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HomeMy WebLinkAboutPlum Island Law Enforcement Services Official Use Only MEMORANDUM OF AGREEMENT BETWEEN THE DEPARTMENT OF HOMELAND SECURITY SCIENCE AND TECHNOLOGY DIRECTORATE AND THE TOWN OF SOUTHOLD, SOUTHOLD, NEW YORK I. PURPOSE The purpose of this Memorandum of Agreement (MOA) is to establish an agreement for law enforcement support and response provided by the Town of Southold through the Town of Southold Police Department (SPD) located in Southold, New York to the Department of Homeland Security (DHS) Science and Technology Directorate (S&T) Plum Island Animal Disease Center (pIADC) in response to a security threat or event at PIADC. PIADC consists of facilities at Orient Point, New York, and is on an island located off of the coast of Long Island, New York, in close proximity to Southold, New York and SPD's law enforcement jurisdiction. II. PARTIES This MOA is hereby entered into by and between DHS S&T and the Town of Southold on behalf of SPD, hereinafter jointly referred to as the "Parties" and individually as a "Party." III. AUTHORITY This MOA is entered into by DHS S&T pursuant to Section 310 and Section 302(4) of the Homeland Security Act of2002 (P.L. 107-296). IV. DEPUTIZATION SPD and DHS S&T will coordinate to identify certain SPD employees ("SPD Deputy Candidates") who may be deputized as federal law enforcement officers to carry out SPD law enforcement activities at PIADC. As part of this process, DHS S&T and SPD will jointly authorize the conduct of a background or suitability check on SPD Deputy Candidates before they are referred to the U.S. Marshals Services as candidates for Federal deputization. Federal deputization of the SPD Deputy Candidates will ensure that they have the proper legal authority to enforce federal laws at a federal facility. DHS S&T will work with the DHS Office of Security to assist SPD in requesting the required authorization from the U.S. Marshals Service for the deputization of the SPD Deputy Candidates. SPD's responsibilities in Section V of this MOA are subject to SPD's ability to provide SPD employees who are federally deputized to enforce federal laws at a federal facility. -1- Official Use Only V. ROLES and RESPONSIBILITIES 1. SPD Responsibilities. a. SPD will respond to calls for law enforcement assistance from the PIADC Security Management Points of Contact. The Parties understand and agree that the PIADC Security Management Points of Contact (identified in Section VIII of this MOA) may request SPD immediate assistance to provide law enforcement support during security events. The term "security events" is written without limitation but will include, among other incidents, trespass or intrusion, civil disturbances, an act of violence, hostage takings, or bomb threats. b. SPD in conjunction with the PIADC Security Management Points of Contact will facilitate, as noted below, additional local, state and federal response to crimes, bomb threats, workplace violence, and any other incident on DHS controlled property requiring law enforcement support. The Parties understand and agree that SPD's initial and follow-up response to a request for assistance from PIADC will occur as follows: 1. Upon notification from the PIADC Security Management Points of Contact to SPD, SPD will discuss the nature of the threat or security event and make a determination as to the appropriate response. Depending upon SPD's and PIADC's Security Management evaluation, SPD will dispatch the appropriate initial response which may include duly deputized personnel from the Patrol Division, Special Patrol Division (K-9, Marine Units) and / or investigative resources from the Detective Division. SPD will make a good faith effort to meet the following estimated response times: · Patrol Division - 1-2 Officers within I hour from the request for assistance, with an additional 2 Officers within 2 hours from the request for assistance (this could include K-9 support). · Marine Division - I Bay Constable and Boat within 1 hour from the request for assistance (weather permitting). · Detective Division - I Detective within 2 Hours from the request for assistance. c. In coordination with the PIADC Security Management Points of Contact, SPD also maintains agreements with the Suffolk County Police Department to request additional resources, if necessary, which may include helicopters, explosives ordinance disposal (EOD), and other incident response assets. d. SPD's response to PIADC during a security event is limited to intervention and mitigation of threats to PIADC. SPD will, at all times, act as a supporting entity to other Federal law enforcement authorities (e.g., FBI, FPS, etc) if such other -2- Official Use Only Federal law enforcement authorities are present on Plum Island. PIADC will ensure proper processing of any criminal matter under the Government's federal authority, with the support of SPD. For example, as requested by PIADC Security Management Points of Contact, SPD may transport alleged offenders to SPD headquarters to await Federal law enforcement officials. e. SPD will participate, as requested by PIADC, in any security contingency drills and exercises to carry out its obligations under this MOA. SPD's participation will be coordinated with the PIADC Security Management Points of Contact. f. SPD employees who are deputized by the U.S. Marshals Service and who may be asked to respond to a security event at PIADC will participate in specialized training furnished by DHS. SPD employees who are deputized by the U.S. Marshals Services will train to and adhere to the Department of Justice Use of Force and Use of Deadly Force policies. 2. DHS S&T Responsibilities. a. DHS S&T will ensure deputized SPD officials responding to a request for law enforcement services are given the necessary access to areas on PIADC to perform law enforcement duties, and if needed, will provide PIADC contractor guard force(s) to accompany deputized SPD officials into certain areas ofPIADC. DHS S&T will provide transportation and radios to deputized SPD officials as necessary for such officials' law enforcement services on PIADC. b. DHS S&T will ensure that appropriate SPD representatives are familiar with PIADC facilities and ongoing activities and are immediately advised of any changes regarding the security protective strategy at PIADC that would affect SPD and its execution of activities under this MOA. At a minimum, DHS S&T will provide an annual site tour and briefing for SPD which will include an update ofPIADC security activities. c. DHS S&T will brief SPD representatives on PIADC's security plan and will provide SPD representatives a copy of such plan. The Parties may mutually agree to draft a concept of operations (CONOPS) security plan to provide further detail on SPD's engagement during a security event at PIADC. VI. REIMBURSEMENT FOR SERVICES Subject to the availability of appropriations, DHS S&T will reimburse SPD for the actual cost of law enforcement services which SPD provides to PIADC under the terms of this MOA. Subject to the availability of appropriations, DHS S&T will also reimburse SPD for the cost of mutually agreed specialized training for deputized SPD officials who may be called to respond to a security event at PIADC. Annex A to this MOA sets forth a list of allowable costs that will be reimbursed by DHS S&T subject to the availability of -3- Official Use Only appropnatlOns. The Parties may mutually agree to amend Annex A to list additional allowable costs that will be reimbursed by DHS S&T subject to the availability of appropriations. In accordance with Annex A, SPD will invoice DHS S&T for reimbursement for SPD's actual costs of providing law enforcement assistance services hereunder on a quarterly basis. If DHS S&T has not reimbursed SPD for at least two prior consecutive quarterly invoices, SPD shall not be obligated to provide the law enforcement assistance services set forth in Section V of this MOA until SPD is reimbursed by DHS S&T for such prior lllVOlces. VII. LIABILITY SPD acknowledges and agrees that financial and civil liability, if any and in accordance with applicable law, for the acts and omissions of each SPD employee detailed to respond to PIADC remains vested with SPD. However, DHS may, at its discretion, determine on a case-by-case basis that an individual should be afforded legal representation, legal defense, or indenmification of a civil judgment, pursuant to federal law and DHS policy and regulations. a. Common Law Tort Claims. 1. Congress has provided that the exclusive remedy for the negligent or wrongful act or omission of an employee of the U.S. Government, acting within the scope of his or her employment, shall be an action against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. 9 1346(b), and 992671-2680. 11. For the limited purpose of defending civil claims arising out of SPD activity with respect to PIADC, an SPD law enforcement officer who has been federally deputized, and who is acting within the course and scope of his or her official duties and assigrunents pursuant to this MOA, may be considered an "employee" of the U.S. government, as defined at 28 U.S.C. 9 2671. See 5 U.S.C. 9 3374(c)(2). 111. Under the Federal Employee Liability Reform and Tort Compensation Act of 1998 (commonly known as the Westfall Act), 28 U.S.C. 9 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. 9 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. 9 2679( d)(2). If the United States is substituted as defendant, the -4- Official Use Only individual employee is thereby protected from suit on any tort arising out of the incident. IV. 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). v. Liability for any negligent or willful acts of SPD employees undertaken outside the terms of this MOA will be the sole responsibility of the respective employee and SPD. b. Constitutional Claims I. 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 or cross-deputized federal officers. II. 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). III. If an SPD officer acting under this MOA is named as a defendant in his or her individual capacity in a civil action alleging constitutional damages as a result of his or her conduct, the officer may request representation by the Department of Justice (DOJ). 28 C.F.R. ~~ 50.15, 50.16. IV. An employee may be provided representation "when the actions for which representation is requested appears to have been performed within the scope of the employee's employment, and the Attorney General, or his or her desigoee, determines that providing representation would otherwise be in the interest of the United States." 28 C.F.R. ~ 50.15(a). v. An SPD officer's written request for representation should be directed to the Attorney General, with a written copy provided to the DHS Office of the General Counsel Attn: Associate General Counsel for DHS S&T. The DHS Office of the General Counsel will then forward the request to the Civil Division ofDOJ, together with a letterhead memorandum concerning the factual basis of the -5- Official Use Only lawsuit and an agency recommendation concerning scope of employment and department representation. 28 C.F.R. g 50.15(a)(3). VI. If an SPD officer is found to be liable for a constitutional tort, he or she may request indenmification from DOJ to satisfy an adverse judgment rendered against the employee in his or her individual capacity. 28 C.F.R. g 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. g 50.15(a). VI1. Determinations concerning legal representation and indemnification by the United States are discretionary and are made by DOJ on a case-by-case basis. DHS cannot guarantee that the United States will provide legal representation, legal defense, or indenmification to any SPD officer detailed to respond under the terms of this MOA, and nothing in this MOA shall be deemed to create any legal right on the part of any SPD personnel. c. Express Reservations I. Nothing in this MOA shall be deemed to create an employment relationship between DHS or the United States and any SPD member or employee other than for exclusive purposes of the FTCA, as outlined herein. 11. SPD does not waive any available defenses and/or limitations on liability. VIII. PIADC SECURITY MANAGEMENT POINTS OF CONTACT PIADC: Jim Palmieri Security Manager Plum Island Animal Disease Center PO Box 848 Greenport, NY 11944 0: 631-323-3259 SPD: Chief Carlisle E. Cochran,Jr. Town of Southold Police Department 53095 Route 25 P.O. Box 1179 Southold, New York 11971 0: (631) 765-2671 F: 631-323-3089 Jim.Palmieri@dhs.gov F: 631-734-2315 PIADC Alternate: -6- Official Use Only IX. MOA ADMINISTRATION 1. Term. This MOA shall become effective upon the last signature to this MOA (the "Effective Date") and shall remain in full force and effect for 5 years from the Effective Date unless canceled in writing by either Party with a minimum of30 days' prior notice to the other Party. 2. Modification. Any modification to this MOA must be made in writing and upon the written consent of both Parties. 3. Severabilitv. Nothing in this MOA is intended to supersede current law or regulation. If a term of this MOA is inconsistent with such authority, then that term shall be invalid, but the remaining terms and conditions of this MOA shall remain in full force and effect. This MOA is Accepted and Agreed By: The Department of Homeland Security Science and Technology Directorate Date Town of South old, New York 5e-o+t-,A. f<u.sse.((, Sf"0rVC50r Date -7- Official Use Only Annex A Reimbursable Costs to SPD 1. Actual Cost Reimbursement and Invoicing. Subject to the availability of appropriations, DHS S&T will reimburse SPD for the actual costs of law enforcement services which SPD provided to PIADC under the terms of this MOA. SPD will invoice DHS S&T reimbursements for actual costs on a quarterly basis. For budgeting and obligation purposes, DHS S&T and SPD will establish, in writing, an annual ceiling on DHS S&T's financial obligations. · Salaries. DHS S&T will reimburse SPD for the direct salary costs (including benefits) for the time spent by a SPD member in providing direct assistance to DHS S&T in maintaining security at the PIADC. Overtime will be assessed at a rate of 1.5 times the basic hourly rate for any responses which exceed 8 hours. DHS S&T will not reimburse SPD for salary costs not directly related to a SPD officer providing direct assistance to DHS S&T. For example, SPD will not be reimbursed for administrative, headquarters/supervisory costs, or similar assessments. DHS S&T and SPD will mutually agree upon a schedule of reimbursable salary costs for various types of personnel support to PIADC within 60 days after the Effective Date of this MOA. DHS S&T and SPD will review such reimbursable payment schedule, and update such schedule as appropriate, on an annual basis. 3. Travel and Per Diem. DHS S&T will reimburse SPD officers for any travel and per diem costs incurred by such SPD officers who travel to PIADC at PIADC Security Management Points of Contact request to assist in providing security for PIADC. All such reimbursable costs will be paid in accordance with the Federal Travel Regulation. SPD officers will be responsible for preparing and submitting their own travel expense vouchers to DHS S&T for payment. 4. Vehicle Usage. DHS S&T will reimburse SPD for the use of its vehicles or watercraft involved in any type of a PIADC security response. For passenger vehicles, DHS S&T will reimburse SPD the standard mileage rate set forth in the Federal Travel Regulation. For other than passenger vehicles, DHS S&T will reimburse SPD for the actual cost of fuel and any other consumables. -8-