HomeMy WebLinkAbout2007 Ordinance No. 064•
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ORulNANCE NO. (If
SERIES OF 2007 --
C0NT!1Acr No, I l,;. _ .).e~q 9 b iv
BY AUTHORITY
COUNCIL BILL NO. 64
INTRODUCED BY COUNCIL
MEMBER MOORE
AN ORDINANCE APPROVING AND AUTHORIZING THE EXECUTION OF AN
INTERGOVERNMENTAL AGREEMENT ENTITLED "DENVER INNOCENT IMAGES TASK
FORCE (DENVER IITF) MEMORANDUM OF UNDERSTANDING (MOU)" BETWEEN THE
FEDERAL BUREAU OF INVESTIGATION (FBI) AND THE CITY Of ENGLEWOOD .
COLORADO .
WHE AS, imemet crime against children is an on-going problem in the City and State as
well as around the world; and
WHEREAS, the purpose of this intergovernmental agreement is to identify and target for
prosecution producers, distributors and possessors of child pornography and any other
individuals using the internet to entice minors for the purpose of sexual exploitation ; and
WHEREAS, the Denver IITF will enhance the effectiveness of Federal/Stat e/Local law
enforcement resources through a well coordinated ini ti ative seeking the most effective avenues
by which to convict and incarcerate dangerous offenders; and
WHEREAS, the authority for the FBI to enter into this agreement can be found at 28 C.F.R.
Section 0.8 5 and applicable United States Attorney General guidelines ;
NOW , THEREFORE, BE IT ORDAINED BY THE CITY COUNC IL OF THE CITY OF
ENGLEWOOD , COLORADO , TBA T:
~ The Intergovernmental Agreement "Denver Innocent Images Tas k Force (Denver
IITF) Memorandum of Understanding (MOU), attached hereto as Exhibit A, is hereby accepted
and approved by the Englewood City Council.
~-Pursuant to Aniclc V, Section 40, of the Englewood Home Ruic Charter. the City
Counc il has determined that the Agreement shall not be published because of its size.
~ The Mayor Pro Tern is hereby authorized to sign said Agreement for and on bd ialf
of the City of Englewood, Col orado .
Introduced, read in full, and passed on first reading on the Is• day of October, 2007 .
Publiahed u a Bill for an Ordinance on the 19• day of October, 2007 .
Read by title and puaed on final readin1 on the 5th day of November, 2007 .
Published by title u Ordinance Nod, Series of 2007, on the 9th day of November, 2007 .
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DINVER INNOCENT IMAG!S TASK FORCE .(D'ENVER IITP)
MIMORANDUM OF UNDl!RSTANDINO (MOU)
1).eMilll
Thia Memor11ndum of Understanding (MOU) Is entered Into by and between
the Feder11I Bureau of lnvestlgatlon (FBI); the Englewood Police Department.
21 AUTHQRlTIES
Authority for the FBI to enter Into this agreement can bti found at 28 U.S .C. §
633; 42 U.S.C. § 3TT1; and 28 C.F.R. § 0.86 and applicable United stat.is
Atti;,mey General gvldelinas . ·
3) PURPOSE
The purpose of this MOU Is to delineate the responslbilltie& of DENVER IITF
participants, maximize Inter-agency cooperation , and formalize relationships
between the participating agenci89 for policy guidance, planning, training,
public and media · relatlons. Th is Mou· Is not Intended, and should not be
cons1rued, to create any . rtght or beneffl. substantive or pro~ural,
enforcea~le at law or .otherwise by any third par,ty against the parties, the .
United' States, or the officers, employ9es, agents, or other associated
personnel thereof. .
4)MIHIQH _
The mission of the DENVER IITF Is to Identify and target for prosecution ·
pro~ucer11, distrib 1i.,ra end possessors of child pornography and any other
Individuals using , 19 lntemat to entice minors · for the purpose of sexual
exploitation. The DENVER IITF will enhance the effectiveness of
Federal/State/Local law enf.:ircemant resources through a well coordinated
initiative . seeking the most effective lnveetfgattva/ prosaoutlve avbnuas by ·
Which to convict and ·Incarcerate dangerous offimden;.
5) SUf'EBYl§ION AND CONTROL
A. Supervlalon
overan supervision of the personnel on the DENVER liTF shall be the
shared responslblllty of the participants . ·
The Special Agent In Charge (SAC) of the Denver Division shall designate
one Supervtsoty Special Agent (SSA) to have direct and dally respon,ibllity
·for _ all personnel and Investigative matters pertaining to the DENVER IITF .
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Responalblllty for conduct, not under the direction of the SAC or SSA. of •
e ■ch DENVER IITF -member, both peraonally and profaaalonally, ,hall ·
ramaln .wfth the respective agency head · and each agency ,hall be
rasponalbla for the actions of their respective employee,.
Each agency member who is a DENVER IITF member will be subject to the
personnel rules, regulations, laws, and policies appllcabl, to tho ■e of their
respective agencies . · FBI participants will continue to adhere to 'the
Bureau's ethical standards and will remain subject to the Supplemental
Standards of Eth ical Conduct for employees of the Department of Justice .
Each DENVER IITF member will continue to rep~rt to hla or her respective
egenoy head for non-Investigative administrative matters not detailed In this
MOU . .
Subject to other provisions In this document, continued member11hlp on 'thq
DENVER IITF will be based on perfo rm ance and will be at the discretion of
each member's respective sµpervls or .
. B. Case Assignments
The FBI SSA with des ignated .oversight for lnvestlgatlva and personnel
matters will be responsible for opening, monitoring, directing, and clos ing
DENVER IITF investigations In accordance with existing FBI policy end the
appllceb!e United States Attorney General 's Guidelines . · •
Ass,lgnments of cases to peroonnel will be based on, but not limited to,
experience, training and performance, In addition to the discretion of the
SSA with designated oversight for Investigative and personnel matter11 .
For FBI administrative purposes, DENVER IITF cases will be entered Into
the relevant FBI computer system. ·
DENVER IITF members will have equal responslblUty for each case
assigned . DENVER IITF personnel will ba totally responsilile for the
complete investigation from predication to resolution .
C, Resource Control
Specific control of DENVER IITF resources, Including personnel , and the
continual -dedication of DENVER IITF resources shall be retained by the
participating agency heeds , who will be kept fully apprised of all
Investigative developments by their respective subordinates.
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6) OPERATIONS
A. tnv•1tfg1tlve Exctu,tvlty
It Is agreed that matters designated to be handled by the DENVER IITF will
not knowingly be subject to non-DENVER IITF law enforoement efforts by
any of the psrtlclpattng agencies. It Is Incumbent on each agency to make
proper Internal notification regarding the DENVER IITF'a existence and
areas of concern .
It is agreed that there Is to be no unilateral actton taken on the part of the
FBI or participating agencies relating lo DENVER IITF Investigations or
areas of concern. All law enforcement actions will be coordinated and
cooperatively carried out.
B. lnfonnants
The disclosure of FBI informants ·.'.o non-DENVER IITF members will be
limlted to those situations where It Is t1ssentlal to the effective performance
of the DENVER IITF. These disclosures will be consistent with applicable
FBI gu idelines .
Non-FBI DENVER IITF members may not make any further disclosure of
the identtty of an FBI Informant, Including to other members of the DENVER
IITF . No documents which identify, tend to Identify, or may Indirectly
identify an FBI informant . may be released without prior FBI approval.
In those instances •. here a participating agency provides an Info rma nt, the
FBI may, at the dlsu,·etlon of the SAC, become · solely responsible for the
informant's continued development, operation, and for compliance with
necessary administrative procedures regarding operation and payment as
s, \ forth oy the FBI .
· The United States Attorney General's guidelines and FBI policy ·and
procedure for operating FBI informants and cooperating witnesses (CWs)
shall apply to all FBI Informants and CWs opened and operated in
furtherance of DENVER IITF investigations . Documentation of, and any
payments made to, FBI lnfonmanlG and CWs shall be in accordance with
FBI policy and procedure .
Operation, documentation, and p•yment cif solely at.le, county, or local
Informants and CW& opened and operated by Non-FBI DENVER IITF •
members In furth•ranoa of · DENVER IITF lnvHtlgrions must bll In
accordance with the United Statae Attom,y General's guidelines .
Documentation of state, county, or local Informants and CWa opened and
operated In furtherance of DENVER IITF Investigations shall be maintained
at an agrwed to location.
C. Reportll and Record,
All Investigative reporting will be prepared In compliance with existing FBI
policy. Subject to pertinent legal and/or policy restrictions, copies of
pertinent documents cr"ated by each member of the DENVER IITF will be
made available for inclusion In the respective investigative agencies' flies
as appropriate.
DENVER IITF reports prepared In cas•s assigned to state; county ~nd local
pattlclpants will ba maintained at an FBI approved location ; original
documents will be maintained by the FBI.
Records and reports generated Jn DENVER IITF cases which are opened
and assigned by the FBI SSA with designated oversight for Investigative
and personnel matters will be maintain.ad in the FBI lnvesUgatlve file for
DENVERIITF.
DENVER IITF Investigative records maintained at the Deriver office of. the .•
· FBI will be available to all DENVER IITF members, as well as their
supervisory and command staff subject to pertinent legal, administrative
and /or'pollcy restrictions. · ·
All evidence and original tape recordings ·(audio and video) acquired during
the course of the DENVER IITF investigations will be maintained by the FBI .
The FBl's rules and policies govemlng the submission, retrieval and chain
of custody will be adhered to by DENVER IITF personnel. .
ALL DENVER IITF investlgaUve records ·will be maintained at an apprqved
FBI location.
Placement of all or part of said Information Into participating agency files
rests with the discretion of supervisory personnel of the concemed ·
agencies. ·
. Classified Information and/or documents containing information that
ldenttfles or tends to identify an FBI Informant shall not be placed In the files
of participating agencies unless appropriate FBI policy has been satisfied .
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INFORMATION SHARING
No Information po1181111d by 'the FBI, to lnci~de Information derived from
Informal uommunlcatlons by the Asslgm,e with peraonnel of the FBI, may
be disseminated by the Assign" to non DENVER IITF peraonn,I without
the permission of the AsslgnN's designated FBI DENVER IITF Supervisor
and In accordance with the applicable laws and lnte,mal regulatlons ,
procedures or agreements between the FBI and the Participating Agen9les
that would permit the Pertlclpatlng Agencies to receive that Information
directly. Likewise, the Assignee wtll not provide any Participating Agency
Information to the FBI that Is not otherwise available to It unless authorized
by appropriate . Participating Agency. officials .
PROSE(:!JTIONS
• DENVER IITF Investigative procedure Is to conform to the requir&rnents for
Federal Prosecution .
A determination will be made on a . case-by-case bas is whether the
prosacutlon of DENVER IITF cases will be at the Stale 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 DENVER IITF .
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 an DENVER IITF. case at
the state or local level, the FBI agrees to provide all relevant Information to
state and local authorities .
Whether to continua. and/or conduct addlUonal investigation of the state or
local crimes Involved will be at the sole discretion of the respective state
and local authorities .
A. Investigative Methods/Evidence
For cases assigned to an FBI Spacial Agent or In which FBI Informants or
cooperaJng witnesses are utilized, the parties agree to conform to fed11ral
standards concerning evi~enca collactlon , processing, storage, and
11feotronic surveillance .
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In all oana 111lgn11d to stale, county, or local law enfon;ement p11rtlelpanta, ·
the p1rti111 agrw to utilize federal 1tand1rda pertaining to evidence •
handling and eleolronlo 1urv1lll1nce 1ct1vlfl111 to the greateat extant
poaalble. KoW9ver, In 1ltu1tiona where the statutory or common law of the
state le more re1trictlv11 than the comparable federal law, tho lnvoetlgatfv11
.. method• employed by state and local law 1nfo1011ment ■goncloa shall
conform to the requirements of such statutory or common law pending a
decision II to venue for prosecution.
Tho use of other Investigative methods (search warrants, Interceptions of
oral communications, etc .) and reporting procedures In • connection
therewith V.:111 be consistent with the policy and procedures of tho FBI.
a, Undercover Operation,
All DENVER IITF undercover operations wlll be conducted and reviewed in
acoordance with FBI guidelines and the Attorney General's Guidelines on
Federal Bureau of Investigation Undercover Operations . All participating
agencies may · b11 requested to enter Into an add~ional Memorandum of
Understanding (MOU) If a member of the participating agency Is assigned
duties which require the officer to act in an und ·1rcover capacity.
DEADLY FORCI: AND SHOOTING INCIDENT P~
Members Of the DENVER IITF wlll follow their own ager.cy's policy
concerning firearms discharge and use of deadly force . •
10) DEPUTATIONS
Local state law enforcement personnel designated to the DENVER
IITF, subject to a limited background-inquiry, may be sworn as federally
deputized Special Deputy Ul)ited States Marshals, with the FBI securing
the requlrad deputation authorization. These deputations should remain in
effect throughout the tenure of each investigator's assignment to the
DENVER :ITF or until Iha termination of the DENVER IITF, whichever
comes first .
Administrative and personnel policies Imposed by the participating
agencies will not ba voided by deputation of their respective personnel.
11) VEHICLES
The FBI may authorize members of the DENVER IITF to use vehicles
owned or leas~ by the FBI wtien necessary In connection with DENVER
IITF surveillance, case management and Investigations, and If available .
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.When authorized , participating agency personnel us ing FBI v•h lclos agree
to operate the vehicles In accordance wHh all applicable FBI rules and
regulations aa outlin.ed In-the FBI Manual of Adm inistrative Operations and
Procedures (MAOP), Part I Section 3.1.
FBI vehicles, Includ ing Government-owned, rented , and leased vehicles,
are to be used for offic ial business only .
The participating agencies agree that FBI vehicles will not be used to
transport passengers unrelated to DENVER IITF bus iness .
The responsibility for all other llablllty attributed to the participating
agencies resulting from the use of DENVER IITF vehicles liy their
employees, confidential lnfonnants , or by .cooperating wl tne s~es rests with
.the individual participating agency . ·
Th~ participating ag"ncles agree to be respons ib le for any damage
lncun·ed to DENVER IITF vehicles caused by any act or omission nn the
part of their respective employees and participating agencies a~rfl ~ : ,
assume financial responslbllftY. for property damage to said veh icle ~.
SALARY/OVERTIME COMPENSATION
The salaries/overtime -of .DENVER IITF members will be paid by the FBI In
accordance with a separate Cost Re imburse ment Ag reemen t.
PROPERT ·; AND EQUIPMENT
Property utilized by the DENVER IITF In connection with authorized
Investigations and/or operations and Is In the custody and control and used
at Iha direction of the DENVER IITF , will be mainta ined In accordance with
the policies and procedures of the agency supplying the equipment.
14) FUNDING
This MOU Is not an obl igation or commitment of funds , nor a basis for
transfer of funds , tiut rather Is a basic statement of the understanding
between the -parties hereto or the tasks and method s for performing the
tasks described herein . Unless otherwise agreed In writing, each party
shall bear its own costs In relation lo this MOU . Expehdilures by each party
will be subject to Its budgetdry processes and to the availability of fun~s and
resources pursuant to applicable laws, .regulations, and ·policies . The
parties expressly acknowledge that the above lan guage In no way Implies
that Congress will appropriate funds for such expenditures .
·15)_ FORFEITURES , .
The FBI shall be responsible for the proceaslng 91 aaaeta seized for federal •
forfeiture In conjunctions with DENVER IITF operations,.
Asset forfeitul'9s will be conducted In accordance with Federal law, and the
rules _ and regul ■tlona set for forth by the FBI and Department of Justice
(DOJ), Forfeitures attrtbutable to DENVER IITF lnveatlglltfons may be
dlstribut~d among the agencies partlclpatlng In the DENVER IITF.
16) DISPUTE RESOLUTION
In cases ofoverlepplng Jurfsdlctlon , the participating agencies agree to work
In concert to achieve the DENVER IITF's objectlves . ·
The parties agree to attempt to resolve any disputes regarding jurisdiction,
case 11aslgnments, workload , etc ., at the field level first before referring the
matter to supervisory personnel for rasoluti,on .
17) MEDIA RELEASES
All media releases and statements will be mutually agreed upon and Joi_nUy
handled according to FBI and participating agency guid,ellnas .
Prass releases wlll conform to DOJ Guidelines regard ing press releases.
No release will be lasued without FBI finaf approval. ·
· 18) SECURITY CLEARANCES
Th irty days prior to being ass ig~;;ri to the DENVER IITF, each candidate. will
be required to furnish pages 1, 2, 3,-9 (certification ·only),.and 10 of the
•auasijonnaira for Sen~ltlve PoslUons• (SF-86). Sometime thereafte_r, a
representative from • the FBI will conduct an fntarvlaw of each candidate .
If, for any reason , a candidate Is not selected, the partlclpaUng agency will
be so advised and a request will be made for another candidate . ·
Upon being selected , each candidate will receive a comprehensive briefing
on FBI field office security policy and procedures .
During · the briefing , each candidate will execute a non-disclosure
agreement (SF-312) end FD-868, as may be necessary or required by the
FBL
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When FBI apace beoome s av1ll1bl1, befo re ri.,caMng access , DENVi.R
IITF membera will be .required to undergo e hill background lnvestlg1tk,n
and recelva and malr,taln a "Top Secret" security ole1r■noe. In 11ddltlo1 ,,
l)ENVER IITF membera wlll also be required to . complete the
'Questionnaire for Sensitive Posltlon1 ' and the required ftngerprtnt card1.
Iii the Interim, DENVER IITF members wlll not be allowed unesoorted
access to FBI spece .
Upon departure from the DENVER IITF,. each ca~didate will ~e given a
security debriefing end reminded of the provisions contained in the
non-disclosure agreement previously agreed to by the DEMVER IITF
member.
19) .LJM!!:!!Y .
Unless specilically addressed by the terms of this MOU , the parties agree
to .be responsible for the negligent or wrongful acts or omissions of their
respective employees . Legal representation by the United States Is
determined by OOJ on a case by case basis. The FBI cannot guarantee the
Uhlted States wlll provide legal representation to any Federal, state or local
law enforcement officer.
Congress has provided that the exclusive remedy for the negligent or
wrongful act or omission of an employee of the United Stales govemment,
el)!ing within the sco~. of his employment, shall be en action against the
Untied States under the Federal Tort Claims Act {FTCA), 28 U.S.C .§
1346{b), §§ 2671-2680 .
For the . lim~ed purpose of defending cla ims arlslng ou · of DENVER IITF
activity, st Jte or local law enforcement officers who have been specially
dep•itlzed and who are acting within the course and scope of their official
du ijes ·and a~lgnments pursuant to this MOU, may be considered· an
"employee• of the United States government a& defined In 28 U,S.C. § 2671.
~5 u.s.c. § 3374{0){2).
L.nder the Federal Employees Liability Reform and Tort Compensation Act
rl 1988 {commonly known as the We&tfall Act), 28 U.S .C. § 2679{b){1) the
ia.1!pmey General or her designee may certify that an individual defendant
. ucted within the scope of hi& employment at the time of the inc,dent-giving
rise to the suit. Isl .. 28 U.S.C . § 2679(d){2). The United States can then be
sub&tiMed for the employee as the sole defendant with re8pecl to any tort
claims . 28 U.S.C. § 2679(d){2). If the United · States is SLlbstltuted as
defender.I, the lndMdual employee Is thereby protected from su~ in his
offtclal capa_clty . ·
If the Attom,y general declines to certify that an ,mployH wa, acting
within the 1co,pe of employment, "the employee may at any time before trial
petlt1on the court to find and certify thaUhe emplo)'H w11 acting within th e
acope oflhla office or employment • 28 U.S.C. § 2879(d)(3).
Llabtllty for negligent or willful acts of DENVER IITF employeea , undertaken
out1lde th, term, of this MOU will be the sole responslblllty of the
reaJ;>ec.tlve employee and agency Involved . ·
Llablilty fo r violations of federal conslltutlohal law rests with the Individual
federal agent or officer pursuant to Bivens y Six Unknown Named Agents
of the Federal Bureau of Narcotics. 403 U.S . 388 (1971) or pursuant to 42
U.S.C. § 1983 for state and local officers or cross-deputized federal
officers.
Both ·state and federal officers enjoy qualified immunity from suit for
consfilutlonal torts 'insofar ·as their co~duct does not violate cl early
established statutory or constitutional rlghts of which a reasonable person
wo ul d have known. Harlow y Fitzgerald. 457 U.S. 800 (1982).
DENVER IITF officers may reque'st representation by the U.S. Department
of Justice for civil sutts aga inst them In their ind ividual capacities for actions
taken within the scope of employr ,,,nl 28 C.F.R §§ 50 .15, 50 .16 .
An employee may be provld ~ ; representation 'When the actions for which
representation requested reasonably · appear to have beeri performed
wtthln the scope of the employee 's employment and the Attomey General
or [her] daslgnec determines that providing representation would otherwise
be In the Interest of the United States .' 28 C.F.R : § 50.15(a).
A DENVER IITF office r's wrltten request for representation should . be
directed to the Attorney General and provided to the Chief Division Counsel
(CDC) of the FBI division coordinating the DENVER IITF. The CDC .will
then forward the rep resenta ti on request to the FBl 's Office of the General
Counsel (OGC) together wtth a Letterhead -memorandum co ncerning the
factual basis for the lawsuit. FB I/OGC will then forward the request to the
Civil Division of DOJ together with an agency recommendation concemlng
SC!Jpe of employment and Dspartment representation . 28 C.F .R. §
50 .15(a)(3).
If a DENVER IITF officer is found to be li able for a consUtutlorial tort, he/~he
may request Indemnification from DOJ to satisfy an adverse Judgment
rendered against the employee In his/her lndMdual capacity. 28 C.F.R. §
. 50 .16(0)(4). The crtterta for payment are substantially similar to thoH used
to d!ttermlne whethe r a federal employee Is entitled to DOJ representation
under 28 C.F .R. § 50.15(a).
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The tem, oft,:, MOU Is for the duration of the DENVER IITF's operations,
contingent upon approval of necessary funding, but may be terminated at
any Hme upon written mutual consent of the agency Involved .
Any participating agency may .withdraw from the DENVER IITF at any lime
by written notification to the SSA with designated oversight for investigative
and personnel matters or program manager of the DENVER IITF at least 30
days prior to withdrawal. ·
Upon termination of this MOU, all equipment provided to the DENVER ilTF
will be returned to the supplying agency/agencies . In addition , when an
· entity withdraws from the MOU, the entity will relulT' equipment to the
supplying agency/agencies . Similarly, remaining agencies will return to a
withdrawin g agency any unexpended equipment supplted by the
withdrawing agency during any DENVER IITF participation .
21) MODIFICATIONS
This agreement may be modified at any time by written consent of all
lnvol.ved agencies.
Modific~tions to this .MOU shall have no force and effect unless such
. modifications are reduced to .writing and signed by an authorized
rApresentatlve of each participating agency.
CITY OF ENG LEWOOD, COLORADO
--------··-Mayor Pro Tern, James K. Woodward DATE
SPECIAL AGENT IN CHARGE FOR
DENVER FIELD OFflCE
DATE
kl,, l,,,,.v-
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h,l:ury V. ~r .
Comra01:n.i O!lloer .
11 ~J~f91 !tl,au Of lnv.el/QllUoP
• COUNCIL COMMUNICATION
Date: Agenda Item: Subject:
October 15, 2007 9 a Iv Den ver Innocent Images Task Force Memorandum
of Understanding Intergove rnmental Agreement
Initiated By:
Safe ty Service s Departmen~ Police Di vi sion
I Staff Source:
John Collins, Commander
COUNCIL GOAL AND PREVIOUS COUNCIL ACTION
None
RECOMMENDED ACTION
The Department of Safety Services, Poli ce Divi sion is recommending that City Council adopt a Bill
for an Ordinance authorizing and appro vi ng an Intergove rnmental Agreement betwee n the
Department of Sa fety Services , Police Di visio n and th e Federal Bureau of Inve stigation .
• BACKGROUND, ANALYSIS, AND ALTERNATIVES IDENTIFIED
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The Englewood Depart ment of Saiet{ Services, Police Divisio n, has been aske d by the Federal
Bureau of Investigation to participate in a task force that focuses on individuals who attempt to
sexually exploit children . The Police Di vis ion will participate in a limited role by providing one
detective part{ime. The Pol ice Di vi sion wi ll benefit in this endeavor as it en ,hles us to better
identi fy such indi vi duals, Th e task force will provi de specialized tra ining and acce ss to resources
that we C'therwise do not ha ve available to us .
FINANCIAL IMPACT
The part-ti me services of one Poli ce Di visio n detective.
LIST OF ATTACHMENTS
Bill fo r an Ordinance