Berkeley City Council
May 23, 2023

Berkeley Police Department
Law Enforcement Services Manual
Surveillance Use Policy-Unmanned Aerial System (UAS)
Copyright Lexipol, LLC 2022/11/07, All Rights Reserved.

Published with permission by Berkeley Police Department ***DRAFT*** Surveillance Use Policy-Unmanned Aerial System (UAS) - 2

1303.4 DATA ACCESS
Access to UAS data shall be limited to Berkeley Police Department (BPD) personnel and the mutual assistance agency, in connection with an active investigation. Information may be shared in accordance with 1303.9 below. It shall be at the discretion of the Commander or senior supervisor to discern which members have a need to know, and limit access to those members. BPD is prohibited from selling any data obtained from the UAS.

1303.5 DATA PROTECTION
Whenever feasible, the data from the UAS should be encrypted by the vendor or operator. The data should only be accessible to BPD personnel who have been granted security access.

1303.6 CIVIL LIBERTIES AND RIGHTS PROTECTION
The Berkeley Police Department is dedicated to the most efficient utilization of its resources and services in its public safety endeavors. The Berkeley Police Department recognizes the need to protect its ownership an d control over shared information and to protect the privacy and civil liberties of the public, in accordance with federal and state law. The procedures described within this policy (Data Access, Data Protection, Data Retention, Public Access and Third-Party Data Sharing) protect against the unauthorized use of Unmanned Aerial Systems (UAS). These procedures ensure the data is not used in a way that would violate or infringe upon anyone's civil rights and/or liberties, including but not limited to potentially disparate or adverse impacts on any communities or groups.

1303.7 DATA RETENTION
If available, any data collected by the use of a UAS should be purged by BPD within 60 days if it doesn't contain any data of evidentiary value. If the data has evidentiary value, it should be uploaded into BPD's evidence database and kept pursuant to the established retention guidelines set forth in policy 804-Records Maintenance and Release.

1303.8 PUBLIC ACCESS
UAS data which is collected and retained under t his policy is considered a "law enforcement investigatory file" pursuant to Government Code § 6254, and shall be exempt from public disclosure. UAS data which is retained pursuant to this policy shall be available via public records request pursuant to applicable law regarding Public Records Requests as soon as the criminal or administrative investigations has concluded and/or adjudicated.

All requests and deployments shall be reported annually in the Surveillance Technology Report as outlined in BMC 2.9 9.070. Additionally, the Department shall publish data regarding the specific requests and deployments on the Department’s transparency portal within 14 days of use.

1303.9 THIRD-PARTY DATA-SHARING
Data collected from the UAS may be shared with the following:

Berkeley Police Department
Law Enforcement Services Manual
Surveillance Use Policy-Unmanned Aerial System (UAS)
Copyright Lexipol, LLC 2022/11/07, All Rights Reserved.

Published with permission by Berkeley Police Department ***DRAFT*** Surveillance Use Policy-Unmanned Aerial System (UAS) - 3

(a) The District Attorney's Office for use as evidence to aid in prosecution, in accordance with laws governing evidence;
(b) Other law enforcement personnel as part of an active criminal investigation; (c) Other third parties, pursuant to a Court Order or Search Warrant.

Copyright Lexipol, LLC 2022/11/07, All Rights Reserved.

Published with permission by Berkeley Police Department ***DRAFT*** Surveillance Use Policy-Unmanned Aerial System (UAS) - 4
Berkeley Police Department
Law Enforcement Services Manual
Surveillance Use Policy-Unmanned Aerial System (UAS)

1303.10 TRAINING
The use of a UAS shall only occur as the result of a mutual assistance request, and no BPD personnel will be allowed to operate a UAS. All BPD personnel shall be provided with this Surveillance Use Policy. BPD recognizes that the assisting agency will need to satisfy their respective training requirements to operate the UAS, however B PD personnel shall follow this policy and all relevant policies, including Records Management, Policy 804 while access or retaining any of the captured data from the UAS.

1303.11 AUDITING AND OVERSIGHT
Division Captains or their designee shall ensure compliance with this Surveillance Use Policy.

The security and integrity of the Surveillance Technology and collected information will be completed in the form of a random biennial audit of the uses from the Audit and Inspection's Sergeant. This audit will be routed to the Captain of Professional Standards Bureau and the Chief of Police for review.

Intentional violation of this policy may serve as grounds for disciplinary action pursuant to Policy 1010, Personnel Complaints.

1303.12 MAINTENANCE
UAS's will only be used in a mutual assistance request, and thereby must be obtained from the City Manager via the Chain of Command. All UAS maintenance shall be conducted by the owner/ operator of the device consistent with all other mutual assistance response agreements.

1303 APPENDIX A
BERKELEY POLICE DEPARTMENT SURVEILLANCE ACQUISITION REPORT – UNMANNED AERIAL SYSTEM (UAS)

1 UNMANNED AERIAL SYSTEM (UAS)
A. DESCRIPTION

An Unmanned Aerial System (UAS) is an unmanned aircraft of any type that is capable of sustaining directed flight, whether pre-programmed or remotely controlled and all of the supporting or attached components designed for gathering information through imaging, recording, or any other means. Generally, a UAS consists of:
● An unmanned aircraft which consists of the chassis with several propellers for flight, radio frequency and antenna equipment to communicate with a remote- control unit, control propellers and other flight stabilization technology (e.g. accelerometer, a gyroscope), a computer chip for technology control, a camera for recording, and a digital image/video storage system for recording onto a secure digital card (SD card);

● A remote-control unit that communicates with the unmanned aircraft via radio frequency; and

● A battery charging equipment for the aircraft and remote control.

UAS are controlled from a remote-control unit (similar to a tablet computer). Wireless connectivity lets pilots view the UAS and its surroundings from a bird's-eye perspective.

UAS have cameras so the UAS pilot can view the aerial perspective. UAS record image and video data onto a secure digital (SD) memory cards. SD cards can be removed from UAS after flights to input into a computer for evidence.

B. PURPOSE
UAS offer to significantly improve the capacity of law enforcement (LE) to provide a variety of foundational police services. This technology has already been used with many law enforcement agencies to save lives and help capture dangerous criminal suspects.

UAS can support first responders in hazardous incidents that would benefit from an aerial perspective.

Responding to violent crime in Berkeley often requires officers to face risks to their safety – in addition to the clear risks faced by members of the public when violent crime is present. From 2018 to 2022, the yearly average number of shootings has doubled. In 2021 Berkeley had 265 robberies, 210 aggravated assaults, 57 sexual assaults, and 118 firearms recovered.

Technology such as UAS can play a vital role in mitigating these omnipresent dangers, by providing a greater view into the immediate surroundings of crime scenes and active pursuits. The use of a UAS is also in line with the Department’s philosophy around de- escalation, as this tool can provide greater time and distance, which are the critical components in offering officers the greatest likelihood of a peaceful, or less violent resolution.

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BERKELEY POLICE DEPARTMENT SURVEILLANCE ACQUISITION REPORT – UNMANNED AERIAL SYSTEM (UAS)

2 Searches for armed and dangerous suspects are more effective and controlled with UAS support; an armed suspect can be hiding in a tree or on a roof. LE can respond accordingly and more safely when provided with this critical information (see Section #10 below “Alternatives Considered” for more information on how UAS compares to alternatives for situational awareness). More informed responses also lead to less injury and less uses of force.

LE agencies have successfully used UAS to locate missing persons, especially in more remote areas – as well as for rescue missions. UAS is also being used during disasters and during any hazardous material releases. The situational awareness UAS provides has also become an important tool for large events (e.g. sport events, parades, and festivals); the aerial view provides information that would otherwise require a much larger deployment of LE personnel to maintain the same level of public safety support.

Furthermore, smaller UAS can be equipped with a loud speaker to communicate (e.g. hostage situations/providing verbal commands and directions to the subject).

BPD must seek approval from the City Manager prior to any use. BPD may then make a mutual assistance request to ACSO for their UAS. This approval process could be rapid or take several hours depending if their resources are deployed elsewhere, and there is no guarantee that the equipment will be available.

C. LOCATION
BPD proposes to use UAS as outlined in policy 611- Unmanned Aerial System (UAS), and further guided by policy 1303-Surveillance Use Policy Unmanned Aerial System (UAS). Department Personnel shall adhere to requirements for Unmanned Aerial Systems covered in this policy as well as the corresponding Surveillance Use Policy – 1303. BPD proposes to only use UAS as the result of a mutual assistance request, and no BPD personnel will be allowed to operate a UAS.

UAS may only be requested for the following specified situations:
a. Mass casualty incidents (e.g. large structure fires with numerous casualties, mass shootings involving multiple deaths or injuries);
b. Disaster management;
c. Missing or lost persons;
d. Hazardous material releases;
e. Sideshow events where many vehicles and reckless driving is present; f. Rescue operations;
g. Training;
h. Hazardous situations which present a high risk to officer and/or public safety, to include:

1303 APPENDIX A
BERKELEY POLICE DEPARTMENT SURVEILLANCE ACQUISITION REPORT – UNMANNED AERIAL SYSTEM (UAS)

3 i. Barricaded suspects;
ii. Hostage situations;
iii. Armed suicidal persons;
i. Arrest of armed and/or dangerous persons
j. Service of high-risk search and arrest warrants involving armed and/or dangerous persons
k. Other unforeseen exigent circumstances
Unmanned Aerial Systems shall only be used for law enforcement purposes.

Potentially, UAS could be deployed in any location in the City of Berkeley where one or more of the above situations occur and where the proper authorizations are provided.

Fortunately, several of these situations rarely occur – but some do occur regularly, such as arresting armed/dangerous person. BPD occasionally arrests individuals for violent homicides, shootings, robberies, violent sexual assaults, and other crimes– UAS can provide situational awareness in all of these critical incidents to provide a greater level of safety for officers, as well as for nearby civilians
D. IMPACT
BPD recognizes that the use of UAS raises privacy concerns. UAS are becoming ubiquitous in the United States, and there is a growing concern that people can be surveilled without notice or reason. There is concern that UAS can be utilized to observe people in places, public or private, where there is an expectation of privacy.

The level of potential privacy impact depends upon factors such as flight elevation and camera zoom magnitude, as well as where the UAS is flown.

The results of the research study titled, “Mission-based citizen views on UAV usage and privacy: an affective perspective1,” published in February 2016 found that people’s perceptions of how UAS impacts privacy relate to use type. The researchers from College of Aeronautics, Florida Institute of Technology, and the Aeronautical Science at Embry-Riddle Aeronautical University (ERAU), College of Aviation UAS Lab found that people tend to be less concerned about police UAS use when the technology is only used for specific uses - “concerns for privacy were less in the condition where the UAV was only used for a specific mission than when it was operated continuously.” Policy 611 and 1303 provide strict acceptable guidelines, and Authorized Uses which explains when BPD personnel can request the use of a UAS for specific missions.

E. MITIGATION

1 https://www.nrcresearchpress.com/doi/abs/10.1139/juvs-2015-0031#.XkHEAWhKiUl

1303 APPENDIX A
BERKELEY POLICE DEPARTMENT SURVEILLANCE ACQUISITION REPORT – UNMANNED AERIAL SYSTEM (UAS)

4 BPD’s policy 611 restricts BPD’s use of UAS in several ways to promote greater privacy protections.

BPD will only request use UAS for specific missions rather than operating continuously, mitigating concerns raised in the February 2016 study cited above.

Policy 611 and 1303. Authorized Use lists the only allowable uses of UAS (e.g. mass casualty incidents, disaster management, missing or lost persons, hazardous material releases, sideshow events where many vehicles and reckless driving is present, rescue operations, training, hazardous situations which present a high risk to officer and/or public safety to armed suicidal persons, hostage situations, barricaded suspects, arrest of armed and/or dangerous persons, service of high risk search and arrest warrants involving armed and/or dangerous persons, and other unforeseen exigent circumstances). Policy 611 also articulates the Request Process which indicates the approval must come from the City Manager via the Chain of Command for all use approvals.

All requests and deployments shall be reported annually in the Surveillance Technology Report as outlined in BMC 2 .99.070. Additionally, the Department shall publish data regarding the specific requests and deployments on the Department’s transparency portal within 14 days of use.

The Federal Aviation Administration (FAA) sets strict flight regulations for all UAS users, including for law enforcement. The FAA provides two law enforcement options for creating acceptable UAS under 14 Code of Federal Regulation (CFR) part 107, subpart E, Special Rule for Model Aircraft; the agency can designate individual members to earn FAA drone pilot certificates and fly under the rules for small UAS, or receive a FAA certificate to function as a “public aircraft operator” to self-certify agency drone pilots and drones. Either way, these options allow for BPD to use systems under 55 pounds, for flying at or below 400 feet above ground level. Absent an emergency situation warranting a FAA COA/Part 107 waiver- permitted law enforcement response, law enforcement is also restricted from using UAS to fly over or near the following locations:
• Stadiums and Sporting Events;
• Near Airports; and
• Emergency and Rescue Operations (wildfires and hurricanes).

Policy 611 “Privacy Considerations,” outlines several other protocols for mitigating against privacy abuse:

BPD UAS mutual assistance personnel must adhere to FAA altitude guidelines – flying below 400 feet helps to ensure that UAS is not used for surveilling overly large geographic areas; BPD will use UAS to focus on specific areas.

1303 APPENDIX A
BERKELEY POLICE DEPARTMENT SURVEILLANCE ACQUISITION REPORT – UNMANNED AERIAL SYSTEM (UAS)

5 BPD UAS operators shall not intentionally record or transmit images of any location where a person would have a reasonable expectation of privacy (e.g. residence, yard, enclosure, place of worship, medical provider’s office).

Mutual assistance operators and observers shall take reasonable precautions, such as turning imaging devices away, to avoid inadvertently recording or transmitting images of areas where there is a reasonable expectation of privacy.

Policy 611 “Prohibited Use” explains that:

UAS shall not be used for the following activities:
• To conduct random surveillance activities.
• To target a person based solely on individual characteristics, such as, but not limited to race, ethnicity, national origin, religion, disability, gender or sexual orientation when not connected to actual information about specific individuals related to criminal investigations;
• For the purpose of harassing, intimidating, or discriminating against any individual or group; or
• To conduct personal business of any type.

BPD is prohibited from weaponizing any UAS.

F. DATA TYPES AND SOURCES
UAS will record using industry standard file types such as (e.g. jpeg, mov, mp4, wav or RAW). Such files may contain standard color photograph, standard color video, or other imaging technology such as thermal. Although UAS can transmit one-way audio from the operator, the UAS technology available today does not currently record sound.

G. DATA SECURITY
BPD takes data security seriously and safeguards UAS data by both procedural and technological means. The video recording function of the UAS shall be activated whenever the UAS is deployed. Video data will be recorded onto Secure Digital (SD) Cards. Any data collected by the use of a UAS should be kept by BPD minimally for 60 days. The data should be uploaded into BPD’s evidence database and kept pursuant to the established retention guidelines set forth in policy 804-Records Maintenance and Release.

H. FISCAL COST
The only costs will be staff time, since at this time BPD is only proposing this acquisition for the purposes of leveraging our neighboring agencies UAS during the proposed policy

1303 APPENDIX A
BERKELEY POLICE DEPARTMENT SURVEILLANCE ACQUISITION REPORT – UNMANNED AERIAL SYSTEM (UAS)

6 guidelines. Use of UAS by neighboring agencies in a mutual assistance scenario will not result in additional costs to the City.

I. THIRD-PARTY DEPENDENCE AND ACCESS
BPD is primarily reliant upon the Alameda County Sheriff’s Office (ACSO) and Oakland Police Department when exigent circumstances occur that warrant UAS requests. BPD requested and received UAS support from ACSO two times in 2021/2022.

BPD proposes that any data collected from the UAS may be shared with the following:

The District Attorney's Office for use as evidence to aid in prosecution, in accordance with laws governing evidence;
Other law enforcement personnel as part of an active criminal investigation; Other third parties, pursuant to a Court Order or Search Warrant.

J. ALTERNATIVES
In some instances, BPD could rely on requesting the assistance of an outside agency’s helicopter, which cause significant carbon emissions, especially when considering the footprint of a UAS.

Another alternative is the deployment of additional police resources. The inherent problem with this alternative is that this may be counterproductive to the Department’s philosophy on de-escalation as it reduces the Department’s ability to leverage time and distance to reduce the likeliness of a physical or violent confrontation.

K. EXPERIENCE OF OTHER ENTITIES
Currently, in Alameda County, the following cities have UAS programs, The Alameda County Sheriff’s Office, the Oakland Police Department, Fremont Police Department, Hayward Police Department, and Newark Police Department. At the time of publication, the author had not received a response from Oakland and Fremont Police Departments.

Alameda County Sheriff’s Office
An Alameda County Sheriff’s Office representative indicated the only financial burden is the changing technology every 12-18 months, including improved batteries and cameras that require possible updates.

In 2015 when the Sheriff’s Office proposed the use of UAS’ to the Board of Supervisors, several community groups expressed opposition due to the fear of an invasion of privacy and spying on the public. Since the approval by the Board of Supervisors, ACSO created a website for the public to voice their complaints. As of January 2023, they have received one complaint from a community member in Alameda County. That specific complaint was deemed not relate to ACSO UAS.

1303 APPENDIX A
BERKELEY POLICE DEPARTMENT SURVEILLANCE ACQUISITION REPORT – UNMANNED AERIAL SYSTEM (UAS)

7 No community costs. No unintended video was captured, and if it was, it would be deleted per their policy.

Successes in their program were described as follows:
1) Community and Officers are Safer
2) UAVs contributed to the arrest of fleeing suspects
3) Reported Missing Person suffering from a Health Condition (Alzheimer’s) have been located
4) Documenting crime scenes are conducted more efficiently and conducted in a shorter time

No noted failures to date from the program that were reported to Berkeley Police Department.

Hayward Police Department
Hayward Police Department did not have any unintended financial burdens. Their initial drone purchase (4 drones) was budgeted, and they also have a CIP (Capitol Improvement Budget) item where every three years they get $50,000 to purchase new drones as new equipment becomes available or just as a replacement plan.

Hayward Police Department did not report any unintended community costs or backlash.

Hayward Police Department reported that since the program began, it’s paid dividends past what they thought it would. For instance, a lieutenant with Hayward Police Department stated that several drone deployments have resulted in a significant risk reduction when trying to stabilize potentially critical incidents.

Hayward Police Department held two community meetings (separate from the council sessions) and had an outside agency bring a done, and they included an educational training for all persons who attended. This is believed to have mitigated many issues (and educated the city council members as well), which addressed many of the initial concerns. Hayward Police Department also worked closely with ACSO to craft their policy and create their program. Hayward Police Department has deployed their UAS approximately 75 times since March of 2022 with 0 citizen complaints.

Newark Police Department
Newark Police Department reported no unintended financial burdens associated with the UAS. Newark Police Department spent $1,200 to purchase a drone from BestBuy, which

1303 APPENDIX A
BERKELEY POLICE DEPARTMENT SURVEILLANCE ACQUISITION REPORT – UNMANNED AERIAL SYSTEM (UAS)

8 came from their organization’s operating funds. Newark Police Department obtained a grant which funded the purchase of three additional drones at a cost of $30,000.

Newark Police Department has not had any unintended community costs or backlash.

Newark Police Department has a community academy in which the Department provides training on the program and the uses associated with the UAS.

Newark Police Department reported that the program had the unintended benefit of working more closely with ACSO and Fremont, garnering a better working relationship which was unanticipated.

Newark Police Department used many of the processes that ACSO used in creating their UAS program. Newark Police Department relied heavily on the policies and practices developed by Alameda County Sheriff’s Office due to their very robust input from various stakeholders. This helped create a solid foundation they could build upon.

From this, they have succeeded in the creation and implementation of their UAS program.

RESOLUTION NO. ##,###-N.S.

SURVEILLANCE ORDINANCE ITEMS: FIXED SURVEILLANCE CAMERAS

AND UNMANNED AERIAL SYSTEMS
WHEREAS, the Berkeley City Council adopted Ordinance NO. 7,592-N.S., the Surveillance Technology Use and Community Safety Ordinance on March 13, 2018; and WHEREAS, BMC section 2.99.020 (4) mandates a Surveillance Use Policy for use of Surveillance Technology; and
WHEREAS, External Fixed Video Surveillance Cameras and Unmanned Aerial System are considered Surveillance Technology per BMC section 2.99.020 (1); and WHEREAS, per BMC section 2.99.030 (1)(b), requires the City Manager to obtain City Council approval for the acquisition of new Surveillance Technology, Fixed Video Surveillance Cameras, by placing an item on the Action Calendar; and WHEREAS, per BMC section 2.99.030 (1)(c), requires the City Manager to obtain City Council approval for the use of new Surveillance Technology, Unmanned Aerial System by placing an item on the Action Calendar.

NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that it approves the acquisition and Use Policies for the External Fixed Video Surveillance Cameras and for the Unmanned Aerial System.

2180 Milvia Street, Berkeley, Floor 5, CA 94704 ● Tel: (510) 981-7130 ● E-Mail: [email protected]

ACTION CALENDAR
May 23, 2023
TO: Honorable Members of the City Council
FROM: Vice Mayor Ben Bartlett (Author) & Mayor Jesse Arreguin (Co-Sponsor) SUBJECT: Adopting a temporary exemption from the collection of taxes under BMC Chapter 9.04.136(D): Tax Rate for Non-Medical and Medical Cannabis Businesses

RECOMMENDATION
1) Adopt a temporary exemption (per 9.04.136(D)) on the collection of the taxes for all non-medical and medical cannabis businesses, retroactive to January 2023 and ending July 2025; Waive any late penalties that may have accrued since January 2023; any and all tax payments already made to the City for Q1 2023 will apply as a credit against a future tax or fee payment to the City; and
2) Refer to the City Manager and Cannabis Commission and/or its successor, the Planning Commission, to analyze and develop an ordinance adjusting local cannabis business tax rates by February 2025 that are in balance with the state cannabis tax rates, with an eye to the ability for the cannabis industry to become a sustainable economic driver for the City of Berkeley.
3) Licensed cannabis businesses in Berkeley will pay the business license tax that applies to their respective area of the market during the moratorium, like retail, manufacturing, etc.

BACKGROUND
On November 8, 2016, California voters passed Proposition 64, the Adult Use of Marijuana Act (AUMA). This proposition legalized the use of cannabis for adults over 21 years old. Berkeley voted overwhelmingly for Proposition 64, with 85% approving the measure. The State of California developed state-wide regulations for recreational cannabis, allowing temporary licenses for adult-use businesses effective January 1, 2018.

In September 2017, the Berkeley City Council adopted amendments to B.M.C. Chapter

12.26 to permit temporary licenses for existing medical cannabis dispensaries, allowing them to sell adult-use cannabis in the City effective January 1, 2018. To date, five of the

2180 Milvia Street, Berkeley, Floor 5, CA 94704 ● Tel: (510) 981-7130 ● E-Mail: [email protected] 2 six existing permitted dispensaries have received city and state licenses and are selling adult-use cannabis.

Since long-standing dispensaries began selling adult-use cannabis on January 1, 2018, there have been many questions regarding the local cannabis tax rate. In addition to State and sales taxes, local taxes have added significant costs to cannabis products and may discourage business, especially as other nearby cities adopt lower tax rates.

In 2018, the City set tax rates at 5% based on the best information possible at the time.

Since then, the cannabis industry in California has seen its growth stall, and in the last year, the bottom has fallen out, leading to an industry-wide collapse. ● During the COVID pandemic, cannabis was deemed essential, yet was left out of the state and federal relief provided to other business owners, including but not limited to relief for wages paid to employees on leave for COVID-related workplace exclusions, the Paycheck Protection Program (PPP) loans, and Small Business Administration loans.
● The costs of compliance with state and local regulations for the cannabis business are extremely high.
● Nearly all of what would otherwise be considered a standard business tax deduction are not applicable because of Internal Revenue Code Section 280E, which disallows all ordinary business expenses and still unjustly applies to state legal tax businesses.
● The unlicensed market and organized cartels continue to thrive under this system, undercutting the legal market. Berkeley is not immune to this. In the first months of 2023, two unlicensed operations within the City were shut down. One facility had 14,000 plants and hundreds of pounds of cannabis concentrate on site.
● Licensed cannabis cannot compete.

The compounding effect of these added costs of doing business with the state and local taxes and fees and lack of access in much of the state drives the cannabis consumer to the unlicensed market, which is currently more than twice the size of the regulated one– and half the price.

Last year, the State had an opportunity to adjust the tax rates for cannabis businesses and provide relief for those struggling to make it into the legal market. Instead of providing that relief, the state shifted the tax burden to retailers and cannabis consumers and will likely increase those excise taxes in the future. This change in state tax collection had a

2180 Milvia Street, Berkeley, Floor 5, CA 94704 ● Tel: (510) 981-7130 ● E-Mail: [email protected] 3 chilling effect on an already struggling industry, and the shift negatively impacted urban regions of the state that predominantly have retail cannabis as the main license type.

Berkeley wants to see its legal cannabis businesses thrive so they can continue providing high-wage jobs and access to safe, tested cannabis to the people of Berkeley and those who come to Berkeley.

Taxes Applicable to Non-Medical Cannabis Businesses
There are a number of taxes applicable to adult-use cannabis businesses, including:
● State Cannabis Excise Tax
○ Effective January 1, 2018, a 15% excise tax is imposed upon retail purchasers of all cannabis and cannabis products, except for those possessing a state cannabis medical card. The 15% excise tax is calculated based on the average market price from the retail sale, which leads to an actual current effective tax rate of around 27%. ○ Beginning this year, that excise tax was shifted to retail. Because of the way the tax is calculated, this amounted to a tax increase. ● Local Sales Taxes
○ The City of Berkeley and Alameda County's combined sales tax is 10.25% ● City of Berkeley Business License Tax
○ Measure S, adopted by Berkeley voters in 2010, set the business license tax rate for Non-Medical Cannabis Businesses authorized pursuant to Proposition 19 at 10% or $100.00 for every $1,000 of gross receipts. The measure included language allowing the City Council to lower the tax rate by ordinance, which the Council did in 2018 to 5% or $50 for every $1000. ■ A note about Measure S - This ballot measure was expressly written to accompany Proposition 19 from 2010, which would have legalized cannabis and did not set a state tax rate. That ballot initiative did not pass.
■ Cities like Berkeley and Oakland, which set high local tax rates in anticipation of Proposition 19 passing, have seen an exodus of the supply chain businesses that can leave and a loss of customers to its brick-and-mortar dispensaries as other jurisdictions have come online with much lower taxes. This also leads the more price-driven customers to jurisdiction shop when choosing where to buy their cannabis, particularly where delivery from neighboring regions is widely available.

2180 Milvia Street, Berkeley, Floor 5, CA 94704 ● Tel: (510) 981-7130 ● E-Mail: [email protected] 4 ○ The business license tax rate for Medical Cannabis Businesses is currently 2.5% of gross receipts.

Other Cannabis Tax Rates in the region
Different jurisdictions in Alameda County have set their cannabis tax rates at a range of levels. Over the next year, there will be efforts to lower the local rates in most of these jurisdictions.

Oakland: has seen an exodus of supply chain businesses to lower tax rate jurisdictions.

Hayward: voters approved up to 15% but have set the effective rate at 6% and is having trouble attracting cannabis businesses.

San Leandro: Measure NN approved in November 2016, was a voter-approved gross receipts tax on cannabis businesses of up to 10%. It is currently 6% and will increase over time. All cannabis businesses must have annual audits.

Emeryville: Has set tax rates at 3% for retail, 2% for manufacturing, and 1% for distribution.

City of Alameda: Currently has no cannabis tax for its cannabis businesses. The City Council chose not to pursue any additional cannabis taxes for the foreseeable future to allow licensed businesses to get on their feet. Cannabis businesses pay regular business license taxes.

City and County of San Francisco: Have continually delayed the implementation of a cannabis-specific tax to help the flailing industry. Cannabis businesses pay regular business taxes.

In order for Berkeley to remain competitive and attract new cannabis businesses, it should consider lowering its business license tax on Non-Medical Cannabis businesses.

FISCAL IMPACTS OF RECOMMENDATION
Reducing the business license tax rate for Non-Medical Cannabis Businesses may reduce tax receipts to the General Fund. However, a lower tax rate will make Berkeley cannabis businesses more competitive in the regional market and may result in greater business activity and tax revenues to the City. According to the FY 2023 Mid-Year Budget Update, Recreational Cannabis Taxes have produced $1,643,749 in receipts as of February 2023.

2180 Milvia Street, Berkeley, Floor 5, CA 94704 ● Tel: (510) 981-7130 ● E-Mail: [email protected] 5 ENVIRONMENTAL SUSTAINABILITY
No identifiable environmental effects or opportunities are associated with this report's subject.

CONTACT
Ben Bartlett, Councilmember/Vice-Mayor, District 3 510-981-7130 Attachments:

1. Ordinance: BMC Chapter 9.04.136

2. CDTFA total cannabis sales data from 2021 through Q4 2022 show unexpected and continual losses.

3. MJ Biz article: “California localities extend tax relief to marijuana companies in the absence of state action,” February 28, 2022

4. Letter from hi fidelity

2180 Milvia Street, Berkeley, Floor 5, CA 94704 ● Tel: (510) 981-7130 ● E-Mail: [email protected] 6 Attachment 1
https://berkeley.municipal.codes/BMC/9.04.136

2180 Milvia Street, Berkeley, Floor 5, CA 94704 ● Tel: (510) 981-7130 ● E-Mail: [email protected] 7

2180 Milvia Street, Berkeley, Floor 5, CA 94704 ● Tel: (510) 981-7130 ● E-Mail: [email protected] 8 Attachment 2
https://www.cdtfa.ca.gov/dataportal/charts.htm?url=CannabisTaxRevenues

2180 Milvia Street, Berkeley, Floor 5, CA 94704 ● Tel: (510) 981-7130 ● E-Mail: [email protected] 9 Attachment 3
https://mjbizdaily.com/california-localities-extend-tax-relief-to-marijuana-companies/

2180 Milvia Street, Berkeley, Floor 5, CA 94704 ● Tel: (510) 981-7130 ● E-Mail: [email protected] 10

2180 Milvia Street, Berkeley, Floor 5, CA 94704 ● Tel: (510) 981-7130 ● E-Mail: [email protected] 11

2180 Milvia Street, Berkeley, Floor 5, CA 94704 ● Tel: (510) 981-7130 ● E-Mail: [email protected] 12

2180 Milvia Street, Berkeley, Floor 5, CA 94704 ● Tel: (510) 981-7130 ● E-Mail: [email protected] 13

2180 Milvia Street, Berkeley, Floor 5, CA 94704 ● Tel: (510) 981-7130 ● E-Mail: [email protected] 14 Attachment 4

Police Department

INFORMATION CALENDAR
May 23, 2023
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Jennifer Louis, Interim Chief of Police
Subject: Audit Recommendation Status – 911 Dispatchers: Understaffing Leads to Excessive Overtime and Low Morale

CURRENT SITUATION AND ITS EFFECTS
The City Auditor’s report included 14 recommendations. With this report, 13 recommendations have been implemented and 1 was dropped (in consultation with the Auditors Office). Please see attachment for further details regarding individual recommendations.

BACKGROUND
On April 25, 2019, the City Auditor’s Office issued its audit, 911 Dispatchers: Understaffing Leads to Excessive Overtime and Low Morale1. This audit report included 14 recommendations. The purpose of this report is to update City Council on the Berkeley Police Department’s (BPD) progress on implementing the City Auditor’s recommendations. This is the second and final status report regarding this audit as all recommendations have been addressed.

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
There are no identifiable environmental effects or opportunities associated with the subject of this report.

FINANCIAL IMPLICATIONS
Staff time in addition to the contract costs. The contract for CareWare, approved in 2022 is $191,740 (5-year contract). That work is in progress and implementation is nearing completion.

This staffing solution contract is for the whole Police Department, not just the Communications Center.

CONTACT PERSON
Captain Kevin Schofield, 510-981-5815.

Attachments:

1. Recommendation Table
1 City Auditor’s Office Dispatcher Audit (04/25/19) https://berkeleyca.gov/sites/default/files/2022- 01/Dispatch-%20Workload-Fiscal-%20Year-2018.pdf

Finding Department Expected or
Actual
Implementati
on Date
Status of Audit Recommendations, Corrective Plan,
and Progress Summary
Last Period:

Status
It is taking longer
to answer 911
calls and there
are not enough
call takers.

1.1 Conduct an annual staffing
analysis of required minimum
staffing levels and budgeted
dispatchers to ensure budget
staffing requests and scheduling
efforts meet demand and limit
the use of overtime where
possible (see also Finding 2). Use
the staffing analysis to
communicate to Council and the
public during the annual
appropriations process: • Service
level demands • The full-
burdened cost of budgeting for
additional staff • Whether there is
sufficient funding available to
budget for the additional staff or a
shortfall (quantified in dollars) •
Additional staffing requests, if
needed
Police 8/26/2022 Implemented:

Current employees continue to be staffed during days
and times that mirror call volume reports. Data on
service level demands continues to be reviewed
monthly. Current budget does not support additional
staff, however analysis of overtime expenditures was
conducted as part of Call Taker recommendation. This
revealed that additional positions could be funded via
overtime savings.

Implemented
Recommendation
Audit Title: 911 Dispatchers: Understaffing Leads to Excessive Overtime and Low Morale

It is taking longer
to answer 911
calls and there
are not enough
call takers.

1.2 Use the staffing analysis
performed in response to
recommendation 1.1, to
determine future resource needs
of the Communications Center,
including staffing, equipment, and
physical space. Take into account
planned changes to services and
factors that may influence call
volume.

Police 2/15/2023 Implemented:

A part of Measure FF passed in 2021 provided
additional funding to improve Berkeley's 9-1-1 dispatch system and implement an accredited priority
dispatching and emergency medical dispatching
program. The Fire Department contracted with Federal
Engineering to conduct an analysis of the staffing,
infrastructure, and technology needs of the
Communications Center to implement these programs.

Analysis work began in February 2022. The consultant's
final report was presented to staff on February 15,
2023.

Partly
Implemented
The
Communications
Center relies on
significant
overtime leading
to inadequate
training and an
unhealthy work
environment.

2.1 Open all dispatcher positions to
continuous recruitment.

Police 6/29/2022 Implemented:

In June of 2022 Human Resources changed the Public
Safety Dispatcher I position to open and continuous
hiring.

Implemented

The
Communications
Center relies on
significant
overtime leading
to inadequate
training and an
unhealthy work
environment.

2.2 Work with Communications
Center staff to create a specific
recruitment plan for dispatcher
positions including recruitment
events and marketing material.

Use recruitment best practices to
reach potential applicants and
increase the number of
applicants.

Police 5/10/2022 Implemented:

Recruitment and Retention Team continues to actively
recruit and implement new strategies for reaching a
diverse and broad group of Communications Center
applicants. Communications Center personnel have
been included in recruitment materials, interview
processes, applicant “sit alongs”, and applicant
outreach. BPD launched a recruitment-specific
website, www.joinberkeleypd.com, and accompanying
social media accounts all specifically designed for BPD by an experienced marketing firm. This included
recruitment videos, language, and images specifically
targeting potential Communications Center applicants.

BPD implemented a program (Text bpdjobs to (510)
399-1814) that leads applicants through immediate
response text conversations where recruiters can
gather information on applicants quickly and
efficiently, and applicants can be provided testing and job information. Another strategy implemented during
the most recent recruitment period included
advertising on a worldwide employment related search
engine (indeed.com). One of the Supervising Public
Safety Dispatchers personally contacted the more than
600 applicants once the application period was open to
inform them of such and to provide them with POST
test preparation materials and other test information.

Implemented

The
Communications
Center relies on
significant
overtime leading
to inadequate
training and an
unhealthy work
environment.

2.3 IdenƟfy and implement feasible
option to improve turnaround
time on background checks for
dispatcher positions. This can
include outsourcing background
investigations or working with
Human Resources to ensure that
the Department is able to
complete all background
investigations in a timely manner.

Police 5/10/2022 Implemented:

Two independent background investigation firms are
working with BPD to complete backgrounds. Turn-
around times have met promised delivery dates, with
most being completed within a month. This has
relieved pressure on internal background investigators
and significantly shortened the time from application
period to job offer. Data is being collected and
reviewed regularly regarding turn-around times. This
current pace will allow BPD to remain swift and
competitive while hiring quality applicants and also
ensure that we can hold multiple recruitment periods
in a single year.

Implemented

The
Communications
Center relies on
significant
overtime leading
to inadequate
training and an
unhealthy work
environment.

2.4 Design a way to retain staff that
are unable to pass the Police Desk
training, for example, keep staff
as PSD I and have them work as a
call taker or create a new job
classification for a call taking
position.

Police 5/10/2022 Dropped:

Call Taker proposal written and subsequently approved
by the Chief. Initial meeting held with affected
bargaining unit and Human Resources. Union voiced
concerns about separating job duties within the
Communications Center and the Call Taker position
being misused. Next steps include Human Resources
reviewing job classification and conducting comp
survey, followed by BPD and HR meeting again with
the union. Union is considering submitting counter
proposal to Call Taker position, to possibly rewrite
trainees. It became clear that the majority of those
failing the training program were failing due to inability to pass call taking, and that the call taking training was often extending over six months. The most recent
trainee who failed due to inability to pass Police Desk who would have been qualified to work in the Call
Taker position was in 2011. A determination was made
to focus on improving the training program for Call
Taker training (and overall training program) to
increase the success rate for trainees moving from PSD
I to PSD II. This would also alleviate the Union’s stated concerns. Additionally, BPD will conduct a review of
both the training program as well as the
feasibility/benefit of moving forward with a Call Taker position at the next Audit Status Update.

Dropped

The
Communications
Center relies on
significant
overtime leading
to inadequate
training and an
unhealthy work
environment.

2.5 Evaluate the results from
dispatcher recruitment routinely
(e.g., annually or at the end of a
recruitment cycle) to determine
areas for improvement. Update
recruitment plans.

Police 5/10/2022 Implemented:

Personnel and Training, working in conjunction with
the Communications Center, now tracks applicant
progress through the recruitment, testing, hiring and
training process. Data collected includes information
regarding where the applicant/employee was “lost”
and what steps are in place or required to allow the
applicant (or future applicants) to successfully move
forward in the process. Data is reviewed at each stage, and at the end of each cycle will be assessed for
effectiveness.

Implemented
The
Communications
Center relies on
significant
overtime leading
to inadequate
training and an
unhealthy work
environment.

2.6 Implement an automated
scheduling software that has built-
in decision-making capabilities to
automatically fill shifts based on
specified qualifications and staff
availability.

Police 3/5/2023 Implemented:

Care Systems Inc. was selected and approved by City
Council on May 24, 2022 for an electronic scheduling
solution. The system integrates scheduling and
overtime management. The Police Department began
using the system on March 5, 2023.

Partly
Implemented

The
Communications
Center relies on
significant
overtime leading
to inadequate
training and an
unhealthy work
environment.

2.7 Decrease the concentration of
overtime among dispatchers.

Police 7/1/2022 Implemented:

Since the last update we have successfully promoted 3
Public Safety Dispatcher II employees. Currently there
are 2 Public Safety Dispatcher I employees in training.

In April 2021 we implemented the use of Google
Sheets (Drive) where all shifts and overtime are readily viewable and signup is done online. Minimum
mandatory overtime hours are set for each Dispatcher
per week for equity. Voluntary overtime signup is
completed in stages in order to distribute overtime
equitably between all Dispatchers. Trainees who have
passed Call Taking, Fire Desk, or Records desk are able to assist and work overtime on select desks as needed.

On May 25, 2022 City Council approved the hiring of
Care Systems Inc. for an electronic staffing solution for the police department. The system integrates
scheduling and provides timely and accurate
information on overtime usage and an approval
process. Recruitment and hiring for Public Safety
Dispatchers (PSD) is now open and continuous.

Overtime expenditure for the Communications Center
from fiscal year 2019 through 2021 trended
downward.

Implemented

The
Communications
Center relies on
significant
overtime leading
to inadequate
training and an
unhealthy work
environment.

2.8 Develop and implement a
Communications Center training
plan to ensure compliance with
POST training requirements.

Evaluate training processes and
update training plans routinely.

Police 5/10/2022 Implemented:

Communications Center leadership, in partnership with
Personnel and Training, now monitor training hour
progress annually (tied to PARs) and quarterly with a
goal of training hours being completed throughout the
training cycle. At the third quarter of year one of the two year cycle, Communications Center personnel
have surpassed training hours that were accomplished
near the end of the last two year cycle. Plan
implemented to approve a minimum of two
Communications Center personnel to training each
month, and complete at least two hours of online
training as well. In an effort to also improve morale
and overall health, focus has been placed completing
training hours in classes that provide employee
wellness and development.

Implemented

Working
conditions
adversely affect
dispatcher
morale.

3.1 Create a comprehensive stress
management program specifically
for the Communications Center
that includes the following: -
Stress management training for all
staff, 8 hours minimum during
career - Access to on-site
educational resources to help
with stress and related risks, e.g.,
directory of local therapists
specializing in treatment of stress
and traumatic stress disorders
and City programs that provide
information on how and where to
access help - Procedures assuring
participation of staff in critical
incidence stress management
activities (e.g., debriefing sessions
when involved in traumatic call
events) - A Peer Support Program -
Comprehensive, ongoing training
on structured call-taking
processes
Police 5/10/2022 Implemented:

Multiple courses and online learning materials related
to Communications Center/dispatcher stress
management have been identified. Communications
Center personnel have begun attending this course
(goal set of at least two Communications Center
personnel attending a class per month) and the
department will continue to provide these training
opportunities. BPD as a whole continues to
aggressively work on improving the overall wellness
and improving stress management skills of personnel.

All employees have access to a meditation app to
support stress reduction, and have access to a fully-
equipped gym in the building.

Implemented

Working
conditions
adversely affect
dispatcher
morale.

3.2 Develop and implement plans to
address workplace cleanliness and
equipment and furniture
maintenance and replacement.

Police 5/10/2022 Implemented:

BPD has implemented a quarterly deep-cleaning
schedule. After reviewing the current Hepa filters, it
was determined that purchasing new individual filters
for each console was not financially prudent, as we
have already identified that the existing console must
be replaced within the next year. BPD purchased and
will install two wall mounted Hepa filters that can work in conjunction with existing (or replacement systems)
and are relocatable once a new location /expansion is
decided. Additionally, the carpet was replaced in the
last 8 years with a low pile, sound reduction carpet
that consisted of individual squares so that
dirty/stained or otherwise worn areas or squares could
be switched out. Replacement timeline for that
product is being monitored. Further, the individual
console chairs are regularly replaced and over the last several years we have worked with the COB
Occupational Health and Safety Specialist to purchase
chairs to conform to the specific ergonomic needs of
individual dispatchers.

Implemented

Working
conditions
adversely affect
dispatcher
morale.

3.3 Conduct regular supervisor level
meetings to share information
about operations and staffing. Use
these meetings to improve
understanding of the supervisor
role, identify problems, discuss
changes that may affect
operations, and establish
communications plans for
distributing information to all
staff.

Police 5/10/2022 Implemented:

The Communications Manager and supervisor group
now conduct formal weekly supervisor level meetings
as well as informal group discussions regarding
operational needs, project updates and current issues
that need addressing. Information from these
meetings is shared out to the entire Communications
Center via email from the manager or Lieutenant.

Implemented
Working
conditions
adversely affect
dispatcher
morale.

3.4 RouƟnely have Police and Fire
staff meet with all Center
Supervisors to solicit feedback on
Center operations and to address
any issues. Use these meetings to
improve understanding of the
dispatcher role and current
policies of public safety, identify
problems that should be
evaluated for further discussion,
and discuss known and expected
changes that may affect the
CommunicaƟons Center.

Police 5/10/2022 Implemented:

BFD attends the formal weekly meeting once a month,
or more frequently as needed. BFD and BPD leadership
conducted a topic specific meeting to discuss potential physical expansion needs, Emergency Medical
Dispatching and the opening of the Communications
Center Manager position due to retirement.

Implemented

INFORMATION CALENDAR
May 23, 2023
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Jennifer Louis, Interim Chief of Police
Subject: Audit Recommendation Status - Data Analysis of the City of Berkeley’s Police Response

CURRENT SITUATION AND ITS EFFECTS
The City Auditor’s report included 2 recommendations. Both of the recommendations have been implemented.

BACKGROUND
On July 2, 2021, the City Auditor’s Office issued its audit, Data Analysis of the City of Berkeley’s Police1 This audit report included 2 recommendations. The purpose of this report is to update the City Council on the Police Department’s progress on implementing the City Auditor’s recommendations. This is the second and final status report for this audit. In brief, multiple datasets including Crime Mapping, Use of Force, Calls for Service, RIPA, the Arrest and Booking Logs are now published and available on the BPD Transparency Hub. The Transparency Hub also information where there was a documented mental health or homelessness component involved: https://bpd- transparency-initiative-berkeleypd.hub.arcgis.com/.

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
There are no identifiable environmental effects or opportunities associated with the subject of this report.

FISCAL IMPLICATIONS
Staff time for various members of BPD and the Department of Information Technology.

CONTACT PERSON
Captain Kevin Schofield, Police Department, (510) 981-5815

ATTACHMENTS
1: Data Analysis Recommendation Table
1 City Auditor’s Office Data Analysis Audit (7/2/2021)
https://berkeleyca.gov/sites/default/files/2022-01/Data-Analysis-Berkeley-Police-Response.pdf

Audit Title: Data Analysis of Berkeley's Police Response Finding Department Last Period:

Status
Expected or
Actual
Implementation
Date
Status of Audit Recommendations, Corrective Plan,
and Progress Summary
Berkeley Police
Department can
better track
mental health and
homelessness
calls.

1.1 To improve access to data, we recommend
the Berkeley Police Department identify all
calls for service where there is an apparent
mental health issue and/or homelessness
component in a manner that protects the
privacy rights of the individuals involved.

Police Implemented 6/29/2022 Implemented:

Starting July 1, 2021, the department formally began
utilizing “H” homeless and “MH” mental health
disposition codes when closing out any call involving a homeless person or a person with mental health
issues. Officers were instructed that they were not
required to ask people what their housing status is
unless necessary for identification purposes. Unless
there are mental health issues which are related to
the call, they are not required to ask them what their
mental health status is either. Officers are expected
to use their best judgement / perception in
determining if a call is related to a homeless issue or someone suffering from a mental health issue. If so,
they are directed to add the “H” and/or “MH”
disposition to the CAD disposition.

The City can
improve the
transparency of
Police Department
activity data on
the Open Data
Portal.

2.1 To improve access to data, we recommend
the Berkeley Police Department make calls
for service data available on the City’s
Open Data Portal for all call types allowable
by Berkeley Police Department policy and
law, and update regularly to facilitate
transparency. This data should be
published in machine ready format, and
contain as many years of data as is
available.

Police Partly
Implemented
1/11/2023 Implemented:

Multiple datasets including Crime Mapping, Use of
Force, Calls for Service, RIPA, the Arrest and Booking
Logs are published and available on the BPD
Transparency Hub: https://bpd-transparency-
initiative-berkeleypd.hub.arcgis.com/.

Recommendation

Office of the City Manager
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099 E-Mail: [email protected] Website: http://www.CityofBerkeley.info/Manager

INFORMATION CALENDAR
May 23, 2023
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Jennifer Louis, Interim Chief of Police
Subject: Audit Recommendation Status - Berkeley Police: Improvements Needed to Manage Overtime and Security Work for Outside Entities

CURRENT SITUATION AND ITS EFFECTS
The City Auditor’s report included 12 recommendations. Five of the recommendations have been implemented, one has been partly implemented and six of the recommendations have been started. The next status update report will be in six months.

Included in the update is progress on two significant recommendations. We have recently implemented an electronic staffing software solution that will improve ability to monitor overtime and resources. The Department worked with the City Attorney’s Office to develop Policy 1043 which describes the procedures and contractual agreement requirements for working with outside entities. That policy is attached to this item.

Information about the process as well as the application itself are also available on the Police Department website at;
https://berkeleyca.gov/safety-health/police/community-liaisons

BACKGROUND
On March 3, 2022, the City Auditor’s Office issued its audit, Berkeley Police:

Improvements Needed to Manage Overtime and Security Work for Outside Entities1 This audit report included 12 recommendations. The purpose of this report is to update the City Council on the Police Department’s progress on implementing the City Auditor’s recommendations. This is the second status report for this audit, the first being in November 2022.
1 City Auditor’s Office Overtime Audit (3/3/2022)
https://berkeleyca.gov/sites/default/files/2022-04/Berkeley%20Police%20- %20Improvements%20Needed%20to%20Manage%20Overtime%20and%20Security% 20Work%20for%20Outside%20Entities.pdf

Audit Recommendation Status - Berkeley Police: Improvements Needed to Manage Overtime and Security Work for Outside Entities

INFORMATION CALENDAR
May 23, 2023

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
There are no identifiable environmental effects or opportunities associated with the subject of this report.

FISCAL IMPLICATIONS
Staff time in addition to the contract costs. The contract for CareWare, approved in 2022 is $191,740 (5-year contract). This software is now being utilized throughout the whole Police Department.

CONTACT PERSON
Captain Kevin Schofield, Police Department, (510) 981-5815

ATTACHMENTS

1. Police Overtime Recommendation Table

2. Policy 1043 - Extra Duty Employment

Finding Department Expected or
Actual
Implementation
Date
Status of Audit Recommendations, Corrective Plan,
and Progress Summary
Last Period:

Status
Overtime is used
to maintain
minimum patrol
staffing set by
BPD.

1.1 Collect and monitor data on how
often compensatory time leads to
additional backfill overtime and
develop a plan to monitor it.

Police 9/1/2023 Started:

The CareWare electronic staffing software solution
has recently been implemented to monitor staffing,
overtime and time off, plus shift trades/swaps. Now
that the software is being utilized, BPD will be better able to work towards understanding the expense
and impacts of compensatory time.

Not Started
Overtime is used
to maintain
minimum patrol
staffing set by
BPD.

1.2 Fill vacancies deemed necessary
and/or reallocate staff pending
the reimagining process and a
determination of appropriate
staffing levels.

Police Ongoing Started:

The City of Berkeley released an RFP for a "Berkeley
Police Department Workload Organizational Study".

A vendor for the organizational workload study has
been selected and BPD is entering into the
contracting process.

Not Started
Minimum staffing
levels in BPD’s
Patrol Unit could
cause unnecessary
overtime if not
regularly updated.

2.1 Establish a procedure to regularly
assess minimum staffing and
overall staffing needs of the
department. This process should
document and incorporate criteria
to assess staffing levels, such as
calls for service, other workload,
community input, and other
relevant factors. As BPD prepares
for the rollout of a new software
system, BPD should consider how
to best align the program’s
capabilities with this assessment
process.

Police 9/1/2023 -
3/1/2024
Started:

Annually, BPD will monitor and reassess workloads
as they consider how to best allocate resources.

These internal tools were used with the March 2023
timesheet to help identify a new beat structure to
ensure adequate coverage plus rebalancing
minimum staffing levels.

Not Started
Recommendation
Audit Title: Berkeley Police: Improvements Needed to Manage Overtime and Security Work for Outside Entities

Minimum staffing
levels in BPD’s
Patrol Unit could
cause unnecessary
overtime if not
regularly updated.

2.2 Document and define the Patrol
Unit’s minimum staffing levels in a
publicly assessible format.

Police 9/2/2022 Implemented:

This information has been placed on the BPD
webpage. The button “current officer shift
assignments” links to a timesheet with officer
assignments. Information can be viewed at
https://berkeleyca.gov/safety-
health/police/community-liaisons. The public-facing
CoB website additionally includes the following
language: "Note: The timesheet and minimum
staffing levels are a starting point for each shift
assessed every six months and commanders have a
number of options to consider regularly. There are
often daily assessments, as well. Overtime to backfill
officers is typically triggered when a patrol team's
staffing drops below 9 or 10, depending on which
Patrol team, or as other needs may dictate (crimes,
emergencies, protests, etc.). These numbers are
always subject to change."
Implemented
Minimum staffing
levels in BPD’s
Patrol Unit could
cause unnecessary
overtime if not
regularly updated.

2.3 Document the results of staffing
assessments along with the
assessment criteria. Incorporate
results into staffing projections for
budgetary decision making,
including establishing a sufficient
and appropriate overtime budget.

Police 9/1/2023 -
3/1/2024
Started:

A vendor for the organizational workload study has
been selected and BPD is entering into the
contracting process.

Not Started

Officers work
excessive
overtime,
increasing health
and safety risks.

3.1 Update the department overtime
policy to address the fact that
there currently is no limit to the
number of consecutive days
worked and determine the
appropriate limit for overtime
that is enforceable with the goal
of avoiding officer fatigue. The
department may examine other
jurisdictions’ overtime limits as
possible criteria.

Police 3/1/2024 Started:

BPD has started looking into what other agencies do
regarding limiting the number of consecutive days
worked. The current policy addresses the maximum
number of work hours per week but does not
address consecutive days worked. The recent
implementation of the electronic staffing software
solution and tracking abilities may also help guide
any needed changes.

Not Started
Officers work
excessive
overtime,
increasing health
and safety risks.

3.2 Work to implement a staffing
software solution that integrates
overtime management and
scheduling software. Develop
management reports that provide
timely, accurate, and complete
information on overtime usage.

Develop a process for filling
overtime shifts on a voluntary and
mandatory basis, including
supervisor approval. Build in
warnings for when an individual is
approaching overtime limits and
an approval process for allowing
individuals to exceed limits when
deemed necessary according to
the policy.

Police 3/8/2023 Implemented:

The CareWare electronic staffing software solution
has recently been implemented to monitor staffing,
overtime and time off, as well as shift trades/swaps.

This includes a warning notice within the system
that someone could be working more than the
allowed number of hours. This warning requires
acknowledgement by the user allowing the hours.

Started

BPD has no
contracts for
overtime security
with outside
entities.

4.1 Update A.R. 2.10 and other
department policies to explicitly
include guidance around
department agreements for work
for outside entities, which is paid
for by reimbursements to the City
from the outside entities. Internal
procedures should include
appropriate criteria to identify
and document the benefit to the
City gained by work for outside
entity agreements, and to allocate
resources in a way that does not
negatively impact City operations.

Additionally, BPD should
document their criteria for when
officers are not available or
eligible for work for outside
entities.

Police Ongoing Implemented:

BPD finalized Policy 1043 and will begin using the
newly created contracts with outside entities.

Started
BPD has no
contracts for
overtime security
with outside
entities.

4.2 In consultation with the City
Attorney, create contracts with
outside entities in compliance
with City policies and applicable
laws.

Police Ongoing Partly Implemented:

Service agreements for work with outside entities
are drafted and available on the Police Department's
website. BPD's sergeant in special events will be
doing outreach to all of the regular
consumers/requesters as a next step.

Started

BPD has no
contracts for
overtime security
with outside
entities.

4.3 Develop an application for BPD’s
services that is publicly available
and accessible online to any
interested party. Set pay
uniformly according to rank and
hourly rate and include a
reasonable fee that covers the
expenses of administering work
for outside entities including
workers compensation, fuel, use
of equipment, and any other
actual or potentialcosts to the
City.

Police 3/30/2023 Implemented:

The application and service agreement have been
added to the BPD website on the Community
Liaisons page under 'Related Documents'. BPD will
be working with their web management team to add
it to the main City of Berkeley website in the 'Special Events' section. A 10% fee was added on top of
employee fees to offset costs associated with
coordinating special events, including planning and
staff time. 10% is a standard administrative fee at
the state level and is standard administrative fee for
grant funding they receive. BPD wants to be
consistent with department administrative fees
throughout BPD. The police department will adjust
the administrative fee in the future as needs dictate.

Started
BPD has no
contracts for
overtime security
with outside
entities.

4.4 BPD should reconcile invoices
with the amounts received for
work with outside entities at
regular intervals. BPD should also
implement procedures to check
invoices for errors prior to billing
outside entities.

Police 3/7/2023 Implemented:

BPD's Admin & Fiscal Services Unit developed a
written procedure for the 'Outside Entity Billing
Process'. This will ensure consistency and
accountability in billing and tracking.

Started
BPD has no
contracts for
overtime security
with outside
entities.

4.5 Explore ways to clearly account
for different funds to track
revenues and expenses.

Police Ongoing Started:

BPD is in the beginning stages of developing
potential solutions to account for different funds. It
may require collaboration with Finance, Budget,
Payroll Audit, the ERMA Team, and other
stakeholders.

Started

Policy
1043
Berkeley Police Department
Law Enforcement Services Manual
Copyright Lexipol, LLC 2023/03/30, All Rights Reserved.

Published with permission by Berkeley Police Department ***DRAFT*** Extra Duty Employment - 1 Extra Duty Employment
1043.1 PURPOSE AND SCOPE
This policy covers extra duty employment, which consists of officers working special details wherein the City of Berkeley has a contractual agreement to provide services for a fee to private third parties. 1043.1.1 DEFINITIONS
Extra Duty Employment- Extra Duty Employment occurs when a member of this Department performs police services at the request of a private third party and receives overtime compensation or wages paid directly into their routine pay, the cost of which the City will recover pursuant to a Service Agreement between the private third party and the City. Approval shall be obtained from the Chief of Police prior to any overtime being posted for Extra Duty Employment. 1043.2 OBTAINING APPROVAL FOR EXTRA DUTY EMPLOYMENT
All requests for Extra Duty Employment will be offered only after a third party has signed a Service Agreement and completed an Application for Extra Duty Services prior to the officers being assigned.

The City is under no obligation to provide or approve Extra Duty Employment and all requests must consider the following criteria:
• The overall staffing needs of the Department, including Investigations and specialized patrols such as the Bike Force Team
• The impact of the request on officer wellness and fatigue mitigation • The degree to which the extra duty employment supports overall public safety and builds connections with the community.
• The potential the extra duty employment has to cast discredit upon or create embarrassment for the Department or City Government.

In instances where the Department chooses not to staff an Extra Duty Employment opportunity, the private third party will not incur any charges.

The completion of a Service Agreement and Application for Extra Duty Services is required for all events in which the Berkeley Police Department will seek reimbursement. All police grant work is excluded from this policy. Mutual Aid response from the Berkeley Police Department may include incidents wherein reimbursement is expected, however it is explicitly excluded from the provisions of the Extra Duty Employment, and is covered under General Order M-02, and Policy 327 (upon its publication).

Any private third party seeking Extra Duty Employment shall complete the following:
• The private third party must complete the Service Agreement in order to request Extra Duty Employment. This form is available on the Police Department's website, and is attached to this policy. • The Service Agreement may be entered into for a one-time event, for repeating events, or to cover continuous service. Service Agreements for Extra Duty Employment will span no longer than the duration of one calendar year, automatically resetting every January 1 st for events that seek continuous services. In circumstances like the Berkeley Unified School District which may have different events spanning the year, the Service Agreement for Extra Duty Employment should identify what activities or events (i.e. sporting events, dances, graduation) are anticipated. Extra Duty Employment outside of these events will require an additional application. This allows for adjusted staffing consistent with the needs of each respective event.

Berkeley Police Department
Law Enforcement Services Manual
Extra Duty Employment
Copyright Lexipol, LLC 2023/03/30, All Rights Reserved.

Published with permission by Berkeley Police Department ***DRAFT*** Extra Duty Employment - 2 • City Manager approval must be obtained for all Service Agreements. • The private third party must complete an Application for Extra Duty Employment. This form is available on the Police Department's website, and is attached to this policy. • The private third party must submit the Application for Extra Duty Employment and any additional supporting documents to the Special Events Sergeant.
• Chief of Police approval must be obtained for all Applications for Extra Duty Employment • The Special Events Sergeant will be the contact person between the Department and the private third party on the status of their respective application.
• The Special Events Sergeant will be responsible for posting the overtime. • The Special Event Sergeant shall maintain records of all submitted Extra Duty Employment requests and shall be responsible for annual renewal of Service Agreements. 1043.3 EXTRA DUTY EMPLOYMENT- SWORN PERSONNEL
Sworn personnel are subject to the following provisions regarding Extra Duty Employment while working in a law enforcement function representing the Berkeley Police Department:
• Officers will treat Extra Duty Employment overtime like regular patrol duty, and shall be dressed in full Police Uniform, and adhere to all policies and procedures of the Berkeley Police Department. Officers are permitted to use marked police vehicles as appropriate while working in this capacity. • All officer conduct will be highly professional, and all law enforcement actions taken will be those authorized by the employee's status as a California police officer.
• In all Extra Duty Employment instances, the police personnel shall at all times be subject to the exclusive direction, supervision, and control of the Police Department.
• Equipment, including vehicles, may be assigned by the Police Department based on the nature and duration of the work to be performed.

See attachment: BPD Service Agreement-final.pdf
See attachment: Application for Extra Duty Services.pdf

Law Enforcement Services Manual
Copyright Lexipol, LLC 2023/03/30, All Rights Reserved.

Published with permission by Berkeley Police Department ***DRAFT*** Attachments - 3 Attachments

Attachment
Law Enforcement Services Manual
Copyright Lexipol, LLC 2023/03/30, All Rights Reserved.

Published with permission by Berkeley Police Department ***DRAFT*** BPD Service Agreement-final.pdf - 4 BPD Service Agreement-final.pdf
BPD Service Agreement-final.pdf

CITY OF BERKELEY POLICE DEPARTMENT SERVICE AGREEMENT

This agreement for services (“Agreement”) is by and between the City of Berkeley, a chartered California municipal corporation (“City”) and __________________ (“Organization”). The City and the Organization may be referred to herein individually as a “Party”, or collectively as the “Parties”.

The Parties agree to the following terms and conditions:

1. DATES: Unless this paragraph is subsequently modified by a written amendment to this Agreement, the term of this Agreement shall begin on __________ and terminate on ______________.

2. SERVICES; CONDITIONS; CITY EMPLOYEES: In exchange for the compensation from the Organization, as described in this Agreement, the City’s Police Department Peace Officer Personnel (“Personnel”) shall provide security services, crowd control, and/or traffic control (collectively, “Services”) as may be separately requested by the Organization and agreed upon by the City. In performing such Services, the Personnel shall be utilized only in their capacity as Peace Officers, as defined by California Government Code Section 50920 and Penal Code Sections 830 and 830.1.

The Personnel shall, at all times, be subject to the exclusive direction, supervision, and control of the City. The Personnel shall remain employees of the City when performing Services under this Agreement, and shall not be deemed employees of the Organization.

Services shall be provided only upon written request by the Organization via the completion of an Application for Extra Duty Services, attached hereto as Exhibit A. Any request shall include the date and time-period for which Services are required, the number of Personnel anticipated, and a description of the Services. The City may reject any request for any reason in its sole discretion.

The City’s ability to perform such Services is subject to the availability of its Personnel, as such availability may be determined by the City in its sole discretion. It is understood and agreed that the City assumes no liability for its rejection of any request for Services or its inability to provide Personnel for Services on any particular date and/or time.

3. BILLING: The Organization will be billed by the City for Services rendered by the Personnel at the overtime rate of the individual Personnel who provide the Services plus indirect costs of 10% of the hourly rate. The specific hourly rate for the individual Personnel shall be determined by the City and shall include a three-hour minimum charge per individual Personnel. Billing for Services shall begin from the time the officer leaves the police station to travel to the off-site work area and will continue until the officer has returned from the off-site work area to the police station.

4. INDEMNITY/HOLD HARMLESS: To the maximum extent permitted by law, and excluding the gross negligence or willful misconduct by the Personnel while providing the Services, the Organization shall defend, indemnify, and hold harmless, the City (including any City employee, officer, or agent), from any claim, injury, loss, or damage,

including all costs and reasonable attorney’s fees, in any way arising from the Services provided under this Agreement.

5. LIABILITY INSURANCE/ADDITIONAL INSUREDS: The Organization shall provide and maintain certificates of insurance for a Commercial General Liability and Automotive Liability insurance policy (in a form acceptable to the City Attorney’s Office), which carries general policy coverage limits of at least one million dollars ($1,000,000).

The Organization shall also provide an endorsement to such insurance policy providing coverage at least as broad as Insurance Services Office Endorsement CG 2010, 1985 Edition, which names the City of Berkeley and its employees, officers, and agents as additional insureds under said policy. Such insurance shall be primary and non- contributing, and shall include a waiver of any right of subrogation against the City. The Additional Insureds endorsement must include the following, or very similar, language:

The City of Berkeley and its employees, officers, and agents are hereby added as additional insureds with respect to liability arising out of the paid services the City provides to the Organization under the terms of the Berkeley Police Department Service Agreement.

6. WORKER’S COMPENSATION CLAIMS

An employee’s worker’s compensation claim for an injury sustained while performing Services under this Agreement shall be primarily covered by the City’s Workers’ Compensation Insurance Plan.

7. BINDING and NON-DELEGATION: The City and Organization bind themselves to the terms and conditions of this Agreement, and except as otherwise set forth in this Agreement, no interest in this Agreement or any of the Services provided for in a request under this Agreement shall be assigned, delegated, or transferred, either voluntarily or by operation of law, without the prior written approval of the Parties.

8. NOTICES: All notices prescribed by this Agreement shall be in writing and shall be deemed effective once delivered and properly receipted by:

To City: Chief of Police
Berkeley Police Department
2100 Martin Luther King, Jr., Way
Berkeley, CA 94704

To Organization: ________________
________________
________________

9. GOVERNING LAW: This Agreement shall be governed and construed in accordance with City of Berkeley Municipal Code and the laws and regulations of the State of California.

10. AMENDMENTS: The City or Organization may, from time to time, request changes in the terms and conditions of this Agreement. Such changes, which are mutually agreed upon in writing by the City and Organization shall be incorporated in amendments to this Agreement.

11. COUNTERPARTS: This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but both of which shall constitute one and the same instrument; and, the Parties agree that signatures on this Agreement, including those transmitted by facsimile or scanned email attachment, shall be sufficient to bind the Parties.

12. OTHER AGREEMENTS: This Agreement shall not supersede, amend, or otherwise alter any other contract, memorandum of understanding, or any other written agreement between the Parties.

13. UNDERSTANDING/AUTHORITY TO SIGN: The Parties hereby certify that they have read the above terms and conditions, and agree to conform to them and all laws and regulations pertaining to the use of City Personnel for the purposes as set forth in this Agreement. The signatories below warrant and represent they have the authority to bind the Party to the terms of this Agreement.

CITY OF BERKELEY
Dated: ________________________

Office of the City Manager
City of Berkeley
2180 Milvia Street, 5
th Floor
Berkeley, CA 94704

ORGANIZATION NAME: _____________________________

Dated:
_________________________
By:
(Signature of Person authorized to bind the Organization) Name:

Title:

Address:

Email Address:

Telephone: ( )
Fax: ( )

Attachment
Law Enforcement Services Manual
Copyright Lexipol, LLC 2023/03/30, All Rights Reserved.

Published with permission by Berkeley Police Department ***DRAFT*** Application for Extra Duty Services.pdf - 5 Application for Extra Duty Services.pdf
Application for Extra Duty Services.pdf

BERKELEY POLICE DEPARTMENT
2100 Martin Luther King Junior Way, Berkeley, CA 94704
TEL: (510) 981-5900, TDD (510) 981-5799, FAX: (510) 981-5744 EMAIL: [email protected]

APPLICATION FOR EXTRA DUTY SERVICES

Applicant Information
N a m e : A d d r e s s :

Phone: Alternate Phone:

Email:

Reason for Request and Officer Responsibilities
One Time Event܆Annual Employer ܆
Reason for the Request:

List Responsibilities that Officer(s) will provide:

Number of Officer(s) Requested:

Event Information
Date(s) of Event:

Event Address:

Company or Event Name:

Company Address:

Company Phone: Email:

Insurance:

A completed general liability endorsement for $1,000,000 naming the prospective employee(s) as the insured for the period of Extra Duty Employment is required.

I n s u r a n c e A g e n c y N a m e : P h o n e N u m b e r :

P o l i c y N u m b e r : E x p i r a t i o n D a t e :

A copy of the Insurance Policy Attached, If not explain: __________________________________________ Billing:

The Organization will be billed by the City for Services rendered by the Personnel at the overtime rate of the individual Personnel who provide the Services plus indirect costs of 10% of the hourly rate. The specific hourly rate for the individual Personnel shall be determined by the City and shall include a three-hour minimum charge per individual Personnel. Billing for Services shall begin from the time the officer leaves the police station to travel to the off-site work area and will continue until the officer has returned from the off-site work area to the police station.

The applicant’s submission is an acknowledgement that any Police Services offered are subject to the City of Berkley Police Department Service Agreement, and that Police Officers will adhere to all Berkeley Police Department policies, procedures, and all local, state, and federal laws. The applicant further acknowledges and agrees that in all instances, the police personnel shall at all times be subject to the exclusive direction, supervision, and control of the Police Department.

Applicant Signature Applicant has declared that the information provided in this application is true and correct.

S i g n a t u r e : D a t e :

BPD USE| Received By: Date Received:

Communications

All communications submitted to the City Council are
public record. Communications are not published directly to the City’s website. Copies of individual communications are available for viewing at the City Clerk Department and through Records Online.

City Clerk Department
2180 Milvia Street
Berkeley, CA 94704
(510) 981-6900

Records Online
https://records.cityofberkeley.info/

To search for communications associated with a particular City Council meeting using Records Online:

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