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TAMPA BAY CRIMES AGAINST CHILDREN TASK FORCE MEMORANDUM OF UNDERSTANDINGFor Official Use Only COPY FEDERAL BUREAU OF INVESTIGATION TAMPA AREA CRIMES AGAINST CHILDREN TASK FORCE MEMORANDUM OF UNDERSTANDING PARTIES 1. This Memorandum of Understanding (MOU) is entered into by and between the Federal Bureau of Investigation (FBI), Tampa Division, and the following agencies (hereinafter jointly referred to as the "Parties"): Clearwater Police Department (CPD) Hillsborough County Sheriffs Office (HCSO) Tampa Police Department (TPD) 2. Nothing in this MOU should be construed as limiting or impeding the basic spirit of cooperation which exists between the Parties. AUTHORITIES 3. Authority for the FBI to enter into this MOU can be found at Title 28, United States Code (U.S.C.), Section (§) 533; 42 U.S.C. § 3771; Title 28, Code of Federal Regulations (C.F.R.), § 0.85; and applicable United States Attorney General guidelines. The non-federal law enforcement Parties, CPD, HCSO, and TPD, are authorized to enter into this MOU pursuant to applicable laws of the State of Florida. PURPOSE 4. The purpose of this MOU is to delineate the responsibilities of Tampa Area Crimes Against Children (TACAC) Task Force, maximize inter-agency cooperation, and formalize relationships between the Parties for policy guidance, planning, training, public and media relations. 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 party against the Parties, the United States, or the officers, employees, agents, or other associated personnel thereof. MISSION 5. The mission of the TACAC Task Force is to identify and target for prosecution organized crime groups responsible for committing crimes against children, with an emphasis on cases involving the sexual exploitation of children and/or child prostitution. The TACAC Task Force will enhance the effectiveness of federal, state, and local law enforcement resources through a well coordinated initiative seeking the most effective investigative and prosecutive avenues by which to convict and incarcerate predatory child sexual offenders. For Official Use Only This document Is the property of the FBI and is loaned to your agency. Neither it nor its contents may be released without authorization by FBI Headquarters. For Official Use Only SUPERVISION AND CONTROL A. Supervision 6. Overall supervision of the TACAC Task Force members shall be the shared responsibility of the Parties. 7. The Special Agent in Charge (SAC) of the FBI Tampa Division shall designate one Supervisory Special Agent (SSA) to have direct and daily responsibility for all TACAC Task Force members and investigative matters. 8. Responsibility for conduct, not under the direction of the SAC or SSA, of each TACAC Task Force member, both personally and professionally, shall remain with the members' respective agency, and each Parry shall be responsible for the actions of their respective TACAC Task Force member(s). 9. Each TACAC Task Force member will be subject to the personnel rules, regulations, laws, and policies applicable to those of their respective agencies. FBI TACAC Task Force members will continue to adhere to the Bureau's ethical standards and will remain subject to the Supplemental Standards of Ethical Conduct for employees of the Department of Justice (DOJ). 10. Each TACAC Task Force member will continue to report to his or her respective agency head for non-investigative administrative matters not detailed in this MOU. 11. Subject to other provisions in this document, continued membership on the TACAC Task Force will be based on performance and will be at the discretion of each member's respective supervisor. B. Case Assignments 12. The FBI SSA with designated oversight for investigative and personnel matters will be responsible for opening, monitoring, directing, and closing TACAC Task Force investigations in accordance with existing FBI policy and the applicable United States Attorney General's Guidelines. 13. Assignments of cases to personnel 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 matters. 14. For FBI administrative purposes, TACAC Task Force cases will be entered into the relevant FBI computer system. 2 For Official Use Only This document is the property of the FBI and is loaned to your agency. Neither it nor its contents may be released without authorization by FBI Headquarters. For Official Use Only 15. TACAC Task Force members will have equal responsibility for each case assigned. TACAC Task Force members will be totally responsible for the complete investigation from predication to resolution. C. Resource Control 16. Specific control of TACAC Task Force resources, including personnel, and the continual dedication of TACAC Task Force resources shall be retained by the head of agency for each Party, who will be kept fully apprised of all investigative developments by their respective subordinates. OPERATIONS A. Investigative Exclusivity 17. It is agreed that matters designated to be handled by the TACAC Task Force will not knowingly be subject to non-TACAC Task Force law enforcement efforts by any of the Parties. It is incumbent on each Party to make proper internal notification regarding the TACAC Task Force's existence and areas of concern. 18. It is agreed that there is to be no unilateral action taken on the part of the Parties relating to TACAC Task Force investigations or areas of concern. All law enforcement actions will be coordinated and cooperatively carried out. 19. TACAC Task Force investigative leads outside of the geographic areas of responsibility for FBI Tampa Division will be communicated to other FBI offices for appropriate investigation. B. Confidential Human Sources 20. The disclosure of FBI confidential human sources (CHSs) to non-FBI TACAC Task Force members will be limited to those situations where it is essential to the effective performance of the TACAC Task Force. These disclosures will be consistent with applicable FBI guidelines. 21. Non-FBI TACAC Task Force members may not make any further disclosure of the identity of an FBI CHS, including to other members of the TACAC Task Force. No documents which identify, tend to identify, or may indirectly identify an FBI CHS may be released without prior FBI approval. 22. In those instances where a Party provides an informant/source, the FBI may, at the discretion of the SAC, become solely responsible for the informant/source's continued development, operation, and for compliance with necessary administrative procedures regarding operation and payment as set forth by the FBI. 3 For Official Use Only This document is the property of the FBI and is loaned to your agency. Neither it nor its contents may be released without authorization by FBI Headquarters. For Official Use Only 21 The United States Attorney General's guidelines and FBI policy and procedure for operating FBI CHSs shall apply to all FBI CHSs opened and operated in furtherance of TACAC Task Force investigations. Documentation of, and any payments made to, FBI CHSs shall be in accordance with FBI policy and procedure. 24. Operation, documentation, and payment of solely state, county, or local informants/sources opened and operated by non-FBI TACAC Task Force members in furtherance of TACAC Task Force investigations must be in accordance with the United States Attorney General's guidelines. Documentation of state, county, or local informants/sources opened and operated in furtherance of TACAC Task Force investigations shall be maintained at an agreed upon location. C. Reports and Records 25. All investigative reporting will be prepared in compliance with existing FBI policy. Subject to pertinent legal and/or policy restrictions, copies of pertinent documents created a member of the TACAC Task Force will be made available for inclusion in that member's agency files as appropriate. 26. TACAC Task Force reports prepared in cases assigned to state, county, or local Parties will be maintained at an FBI approved location; original documents will be maintained by the FBI. 27. Records and reports generated in TACAC Task Force cases which are opened and assigned by the FBI SSA with designated oversight for investigative and personnel matters will be maintained in the FBI investigative file. 28. TACAC Task Force investigative records maintained at the Tampa Field Office of the FBI will be available to all TACAC Task Force members, as well as their supervisory and command staff subject to pertinent legal, administrative and /or policy restrictions. 29. All evidence and original tape recordings (audio and video) acquired by the FBI during the course of the TACAC Task Force investigations will be maintained by the FBI. The FBI's rules and policies governing submission, retrieval and chain of custody will be adhered to by TACAC Task Force personnel. 30. ALL TACAC Task Force investigative records will be maintained at an approved FBI location. Placement of all or part of said information into CPD, HCSO, and/or TPD files rests with the discretion of supervisory personnel of the concerned agencies. 31. Classified information and/or documents containing information that identifies or tends to identify an FBI CHS shall not be placed in the files of CPD, HCSO, and/or TPD unless appropriate FBI policies have been satisfied. 4 For Official Use Only This document is the property of the FBI and is loaned to your agency. Neither it nor its contents may be released without authorization by FBI Headquarters. For Official Use Only INFORMATION SHARING 32. No information possessed by the FBI, to include information derived from informal communications between a TACAC Task Force member and personnel of the FBI, may be disseminated by the TACAC Task Force member to non-TACAC Task Force personnel without the permission of the designated FBI TACAC Task Force SSA and in accordance with the applicable laws and internal regulations, procedures or agreements between the FBI and an individual Party that would permit the Party to receive that information directly. Likewise, the TACAC Task Force member will not provide any agency information to the FBI that is not otherwise available to it unless authorized by appropriate agency officials. PROSECUTIONS 33. TACAC Task Force investigative procedures are to conform to the requirements for Federal Prosecution. 34. A determination will be made on a case-by-case basis whether the prosecution of TACAC Task Force cases will be at the state 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 TACAC Task Force. 35. 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 a TACAC Task Force case at the state or local level, the FBI agrees to provide all relevant information to state and local authorities. 36. Whether to continue and/or conduct additional 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 37. For cases assigned to an FBI TACAC Task Force member or in which FBI CHSs are utilized, the Parties agree to conform to federal standards concerning evidence collection, processing, storage, and electronic surveillance. 38. In all cases assigned to CPD, HCSO, and/or TPD, the Parties agree to utilize federal standards pertaining to evidence handling and electronic surveillance activities to the greatest extent possible. However, in situations where the statutory or common law of the state is more restrictive than the comparable federal law, the investigative methods employed by CPD, HCSO, and/or TPD shall conform to the requirements of such statutory or common law pending a decision as to venue for prosecution. 5 For Official Use Only Thls document is the property of the FBI and is loaned to your agency. Neither it nor its contents may be released without authorization by FBI Headquarters. For Official Use Only 39. The use of other investigative methods (search warrants, interceptions of oral communications, etc.) and reporting procedures in connection therewith will be consistent with the policies and procedures of the FBI. B. Undercover Operations 40. All TACAC Task Force undercover operations will be conducted and reviewed in accordance with FBI guidelines and the Attorney General's Guidelines on Federal Bureau of Investigation Undercover Operations. CPD, HCSO, and/or TPD may be requested to enter into an additional agreement if a their TACAC Task Force member is assigned duties which require the TACAC Task Force member to act in an undercover capacity. DEADLY FORCE AND SHOOTING INCIDENT POLICIES 41. Members of the TACAC Task Force will follow their own agency's policies concerning firearms discharge and use of deadly force. DEPUTATIONS 42. CPD, HCSO, and TPD TACAC Task Force members, subject to a limited background inquiry, may be sworn as federally deputized Special Deputy United States Marshals, with the FBI securing the required deputation authorization. These deputations should remain in effect throughout the tenure of each member's assignment to the TACAC Task Force or until the termination of the TACAC Task Force, whichever comes first. 43. Administrative and personnel policies imposed by CPD, HCSO, and/or TPD will not be voided by deputation of their respective personnel. VEHICLES 44. In furtherance of this MOU, CPD, HCSO, and TPD TACAC Task Force members may be permitted to drive FBI owned or leased vehicles for surveillance, case management, and investigation in connection with any TACAC Task Force investigation. FBI owned or leased vehicles may only be used for official TACAC Task Force business and only in accordance with applicable FBI rules and regulations, including those outlined in the FBI Manual of Administrative Operations and Procedures (MAOP), Part I, Section 3.1. 45. CPD, HCSO, and TPD agree that FBI vehicles will not be used to transport passengers unrelated to TACAC Task Force business. 46. CPD, HCSO, and TPD further agree to be responsible for any tortious act or omission on the part of its agency and/or its employee(s) and for any liability resulting from the use of FBI owned or leased vehicles utilized by a CPD, HCSO, and/or TPD 6 For Official Use Only This document is the property of the FBI and is loaned to your agency. Neither it nor its contents may be released without authorization by FBI Headquarters. For Official Use Only TACAC Task Force member, except where liability is otherwise handled under the Federal Tort Claims Act (FTCA), as set forth in the Liability Section herein below. 47. Any civil liability arising from the use of an FBI owned or leased vehicle by a CPD, HCSO, and TPD TACAC 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 respective Party. 48. To the extent permitted by law, CPD, HCSO, and TPD agree to hold harmless the FBI and the United States, subject to state law, for any claim for property damage or personal injury arising from any use of an FBI owned or leased vehicle by a CPD, HCSO, and/or TPD TACAC Task Force member which is outside the scope of his or her official duties and assignments under this MOU. SALARY/OVERTIME COMPENSATION 49. The Parties agree to assume all personnel costs for their TACAC Task Force representatives, including salaries, overtime payments and fringe benefits consistent with their respective agency. 50. Subject to funding availability and legislative authorization, the FBI will reimburse respective CPD, HCSO, and/or TPD for the cost of overtime worked by TACAC Task Force members assigned full-time to TACAC Task Force, provided overtime expenses were incurred as a result of TACAC Task Force-related duties. A separate Cost Reimbursement Agreement (CRA) must be executed between the FBI and CPD, HCSO, and TPD respectively, for full-time employee(s) assigned to TACAC Task Force, consistent with regulations and policy. Otherwise, overtime shall be compensated in accordance with applicable agency overtime provisions and shall be subject to the prior approval of appropriate personnel. PROPERTY AND EQUIPMENT 51. Property utilized by TACAC Task Force members in connection with authorized investigations and/or operations and in the custody and control and used at the direction of the TACAC Task Force, will be maintained in accordance with the policies and procedures of the agency supplying the equipment. Property damaged or destroyed which was utilized by TACAC Task Force members in connection with authorized investigations and/or operations and is in the custody and control and used at the direction of TACAC Task Force, will be the financial responsibility of the agency supplying said property. FUNDING 52. This MOU is not an obligation or commitment of funds, nor a basis for transfer of funds, but rather is a basic statement of the understanding between the parties hereto of the tasks and methods for performing the tasks described herein. Unless otherwise agreed in writing, each Party shall bear its own costs in relation to this 7 For Official Use Only This document is the property of the FBI and is loaned to your agency. Neither it nor its contents may be released without authorization by FBI Headquarters. For Official Use Only MOU. Expenditures by each Party will be subject to its budgetary processes and to the availability of funds and resources pursuant to applicable laws, regulations, and policies. The Parties expressly acknowledge that the above language in no way implies that Congress will appropriate funds for such expenditures. FORFEITURES 53. The FBI shall be responsible for the processing of assets seized for federal forfeiture in conjunction with TACAC Task Force operations. 54. Asset forfeitures will be conducted in accordance with Federal law, and the rules and regulations set forth by the FBI and DOJ. Forfeitures attributable to TACAC Task Force investigations may be equitably shared with the Parties. DISPUTE RESOLUTION 55. In cases of overlapping jurisdiction, the Parties agree to work in concert to achieve the TACAC Task Force's objectives. 56. The Parties agree to attempt to resolve any disputes regarding jurisdiction, case assignments, workload, etc., at the field level first before referring the matter to supervisory personnel for resolution. MEDIA RELEASES 57. All media releases and statements will be mutually agreed upon and jointly handled according to FBI, CPD, HCSO, and TPD guidelines. 58. Press releases will conform to DOJ Guidelines regarding press releases. No release will be issued without FBI final approval. SECURITY CLEARANCES 59. Thirty days prior to being assigned to the TACAC Task Force, each candidate will be required to furnish to the FBI pages 1, 2, 3, 9 (certification only), and 10 of the Questionnaire for Sensitive Positions (SF-86). Sometime thereafter, a representative from the FBI will conduct an interview of each candidate. 60. If, for any reason, a candidate is not selected, the candidate's agency will be advised and a request will be made for another candidate. 61. Upon being selected, each candidate will receive a comprehensive briefing on FBI field office security policies and procedures. During the briefing, each candidate will execute non-disclosure agreements (SF-312 and FD-868), as may be necessary or required by the FBI. 8 For Official Use Only This document is the property of the FBI and is loaned to your agency. Neither it nor its contents may be released without authorization by FBI Headquarters. For Official Use Only 62. When FBI space becomes available, before receiving access, each TACAC Task Force candidate will be required to undergo a full background investigation and receive and maintain a "Top Secret" security clearance. In addition, each TACAC Task Force candidate will also be required to fully complete the SF-86 and the required fingerprint cards. In the interim, TACAC Task Force candidates will not be allowed unescorted access to FBI space. 63. Upon departure from the TACAC Task Force, each member will be given a security debriefing and reminded of the provisions contained in the non-disclosure agreement previously agreed to by the TACAC Task Force member. LIABILITY 64. Unless specifically addressed by the terms of this MOU, each Party agrees to be responsible for the negligent or wrongful acts or omissions of its respective employee who is a member of the TACAC Task Force. Legal representation by the United States is determined by DOJ on a case-by-case basis. The FBI cannot guarantee the United States will provide legal representation to any federal, state or local law enforcement officer. 65. Congress has provided that the exclusive remedy for the negligent or wrongful act or omission of an employee of the United States government, acting within the scope of his employment, shall be an action against the Untied States under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b), and §§ 2671-2680. 66. For the limited purpose of defending claims arising out of TACAC Task Force activity, state or local law enforcement officers who have been specially deputized and who are acting within the course and scope of their official duties and assignments pursuant to this MOU, may be considered an "employee" of the United States government as defined in 28 U.S.C. § 2671. See 5 U.S.C. § 3374(c)(2). 67. Under the Federal Employee Liability Reform and Tort Compensation Act of 1988 (commonly known as the Westfall Act), 28 U.S.C. § 2679(b)(1), the Attorney General or his designee may certify that an individual defendant acted within the scope of his employment at the time of the incident-giving rise to the suit. 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. 28 U.S.C. § 2679(d)(2). If the United States is substituted as defendant, the individual employee is thereby protected from suits in his official capacity. 68. 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 this office or employment." 28 U.S.C. § 2679(d)(3). 9 For Official Use Only This document is the property of the FBI and is loaned to your agency. Neither it nor its contents may be released without authorization by FBI Headquarters. For Official Use Only 69. Liability for negligent or willful acts of TACAC Task Force members undertaken outside the terms of this MOU will be the sole responsibility of the respective member and agency involved. 70. Liability for violations of federal constitutional law rests with the individual federal agent or officer pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) or pursuant to 42 U.S.C.. § 1983 for state and local officers or cross-deputized federal officers. 71. Both state and federal officers enjoy qualified immunity from suit for constitutional torts "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v_ Fitzgerald, 457 U.S. 800 (1982). 72. TACAC Task Force members may request representation by the U.S. DOJ for civil suits against them in their individual capacities for actions taken within the scope of employment. 28 C.F.R. §§ 50.15, 50.16. 73. An employee may be provided representation "when the actions for which representation is requested reasonably appear to have been performed within the scope of the employee's employment and the Attorney General or his designee determines that providing representation would otherwise be in the interest of the United States." 28 C.F.R. § 50.15(a). 74. A TACAC Task Force member's written request for representation should be directed to the Attorney General and provided to the Chief Division Counsel (CDC) for the FBI Tampa Division. The CDC will then forward the representation request to the FBI's Office of the General Counsel (OGC) together with a letterhead memorandum concerning the factual basis for the lawsuit. FBI/OGC will then forward the request to the Civil Division of DOJ together with an agency recommendation concerning scope of employment and Department representation. 28 C.F.R. § 50.15(a)(3). 75. If a TACAC Task Force member is found to be liable for a constitutional tort, he or she may request indemnification from DOJ to satisfy an adverse judgment rendered against him or her in an 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). DURATION 76. The term of this MOU is for the duration of the TACAC Task Force's operations, contingent upon approval of necessary funding. 77. A Party may withdraw from the TACAC Task Force at any time by written notification to the other Parties at least 30 days prior to withdrawal. 10 For Official Use Only This document is the property of the FBI and is loaned to your agency. Neither it nor its contents may be released without authorization by FBI Headquarters. For Official Use Only 78. Upon termination of this MOU, all equipment provided to the TACAC Task Force will be returned to the supplying Party. In addition, when a Party withdraws, that Party will return equipment to the supplying Parties. Similarly, other TACAC Task Force Parties will return to the withdrawing Party any unexpended equipment supplied by the withdrawing Party during any TACAC Task Force participation. MODIFICATIONS 79. This MOU may be modified at any time by written consent of all involved Parties. 80. Modifications to this MOU shall have no force and effect unless such modifications are reduced to writing and signed by an authorized representative of each Party. SIGNATORIES For Clearwater Police Department c - jQb, Sid Klein at Chief of Police Clearwater, Florida For the Federal Bureau of Investigation: (; ( g - (Vjj? r. Ste e . Ibison ate Special Agent in Charge Tampa, Florida For Hillsborough County Sheriffs Office: D vid A. ee Date Sh iff Tampa, Florida For Tampa Police Department: C??' 8ph? 176100' J e actor Date f of Police Tampa, Florida in V •? 0! Contr ting Offi er ate FBI a rte s WashingtquaDC Maury V. Taylor Contracting Officer Federal Bureau of Investigation HCSO STAFF !aPF?FtpvEpYpATE DISTIDIV 11 DLy -34,10a. _ N a.? p^ D i a3? OTC f? ! cY LEGAL w CHIEF DEPUTY For Official Use Only This document is the property of the FBI and is loaned to your agency. Neither it nor its contents may be released without authorization by FBI Headquarters.