SUBJECT: REQUEST FOR THE POLICE DEPARTMENT TO CONTINUE
PARTICIPATION IN THE LAW ENFORCEMENT SUPPORT OFFICE
PROGRAM AND REQUEST FOR AUTHORIZATION TO ACQUIRE
CERTAIN ITEMS
REASON FOR ADDENDUM
The Police Department is bringing forward this item to the City Council to request authorization to continue participating in the Law Enforcement Support Office (LESO) Program. Pursuant to a recent executive order by President Biden, law enforcement agencies participating in the LESO Program must certify that they have received authorization from their governing body to participate in the program by January 1, 2023. If the Department fails to meet this deadline, it will be required to return all items acquired in the LESO Program to the Federal Government.
The purpose of this addendum is to ensure that the City Council can consider this item on the December 13, 2022 City Council agenda, which would allow the Department to meet the January 1, 2023 deadline should the City Council approve the staff recommendation.
RECOMMENDATION
Approve the San José Police Department’s request to continue participation in the LESO Program and the authorization to acquire certain items without returning to City Council prior to acquisition.
OUTCOME
Approval of this memorandum will accomplish the following:
TO: HONORABLE MAYOR
AND CITY COUNCIL
FROM: Anthony Mata
SUBJECT:
SEE BELOW
DATE:
December 5, 2022
APPROVED DATE
12/7/2022
COUNCIL AGENDA: 12/13/2022
FILE: 22-1940
ITEM: 2.35
HONORABLE MAYOR AND CITY COUNCIL
Subject: Request for the Police Department to Continue Participation in the Law Enforcement Support Office Program and Request for Authorization to Acquire Certain Items November 21, 2022
1. The Department will be authorized to continue participation in the LESO Program.
2. The Department will be authorized to acquire certain items without returning to City Council prior to acquisition.
3. The Department will complete the certification process required by Presidential Executive Order 14074.
BACKGROUND
The Department currently participates in the Public Safety Procurement Program, also known as the LESO Program, which allows the Department of Defense to transfer excess property to federal, state, and local law enforcement agencies to support law enforcement activities. 1 Through the Program, the Department has been able to procure much needed equipment, which would not otherwise have been possible due to budgetary constraints. The federal side of the LESO Program is managed by the Defense Logistics Agency (DLA), while the state side of the LESO Program is managed through the California Governor’s Office of Emergency Services (OES).
2 The following graphic illustrates the involved entities.
Figure 1: Entities involved in the LESO Program
Process
The DLA maintains a login-controlled website listing all items available through the LESO Program. The majority of these items are used equipment from the military or other federal agencies under the Department of Defense, but some new, unused items are also available due to regulations that require them to be donated, sold, or destroyed. All items acquired in the LESO Program are free, with no cost to the Department.
Duty Manual chapter L 9100 outlines the Department’s participation in the LESO Program. The Department maintains a small cadre of two to four personnel authorized to access the DLA listing of available property. Those personnel are able to find surplus equipment by either discovering it during a search or establishing a “want list” on the DLA website. When an item becomes available, it is open to all 8,800 agencies
3 participating in the Program. The item is
provided to the first agency to satisfactorily complete the proper request forms, including
1 https://www.dla.mil/Disposition-Services/Offers/Law-Enforcement/ 2 https://www.caloes.ca.gov/office-of-the-director/operations/response-operations/law-enforcement/leso-program/ 3 https://www.dla.mil/Disposition-Services/Offers/Law-Enforcement/ Department of
Defense Identifies
Surplus Property
DLA Acts as a
Broker for the
Property
CA OES Acts as an
Oversight Agency
for the Acquired
Property
San Jose Police
Department is the
Property's
Temporary Holder
HONORABLE MAYOR AND CITY COUNCIL
Subject: Request for the Police Department to Continue Participation in the Law Enforcement Support Office Program and Request for Authorization to Acquire Certain Items November 21, 2022
articulation of how that item will be used and the agency’s need. Upon approval of the application, the items are no longer available. As such, items often appear and disappear from the list DLA website quickly.
Recent Program Changes
On May 25, 2022, President Biden signed Executive Order 14074, entitled Advancing Effective, Accountable Policing and Criminal Justice Practices to Enhance Public Trust and Public Safety.4 This executive order took a number of actions intended to “increase public trust and enhance public safety and security by encouraging equitable and community-oriented policing.” Among other things, it made changes to how the LESO program operates. On August 15, 2022, the DLA sent a memorandum to all agencies participating in the LESO Program in order to implement the changes directed in the executive order. A copy of this memorandum is included as Attachment 1.
In this memorandum, the DLA provides an addendum to the State Plan of Operation (SPO) between the State of California and the Police Department. The SPO sets out the rules by which the LESO Program is conducted. Among the changes are requirements that law enforcement agencies receive authorization from their governing body in order to participate in the LESO Program (see section 9, bullet “a” in Attachment 1) and that they give notice to both their governing body and the local community of any equipment they plan to request through the LESO program (see section 9, bullet “b.”) To continue participating in the LESO program Law enforcement agencies must certify that both of these requirements have been satisfied by signing the SPO addendum and returning it to the State by January 1, 2023. The Department is bringing forward this item to the City Council, as the City’s governing body, to request authorization to continue participating in the program and to provide notice as to the type of items that will be requested.
ANALYSIS
Authorization to Continue
The Department is seeking authorization from the City Council to continue participating in the LESO Program. As stated above, the LESO Program has provided the Department with essential operational equipment that would otherwise not have been able to be acquired due to budgetary constraints. To provide the Council and the public with a sense of how this program has been used in the past, staff has compiled a list of equipment obtained from the LESO Program that is currently in the Department’s possession. The full list can be found in Attachment 2, as part of a public notification issued by the Department in November 2022. It includes rifle components, night vision equipment, a computer, a camouflage net, and two vehicles: a Mine-Resistant
4 https://www.govinfo.gov/content/pkg/DCPD-202200454/pdf/DCPD-202200454.pdf
HONORABLE MAYOR AND CITY COUNCIL
Subject: Request for the Police Department to Continue Participation in the Law Enforcement Support Office Program and Request for Authorization to Acquire Certain Items November 21, 2022
Ambush-Protected (MRAP) vehicle and a High Mobility Multipurpose Wheeled Vehicle (HMMWV).
The Council’s authorization to continue in the Program will allow the Department to sign the SPO Addendum and return it to the State, as required by Presidential Executive Order 14074. If the SPO Addendum is not completed, the Department will be required to return all items acquired in the LESO Program to the DLA.
In addition to certifying that the Council has approved participation in the program, the Department must make a number of other certifications by signing the SPO Addendum. The full list of required certifications is found in section 9 of Attachment 1. In particular, the Department would note the following certifications from the list, which are intended to ensure that the equipment obtained through the program is used appropriately and with public oversight:
• That the Department has authorization from the City Council to participate in the LESO Program.
• That the Department has provided the City Council and local community a comprehensive list of controlled property that may be requested through the LESO Program and that requests for controlled property complies with all applicable approval requirements of the City Council. This requirement is discussed in the next section of the memorandum, where the Department proposes a standard for City Council approval. • That the Department has adopted and complies with controlled property standards (i.e., appropriate use, supervision of use, effectiveness evaluation, auditing/accountability of use, transparency/notice of use, and record-keeping requirements). • That the Department has provided annual training to personnel on the maintenance, sustainment, and appropriate use of controlled property, including respect for the rights of citizens under the Constitution of the United States and de-escalation of force. • That controlled property vehicle(s) are utilized exclusively for disaster-related emergencies; active shooter scenarios; hostage or other search and rescue operations; or anti-terrorism preparedness, protection, prevention, response, recovery, or relief. This requirement will apply to the two vehicles that the Department acquired through the LESO Program, described above.
• That controlled property requiring a license (or other authorization), is only utilized by personnel who hold license (or other authorization) to operate such property.
The Department will comply with these standards and all other requirements included in the SPO addendum.
Future Acquisition
The SPO Addendum also requires that law enforcement agencies provide their governing bodies and their local community with a comprehensive list of controlled property that may be requested through the LESO program on an annual basis. Law enforcement agencies may
HONORABLE MAYOR AND CITY COUNCIL
Subject: Request for the Police Department to Continue Participation in the Law Enforcement Support Office Program and Request for Authorization to Acquire Certain Items November 21, 2022
request any property included in this list from the LESO program during the course of the year without providing additional notice to the governing body; however, to request property not included on the list, law enforcement agencies must provide their governing body and local community with 30 days’ notice of the request.
While the Department is not currently seeking any specific additional items from the LESO Program, Department personnel continue to check the DLA website on a regular basis for items that may meet the Department’s equipment needs. For most types of equipment available through the LESO program, the Department recommends seeking City Council approval on a case-by-case basis, with 30 days’ notice provided to the Council and the public, as required in the SPO addendum. There is one specific category of equipment that the Department is requesting authority to acquire without returning to the City Council.
The DLA uses Demilitarization (DEMIL) Coding to identify the restrictions and requirements for disposition of each piece of equipment in the LESO Program. 5 Items with a DEMIL Code of
“A” are the least restricted category of item. They are items with identical equivalents in the commercial market. Examples of items in this category include clothing, backpacks, first aid kits, tools, hearing protection, eye protection and office supplies. Given that these items have identical equivalents in the commercial market, and due to the expediency with which these items must be requested, the Department is seeking authorization to acquire DEMIL Code A items without prior City Council approval.
Items categorized under any other DEMIL Code will be brought before City Council for review prior to acquisition. Items falling under the other DEMIL Code, including “B,” “C,” “D,” “E,” “F,” “G,” or “Q3,” are considered controlled property conditionally transferred to the law enforcement agency, but title or ownership of the controlled property remains with the Department of Defense in perpetuity and will not be relinquished to the law enforcement agency.
The LESO Program retains the right to recall the property. Some examples of this type of controlled property include firearms, firearm parts, ammunition, armored vehicles, body armor, and night-vision optics. The Department will seek Council approval for any items in these categories.
In the interest of transparency, notification to the local community of the Department’s LESO Program Inventory and intention to continue to acquire certain items was made on Thursday November 10, 2022, through a Press Release and posting to the Department’s website. The Public Notification is included as Attachment 2. A screen shot of the Department’s website with the Press Release is included as Attachment 3. In addition, this memorandum and the attached documents were posted on the City Council Agenda website for the December 13, 2022 Council Meeting.
5 https://www.dla.mil/Working-With-DLA/Federal-and-International-Cataloging/DEMIL-Coding/DEMIL-Codes/
HONORABLE MAYOR AND CITY COUNCIL
Subject: Request for the Police Department to Continue Participation in the Law Enforcement Support Office Program and Request for Authorization to Acquire Certain Items November 21, 2022
Future Reporting
On June 21, 2022, the Department presented the Military Equipment Use Policy and Inventory to City Council.6 This policy and inventory defines Military Equipment according to California Government Code section 7070(c).7 While items acquired from the Department of Defense may colloquially be called “military equipment,” many of items do not qualify as Military Equipment in the statutory requirements provided in the California Government Code. In fact, only two items from the Department’s Military Equipment were acquired through the LESO Program: the Mine-Resistant Ambush-Protected (MRAP) vehicle and the High Mobility Multipurpose Wheeled Vehicle (HMMWV). None of the other items from the LESO Program in the Department’s possession are regulated under Government Code section 7070.
To consolidate the annual reporting requirement for both Military Equipment and LESO Program items, the Department will provide updates for both in the annual report to City Council on Military Equipment at the Public Safety, Finance, and Strategic Support Committee. The next report is scheduled for April 20, 2023.
CONCLUSION
Pursuant to Presential Executive Order 14074, this memo fulfills the requirement to notify the Civilian Governing Body (City Council) and local community of the Department’s intent to maintain the controlled property items identified in the list above.
EVALUATION AND FOLLOW-UP
The items inventoried in Attachment 2 and any future items acquired through the LESO Program will be included in the Military Equipment Annual Report to City Council at the Public Safety, Finance, and Strategic Support Committee meeting on April 20, 2023.
In addition, within 30 days of submitting and publicly releasing Military Equipment Annual Report, the Department will hold at least one well-publicized and conveniently located community engagement meeting, at which the general public may discuss and ask questions regarding the Military Equipment Annual Report and the Police Department’s funding, acquisition, or use of military equipment.
6 Details from this meeting may be found here:
https://sanjose.legistar.com/MeetingDetail.aspx?ID=980797&GUID=15E52BAD -B60D-4CDC-8522- CF23FA24E5FC
7 https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=7070.&lawCode=GOV
HONORABLE MAYOR AND CITY COUNCIL
Subject: Request for the Police Department to Continue Participation in the Law Enforcement Support Office Program and Request for Authorization to Acquire Certain Items November 21, 2022
CLIMATE SMART SAN JOSÉ
The recommendation in this memo has no effect on Climate Smart San José energy, water, or mobility goals.
PUBLIC OUTREACH
This memorandum and the attached documents will be posted on the City’s Council Agenda website for the December 13, 2022 Council meeting.
COORDINATION
This memorandum has been coordinated with the City Attorney’s Office.
COMMISSION RECOMMENDATION/INPUT
No commission recommendation or input is associated with this action.
CEQA
Not a Project, File No. PP17-008, General Procedure and Policy Making resulting in no changes to the physical environment.
/s/
Anthony Mata
Chief of Police
For questions, please contact Lieutenant Michael O’Neil, Special Operations Division, San José Police Department, at [email protected]
.
Attachment 1: Memorandum from the DLA to LESO Program Participating Law Enforcement Agencies regarding an Addendum to the LESO Program State Plan of Operation (SPO) Attachment 2: Public Notification
Attachment 3: Department Website Screenshot
Attachment 1: Memorandum from the DLA to LESO Program Participating Law Enforcement Agencies regarding an Addendum to the LESO Program State Plan of Operation (SPO)
Attachment 2: Public Notification
Attachment 3: Department Website Screenshot