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HomeMy WebLinkAboutRES 06-274 RESOLUTION NO. 06-274 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the City Manager and Chief of Police be and they are hereby authorized to execute the Joint Terrorism Task Force Memorandum of Agreement substantially in the form attached hereto as Exhibit "A" and made a part hereof for all purposes. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 19th day of September, 2006. U� Mayor Guy N. Goodson - � ..... w 00 of HOUSTON JQINT TERRORISM TASK FORCE ME MORANDUM OF AGREEMENT PREAMBLE This Memorandum of Agreement (MOA) is entered into by the Federal Bureau of Investigation (FBI) and the Beaumont Police Department (BPD) and outlines a cooperative effort to combat terrorism. ARTICLE ONE- 'pose of MOA This MOA establishes and delineates the mission and structure of the Houston Joint Terrorism Task Force (JTTF) in addressing the complex problem of terrorism affecting Southeast Texas. The purpose of this MOA is to set out a common understanding of the policies and procedures the BPD and the FBI will follow in providing law enforcement service to the citizens of Texas and the United States of American, ARTICLE TWO: The JTTF will investigate terrorist organizations planning or carrying out terrorist acts occurring in or affecting the State of Texas and will apprehend individuals committing such violations. The organizations to be investigated will be specifically identified and agreed upon beforehand by JTTF member agencies. All parties agree to abide by the Attorney General's Guidelines on General Crimes, Racketeering Enterprise, and Domestic Security/Te'rrorism investigations (AG Guidelines) and the Attorney Guidelines for FBI Foreign Intelligence Collection and Foreign Counterintelligence Investigations as they pertain to International Terrorism matters . In addition, it is understood that personnel of the BPD shall be required to utilize only those investigative techniques consistent with their given standards and procedures. ARTICLE THREE: ORGANIZATIONAL STRUCTURE AND MMAGEMENT OF THE TASK FORCE A. MEMBERS The JTTF shall consist of a combined body of investigators from each participating agency. EXHIBIT "A" B. IDENTIFICATION OF OBJECTIVES The Special Agent in Charge (SAC) of the FBI and the Chief of the BPD or their designees, shall identify, agree upon, and articulate specific organizations and investigative objectives or matters assigned to the JTTF. C. DIRECTION OF JTTF AND RESOURCE CONTROL Responsibility for the overall policy and direction of the JTTF shall rest with an Assistant Special Agent In Charge (ASAC) of the FBI, who will closely coordinate with the Chief of the BPD or their designees, on matters of mutual concern relating to such policy and direction, thus ensuring the absence of conflict. Specific control over their JTTF resources and the continued dedication of these resources to the JTTF shall be retained by the participating agency heads, who will be kept fully apprised of all investigative developments by their respective subordinates. D. SUPERVISION OF JTTF Day-to-day supervision for matters assigned to the JTTF shall be the responsibility of the designated FBI Senior Supervisory Special Agent (SSRA) of the Beaumont Resident Agency in conjunction with the BPD. Responsibility for the conduct of the JTTF members shall remain with the respective agency heads. All JTTF personnel will keep their respective superiors completely informed of pertinent developments. E. PHYSICAL LOCATION AND SUPPORT Subject to availability, the FBI will provide office space for all JTTF members and support staff. In addition, the FBI will provide all necessary secretarial, clerical, automation, and technical support for the JTTF. F. COMMITMENT OF PERSONNE The FBI will assign an SSRA (1) and three (3) Special Agents. BPD will assign one (1) Investigator from the BPD. All members of the JTTF will be assigned full-time to the JTTF. Continued assignment of members will be made at the discretion of their respective agencies consistent with FBI and BPD guidelines . ARTICLE FOUR: VEHICLES The JTTF agrees to provide the BPD task force member with a vehicle. The purpose of these vehicles is for surveillance, case management, and investigation, in connection with any JTTF investigation. The vehicle provided by the FBI can be used for official use only in connection with matters investigated by the JTTF. In furtherance of the mission of the JTTF and in compliance with existing FBI policy for operation of U.S . Government vehicles, the FBI hereby agrees and authorizes members of the BPD in the JTTF to operate vehicles owned or leased by the FBI . The BPD agrees to be responsible for tortious acts or omissions on the part of the BPD or their employees, and for any liability resulting from use of FBI owned or leased vehicles utilized by the BPD Task Force member, and for any damage to said vehicles as a result of any action or omission on the part of the BPD or their employees. ARTICLE FIVE: RECORDS AND REPORTS All JTTF investigative records will be maintained at the Beaumont Resident Agency of the FBI . Investigative reports will be prepared on FBI forms . Decisions for placement of all or part of said investigative records into BPD files or data bases shall rest with supervisory personnel of the FBI and the BPD in compliance with applicable standards and procedures governing the respective parties. Classified information shall not be placed in files. ARTICLE SIX: SECURITY CLEARANCE/DEPUTATION Due to various United States, Department of Justice (DOJ) regulations and laws regarding classified information, prospective members of the JTTF who do not possess Top Secret clearances previously granted by the FBI/I?OJ will be subjected tc full background investigation (s) with assignment contingent upon receipt of appropriate security clearance (s) . All non-- FBI personnel will be sworn in as Special Deputy U.S . Marshals. Security clearances will be granted for any applicable and relevant BPD managers or Supervisors up to, and including the Chief of Police. investigative restrictions imposed by the BPD shall not be voided by deputation of their respective personnel. All members of the JTTF shall agree not to disclose any classified or sensitive information to non- JTTF members without the express permission of the FBI and shall agree to execute any applicable nondisclosure agreements, as may be necessary or required by the FBI . ARTICLE SEVEN: INVESTIGATIVE EXCLUSIVITY It is agreed that matters designated to be handled by the JTTF will not knowingly be subject to non-JTTF law enforcement efforts. Recognizing the amount of specialized entities within each member agency, it is incumbent upon each agency to make proper internal notification regarding JTTF existence, including its areas of concern. All information developed by the individual member agency, in the course of investigations prior to the JTTF, will be referred to the JTTF for review and coordination, with approval of the command staff of each member agency. The non-specialized entities of each member agency handle a myriad of different law violations; therefore, JTTF members should make an effort to keep abreast of law enforcement developments within their respective agencies, to ensure information involving JTTF members is referred to the JTTF. It is also agreed there shall be no unilateral action taken on the part of any participating agency relating to JTTF investigations. All law enforcement actions will be coordinated and cooperatively carried out. ARTICLE EIGHT: SALARY/COMBENSATION Salaries of JTTF members will be paid by their respective agencies. overtime incurred in the performance of JTTF responsibilities, when allowable under federal law and to the extent that federal funding is available for such purposes, will be reimbursed by the FBI so long as a separate overtime agreement is executed between the parties. Otherwise, overtime shall be compensated in accordance with applicable BPD overtime provisions and shall be subject to the prior approval of appropriate personnel. The FBI shall report to the BPD supervisor all payments made to non-FBI JTTF members including but not limited to overtime. ARTICLE NINE: PROSECUTION JTTF investigations will conform to the requirements of federal prosecution rules and regulations and will generally be prosecuted in federal courts . It is recognized, however, that specific circumstances may, on a base-by-case basis, indicate that prosecution should be in a state court. The criteria for making such decisions will focus upon achieving the greatest overall benefit to law enforcement and the public, and effecting the greatest impact on terrorism. ARTICLE TEN: INFORMANTS/EXPENSES The JTTF will abide by the Attorney General's Guidelines on the Use of Informants and Confidential Sources. To the extent that BPD standards and procedures impose any greater restrictions upon the use of their informants and cooperating witnesses, such personnel shall be bound by those restrictions . Subject to appropriate FBI approvals, the FBI agrees to pay any reasonable and necessary expenses incurred by the JTTF. The BPD agrees that prior to incurring such expenses, it will consult with the FBI's designated representative to ensure anticipated expenses will be in furtherance of JTTF goals and objectives. ARTICLE ELEVEN: FORFEITURE Any forfeiture realized as a result of cases worked by the JTTF will be handled in accordance with applicable federal law and FBI guidelines. FBI guidelines will govern the sharing of seized and/or forfeited assets. ARTICLE TWELVE: MEDIA No members of the JTTF will discuss or otherwise reveal information relating to JTTF investigations, or other FBI related investigations known to them, to any media representatives. All media releases on JTTF matters will be mutually agreed upon and coordinated jointly. ARTICLE THIRTEEN: LIABILITY Unless specifically addressed by the terms of this MOA, the parties agree to be responsible for the negligent or wrongful acts or omissions of their respective employees. Legal representations by the U.S. is determined by the DOJ on a case-by-case basis. The FBI cannot guarantee the U.S. will provide legal representation to any Federal or State law enforcement officer or employee. Congress has provided that the exclusive remedy for the negligent or wrongful act or omission of an employee of the U.S. Government, acting within the scope of his/her employment, shall be an action against the U.S. under the Federal Tort Claims Act (FTCA) , 28 USC, Section 1346 (b) , and Sections 2671-2680. For the limited purpose of defending claims arising out of JTTF activity, state officers who have been specifically deputized and who are acting within the course and scope of their official duties and assignments pursuant to this MOU, may be considered an "employee" of the U.S. Government as defined in 28, USC, Section 2671 . See 5 USC, Section 3374 (c) (2) . Under the Federal Employees Liability Reform and Tort Compensation, Act of 1998 (commonly known as the Westfall Act) , 28 USC, Section 2679 (b) (1) , the Attorney General or his/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, id., 28 USC, Section 2679 (d) (2) , The U.S . can then be substituted for the employee as the sole defendant with respect to any tort claims. 28 USC, Section 2679 (d) (2) . If the U.S. 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 USC Section 26779 (d) (3) . Liability for any negligent or willful acts of JTTF members, undertaken outside the terms of this M❑U will be the sole responsibility of the respective employee and agency involved. Liability for violations of federal constitutional law rests with the individual federal agent or officer pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 398 (1971) or pursuant to 42 USC, Section 1983 for state officers or cross-deputized federal officers_ Both state and federal officers enjoy qualified immunity from suit for constitutional torts, "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Haglow v. Fitzgerald, 457 U.S. 600 (1982) . JTTF officers may request representation by the U.S. DOJ for civil suits against them in their individual capacities for actions taken within the scope of employment. 28 C.F.R. Sections 50.15, 50.16. An employee may be provided representations "when the actions for which representation is requested reasonably appear to have been performed within the scope of the employee' s employment and the Attorney General, or his/her designee, determines that providing representation would otherwise be in the interest of the U.S." 28 C.F.R. Section 50.15 (a) . A JTTF officer' s written request for representation should be directed to the Attorney General and provided to the Chief Division Counsel (CDC) of the FBI division coordinating the task force. The CDC will then forward the representation request to the FBI 's Office of General Counsel (OGC) together with a Letterhead Memorandum concerning the factual basis for the lawsuit . FBI/OGC will then forward the request to the Civil Division of DOJ together with an agency recommendation concerning scope of employment and Department representation. 28 C.F.R. Section 50. 15 (a) (3) . If a JTTF officer is found to be liable for a constitutional tort, he/she may request indemnification from DOJ to satisfy an adverse judgement rendered against the employee in his/her individual capacity. 2B C.F.R. Section 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. Section 50 . 15 (a) . ARTICLE FOURTEEN: DURATION OF THE TASK FORCE The JTTF will continue for an indefinite period but participation may be terminated at any time upon the written notice of either party to this Memorandum of Agreement. SIGNATORIES Roderick L. Beverly SPECIAL AGENT IN CHARGE Federal Bureau of Investigations Chief Frank C. Coffin,Jr. Beaumont Police Department Officer of the Chief Contracting Officer Federal Bureau of Investigation Washington, D.C. Kyle Hayes City Manager City of Beaumont