HomeMy WebLinkAbout11074RESOLUTION NO. 11074
A RESOLUTION APPROVING A MEMORANDUM OF UNDERSTANDING BETWEEN THE
FEDERAL BUREAU OF INVESTIGATION AND THE CITY OF PUEBLO, A MUNICIPAL
CORPORATION, RELATING TO THE JOINT TERRORISM TASK FORCE
BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1.
The Memorandum of Understanding between the Federal Bureau of Investigation and
the City of Pueblo, a Municipal Corporation, relating to employees from Participating Agencies
assigned to the FBI National Joint Terrorism Task Force, a true copy of which is attached
hereto, having been approved as to form by the City Attorney, is hereby approved.
SECTION 2.
The President of the City Council is hereby authorized to execute the Memorandum of
Understanding on behalf of Pueblo, a Municipal Corporation.
INTRODUCED August 13, 2007
ATTESTED BY
APPROVED: a
ESID NTof City Council
CITY CLERK
Randy Thurston
Councilperson
Res. M14
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0 -N I M ON
VOLIAMBLE
Background Paper for Proposed
RESOLUTION
AGENDA ITEM # 150,
DATE: AUGUST 13, 2007
DEPARTMENT: POLICE DEPARTMENT
CHIEF JAMES W. BILLINGS, JR.
TITLE
A RESOLUTION APPROVING A MEMORANDUM OF UNDERSTANDING
BETWEEN THE FEDERAL BUREAU OF INVESTIGATION AND THE CITY OF
PUEBLO, .A MUNICIPAL CORPORATION, RELATING TO THE JOINT
TERRORISM TASK FORCE
ISSUE
Whether to approve the Memorandum of Understanding relating to employees
from the police department assigned to the National Joint Terrorism Task Force.
The department recommends approval of this resolution.
The Joint Terrorism Task Force concept, which utilizes an interagency approach
involving the law enforcement and public safety community, has become more
critical since September 11, 2001. The task force attempts to broaden
interagency liaison and communication by eliminating a duplication of effort and
combining federal, state and local law enforcement resources in preventing
terrorism.
FINANCIAL IMPACT
The City is paying the cost of base salary and benefits for one full -time police
officer who is assigned to this task force.
FOR OFFICIAL USE ONLY
JOINT TERRORISM TASK FORCE
STANDARD MEMORANDUM OF UNDERSTANDING
BETWEEN
THE FEDERAL BUREAU OF INVESTIGATION
AND
THE CITY OF PUEBLO. A MUNICIPAL CORPORATION.
FOR AND ON BEHALF OF THE PUEBLO POLICE DEPARTMENT
(the "Participating Agency")
PREAMBLE
The policy of the United States with regard to domestic and international terrorism is to deter, defeat,
and respond vigorously to all terrorist attacks on our territory and against our citizens, or facilities.
Within the United States, the Department of Justice, acting through the Federal Bureau of Investigation
(FBI), is the lead agency domestically for the counterterrorism effort.
In order to ensure that there is a robust capability to deter, defeat, and respond vigorously to terrorism
in the U S or against any U S interest, the FBI recognizes the need for all federal, state, local, and
tribal agencies that are involved in fighting terrorism to coordinate and share information and resources.
To that end, the FBI believes that the creation of the FBI National Joint Terrorism Task Force
( NJTTF) and Joint Terrorism Task Forces (JTTFs) embodies the objectives of the U S policy on
counterterrorism as set forth in Presidential Directives.
FBI policy for the NJTTF and JTTFs is to provide a vehicle to facilitate sharing FBI information with
the intelligence and law enforcement communities to protect the United States against threats to our
national security, including international terrorism, and thereby improve the effectiveness of law
enforcement, consistent with the protection of classified or otherwise sensitive intelligence and law
enforcement information, including sources and methods. All NJTTF and JTTF operational and
investigative activity, including the collection, retention and dissemination of personal information, will be
conducted in a manner that protects and preserves the constitutional rights and civil liberties of all
persons in the United States.
This Memorandum of Understanding (MOU) shall serve to establish the parameters for the detail of
employees (Detailees or members) from the Participating Agency to the FBI -led JTTFs in selected
locations around the United States.
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I. PURPOSE
A. The purpose of this MOU is to outline the mission of the JTTF, and to formalize the
relationship between the FBI and the Participating Agency; in order to maximize
cooperation and to create a cohesive unit capable of addressing the most complex
terrorism investigations.
B The MOU specifically represents the agreement between the FBI and the Participating
Agency, which will govern the process by which employees of the Participating Agency
are detailed to work with the FBI as part of the JTTF
C 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 parry against the
parties, their parent agencies, the U S., or the officers, employees, agents or other
associated personnel thereof.
II. MISSION
The mission of the JTTF is to leverage the collective resources of the member agencies for the
prevention, preemption, deterrence and investigation of terrorist acts that affect United States interests,
and to disrupt and prevent terrorist acts and apprehend individuals who may commit or plan to commit
such acts. To further this mission, the JTTF shall serve as a means to facilitate information sharing
among JTTF members.
III. AUTHORITY
Pursuant to 28 U S C § 533, 28 C.F.R. § 0 85, Executive Order 12333, Presidential Decision
Directives (PDD) 39, PDD 62, and pending approval of National Security Presidential Decision
Directive (NSPD) 46 and Homeland Security Presidential Directive (HSPD) 15, the FBI is authorized
to coordinate an intelligence, investigative, and operational response to terrorism. By virtue of that
same authority, the FBI formed JTTFs composed of other federal, state, local, and tribal law
enforcement agencies acting in support of the above listed statutory and regulatory provisions.
The Participating Agency is authorized to enter into this agreement by Colo Const. art. XIV, § 18(2)
and by C.R.S § 29 -1 -203
IV CONTROLLING DOCUMENTS
A. Since the JTTF operates under the authority of the Attorney General of the United
States, all JTTF participants must adhere to applicable Attorney General's Guidelines
and directives, to include the following, as amended or supplemented.
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Attorney General's Guidelines on General Crimes, Racketeering Enterprise and
Terrorism Enterprise Investigations;
2. Attorney General's Guidelines for FBI National Security Investigations and
Foreign Intelligence Collection,
Attorney General's Guidelines on Federal Bureau of Investigation Undercover
Operations,
4 Attorney General's Guidelines Regarding Prompt Handling of Reports of
Possible Criminal Activity Involving Foreign Intelligence Sources,
Attorney General Memorandum dated March 6, 2002, titled "Intelligence
Sharing Procedures for Foreign Intelligence and Foreign Counterintelligence
Investigations Conducted by the FBI";
6 Attorney General's Guidelines Regarding the Use of Confidential Informants,
7 Attorney General's Guidelines on the Development and Operation of FBI
Criminal Informants and Cooperative Witnesses in Extraterritorial Jurisdictions,
8 Attorney General's Guidelines Regarding Disclosure to the Director of Central
Intelligence and Homeland Security Officials of Foreign Intelligence Acquired in
the Course of a Criminal Investigation, and
9 Memorandum from the Deputy Attorney General and the FBI Director re
Field Guidance on Intelligence Sharing Procedures for [Foreign Intelligence]
and [Foreign Counterintelligence] Investigations (December 24, 2002).
B All guidance on investigative matters handled by the JTTF will be issued by the
Attorney General and the FBI. The FBI will provide copies of the above - listed
guidelines and any other applicable policies for reference and review to all JTTF
members. Notwithstanding the above, this MOU does not alter or abrogate existing
directives or policies regarding the conduct of investigations or the use of special
investigative techniques or controlled informants. The FBI agrees to conduct periodic
briefings of the member agencies of the JTTF pursuant to all legal requirements and FBI
policies.
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V STRUCTURE AND MANAGEMENT OF THE TASK FORCE
A. MEMBERS
Each JTTF shall consist of a combined body of sworn and non -sworn
personnel from the FBI and each Participating Agency This MOU shall apply
to Participating Agencies that join the JTTF subsequent to execution of this
agreement.
B. PROGRAM MANAGEMENT. DIRECTION. AND SUPERVISION
In order to comply with Presidential Directives, the policy and program
management of the JTTFs is the responsibility of FBI Headquarters (FBIHQ).
The overall commander of each individual JTTF will be the Special Agent in
Charge (SAC) or Assistant Director in Charge (ADIC), if assigned, of the
FBI's local Field Division. The operational chain of command beginning at the
highest level, in each FBI Field Division will be as follows. ADIC if assigned,
SAC, Assistant Special Agent in Charge (ASAC), and Supervisory Special
Agent [JTTF Supervisor]
2. Each FBI ADIC /SAC, through his or her chain -of- command, is responsible for
administrative and operational matters directly associated with the Division's
JTTF(s). Operational activities will be supervised by FBI JTTF Supervisors.
Staffing issues are the responsibility of the FBI chain of command.
All investigations opened and conducted by the JTTF must be conducted in
conformance with FBI policy, to include the above stated Controlling
Documents. Each FBI ADIC /SAC, through his or her chain-of- command, will
ensure that all investigations are properly documented on FBI forms in
accordance with FBI rules and regulations. Any operational problems will be
resolved at the field office level. Any problems not resolved at the field office
level will be submitted to each agency's headquarters for resolution.
4 Each Participating Agency representative will report to his or her respective
agency for personnel administrative matters. Each Participating Agency shall
be responsible for the pay, overtime, leave, performance appraisals, and other
personnel matters relating to its employees detailed to JTTFs. As discussed
later herein at Paragraph XI, the FBI and the Participating Agency may provide
for overtime reimbursement by the FBI by separate written agreement.
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5 Each JTTF member will be subject to the personnel rules, regulations, laws,
and policies applicable to employees of his or her respective agency and also
will adhere to the FBI's ethical standards and will be subject to the
Supplemental Standards of Ethical Conduct for employees of the Department
of Justice. Where there is a conflict between the standards or requirements of
the Participating Agency and the FBI, the standard or requirement that provides
the greatest organizational protection or benefit will apply, unless the
organizations jointly resolve the conflict otherwise.
6 JTTF members are subject to removal from the JTTF by the FBI for violation
of any provision of this MOU, the FBI's ethical standards, the Supplemental
Standards of Ethical Conduct for employees of the Department of Justice, or
other applicable agreements, rules, and regulations.
7 The FBI maintains oversight and review responsibility of the JTTFs. In the
event of an FBI inquiry into JTTF activities by an investigative or administrative
body, including but not limited to, the FBI's Office of Professional
Responsibility or the FBI's Inspection Division, each Participating Agency
representative to the JTTF may be subject to interview by the FBI.
C. PHYSICAL LOCATION AND SUPPORT
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 in accordance with FBI guidelines and
procedures. The FBI will provide all furniture and office equipment.
Participating agencies may bring office equipment or furniture into FBI space
with the approval of the FBI JTTF Supervisor and in compliance with FBI
regulations.
2. The introduction of office equipment and furniture into FBI space by
Participating Agencies is discouraged, as any such material is subject to
examination for technical compromise, which may result in its being damaged or
destroyed.
VI. SECURITY PROGRAM
A. CLEARANCES
State, local, and tribal members of the JTTFs, as well as appropriate
supervisory personnel responsible for these individuals, must apply for and
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receive a Top Secret/Sensitive Compartmented Information (TS /SCI) Security
Clearance granted by the FBI. JTTF members from other federal agencies
must obtain a Top Secret/SCI clearance from their agency and have this
information passed to the FBI. No one will have access to sensitive or
classified documents or materials or FBI space without a valid security
clearance and the necessary "need -to -know " Pursuant to the provisions of
Section 1.2 of Executive Order 12968, Detailees are required to have signed a
nondisclosure agreement approved by the FBI's Security Division. Pursuant to
federal law, JTTF members are strictly forbidden from disclosing any classified
information to individuals who do not possess the appropriate security
clearance and the need to know
2 All JTTF management personnel must ensure that each participating JTTF
officer or agent undertakes all necessary steps to obtain a TS /SCI clearance.
Conversion of FBI counterterrorism and JTTF spaces to Sensitive
Compartmented Information Facilities (SCIFs) is underway This will require
that all JTTF task force officers enhance their clearances to TS /SCI (SI, TK,
Gamma, HCS -P)
3 Federal agency task force officers should contact their Security Officers and
request and obtain the following SCI Clearances SI, TK, Gamma, and
HCS -P If the parent agency refuses or is unable to provide the appropriate
clearances, the FBI will request the task force officer's security file. If
provided, the FBI will adjudicate SCI clearances. This action may involve a
prohibitively long process and should be avoided.
4 Each Participating Agency fully understands that its personnel detailed to the
JTTF are not permitted to discuss official JTTF business with supervisors who
are not members of the JTTF unless the supervisor possesses the appropriate
security clearance and the dissemination or discussion is specifically approved
by the FBI JTTF Supervisor Participating Agency heads will be briefed
regarding JTTF matters by the SAC or ADIC, as appropriate, through
established JTTF Executive Board meetings.
5 In accordance with the Director of Central Intelligence Directive (DCID) 6/4,
entitled Personnel Security Standards and Procedures Governing Eligibility for
Access to Sensitive Compartmented Information (SCI), the FBI will implement
protocols to ensure Special Agent (SA) and Task Force Officers (TFO)
assigned to Joint Terrorism Task Forces (JTTF) in the field and the National
Joint Terrorism Task Force (NJTTF) at FBI Headquarters - Liberty Crossing 1,
are in compliance with stated directive. In order to comply with DCID 6/4, all
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JTTF personnel, including FBI and non -FBI JTTF members and contractors
who perform functions requiring access to FBI classified data networks and
space, will be given counter - intelligence focused polygraphs. The FBI will
recognize polygraph examinations conducted by outside federal agencies that
meet the FBI's PSPP requirement. The FBI will make the final determination
whether a polygraph examination meets the PSPP requirements.
6 All JTTF members must agree to submit to counter - intelligence focused
polygraphs as part of the process for obtaining and retaining a Top Secret
Security Clearance.
B. RESTRICTIONS ON ELECTRONIC EQUIPMENT
Personally owned Portable Electronic Devices (PEDs) including, but not limited to, personal
digital assistants, Blackberry devices, cellular telephones, and two -way pagers are prohibited in
FBI space unless properly approved. No personally owned electronic devices are permitted to
operate within SCIFs as outlined in DCI Directive 6/9 and existing Bureau policy All other
non -FBI owned information technology and systems (such as computers, printers, fax machines,
copiers, PEDs, cameras, and media including diskettes, CDS, tapes) require FBI approval
prior to introduction, operation, connection, or removal from FBI spaces to include SCIFs.
Additionally, if approved by the FBI Security Officer, these systems must operate in compliance
with the FBI's policies, guidelines, and procedures.
VII. DEPUTATION
Non - federal members of the JTTF who are subject to a background inquiry and are sworn law
enforcement officers will be federally deputized while detailed to the JTTF The FBI will secure the
required authorization for their deputation. Deputation of these individuals will ensure that they are able
to assist fully in investigations in compliance with applicable federal statutes. On occasion, investigations
may be conducted outside of the JTTF's assigned territory Deputation will allow non - federal members
of the JTTF to exercise federal law enforcement authority throughout the United States.
Under the terms of this MOU, all Participating Agencies agree that non -sworn personnel detailed to the
JTTF will not (1) participate in law enforcement activities, (2) carry a weapon, or (3) participate in the
execution of search/arrest warrants.
VIII. STAFFING COMMITMENT
A. In view of the need for security clearances and continuity of investigators, all personnel
detailed to the JTTF should be expected to be detailed for a period of at least two (2)
years. This MOU imposes no maximum limit as to the time that any individual may
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remain a member of the JTTF All non -FBI members of the JTTF must adhere to the
same rules and regulations as FBI employees with regard to conduct and activities while
in FBI space, while operating FBI vehicles, and while conducting JTTF business. All
Task Force members detailed from other federal agencies are responsible for
maintaining an appropriate case load, as directed by JTTF management.
B All investigators detailed to the JTTF will be designated either full -time or part-time.
The operational needs of the JTTF require that any assignments to special details, or
duties outside of the JTTF to full -time JTTF members be coordinated with the FBI JTTF
Supervisor Though each JTTF member will report to his or her respective Participating
Agency for personnel matters, he or she will coordinate leave with the JTTF's FBI JTTF
Supervisor
C During periods of heightened threats and emergencies, the JTTFs may be expected to
operate 24 hours per day, seven days per week, for extended periods of time. To
function properly, the JTTF depends upon the unique contributions of each Participating
Agency Accordingly, during these periods, each Participating Agency member will be
expected to be available to support JTTF activities.
IX. RECORDS. REPORTS AND INFORMATION SHARING
A. All JTTF materials and investigative records, including any Memorandum of
Understanding, originate with, belong to, and will be maintained by the FBI. All
investigative reports will be prepared by JTTF personnel solely on FBI forms. All
information generated by the FBI or the JTTF will be controlled solely by the FBI and
may not be removed from FBI space without the approval of the JTTF Supervisor
Dissemination, access or other use of JTTF records will be in accordance with Federal
law, Executive Orders, and Department of Justice and FBI regulations and policy,
including the dissemination and information sharing provisions of the FBI Intelligence
Policy Manual. As FBI records, they may be disclosed only with FBI permission and
only in conformance with the provisions of federal laws and regulations, including the
Freedom of Information Act, 5 U S C Section 552, and the Privacy Act of 1974, 5
U S C Section 552a, as well as applicable civil and criminal discovery privileges. This
policy includes any disclosure of FBI information, including JTTF materials and
investigative records, to employees and officials of a Participating Agency who are not
members of a JTTF, which must be approved by the JTTF supervisor All electronic
records and information, including, but not limited to, systems, databases and media, are
also regulated by FBI policy JTTF members may request approval to disseminate FBI
information from the JTTF Supervisor
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B Each Participating Agency agrees to have its Detailees to the JTTF execute an FD -868,
or a similar form approved by the FBI This action obligates the Detailee, who is
accepting a position of special trust in being granted access to classified and otherwise
sensitive information as part of the JTTF, to be bound by prepublication review to
protect against the unauthorized disclosure of such information.
C The participation of other federal, state, local, and tribal partners on the JTTF is critical
to the long -term success of the endeavor Articulating the level of effort for these
partnerships is a key measure of the JTTF's performance. Accordingly, all task force
members will be required to record their workload in the Time Utilization
Recordkeeping (TURK) system used by the FBI.
X. COORDINATION
A. The Participating Agency agrees to not knowingly act unilaterally on any matter affecting
the JTTF without first coordinating with the FBI. The parties agree that matters
designated to be handled by the JTTF shall not knowingly be subject to non -JTTF or
non -FBI intelligence, law enforcement, or operational efforts by the Participating
Agency Intelligence, law enforcement, and operational actions will be coordinated and
cooperatively carried out within the JTTFs.
B JTTF criminal investigative procedures will conform to the requirements for federal
prosecution. It is expected that the appropriate United States Attorney, in consultation
with the FBI and affected JTTF partners, will determine on a case -by -case basis
whether the prosecution of cases will be at the federal or state level, based upon which
would better advance the interests of justice.
XI. FUNDING
This MOU is not an obligation or commitment of funds, nor a basis for transfer of funds. Even where
one party has agreed (or later does agree) to assume a particular financial responsibility, written
agreement must be obtained before incurring an expense expected to be assumed by another party All
obligations of and expenditures by the parties are subject to their respective budgetary and fiscal
processes and availability of funds pursuant to all laws, regulations, and policies applicable thereto The
parties acknowledge that there is no intimation, promise, or guarantee that funds will be available in
future years. The FBI and the Participating Agency may enter into a separate agreement to reimburse
the Participating Agency for approved overtime expenses.
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XII. TRAVEL
All JTTF - related travel of non -FBI personnel requires the approval of the appropriate JTTF Supervisor
and Participating Agency authorization prior to travel. In order to avoid delay in operational travel, the
Participating Agency will provide general travel authority to all of its participating employees for the
duration of the employee's membership in the JTTFs. For domestic travel, each agency member will be
responsible for appropriate notifications within his or her own agency, as well as standard FBI travel
approvals and notification. The FBI will obtain FBIHQ authorization and country clearances for all
JTTF members who are required to travel outside the United States. As noted above, the appropriate
security clearance must be obtained prior to any international travel. The FBI will pay costs for travel of
all members of the JTTFs to conduct investigations outside of the JTTF's assigned territory
XIII. VEHICLES AND EOUIPMENT
A. In furtherance of this MOU, employees of the Participating Agency may be permitted to
drive FBI owned or leased vehicles for surveillance, case management and investigation
in connection with any JTTF investigation. FBI vehicles must only be used for official
JTTF business and only in accordance with applicable FBI rules and regulations.
B [non- Federal entities only] Any civil liability ansing from the use of an FBI owned or
leased vehicle by a Participating Agency task force member while engaged in any
conduct other than his or her official duties and assignments under this MOU shall be the
responsibility of the Participating Agency The Participating Agency shall provide the
FBI with a certificate of self insurance, which shall be attached as Exhibit A to this
MOU The certificate shall name the FBI as a certificate holder Solely under the terms
of, and circumstances described by, this sub - paragraph, and to the extent permitted by
law, the parties shall work cooperatively to seek the dismissal of the FBI from any claim
or lawsuit naming the FBI as a defendant or responsible party The parties understand
and agree that any liability of the Participating Agency under this paragraph is limited by
the Colorado Governmental Immunity Act, C.R.S § 24 -10 -101 et seq This paragraph
shall be controlled, limited and otherwise modified so as to limit any liability of the
Participating Agency or the City of Pueblo, to the above cited laws. Nothing in this
paragraph shall be construed to otherwise limit any additional defense or other legal
recourse available by law to the Participating Agency or to the City of Pueblo
C For official inventory purposes, all JTTF equipment including badges, credentials and
other forms of JTTF identification subject to FBI property inventory requirements will
be produced by each JTTF member upon request. At the completion of the member's
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assignment on the JTTF, or upon withdrawal or termination of the Participating Agency
from the JTTF, all equipment will be returned to the supplying agency
XIV FORFEITURE
The FBI shall be responsible for the processing of assets seized for federal forfeiture in conjunction with
JTTF operations, as provided by these rules and regulations. Asset forfeitures will be conducted in
accordance with federal law and the rules and regulations set forth by the U S Department of Justice
and the FBI. Forfeitures attributable to JTTF investigations may be distributed among the Participating
Agencies in JTTF - related operations at the discretion of the FBI.
XV HUMAN SOURCES
A. All human sources developed through the JTTF will be handled in accordance with the
Attorney General's and the FBI's guidelines, policies and procedures.
B All human sources developed during the course of any JTTF investigation shall be
operated with all appropriate FBI suitability paperwork completed prior to use. All
source debriefings or written products of information obtained from any human source
will use FBI document format and handling procedures.
C The FBI, as permitted by federal law, agrees to pay reasonable and necessary human
source expenses incurred by the JTTF All expenses must be approved by the FBI
before they are incurred. No payments may be made to JTTF human sources without
prior FBI approval.
XVI. MEDICAL
A. All Participating Agencies will ensure that detailed JTTF members are medically qualified
according to their agencies' standards to perform law enforcement duties, functions and responsibilities.
B To ensure protection for purposes of the Federal Employees' Compensation Act
(FECA), JTTF members should be detailed to the FBI consistent with the provisions of the
Intergovernmental Personnel Act (IPA), 5 U S C § 3374(d) This Act stipulates that "[a] State or local
government employee who is given an appointment in a Federal agency for the period of the assignment
or who is on detail to a Federal agency and who suffers disability or dies as a result of personal injury
sustained while in the performance of his duty during the assignment shall be treated as though he
were an employee as defined by section 8101 of this title who has sustained the injury in the
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performance of duty " Other provisions of federal law may extend FECA benefits in more limited
circumstances. The Department of Labor's Office of Workers' Compensation Programs is charged with
making FECA coverage determinations and is available to provide guidance concerning specific
circumstances.
XVII. TRAINING
All JTTF members are required to attend FBI legal training in compliance with FBI regulations and any
other training deemed necessary by the FBI chain of command. The FBI is responsible for the costs of
such training. The Participating Agency will bear the costs of any training required of its own employees
detailed to the JTTF
XVIII. DEADLY FORCE AND SHOOTING INCIDENT POLICIES
Members of the JTTF will follow their own agency's policy concerning use of deadly force.
XIX. DEPARTMENT OF DEFENSE COMPONENTS
The Posse Comitatus Act, 18 U S C. § 1385, prohibits the Army and Air Force (Department of
Defense regulations now restrict the activities of all branches or components of the Armed Services
under this Act) from being used as a posse comitatus or otherwise to execute the laws entrusted to
civilian law enforcement authorities. The restrictions of the Act do not apply to civilian employees of the
Department of Defense who are not acting under the direct command and control of a military officer
Other statutory provisions specifically authorize certain indirect and direct assistance and participation by
the military in specified law enforcement functions and activities. All Department of Defense components
(except strictly civilian components not acting under direct command and control of a military officer)
who enter into this agreement, shall comply with all Department of Defense regulations and statutory
authorities (describing restrictions, authorizations and conditions in support of law enforcement) including
but not limited to Department of Defense Directives 5525.5, and 3025 15, Chapter 18 of Title 10 of the
United States Code dealing with military support for civilian law enforcement agencies and any other or
subsequent rules, regulations, and laws that may address this topic or that may amend, or modify any of
the above provisions. This MOU shall not be construed to authorize any additional or greater authority
(than already described) for Department of Defense components to act in the support of law
enforcement activities.
XX. MEDIA
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All media releases will be mutually agreed upon and jointly handled by the member Participating
Agencies of the appropriate JTTF Press releases will conform to DOJ Guidelines regarding press
releases. No press release will be issued without prior FBI approval.
XXI. LIABILITY
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 JTTF remains vested with his
or her employing agency However, the Department of Justice (DOJ) may, in its discretion, determine
on a case -by -case basis that an individual should be afforded legal representation, legal defense, or
indemnification of a civil judgment, pursuant to federal law and DOJ policy and regulations.
A. COMMON LAW TORT CLAIMS
Congress has provided that the exclusive remedy for the negligent or wrongful
act or omission of an employee of the U S Government, acting witlun the scope
of his or her employment, shall be an action against the United States under the
FTCA, 28 U S C. § 1346(b), and §§ 2671 - 2680
2. Notwithstanding the provisions contained in Article XIII of this MOU, for the
limited purpose of defending civil claims arising out of JTTF activity, a state,
local, or tribal law enforcement officer who has been federally deputized and
who is acting within the course and scope of his or her official duties and
assignments pursuant to this MOU may be considered an "employee" of the
U S government, as defined at 28 U S C§ 2671 See 5 U S C§ 3374(c)(2)
Under the Federal Employee Liability Reform and Tort Compensation Act of
1998 (commonly known as the Westfall Act), 28 U S C § 2679(b)(1), if an
employee of the United States is named as a defendant in a civil action, the
Attorney General or his or her designee may certify that the defendant acted
within the scope of his or her employment at the time of the incident giving rise to
the suit. 28 U.S C. § 2679(d)(2) The United States can then be substituted for
the employee as the sole defendant with respect to any tort claims alleged in the
action. 28 U S C. § 2679(d)(2) If the United States is substituted as
defendant, the individual employee is thereby protected from suit on any tort
claim arising out of the incident.
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4 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 U S C § 2679(d)(3).
5 Liability for any negligent or willful acts of JTTF members undertaken outside the
terms of this MOU will be the sole responsibility of the respective employee and
agency involved.
B. CONSTITUTIONAL CLAIMS
Liability for violations of federal constitutional law may rest with the individual
federal agent or officer pursuant to Bivens v. Six Unknown Names Agents of the
Federal Bureau of Narcotics. 403 U S 388 (1971) or pursuant to 42 U S C
§ 1983 for state officers.
2. Federal, state, local, and tribal 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." Harlow v. Fitzgerald. 457 U S 800 (1982)
3 If a Participating Agency JTTF officer is named as a defendant in his or her
individual capacity in a civil action alleging constitutional damages as a result of
conduct taken within the course of the JTTF, the officer may request
representation by DOJ 28 C.F.R. §§ 50 15, 50 16
4 An employee may be provided representation "when the actions for which
representation is requested reasonably appears to have been performed within
the scope of the employee's employment, and the Attorney General, or his or
her designee, determines that providing representation would otherwise be in the
interest of the United States." 28 C.F.R. §.50 15(a)
A JTTF member'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 JTTF The CDC will forward the representation
request to the FBI's Office of the General Counsel (OGC), together with a
letterhead memorandum concerning the factual basis of the lawsuit. FBI's
OGC will then forward the request to the Civil Division of DOJ, together with an
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agency recommendation concerning scope of employment and DOJ
representation. 28 C.F.R. § 50 15(a)(3).
6 If a JTTF member is found to be liable for a constitutional tort, he or she may
request indemnification from DOJ to satisfy an adverse judgement rendered
against the employee in his or her individual capacity 28 C.F.R. § 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.§ 50 15(a)
7 Determinations concerning legal representation and indemnification by the United
States are discretionary and are made by DOJ on a case -by -case basis. The
FBI cannot guarantee that the United States will provide legal representation,
legal defense, or indemnification to any federal or state employee detailed to the
JTTF, and nothing in this Article shall be deemed to create any legal right on the
part of any JTTF personnel.
C. EXPRESS RESERVATIONS
Nothing in this Article shall be deemed to create an employment relationship
between the FBI or the United States and any Participating Agency JTTF
member other than for exclusive purposes of the FTCA, as outlined herein.
2. The participating agencies do not waive any available defenses and/or limitations
on liability No Participating Agency shall be considered to be an agent of any
other Participating Agency
XXII. DURATION
A. The term of the MOU shall be an indefinite period. The MOU may be terminated at will
by any party, provided written notice is provided to the other parties of not less than
sixty (60) days. Upon termination of the MOU, all equipment will be returned to the
supplying agency(ies) It is understood that the termination of this agreement by any one
of the Participating Agencies will have no effect on the agreement between the FBI and
all other participating agencies.
B Notwithstanding this provision, the provisions of Paragraph IX, entitled RECORDS,
REPORTS AND INFORMATION SHARING, and Paragraph XXI, entitled
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LIABILITY, will continue until all potential liabilities have lapsed. Similarly, the inherent
disclaimer limitation contained in the EXPRESS RESERVATION provision will survive
any termination.
XXIII. AMENDMENTS
This agreement in no manner affects any existing MOUs or agreements with the FBI or any other
agency This agreement may be amended only by mutual written consent of the parties. The
modifications shall have no force and effect unless such modifications are reduced to writing and signed
by an authorized representative of the FBI and the Participating Agency
SIGNATORIES
The City of Pueblo, a Municipal Corporation,
for and on behalf of the Pueblo Police Department
by
_ ) 5 , � Date: Au4ust 13, 2007
Judy P Weaver -- a
President of City Council
Attest:
City C�k
[Seal]
SAC, Denv6/ /✓
FBI Approv Official
Date: Aiaist 13, 2nn
Date:
i
Date: i.3 c7C
Con cting Of cer Q
Fedetal B f Investigation I V Tagbr
Washington, D C Cammrtlro Officer
ftbm Bureau ui in
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