5-b-5 of the m.o.u. contains a standard that had caused me and my colleagues at the h.r.c. some concern that the f.b.i. here states that whether there's a conflict between standards or requirements of the participating agents in the f.b.i., the standard or requirement that provides the, quote, greatest organizational protection or benefit will apply. unless the organizations jointly resolve the conflict otherwise. is it your intention in the part of the command staff that to the greatest extent possible that where it is appropriate for them absent the factor of the jttf being present that they would have the same access and the ability to investigate whether or not to sustain charges in the event of an allegation of

officer misconduct? >> with regard to the san francisco police officers, yes. that's the reason why we asked the officers to identify themselves as sfpd, where then the ordinary complaint process that all officers are subject to would kick in. commissioner chan: that brings me to section 6-a of the m.o.u. wherein it states that jttf members are strictly for biden from disclosing any classified information -- forbidden from disclosing any classified information. my concern here is that what would the -- or do you have in mind a framework or an approach if a case arices wherein an officer -- arises wherein an officer, in order to defend himself against an allegation of misconduct, or a citizen skeeking -- seeking to discover

facts and other evidence relating to an incident bumps up against this need to know and the fact that apparently the jttf activities are, quote, under a federal classified information. do you have a plan that would enable the securing of a security clearance, for example, of the head of the o.c.c. or other complaint personnel in order to do their job in such a case? >> i don't -- it's not my province to pass out security clearances but i can certainly speak with the special agent in charge fp dr. hicks would seek such a clearance. i don't -- commissioner chan: i think what i'm getting at here is we could very well have officers or the

o.c.c. between a rock and a hard place where they are -- because of the explicit terms of the m.o.u. and federal statute, in essence prohibited from getting to the bottom of charges in the event a complaint is made about particular officer misconduct while engaged in jttf activities. that isn't a question but i think that would probably need to be flushed out in subsequent drafts of the bureau order. >> i'm trying to think of an instance where the information that they would be sworn to keep private would actually come into play versus their conduct. i think their conduct would be subject to the complaint which would be outside of whatever the privileges information would be. commissioner chan: i know hypotheticals are tough but i was thinking of mr. crew's crew,

if you will, brings a 1983 action for the violation of someone's civil rights based on the fact that they've alleged to have been a victim of some federal intelligence activity in which one of the co-defendants would be the city and county of san francisco and they would want to know how the subject in the investigation, whether the agreed party came to the attention or whether it's a product of federal assessment or -- a confidence informant. that sort of thing. >> general order 8.10 and -- was the governing document with regard to this entire conversation for over a decade without a problem. with regard to complaints against officers and the like. so i think that now if this unit order, if you will, terms -- turns the clock back to make the officers locked in to strict

compliance with 8.10 and the conditions of the 2002 m.o.u. to which i don't -- i think everybody was pretty comfortable, i think we could turn the clock back to where the officers are ultimately accountable to the police department, the commission and the citizens of san francisco. commissioner chan: now, my prior service, i know that the o.c.c. generates a host of data and statistics regarding the number of cases and how cases are handled, the department itself has studies as to whether racial profiling occurs or whether there are statistical correlations between certain kinds of arrests and other police operations. what assurance do we have that similar statistical effort could be produced in connection with

democratics activities under the jttf as a participating agency? if any? >> i would say that, again, they would be the same as called for in 8.10, that stood the test of time for over almost 15 years before we got to here. commissioner chan: i notice in the proposed order that you or your designee are to review all quarterly -- on a quarterly basis all investigations to which members of the department have been assigned. and that those officers who work with the jttf remain in your chain of command and under supervision of the department. where do you see the o.c.c.'s role in this and/or the police commission, particularly in the

exercise of their 8.10 duties? >> as you said, a commissioner's assigned to the log of all police department activities with regard to the first amendment and since the director of o.c.c. works for the police commission, it seems that it would be a natural chain of command and flow there. commissioner chan: i think so. would you be amenable to amending the draft that would explicitly enable the -- and permit disclosure to the police commission and the o.c.c.? >> anything that makes the order more clear and ex plit and makes people more comfortable. as long as it's within the rules , i'm happy to do it. commissioner chan: do you have any idea what the budget outlays for the department have been with respect to funding or financing the department's

participation in the jttf? as a fiscal matter? >> in my first 11 days it's alluded me. but i can find that information out, it's been a little busy. commissioner chan: out of further concern to me and i've expressed this to you, our director has been under section 21 of the m.o.u. which lays out at least what the bureau's understanding is about how to address matters of financial and civil liability. section 21 states that the acts and omissions of each employee remains vested with their employing agency and that us-doj, department of justice, made its discretion, whether that individual should be afforded legal representation,

legal defense or indemnification of the civil action. given your past experience within the department, are you aware that any cases wherein the department has made a co-defendant, along with the other federal agencies with respect to third party claims? >> i am not aware of such a circumstance, no. commissioner chan: my concern here is that the defense of participating sfpd members in the jttf appears largely as a matter of grace to the federal bureau of investigation or the attorney general of the united states. since it's discretionary rather than mandatory. they apparently on the m.o.u. have preserved that determination on case by case

basis as it states there. has this section of the m.o.u. ever been reviewed by department council? >> i believe that the 8.10 g.o. was reviewed by department council as was the m.o.u. from 2002. i think that the most recent m.o.u., as has been discussed, there was somehow a mishap where it was not reviewed. commissioner chan: so at least the department hasn't been advised by its council as to what its liability exposure would be for members participating in jttf activities? >> well, again, if the officers are identifying themselves as san francisco police officers in every instance during course and scope of their duties, it would be no different than it is where they -- were they just on the streets of san francisco.

commissioner chan: have any members provided a representation by the attorney generals office? >> i don't believe so. commissioner chan: there is quite a bit of discussion devoted in the m.o.u. particularly in section 5-b-4 regarding investigative standards. actionly in 5-b-4 it seems torrell gate the participating agency -- rel -- to relegate the participating agency to to be responsible for personnel administrative matters. and that the department's control over investigative standards has already been pointed out by mr. crew. how do you -- has there been a

problem at all in how this relationship has been operated in differential investigative standards, those used by the federal government and those used by the members of the department? has there arisen any instance of conflict at all? >> no, not that i'm aware of. i believe the relationship has been very smooth and the officers to the best of my knowledge have been operating with total accountability back to the police department and its standards, rules, regulations and the laws of the city and state. commissioner chan: under section 4-a which governs the use of confidence -- excuse me, i think they refer to this as confident al informants -- confidental

informants and they reference the u.s. attorney general's guidelines, is it your department's intention that the department's, what i would assume would be greater restrictions on the use of informants, would apply, given the bureau order that you've promulgated? >> the bureau order is all inclusive. so it incorporates all of our policies and procedures that the officers are accountable to in favor of any federal guidelines. commissioner chan: all right. thank you, marme, i have no further questions -- mr. chairman, i have no further questions. commissioner dejesus: thank you. i might overlap slightly. is it ok if mr. crew can come to the podium. one of the questions i had, i was looking at your presentation, and there seemed to be some type of distinction

if the officer is loaned under out the joint terrorism task force versus homeland security and i was a little concerned, is that some type of possible loophole that the resolution -- or that the bureau order and the d.j.o. wouldn't apply if he was under homeland security? >> affs today chief suhr issued an order that solves that problem, we're very pleased to hear that. very briefly, specifically the issue was 8.10 was constructed under the assumption that these investigations would be done out of s.i.d. s.i.d. has the security clearance, it had been moved to homeland security so it was out of the normal procedure that thank 8.10 was structured for -- that 8.10 was structured for. i can say that in terms of the number of officers that are working there, this is something we're confused about because the sfpd published in their annual report the number of officers as of just a few years ago. so in -- it's on the website still. in 2008 it was two officers.

o.p.d. talks about it on the radio. they have one officer. i'm not sure why that's secret but it's an issue that the more openness, the more likely we can solve these issues. commissioner dejesus: the other question i have, i'm looking at the bureau order and i looked at the d.g.o. and i think one of the issues we had is there is no commission oversight, even though the commissioner is going to look at what's been done monthly, that commissioner doesn't have the clearance, if i understand this right. doesn't have the clearance and we'd only see a sanitized version of the events. i'm a little concerned if that's the way -- am i reading that correctly? >> yeah. the reason we did not go through the bureau general order was in the interest of time and also in acknowledgment that there seems to be openness to taking other suggestions on it. and so we're happy to address those but very briefly, number one, while i appreciate the department doing it quickly, ultimately as a bureau general order, it can be revoked without notice of the commission. we think this has to be at the commission level so we go back to public notice, public

discussion. chief suhr, i don't very have any reason to think he's going to change this but we don't know who's coming after chief suhr and i think it's important that it be public. we already talked about the -- getting the appropriate standards in there and the real problem here is that there is nothing specific in the bureau order that requires the 8.10 written authorizations. we have a fundamental problem here with all due respect, what the f.b.i. is telling us directly, we met with them nine days ago, they said very specifically that in fact that provision is long -- as long as operating under the m.o.u. could not be applied. i don't know if the department has had an opportunity to run this bureau order by the f.b.i., but quite frankly what will reassure the public is to put something in writen that the f.b.i. commits to and what -- writing that the f.b.i. commits to and they've said, as long as you're under the m.o.u. options, as long as you don't transit into the resolution approach, they're going to enforce the

m.o.u. and block that very important decision or that access that is fundamental to the commission oversight and the o.c.c. reports and the public reporting. so the other things that the attorney general said, in the end, when you talk about addressing these concerns, he said, actions speak louder than assurances. we're getting assurances, they're wonderful, i understand you're getting assurances from the f.b.i., with you we need actions and words in writing that the f.b.i. commits to, that will be something that we can count on and this order unfortunately the way it's constructed, simply coming from the sfpd, doesn't achieve. that i'm happy to give you more detail on the bureau order but i'm also happy to provide chief suhr. commissioner dejesus: thank you. what i would like to address is the -- this is a great start. i want to commend commissioner mazzucco, the human rights commission, the department, and

the bureau order is a step in the right direction. i think it has to be amended. it has to clear up the specific standards for criminal activity as well as deputize a commissioner. i don't think this commission can be seen as a set to -- sanitized version. the way this commission is set up, not one commissioner has more power than any other commissioner. if they're going to speak in my name, i want them to have all the facts. we need to look at the auditing report part of it, the oversight part of it, the word here is criminal nexus, we should state what the law is. we should move forward. the bureau order can be changed with the different sheets by signature. i think we need to solidify the

policy, put it in writing, agree upon it, and have it set forth. that is what i propose, that we continue moving forward. thank you. president mazzucco: thank you. commissioner slaughter? commissioner slaughter: i think we're all looking at this order for the first time and i understand your per -- your concern about the ability of the new chief to change it without the commission's approval. i get that. the concern you have about the order not being sufficiently specific with respect to chain of command and officers needing to comply, i am a little bit less -- i don't see it as well because of the line in the order. we are reading it for the first time today. sfpd who work with the jttf are

under the chain of command and must comply with department policies at all times. i read that as saying, you had best be in compliance with 8.10 i do not want anyone to be misled. this is sang, this is a policy procedure. we're not limiting this order to sing you only need to be in compliance with 8.10. you need to be in compliance with all of these general orders. i understand your concern, making sure there is the commission directive, but does and that language alleviates some of the concerns that the officers are free to ignore -- >> if this was an order that were directed at officers only operating in a sfpd context, not out of the fbi, under an mou, i

would agree with you. i don't question the intent to leave no daylight between the order. if you look at the mou, the fbi told us nine days ago they're going to enforce -- there's a provision that says even if the supervisor has security clearance, you have to get specific permission from the fbi supervisor for the sfpd's supervisor to talk to his own officer. the fbi told us directly they are going to, as long as you are in the mou path, and i don't know why you would stay there, given a transition to a resolution, but as long as that mou is there and the fbi is telling some of us, the aclu, i cannot speak for the human rights commission, but if they are telling us they will enforce it, and we don't have anything in writing, this is not -- i have a lot of respect for chief suhr.

i don't think he can issue an order to the fbi and expect them to follow it. when i asked the question, is there any reason that san francisco cannot adopt a resolution, and she said san francisco is an independent city, certainly has the authority to set its own standards, as portland. we are operating under an mou that they can block. commissioner slaughter: i think we're all frustrated the fbi is not here to answer some of these questions. i think that would help us. with respect to representation'' you are making, i have heard of the representations about compliance with 8.10. i still don't see how this language in the order that says the lot -- officers must be in compliance come if they're not -- i will leave it that.

i think the language here in this bureau order can be improved upon. i also respect chief suhr and his effort to make sure there is no daylight between sfpd's obligations to being compliance with these important policies. >> rich -- with respect to the standards, the chart we presented to you we went over line by line with the fbi and said, is there anything here that is not accurate? they agreed it was accurate. they say we don't always apply those guidelines. we are more limited. what the guidelines say, the controlling documents, it is exactly, according to the agreement, what we showed you. she said, we want to retain our flexibility. >> i don't think it is beneficial to get into a long back and forth. police officers remain in the chain of command and are subject to policies and procedures.

>> i have a question for perhaps you, president mazzucco, or chief suhr, people who have been working with this for a period of time. we are working under an ammo you and have been since 2002 -- an mou since 2002, rather than a resolution. what is your impression in terms of the distinction and the differences of the relationship that might exist between a resolution-based relationship and an mou relationship basis with the fbi? i am asking this question because i am hearing that a lot of the issues would be taken care of if we were under the

resolution-based relationship. how would it change if we shifted to a resolution-based rather than [inaudible] >> i cannot speak for sure. my guess would be that all of the jttf's operated via mou until portland. he is shaking his head, that is not true. maybe he can help us with the answer. >> the attorney testified in portland that portland was not this first -- not the for city. others are operating in the jttf without an mou. >> [inaudible] i know you have explained -- [inaudible] we can effectuate what we intend within san francisco and the police if we are under a resolution relationship.

what are the conceivable -- >> to be quite honest with you, i have seen no downside. if sfpd has complied with 8.10 now, it allows the exact same activities you are engaging in right now to continue to apply. it allows for civilian oversight and avoids confusion of an mou base. the fbi took out everything related to local control. it avoids the confusion of the fbi saying they can block it. the one difference, but it should have no impact, is the mou provides for depute physician -- deputization. that is important on a practical level because it gives those officers the authority to exercise federal powers. if what we are saying is they

can do their jobs under local powers, under local standards, if what we're saying is they can and we want them and they can be effective, as we all want them to protect us from terrorism, by exercising san francisco powers, they don't need the deput ization. they said it is a huge win for combating terror giving the portland officers the same security clearance, the same level, the same access to information they need to do their job to keep us safe. the technical difference is they would not be deputized. i do not believe what you would be giving up, unless there are things going on that nobody knows about that they are not supposed to be doing. i am not suggesting that is the case. it seems it is the perfect win- win. the way to exercise it is notify

them your during the transition period you have 60 days to talk about it and fix it. >> thank you. >> thank you. >> man, president? -- may i, president? >> thank you, commission president. i think i owe it to the community to first make a comment to say that it was public hysteria that caused all these jttf and surveillance in the community. i believe that we have all the good intentions in the world to solve the problem. it is actually regrettable that the special agents and fbi are not in the room today and we can ask them directly the questions. a lot of the answers seem to be

how they will treat the mou's, or resolutions, or whatever we move forward with. i have a question for director sparks. on what the commission role has got to be moving forward, in terms of our continued relationship in this matter? >> commissioner come up to this point, we have been mediating between various community groups, organizations, and different agencies. we would anticipate we would continue doing that. we have met several times with aclu and asian law caucus. we have met with asian law caucus and aclu with the police department. we have met with the police department separately, with the fbi separately, with the u.s. attorney separately. we have been trying to gather