; 42 U.S.C. § 3771; Title 28, Code of Federal Regulations (C.F.R,), § 0:85; and applicable United States Attorney General's Guidelines. PURPOSE 3. The purpose of this MOU is to delineate the responsibilities of the Orange County Violent Crime Task Force (OCVCTF) personnel, formalize relationships between participating agencies for policy guidance, planning, training, public and media relations, and maximize inter -agency .cooperation. This MOU is not Intended, and should not be construed, to create any right or benefit, substantive or procedural, enforceable at law or otherwise by any third party against the Parties, the United States, or the officers, employees, agents, or other associated personnel thereof. MISSION 4. The mission of the OCVCTP is to identify and target for prosecution criminal enterprise groups responsible for drug trafficking, money laundering. alien smuggling, crimes of violence such'as murder and aggravated assault, robbery, and violent street gangs, as well as to intensely focus on the apprehension of dangerous fugitives where there is or may be a federal investigative interest. The OCVCTF will enhance the effectiveness of federallstate/local law enforcement resources through a welt -coordinated Initiative seeking the most effective investigativelprosecutive avenues by which to convict and incarcerate dangerous offenders. SUPERVISION AND CONTROL A. Supervision 5. Overall management of the OCVCTF shall be the shared responsibility of the participating agency heads and/or their designees. 6. The Special Agent in Charge (SAC) of the FBI Los Angeles Division shall designate one Supervisory Special Agent (OCVCTF Supervisor) to supervise the OCVCTF. The OCVCTF Supervisor may designate a Special Agent to serve as the OCVCTF Coordinator (Task Force Coordinator). Either the OCVCTF Supervisor or the Task Force Coordinator shall oversee day-to-day operational and investigative matters pertaining to the OCVCTF. 7. Conduct undertaken outside the scope of an individual's OCVCTF duties and assignments under this MOU shall not fall within the oversight responsibility of the OCVCTF Supervisor or Task Force Coordinator. As stated in paragraph 74, below, neither the United States nor the FBI shall be responsible for such conduct. 8. OCVCTF personnel will be subject to the laws, regulations, policies, and personnel rules applicable to their respective agencies. FBI employees will continue to adhere to the Bureau's ethical standards, including Department of Justice (DOJ)/FBI regulations relating to outside employment and prepublication review matters, and will remain subject to the Supplemental Standards of Ethical conduct for employees of the DOJ. 9. OCVCTF personnel will continue to report to their respective agency heads for non - investigative administrative matters not detailed in this MOU. 10. Continued assignment of personnel to the OCVCTF will be based on performance and at the discretion of appropriate management. The FBI SAC and OCVCTF Supervisor will also retain discretion to remove any individual from the OCVCTF. B. Case Assignments 11. The FBI OCVCTF Supervisor will be responsible for opening, monitoring, directing, and closing OCVCTF investigations in accordance with existing FBI policy and the applicable United States Attorney General's Guidelines. 12. Assignments of cases to personnel will be based on, but not limited to, experience, training and performance, in addition to the discretion of the OCVCTF Supervisor, 13, For FBI administrative purposes, OCVCTF cases will be entered into the relevant FBI computer system. 14. OCVCTF personnel will have equal responsibility for each case assigned. OCVCTF personnel will be responsible for complete investigation from predication to resolution. C. Resource Control 15. The head of each participating agency shall determine the resources to be dedicated by that agency to the OCVCTF, including personnel, as well as the continued dedication of those resources. The participating agency Head or designee shall be kept fully apprised of all investigative developments by his or her subordinates. 2 OPERATIONS A. Investigative Exclusivity 16. It is agreed that matters designated to be handled by the OCVCTF will not knowingly be subject to non- OCVCTF law enforcement efforts by any of the participating agencies. It is incumbent on each agency to make proper internal notification regarding the OCVCTF 's existence and areas of concern. 17. It is agreed that there is to be no unilateral action taken on the part of the FBI or any participating agency relating to OCVCTF investigations or areas of concern as described in paragraph 4. All law enforcement actions will be coordinated and cooperatively carried out. 18. OCVCTF investigative leads outside of the geographic areas of responsibility for FBI Los Angeles Division will be communicated to other FBI offices for appropriate investigation. B. Confidential Human Sources 19. The disclosure of FBI informants, or Confidential Human Sources (CHSs), to non- OCVCTF personnel will be limited to those situations where it is essential to the effective performance of the OCVCTF. These disclosures will be consistent with applicable FBI guidelines. 20. Non -FBI OCVCTF personnel may not make any further disclosure of the identity of an FBI CHS, including to other individuals assigned to the OCVCTF. No documents which identify, tend to identify, or may indirectly identify an FBI CHS may be released without prior FBI approval. 21. In those instances where a participating agency provides a CHS, the FBI may, at the discretion of the SAC, become solely responsible for the CHS's continued development, operation, and compliance with necessary administrative procedures regarding operation and payment as set forth by the FBI. 22. The United States Attorney General's Guidelines and FBI policy and procedure for operating FBI CHSs shall apply to all FBI CHSs opened and operated in furtherance of OCVCTF investigations. Documentation of, and any payments made to, FBI CHSs shall be in accordance with FBI policy and procedure. 23. Operation, documentation, and payment of any CHS opened and operated in furtherance of an OCVCTF investigation must be in accordance with the United States Attorney General's Guidelines, regardless of whether the handling agency is an FBI OCVCTF participating agency. Documentation of state, county, or local CHSs opened and operated in furtherance of OCVCTF investigations shall be maintained at an agreed upon location. 3 C. Reports and Records 24. 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 OCVCTF personnel will be made available for inclusion in the respective investigative agencies' files as appropriate. 25. OCVCTF reports prepared in cases assigned to OCVCTF personnel will be maintained at an FBI approved location; original documents will be maintained by the FBI. 26. Records and reports generated in OCVCTF cases which are opened and assigned by the FBI SSA with designated oversight for investigative and personnel matters will be maintained in the FBI investigative file for OCVCTF. 27. OCVCTF investigative records maintained at the Los Angeles Field Office of the FBI will be available to all OCVCTF personnel, as well as their supervisory and command staff subject to pertinent legal, administrative and/or policy restrictions. 28. All evidence and original tape recordings (audio and video) acquired by the FBI during the course of the OCVCTF 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 OCVCTF personnel. 29. All OCVCTF investigative records will be maintained at an approved FBI location. Placement of all or part of said information into participating agency files rests with the discretion of supervisory personnel of the concerned agencies, subject to SSA approval. 30. Classified information and/or documents containing information that identifies or tends to identify an FBI CHS shall not be placed in the files of participating agencies unless appropriate FBI policy has been satisfied. 31. The Parties acknowledge that this MOU may provide OCVCTF personnel with access to information about U.S. persons which is protected by the Privacy Act of 1974 and/or Executive Order 12333. The Parties expressly agree that all such information will be handled lawfully pursuant to the provisions thereof. The Parties further agree that if this access to information by OCVCTF personnel requires a change in privacy compliance documents, those changes will be accomplished prior to access being granted. INFORMATION SHARING 32. No information possessed by the FBI, to include information derived from informal communications between OCVCTF personnel and FBI employees not assigned to the OCVCTF, may be disseminated by OCVCTF personnel to non- OCVCTF personnel without the approval of the OCVCTF Supervisor and in accordance with the applicable laws and internal regulations, procedures or agreements between the FBI and the 4 participating agencies that would permit the participating agencies to receive that information directly. Likewise, OCVCTF personnel will not provide any participating agency information to the FBI that is not otherwise available to it unless authorized by appropriate participating agency officials. 33. Any FBI or OCVCTF personnel that discloses personally identifiable information (PII) is responsible for making reasonable efforts to ensure that the information disclosed is accurate, complete, timely, and relevant. 34. The FBI is providing access to information from its records with the understanding that in the event the recipient becomes aware of any inaccuracies in the data, the recipient will promptly notify the FBI so that corrective action can be taken. Similarly, if the FBI becomes aware that information it has received pursuant to this MOU is inaccurate, it will notify the contributing Party so that corrective action can be taken. 35. The Parties are responsible for ensuring that information it discloses was not knowingly obtained or maintained in violation of any law or policy applicable to the disclosing Party, and that information is only made available to the receiving Party as may be permitted by laws, regulations, policies, or procedures applicable to the disclosing Party. 36. The Parties will immediately report to each other each instance in which data received from either the the FBI or OCVCTF is used, disclosed, or accessed in an unauthorized manner (including any data losses or breaches). 37. The Parties agree that either or both may audit the handling and maintenance of data in electronic and paper recordkeeping systems to ensure that appropriate security and privacy protections are in place. 38. OCVCTF investigative procedures, whenever practicable, are to conform to the requirements which would allow for either federal or state prosecution. 39. A determination will be made on a case -by -case basis whether the prosecution of OCVCTF cases will be at the state or federal level. This determination will be based on the evidence obtained and a consideration of which level of prosecution would be of the greatest benefit to the overall objectives of the OCVCTF. 40. In the event that a state or local matter is developed that is outside the jurisdiction of the FBI or it is decided to prosecute a OCVCTF case at the state or local level, the FBI agrees to provide all relevant information to state and local authorities in accordance with all applicable legal limitations. A. investigative Methods/Evidence 41. For cases assigned to an FBI Special Agent or in which FBI CHSs are utilized, the Parties agree to conform to federal standards concerning evidence collection, processing, 6 storage, and electronic surveillance. However, in situations where the investigation will be prosecuted in the State Court where statutory or common law of the state is more restrictive than the comparable federal law, the investigative methods employed by FBI case agents shall conform to the requirements of such statutory or common law pending a decision as to venue for prosecution. 42. In all cases assigned to state, county, or focal la�v enforcement participants, the parties agree to utilize federal standards pertaining to evidence handling and electronic surveillance activities as outlined in the Domestic Investigations and Operations Guide to the greatest extent possible. However, in situations where the statutory or common law of the state is more restrictive than the 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. 43. The use of other investigative methods (search warrants, interceptions of oral communications, etc.) and reporting procedures in connection therewith will be consistent with the policies and procedures of the FBI. B. Undercover Operations 44, All OCVCTF undercover operations will be conducted and reviewed in accordance with FBI guidelines and the Attorney General's Guidelines on Federal Bureau of Investigation Undercover Operations. All participating agencies may be requested to enter into an additional agreement if an employee of the participating agency is assigned duties which require the officer to act in an undercover capacity. USE OF LESS -THAN -LETHAL -DEVICES' 45. The parent agency of each individual assigned to the OCVCTF will ensure that while the individual is participating in FBI -led task force operations in the capacity of a task force officer, task force member, or task force participant, the individual will carry only less - lethal devices that the parent agency has issued to the individual, and that the individual has been trained in accordance with the agency's policies and procedures. 46. The parent agency of each individual assigned to the OCVCTF will ensure that the agency's policies and procedures for use of any less -lethal device that will be carried by the task force officer, task force member, or task force participant are consistent with the DOJ policy -statement on the Use of Less -Than -Lethal Devices. DEADLY FORCE AND SHOOTING INCIDENT POLICIES 47. OCVCTF personnel will follow their own agencies' policies concerning firearms discharge and use of deadly force. ' Pursuant to Section VIII of the DOJ Less -Than -Lethal Devices Policy dated May 16, 2011, all statellocal officers participating in joint task force operations must be made aware of and adhere to the policy and its limits on DOJ officers. T DEPUTATIONS 48. Local and state law enforcement personnel designated to the OCVCTF, subject to a limited background inquiry, shall be sworn as federal task force officers either by acquiring Title 21 or Title 18 authority (via the United States Marshals), with the FBI securing the required deputation authorization. These deputations should remain in effect throughout the tenure of each investigator's assignment to the OCVCTF or until the termination of the OCVCTF, whichever comes first. 49. Deputized OCVCTF personnel will be subject to the rules and regulations pertaining to such deputation. Administrative and personnel policies imposed by the participating agencies will not be voided by deputation of their respective personnel. VEHICLES 50. In furtherance of this MOU, employees of SAPD may be permitted to drive FBI owned or leased vehicles for official OCVCTF business and only in accordance with applicable FBI rules and regulations, including those outlined in the FBI Government Vehicle Use Policy Guide (0791 PG) or superseding versions thereof. The assignment of an FBI owned or leased vehicle to SAPD OCVCTF personnel will require the execution of a separate Vehicle Use Agreement. 51. The participating agencies agree that FBI vehicles will not be used to transport passengers unrelated to OCVCTF business. 52. The FBI and the United States will not be responsible for any tortious act or omission on the part of the SAPD and/or its employees or for any liability resulting from the use of an FBI owned or leased vehicle utilized by SAPD OCVCTF personnel, except where liability may fall under the provisions of the Federal Tort Claims Act (FTCA), as discussed in the Liability Section herein below. 53. The FBI and the United States shalt not be responsible for any civil liability arising from the use of an FBI owned or leased vehicle by SAPD task force personnel while engaged in any conduct other than their official duties and assignments under this MOU. 54. To the extent permitted by applicable law, SAPD agrees to hold harmless the FBI and the United States, for any claim for property damage or personal injury arising from any use of an FBI owned or leased vehicle by SAPD OCVCTF personnel which is outside the scope of their official duties and assignments under this MOU. SALARY/OVERTIME COMPENSATION 55. The FBI and SAPD remain responsible for all personnel costs for their OCVCTF representatives, including salaries, overtime payments and fringe benefits consistent with their respective agency, except as described in paragraph 56 below. 7 56. Subject to funding availability and legislative authorization, the FBI will reimburse to SAPD the cost of overtime worked by non-federal OCVCTF personnel assigned full-time to OCVCTF, provided overtime expenses were incurred as a result of OCVCTF -related duties, and subject to the provisions and limitations set forth in a separate Cost Reimbursement Agreement to be executed in conjunction with this MOU. A separate Cost Reimbursement Agreement must be executed between the FBI and SAPD for full- time employee(s) assigned to OCVCTF, consistent with regulations and policy, prior to any reimbursement by the FBI. Otherwise, overtime shall be compensated in accordance with applicable SAPD overtime provisions and shall be subject to the prior approval of appropriate personnel. PROPERTY AND EQUIPMENT 57. Property utilized by the OCVCTF in connection with authorized investigations and/or operations and in the custody and control and used at the direction of the OCVCTF, will be maintained in accordance with the policies and procedures of the agency supplying the equipment. Property damaged or destroyed which was utilized by OCVCTF in connection with authorized investigations and/or operations and is in the custody and control and used at the direction of OCVCTF, will be the financial responsibility of the agency supplying said property. FUNDING 58. This MOU is not an obligation or commitment of funds, nor a basis for transfer of funds, but rather is a basic statement of the understanding between the Parties hereto of the tasks and methods for performing the tasks described herein. Unless otherwise agreed in writing, the FBI and OCVCTF shall bear its own costs in relation to this MOU. Expenditures by the FBI and OCVCTF will be subject to its budgetary processes and to the availability of funds and resources pursuant to applicable laws, regulations, and policies. The Parties expressly acknowledge that the above language in no way implies that Congress will appropriate funds for such expenditures. 59. The FBI shall be responsible for processing assets seized for federal forfeiture in conjunction with OCVCTF operations. 60. Asset forfeitures will be conducted in accordance with federal law, and the rules and regulations set forth by the FBI and DOJ. Forfeitures attributable to OCVCTF investigations may be equitably shared with the agencies participating in the OCVCTF. DISPUTE RESOLUTION 61. In cases of overlapping jurisdiction, the participating agencies agree to work in concert to achieve the OCVCTF's objectives. U. 62. The participating agencies agree to attempt to resolve any disputes regarding jurisdiction, case assignments, workload, etc., at the field level first before referring the matter to supervisory personnel for resolution. MEDIA RELEASES 63. All media releases and statements will be mutually agreed upon and jointly handled according to FBI and participating agency guidelines. 64. Press releases will conform to DOJ Guidelines regarding press releases. No release will be issued without FBI final approval. SELECTION TO OCVCTF AND SECURITY CLEARANCES 65. If an SAPD candidate for the OCVCTF will require a security clearance, he or she will be contacted by FBI security personnel to begin the background investigation process prior to the assigned start date. 66. If, for any reason, the FBI determines that an SAPD candidate is not qualified or eligible to serve on the OCVCTF, the participating agency will be so advised and a request will be made for another candidate. 67. Upon being selected, each candidate will receive a comprehensive briefing on FBI field office security policies and procedures. During the briefing, each candidate will execute non -disclosure agreements (SF-312 and FD-868), as may be necessary or required -by the FBI. 68. Before receiving unescorted access to FBI space identified as an open storage facility, OCVCTF personnel will be required to obtain and maintain a "Top Secret" security clearance. OCVCTF personnel will not be allowed unescorted access to FBI space unless they have received a Top Secret security clearance. 69. Upon departure from the OCVCTF, each individual whose assignment to the OCVCTF is completed will be given a security debriefing and reminded of the provisions contained in the non -disclosure agreement to which he or she previously agreed. LIABILITY 70. The participating agencies acknowledge that this MOU does not alter the applicable law governing civil liability, if any, arising from the conduct of personnel assigned to the OCVCTF. 71. The participating agency shall immediately notify the FBI of any civil, administrative, or criminal claim, complaint, discovery request, or other request for information of which the agency receives notice, concerning or arising from the conduct of personnel assigned to the OCVCTF or otherwise relating to the OCVCTF. The participating agency acknowledges that financial and civil liability, if any and in accordance with applicable law, for the acts and omissions of each employee detailed to the OCVCTF remains vested with his or her employing agency. In the event that a civil claim or complaint is brought against a state or local officer assigned to the OCVCTF, the officer may request legal representation and/or defense by DOJ, under the circumstances and pursuant to the statutes and regulations identified below. 72. For the limited purpose of defending against a civil claim arising from alleged negligent or wrongful conduct under common law under the FICA, 28 U.S.C. § 1346(b), and §§ 2671- 2680: An individual assigned to the OCVCTF who is named as a defendant in a civil action as a result of or in connection with the performance of his or her official duties and assignments pursuant to this MOU may request to be certified by the Attorney General or his/her designee as having acted within the scope of federal employment at the time of the incident giving rise to the suit. 28.U.S.C. § 2679(d)(2). Upon such certification, the individual will be considered an "employee" of the United States government for the limited purpose of defending the civil claim under the FTCA, and the claim will proceed against the United States as sole defendant. 28 U.S.C. § 2679(d)(2). Once an individual is certified as an employee of the United States for purposes of the FTCA, the United States is substituted for the employee as the sole defendant with respect to any tort claims. Decisions regarding certification of employment under the FTCA are made on a case -by -case basis, and the FBI cannot guarantee such certification to any OCVCTF personnel. 73. For the limited purpose of defending against a civil claim arising from an alleged violation of the U.S. Constitution pursuant to 42 U.S.C. § 1983 or Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971): An individual assigned to the OCVCTF who is named as a defendant in a civil action as a result of or in connection with the performance of his or her official duties and assignments pursuant to this MOU may request individual -capacity representation by DOJ to defend against the claims. 28 C.F.R. §§ 50.15, 50.16. Any such request for individual -capacity representation must be made in the form of a letter from the individual defendant to the U.S. Attorney General. The letter should be provided to Chief Division Counsel (CDC) for the FBI Los Angeles Division, who will then coordinate the request with the FBI Office of the General Counsel. In the event of an adverse judgment against the individual, he or she may request indemnification from DOJ. 28 C.F.R. § 50.15(c)(4). Requests for DOJ representation and indemnification are determined by DOJ on a case -by -case basis. The FBI cannot guarantee the United States will provide legal representation or indemnification to any OCVCTF personnel. 74. Liability for any conduct by OCVCTF personnel undertaken outside of the scope of their assigned duties and responsibilities under this MOU shall not be the responsibility of the FBI or the United States and shall be the sole responsibility of the respective employee and/or agency involved. 10 D ATION 75. The term of this MOU is for the duration of the OCVCTF's operations, contingent upon approval of necessary funding, but may be terminated at any time upon written mutual consent of the agency involved. 76. Any participating agency may withdraw from the OCVCTF at any time by writteri notification to the SSA with designated oversight for investigative and personnel matters or program manager of the OCVCTF at least30 days prior to withdrawal. 77. Upon termination of this MOU, all equipment provided to the OCVCTF will be returned to the supplying agencylagencies. In addition, when an entity withdraws from the MOU, the entity will return equipment to the supplying agency/agencies. Similarly, remaining agencies will return to a withdrawing agency any unexpended equipment supplied by the withdrawing agency during any OCVCTF participation. MODIFICATIONS 78, This agreement may be modified at any time by written consent of all Involved agencies. 79. 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. SIGNATORIES pecial Agent in Charge, Matthew Moon Federal Bureau of Investigation e S'� nEtAr4' <') Chief of Police, David Valentin Santa Ana Police Department provedto Form Tamara Bogosian Senior Assistant City Attorney 11 I Ll7' Z Date Date DURATION 75. The term of this MOU is for the duration of the OCVCTF's operations, contingent upon approval of necessary funding, but may be terminated at any time upon written mutual consent of the agency involved. 76. Any participating agency may withdraw from the OCVCTF at anytime by written notification to the SSA with designated oversight for investigative and personnel matters or program manager of the OCVCTF at least 30 days prior to withdrawal. 77, Upon termination of this MOU, all equipment provided to the OCVCTF will be returned to the supplying agency/agencies. In addition, when an entity withdraws from the MOU, the entity will return equipment to the supplying agencylagencies. Similarly, remaining agencies will return to a withdrawing agency any unexpended equipment supplied by the withdrawing agency during any OCVCTF participation. MODIFICATIONS 78. This agreement may be modified at any time by written consent of all Involved agencies. 79. 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. SIGNATORIES Special Agent in Charge, Matthew Moon Federal Bureau of Investigation Date Chief of Po ice, David Valentin Date Santa Ana Police Department proved to Form Tamara Bogoslan Senior Assistant City Attorney 11 N-2022-193 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: CITY OF SANTA ANA ON IANTy y v li Daisy Game Clerk of the ouncil RECONUAENDED FOR APPRO David V m ief of Police #4297vl KRISTM RIDGE City Manager