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HomeMy WebLinkAbout07984ORDINANCE NO. 7984 AN ORDINANCE APPROVING AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY OF PUEBLO AND PUEBLO COUNTY, COLORADO RELATING TO THE EMPLOYMENT OF A FORENSIC DNA ANALYST AND AUTHORIZING THE PRESIDENT OF THE CIT COUNCIL TO EXECUTE SAME BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO. that: SECTION 1. The Intergovernmental Agreement dated as of March 9, 2009 between the City of Pueblo and Pueblo County, Colorado relating to the employment of a forensic DNA analyst, a copy of which is attached hereto, having been approved by the City Attorney as to form, is hereby approved. The President of the City Council is authorized to execute the Intergovernmental Agreement in the name of the City and the City Clerk is directed to affix the seal of the City thereto and attest same. SECTION 2. This Ordinance shall become effective upon final passage and approval. INTRODUCED: February 23, 2009 BY: Judy Weaver Councilperson APPROVED 2L PRESIDENTaf City Council PASSED AND APPROVED: March 23, 2009 ED Background Paper for Proposed ORDINANCE AGENDA ITEM # 27 DATE: February 23, 2009 DEPARTMENT: Law Department TITLE AN ORDINANCE APPROVING AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY OF PUEBLO AND PUEBLO COUNTY, COLORADO RELATING TO THE EMPLOYMENT OF A FORENSIC DNA ANALYST AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME ISSUE Should City Council approve the IGA relating to the employment of a forensic DNA analyst? RECOMMENDATION Approve the IGA. BACKGROUND The IGA provides that the City and County will jointly fund the employment of a forensic DNA analyst by the District Attorney, Tenth Judicial District, Colorado. The first priority of the forensic DNA analyst is to examine and analyze evidence related to the County of Pueblo and City of Pueblo criminal cases. The description of the position of the forensic DNA analyst and relationship between the District Attorney's office and the Colorado Bureau of Investigation are described in the Memorandum of Understanding attached to the IGA. FINANCIAL IMPACT City and County will each make available $40,000 for the salary and benefits of the forensic DNA analyst for fiscal year 2009. Thereafter City and County may budget funds for subsequent years. INTERGOVERNMENTAL AGREEMENT THIS AGREEMENT is made and entered into effective this 9th day of March, 2009, by and between Pueblo County, Colorado, a body corporate and politic, hereinafter referred to as "County" and the City of Pueblo, a Municipal Corporation, hereinafter referred to as "City ", both of which are hereinafter referred to as "Parties." WITNESSETH: WHEREAS, Colorado Constitution Article XIV, Section 18 (2)(a), and C.R.S. § 29 -1 -203, as amended, authorize the County and the City to cooperate or contract with each other to provide any function, service, or facility lawfully authorized to each, and any such contract may provide for the sharing of costs; and WHEREAS, the County and the City have agreed to appropriate money for and fund the position of a full -time Forensic DNA Analyst to be hired by the District Attorney of the Tenth Judicial District pursuant to a Memorandum of Understanding between the District Attorney and the Colorado Bureau of Investigation, attaghed hereto as Exhibit 1; and WHEREAS, the County and the City desire to set forth their respective responsibilities. NOW, THEREFORE, the County and the City agree as follows: L THE COUNTY SHALL: A. Fund fifty percent (50 %) of the salary and benefits of a full -time Forensic DNA Analyst. Such funding shall in no event exceed a maximum amount of $40,000.00, in any one (1) calendar year and such funding shall be subject to annual appropriation, budget approval and allocation by the Board of County Commissioners. The first priority of the Forensic DNA Analyst is to examine and analyze evidence related to County of Pueblo and City of Pueblo criminal cases. B. Collect from the City, as provided below, the remaining 50% funding for the salary and benefits for the Forensic DNA Analyst and make the joint funding provided by the City and the. County available to the District Attorney in his annual budget beginning with the current fiscal year, 2009, and continuing through all subsequent fiscal years, until this Agreement is revised, replaced or terminated as provided herein. That joint funding is intended to cover the full cost of the Forensic DNA Analyst position's salary and benefits, including worker's compensation, employer's /employee' liability insurance, and any and all other requirements, programs, and benefits generally accorded to County employees. C. Agree that the District Attorney shall be the sole employer of said Forensic ,4_ DNA Analyst and that this employee shall have the same employment status, and be subject to the same policies, rules and directives as all other employees of the District Attorney. D. The County shall notify the City prior to incurring expenses in excess of the budget allocation in Paragraph ILA. below, II. THE CITY SHALL; A. Fund fifty percent (50 %) of the salary and fringe benefits of the full -time Forensic DNA Analyst position, described above, whose priority task shall be as specified in Paragraph I. A. above, subject to the provisions of Section I above. Such funding shall in no event exceed a maximum amount of $40,000.00 in any one (1) calendar year and such funding shall be subject to annual appropriation, budget approval, and allocation by the City Council. B. Payment for its share of the salary and fringe benefits for the position identified in Paragraph A above will be made by the City to the County. quarterly. C. City will inform the District Attomey of the Tenth Judicial District of its authorized budget allocation no later than November 30 of each year for the following calendar year. III. TERM/TERMINATION: A. This Agreement shall commence on the day and year first written above, and shall remain in effect until terminated as is provided for herein. B. This Agreement may be terminated, without cause, liability, or penalty upon six (6) months prior written notice of such termination given by one party to the other party specifying the date of termination. C. The parties understand and agree that the term of this Agreement, may extend beyond the year of execution and is expressly made subject to appropriations of funds for its continuance by the County and City. Upon failure of either party to appropriate funds for the continuation of this Agreement for any subsequent fiscal year, the Agreement will terminate without liability to either party on December 31 of the year in which either party fails to appropriate funds for the succeeding year. IV. MISCELLANEOUS: A. This Agreement constitutes the entire agreement between the County and the City with respect to the subject matter hereof, and shall not be amended, altered or modified except by a separate written document signed by the parties hereto. B, The subject headings of the paragraphs of this Agreement are included for purposes of convenience only and shall not affect the construction or interpretation of the provisions contained therein. C. This Agreement shall be binding on and inure to the benefit of the parties to it. Any delegation or assignment of this Agreement by either party without the prior written consent of the other party shall be void. D. No Third Party Beneficiary. Enforcement of the terms and conditions of this Agreement, and all rights of action relating to such enforcement, shall be strictly reserved to the County and the City, and nothing contained in this Agreement shall give or allow any claim or right of action by any other or third person under this Agreement. It is the express intention of the County and the City that any person other than the County or the City receiving services or benefits under this Agreement shall be deemed to be a incidental beneficiary only. E. Except as set forth elsewhere in this paragraph, all notices to be given under this Agreement shall be made in writing and shall be sufficient if delivered personally or mailed by First Class United Sates mail, postage prepaid, to the other party at the following addresses: COUNTY OF PUEBLO Attn: District Attorney of the Tenth Judicial District 701 Court Street Pueblo, Colorado 81003 583 -6030 M.1 CITY OF PUEBLO Attn: City Manager 1 City Hall Place Pueblo, Colorado 81003 553 -2655 IN WITNESS WHEREOF, the parties hereto have entered into this Agreement the day and year first written. ATTEST: - - " j, '* PUEBLO COUNTY, COLORADO By: _ By: O ✓�^^ — -- Clerkto the Board - Chair, Board of County Commissioners ATTEST: CITY OF PUEBLO, A MUNICIPAL CORPORATION By: By — City President of the City Council U: \DA \LP Final DNA Analyst 1GA 2- 4- 09.doc MEMORANDUM OF UNDERSTANDING MEMORANDUM OF UNDERSTANDING INDEX PAGE INDEX ............................................................................................ ............................... 2 ............................................................. ............................... BACKGROUND ............. 3 11 ................ ............................... ......................STAFFING, AGENT STATUS, FIREARMS AUTHORIZATION - TRAINING ............. 3 III............................................................ ............................... SUPERVISION............. 5 IV ..................... ............................... .......................INCIDENT RESPONSES............. 6 V ........... ......................RESOURCES AND INFORMATION TECHNOLOGY............. 7 VI .................................................... ............................... INDEMNIFICATION ............. 7 VII .... ............................... ....................TERMINATION OF PARTICIPATION............. 8 VIII ............................................. ............................... ENTIRE AGREEMENT............. 9 EXHIBIT .............................................................................. ............................... 10 2 MEMORANDUM OF UNDERSTANDING This Memorandum of Understanding ( "MOU" or "Agreement') is between the Colorado Bureau of Investigation ( "CBI ") and the Office of the District Attorney, Tenth Judicial District, Colorado, ( "DA Office "), hereinafter referred to as the ( "Parties "). BACKGROUND: A. This MOU serves to define the scope of work and responsibilities of the Parties concerning the joint venture by and between the CBI and the DA Office for the provision of laboratory and /or criminalist/laboratory technical services. It sets forth the agreed upon procedures for funding, management, accountability, direction, authority and liabilities of the Parties in conjunction with this effort. B. This MOU is also being executed for the purposes of the DA Office utilizing space, but not as a Lessee, in the CBI building at 3416 North Elizabeth Street; Pueblo, CO 81008. The building is being leased by The State of Colorado to the CBI. The Parties are of the belief that this MOU will augment the overall ability and efficiency of the CBI and the DA Office to provide forensic examination of evidence for the DA Office and other law enforcement agencies located in Pueblo County, Colorado. The MOU in no way changes or infringes upon the established jurisdictions or responsibilities of both Parties. The DA Office will continue to conduct investigations and prosecute violations of the law within its jurisdiction. CBI will continue to provide statewide forensic services pursuant to law. C. The Parties will continue to work closely with each other on matters of joint interest Nothing in this MOU should be construed as limiting or impeding the spirit of cooperation which already exists between the CBI and the DA Office. II. STAFFING, AGENT STATUS, FIREARMS AUTHORIZATION AND TRAINING: A. The DA Office will hire one forensic DNA analyst ( "DA Analyst ") who shall, at all times, remain an employee of the DA Office, receiving compensation and benefits as established by the DA Office. 3 B. The County of Pueblo and the City of Pueblo have agreed to appropriate money for and fund the position pursuant to a separate agreement between them evidenced by appropriate resolutions, which is a condition precedent to this Agreement becoming effective. Said agreement will at a minimum clarify the funding sources which will be utilized to fund the position as well as the schedule of disbursement of funds by either entity to the other entity or to the DA's Office budget. C. This position opening will be advertised by the DA Office. Specifics regarding the description of the position and applicant qualifications are attached hereto in Exhibit "A." The DA Office and CBI will work with the Pueblo County Human Resources Department to establish a job description for the position which, at a minimum, will incorporate the duties, requirements, substitutions and necessary special requirements contained in Exhibit 'A," as well as an appropriate job category, grade and step for the purposes of establishing compensation, benefits and employee insurance coverage and tax liabilities. D. Because the DA Analyst shall be hired by the DA Office, he /she may be appointed as an Investigator for the DA Office by the District Attorney. And, he /she shall abide by the directives and policies of the DA Office; however, the DA Analyst assigned to the CBI facility will be appointed by the Director of the CBI as an "agent" of CBI pursuant to §24- 33.5 -407 C.R.S. and §24- 33.5 -408 C.R.S., and accordingly, the DA Analyst shall be considered functionally as part of the CBI staff. CBI will provide the DA Analyst with the appropriate CBI badge and credentials indicating his /her agent status. The DA Analyst shall display the CBI badge and credentials in accordance with CBI policies and directives. As an agent, the DA Analyst (as provided in this Agreement) will be allowed access to all CBI facilities, equipment, machines, libraries and files necessary to successfully perform his /her assigned duties and responsibilities. In the event of a vacancy or incapacity of the DA Analyst, CBI agrees to assist in coverage of the DA Analyst's workload until vacancy or incapacity is resolved. E. Hours of work for the DA Analyst assigned to the CBI facility will be Monday through Friday, 08:00 a.m. to 05:00 p.m. Overtime, vacations, holidays, family /medical leave, short- or long -term disability leave, sick and vacation accrual rates for the DA Analyst shall be in accordance with the DA Office directives, policies and applicable law. The DA Office supervisors shall review and decide leave requests submitted by the DA Analyst assigned to the facility. The DA Analyst assigned to the CBI facility may, at the discretion of the DA Office, be required to attend DA Office training, certifications and updates on a periodic basis. The 4 DA Office supervisor of the DA Analyst will work with the CBI supervisor to schedule and give adequate notice of such activities when applicable, and to minimize disruption of the case work load. F. The DA Analyst assigned to the CBI facility will abide by and comply with all policies, procedures, rules, professional standards and administrative regulations of CBI and the DA Office with respect to the performance of his /her duties as a forensic DNA analyst. To that end, the DA Analyst and his /her immediate DA Office supervisor shall receive complete written copies of all CBI policies, directives, regulations and standards. CBI may provide initial and continued training to the DA Office, and will provide said training to the DA Analyst, relating to CBI's policies, directives, regulations and standards as provided to other CBI employees. The DA Office will pay costs for training, mandated certificates, re- certifications, seminars, conferences, professional membership and association dues for DA Office employees, including the DA Analyst, as it relates to his /her respective areas of expertise while assigned to the CBI facility, subject to appropriation and budgetary limitations. G. Any employee of either Parties who finds or encounters a conflict between the policies of the DA Office and the CBI will immediately notify his /her immediate supervisor in writing of the conflict. H. CBI employees will remain as, and are considered to be, employees of CBI receiving compensation and benefits as outlined by The State of Colorado compensation packages for those particular positions. III. SUPERVISION: A. The DA Analyst will work under the immediate direction and supervision of the appropriate CBI supervisor assigned to the facility. The duty of the CBI supervisor is to ensure that proper standards of analysis and identification are being performed regarding evidence submitted to the facility. B. The first priority of the DA Analyst is to examine and analyze evidence related to City of Pueblo and County of Pueblo cases. After the DA Analyst has received the necessary training and certifications as required by CBI then, as time and work loads permit, he /she may work other cases submitted to CBI from other law enforcement agencies for analysis that are within E M the specific discipline and expertise of the DA Analyst. The CBI supervisor will monitor and assign those cases through DA Office personnel. C. The DA Office supervisor shall ultimately be responsible for monitoring the continued training, development, discipline and evaluations of the DA Analyst. D. The CBI and DA Office supervisors shall meet with one another on a recurring basis to discuss, monitor and evaluate the work load and performance level of the DA Analyst assigned to the facility. The CBI and DA Office supervisors will also discuss any issues or conflicts brought to their attention regarding the Parties' combined ventures, policies, directives, regulations and standards. The Parties will strive to reasonably resolve any issues or conflicts by discussion between them or, as necessary, by discussion between higher levels of supervisors, to and through the District Attorney or his /her designee and the CBI Director or his /her designee. In the spirit of this Agreement, any conflict that arises should be resolved by mutual agreement through the chain of command of both agencies and should be handled at the lowest level possible that has the authority by policy to resolve the conflict. E. Any performance breach or violation(s) of law, policies, directives, regulations or standards by the DA Analyst assigned to the CBI facility shall be brought to the immediate attention of the assigned DA Office supervisor in writing. Disciplinary action recommendations will be the responsibility of the DA Office supervisor, with full cooperation of the CBI supervisor, in accordance with existing directives and policies of the DA Office. Disciplinary action will be the responsibility of the District Attorney. F. Nothing herein should be construed as in any way limiting, modifying or changing, expressly or impliedly, the statutory authority of the District Attorney over the DA Analyst including the fact that the DA Analyst serves "at- will" and at the pleasure of the District Attorney. IV. INCIDENT RESPONSES: A. At the direction of the DA Office supervisor, the DA Analyst shall be available, in accordance with DA Office policy, to respond to and process crime scenes that occur within The County of Pueblo. 31 B. In an effort to increase the efficiency, competency and knowledge of the DA Analyst, he /she may, upon prior approval, respond as a "secondary' responder with CBI on crime scenes they have been called to in The County of Pueblo. The DA Analyst shall not be considered a "primary" responder under CBI's rotational call out system. The CBI supervisor shall call and give notice to the immediate DA Office supervisor and advise him /her of the call out request for the DA Analyst. If the DA Office supervisor approves the secondary responder call out, then the DA Analyst will respond as requested. If the DA Office supervisor does not approve of the request, then he/she shall contact the CBI supervisor notifying him /her of his /her disapproval. C. The DA Analyst shall not respond to crime scenes in his /her personal vehicle, absent extenuating circumstances. The DA Analyst who drives a vehicle owned by CBI or The County of Pueblo shall abide by all established CBI or DA Office policies, directives, procedures and guidelines pertaining to the safe and efficient operation of said vehicles. CBI will assume liability coverage for claims involving vehicles owned by CBI. The County of Pueblo will assume liability coverage for claims involving vehicles owned by The County of Pueblo. V. RESOURCES AND INFORMATION TECHNOLOGY: A. CBI will provide and maintain a suitable work area, office furniture, telephones and supplies for the employees of both Parties working at the facility to satisfactorily perform their assigned responsibilities and functions. CBI will provide a safe or other appropriate storage for the DA Analyst to satisfactorily perform his/her assigned responsibilities and functions. B. CBI will provide and maintain desktop computers, software and servers suitable for both Parties to satisfactorily complete their work, access the internet and communicate with their respective agencies. VI. INDEMNIFICATION: A. To the extent authorized by law, the Parties shall indemnify, save and hold harmless each other against any and all claims, damages, liability and court awards including costs, expenses and attorney fees incurred as a result of any act or omission by the State, the 7 District Attorney, or County, or their employees, agents, subcontractors or assignees pursuant to the terms of this Agreement. B. No term or condition of this Agreement shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protection, or other provisions for the Parties, of the Colorado Governmental Immunity Act, §24 -10 -101, et seq., C.R.S. or the Federal Tort Claim Act, 28 U.S.C. 2671, et seq. as applicable, as now or hereafter amended. C. Indemnification of The State of Colorado shall not apply to liability and /or damages resulting from the negligence, reckless and or willful act of the CBI or any of its officers, agents, or employees of the officers, agents, or employees of The State of Colorado. This paragraph shall survive the termination of this Agreement. VII.TERMINATION OF PARTICIPATION: A. Participation in this MOU is voluntary by the Parties in order to provide support and operational capabilities for each respective agency and for law enforcement in general. Because of the long term nature of the assignment of personnel associated with this MOU, any formal termination of this Agreement shall require a minimum of six (6) month's written notice provided to the other party unless otherwise agreed to in writing by both Parties. Such notice shall be provided as follows to: The Office of the District Attorney Tenth Judicial District, Colorado 701 Court Street Pueblo, CO 81003 Attn: Bill Thiebaut District Attorney To CBI: Ronald C. Sloan, Director c/o Colorado Bureau of Investigation 690 Kipling, Suite 3000 Denver, CO 80215 B. The parties understand and agree that this Agreement is subject to the annual appropriation of funds for its continuance by the County of Pueblo and the City of Pueblo, and 8 upon failure of the entities to appropriate funds for this Agreement, said Agreement shall be terminated on the terms identified in this section without liability for termination to the County of Pueblo and the City of Pueblo. C. Subject to paragraph II. B., this MOU will be effective upon the signatures noted below. Once effective, this MOU will remain in effect until amended or abrogated. VIII. ENTIRE AGREEMENT: The Parties acknowledge and agree that the provisions contained herein constitute the entire Agreement and that all representations made by any officer, agent or employee of the respective Parties, unless included herein, are null and void and of no effect. Alterations, amendments, changes or modifications to this Agreement may be made but the_ same shall be valid only if they are contained in an instrument, which is executed by all the Rarties with the same formality as this Agreement. FOR THE OFFICE OF THE DISTRICT ATTORNEY, TENTH JUDICIAL DISTRICT, COLORADO: Bill Thiebaut District Attorney Date FOR THE COLORADO BUREAU OF INVESTIGATION: Ronald C. Sloan, Director Date Colorado Bureau of Investigation 9 Memorandum of Understanding Exhibit "A" DESCRIPTION OF POSITION: FORENSIC DNA ANALYST LOCATION: OFFICE OF THE DISTRICT ATTORNEY 701 COURT STREET PUEBLO, CO 81003 also COLORADO BUREAU OF INVESTIGATION (BUREAU) 3416 NORTH ELIZABETH STREET PUEBLO, CO 81008 DUTIES: Applies scientific principles of biochemistry, molecular biology, and related fields to the examination of evidence. Collects and assembles data from analyses. Makes decisions, using both knowledge and experience, as to the qualitative and quantitative nature of evidence submitted for DNA analysis. Evaluates new advances and techniques. Renders the results of the individual's scientific investigation and comparisons into a written report. The report and attached documents may be used in lieu of or in concert with the investigator in criminal and civil courts of law. The analyst will be required to be an expert witness in court. Communicates with attorneys, law enforcement officers, coworkers, and citizens in regard . to evidence collected, testing employed, and interpretation of results. Utilizes, maintains, and calibrates a variety of modern scientific equipment. Instructs and supervises law enforcement officers regarding the significance of various types of physical evidence and how to collect, secure and examine the evidence. Responds to requests for assistance at crime scenes. Evaluates scene, protects, gathers, secures and transports physical evidence which may be of a hazardous, complex, perishable or valuable nature. Enforces the laws of the State of Colorado as a sworn agent/investigator of the CBI and DA Office. Trained in the laws of the State of Colorado and in the responsibilities of a sworn agent and investigator. REQUIRMENTS: Graduation from an accredited college or university with a bachelor's degree in criminalistics, chemistry, biochemistry, biology, molecular biology or a field related to the work assignment plus two years of DNA experience at the journeyman level using techniques specifically followed in forensic laboratories. Must have proof of citizenship or right to work in the USA the first day of employment. Applicant may be required to be P.O.S.T.certified. SUBSTITUTIONS: Applicant's work experience in forensic DNA analysis that provides the same kind, amount and level of knowledge acquired in the required education may be substituted for the education requirement on a year- for -year basis. NECESSARY SPECIAL REQUIREMENTS: Applicants must be willing to be fingerprinted, successfully pass a polygraph and an extensive background investigation. If you have used any illegal drugs in the past three years, or have been convicted of a felony or domestic violence, you will be disqualified and will not be hired. 10