STAFF REPORT TO THE CITY COUNCIL
DATE: Regular Meeting of May 10, 2022
TO: Members of the City Council
VIA: Dante Hall, City Manager
SUBMITTED BY: William Imboden; Chief of Police
SUBJECT: Military Equipment Funding, Acquisition and Use Policy
RECOMMENDED ACTION:
Staff recommends that the City Council waive first reading and approve for introduction the attached Ordinance adopting Hercules Police Department Policy No. 709: Military Equipment; Acquisition, Funding, and Use.
FISCAL IMPACT OF RECOMMENDATION:
If approved there will be minimal administrative and staff costs associated with the Military Equipment report compliance requirements, which require that a report be prepared and submitted to the governing authority annually.
EXECUTIVE SUMMARY:
At the regular meeting of the City Council on April 26, 2022, the City Council approved a resolution (2022-028) directing Staff to commence the governing body approval process in accordance with Assembly Bill 481 requirements and directed Staff to return to Council within the time provided to present for Council consideration at a noticed public hearing, an ordinance complying with all AB 481 mandates regarding Military Equipment Funding, Acquisition, and Use as defined by the Legislature.
BACKGROUND:
On September 30, 2021, the Governor signed California Assembly Bill 481 (AB 481) into law. AB 481 adds new Sections 7070 et seq. to the Government Code requiring law enforcement agencies to obtain the approval of their governin g bodies, through the adoption by ordinance of a Military Equipment Use Policy, prior to taking certain actions relating to the funding, acquisition, or use of military equipment. The new provisions require the Council to approve the funding, acquisition, or use of military equipment within its jurisdiction only if it determines that the military equipment meets specified standards.
AB 481 further requires the Council to review the ordinance on an annual basis and to either disapprove a renewal of the authorization for a type of military equipment or amend the military equipment use policy if it determines, based on an Annual Military Equipment Report prepared by the Police Department, that the military equipment does not comply with established standar ds for approval.
New California Government Code Section 7070 provides a list the of types of equipment that are to be considered “Military Equipment” for purposes of compliance with AB 481. The Hercules Police Department had seven (7) items that qualified as “Military Equipment” . Additionally, Hercules Officers while assigned to the County -Wide Mobile Field Task Force train with and use one additional item which qualifies as “Military Equipment”. The Department does not currently possess any other equipmen t that meets the definition of Military Equipment in Section 7070, nor has it obtained or does it utilize any equipment procured from the United States Department of Defense through the Law Enforcement Support Program known as the 1028 or 1033 program.
DISCUSSION:
As noted above, AB 481 requires law enforcement agencies to obtain the approval by ordinance of their governing bodies, of a Military Equipment Use Policy, prior to taking certain actions relating to the funding, acquisition, or use of military equipment.
Aside from the aforementioned “qualifying items”, the Hercules Police Department receives mutual aid from and collaborates with the Contra Costa County Sheriff Office and other agencies within the mutual aid Operational Area. Military equipment used by these Departments in providing mutual aid to the City shall comply with their respective military equipment use policies.
Like many other police departments in the State of California and throughout the United States, the Hercules Police Department utilizes the services of Lexipol LLC for the preparation of its policy manuals, training bulletins and consulting services. Such services are provided on a subscription basis. Lexipol has provided its member entities with a “Policy - Military Equipment, Acquisition, Funding and Use” that is in compliance with the provisions of AB 481 (the “Policy.”) The Hercules Police Department has reviewed the Policy and believes it should be accepted and approved. Staff is now recommending that the City Council review and adopt an ordinance approving the Policy. Use of an ordinance for policy adoption, as opposed to a resolution, is mandated by AB 481 as a means of creating a better public forum to discuss the acquisition and use of military equipment.
A. General AB 481 Requirements
At a minimum AB 481 requires the Policy to include the following:
1. Each type of military equipment, the quantity sought, its capabilities, expected lifespan, and product descriptions;
2. The purpose and authorized uses for which the law enforcement agency proposes to use each type of military equipment;
3. The fiscal impact of each type of military equipment, including initial acquisition and maintenance costs;
4. The legal and procedural rules that govern each authorized use;
5. The training that must be completed before each type of military equipment can be used in order to ensure the full protection of the public’s welfare, safety, civil rights, and civil liberties;
6. The means to ensure compliance with the military equipment use policy; and
7. The procedures by which members of the public may register complaints or concerns or submit questions about the use of specific types of military equipment, and how such complaints and questions will be responded to and/or answered.
B. Policy Approval
California Government Code Section 7071(d) stipulates that the City Council shall only approve the Policy if it determines all of the following:
1. The military equipment is necessary because there is no reasonable alternative that can achieve the same objective of officer and civilian safety.
2. The proposed Military Equipment Use Policy will safeguard the public's welfare, safety, civil rights, and civil liberties.
3. If purchasing the equipment, the equipment is reasonably cost effective compared to available alternatives that can achieve the same objective of officer and civilian safety.
4. Prior military equipment use complied with the military equipment use policy that was in effect at the time, or if prior uses did not comply with the accompanying military equipment use policy, corrective action has been taken to remedy nonconforming uses and ensure future compliance.
Once the Policy has been adopted, California Government Code Section 7070(e) states that the Hercules Police Department is responsible for delivering to the City Council an Annual Military Equipment Report, which the City Council can use to confirm compliance with the Military Equipment Use Policy.
RECOMMENDATION
Staff recommends waiving the first reading and introducing the ordinance attached hereto, adopting Hercules Police Department Policy 709: Military Equipment Acquisition, Funding, and Use.
Second reading and formal adoption of the ordinance will be scheduled for a regular meeting of the City Council in accordance with the City’s Ordinance Adoption Policy.
ATTACHMENTS:
1. Draft Ordinance
2. Policy Section 709; Military Equipment Funding, Acquisition, and Use
3. Military Equipment Description, Purpose, Use, Cost policy insert