Loading...
HomeMy WebLinkAbout2007 Ordinance No. 064• • • 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 the City Counc il has determined that the Agreement shall not be published because of its size.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 . • • • • 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 . I . 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. 2 • • • • 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 . • • • 7) 8) • • 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 . 9) 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 . • • • 12) 13) .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 .• • • • • •· 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). 10 • • • • . 201 DURATION • • 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- ~ 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 • 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