HomeMy WebLinkAbout1995-03-08; City Council; Resolution 95-57001
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RESOLUTION NO. -
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA IMPOSING DISCIPLINE OF POLICE OFFICER PATRICK PRESTON
WHEREAS, the City Council held a Special Open Mee
to consider the proposed discipline of Officer Patrick Pre
on Wednesday, March 1, 1995, pursuant to Government Code sec
54957 and Carlsbad Municipal Code Chapter 2.44 and the Rules
Regulations promulgated thereunder, and
WHEREAS, the police department was represented by
attorneys of record, Whitmore, Johnson and Bolanos, by Ric
Whitmore, Esquire and its Police Chief Robert Vales
personally present, and
WHEREAS, Officer Patrick Preston was person
present and represented by his attorney of record, Castle
Krause by Robert Krause, Esquire, and
WHEREAS, the City Council considered the argument
Counsel including questions and answers by Officer Preston,
WHEREAS, the Council has carefully reviewed the re
of these proceedings.before the Personnel Board, and
WHEREAS, Police Chief Robert Vales issued a wri
"Notice of Intent to Terminate", dated April 22, 1994, atta
to this resolution as Exhibit "Avr, and
WHEREAS, Officer Preston timely appealedthat deci
to terminate his employment with the City of Carlsbad to
Personnel Board, and
WHEREAS, the Personnel Board conducted hearing
October 19, 20, November 22, 23, 30 and December 1, 1994,
WHEREAS, those proceedings have been transcribed
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including all documents and other evidence and presented to
City Council which has been received and carefully reviewec
these proceedings, and
WHEREAS, the Personnel Board issued its wri.
recommendation by the adoption of Resolution No. 21 on Decel
6, 1994, and
WHEREAS, the municipal code and Article 22.9 of
expired Memorandum of Understanding between the City and
Carlsbad Police Officers' Association specify that the
Council shall review the findings and recommendations of
Personnel Board and may affirm, revoke or modify
recommendation of the Personnel Board as in the Counc
judgment seems warranted and that action shall be final, a
WHEREAS, the City Attorney notified legal counsel
the police department and for Officer Preston, in a letter d
January 16, 1995, how the City Council would proceed, and
WHEREAS, neither the department nor Officer Pre
objected, so the City Council proceeded in the following man
1. The police department submitted a written brie
its proposed findings and decisions of the City Coun
complete with references to the record indicating substan
evidence in support thereof, to the City Clerk and to Off
Preston by February 3, 1995 and Officer Preston submittc
written brief opposing the police department's brief to the
Clerk and to the police department on or about February
1995, and
2. The City Council received by February 24, 1
the record of the proceedings before the Personnel E
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consisting of: written briefs from the police department
from Officer Preston, the transcripts of the proceedings d
October 19 and 20, 1994, November 22, 23, 30, 1994 and Dece
1, 1994, and all evidence submitted to the Personnel Bo
whether admitted or rejected, which consisted of Off
Preston's Exhibits IIA" through vgBBvv and of the PO
department's Exhibits 1 through 24, and the City Council h
oral arguments from legal counsel for both parties on Marc:
1995 and the City Council carefully reviewed the recorG
proceedings, the written briefs, and considered the t
arguments of legal counsel for the department and for Off:
Preston, and
WHEREAS, the City Council continued the Spec
Meeting and its deliberations to Wednesday, March 8, 1995,
the Council Chambers at City Hall, 1200 Carlsbad Village Drj
Carlsbad, and
WHEREAS, after further deliberations, the City Coun
now finds as follows:
1. That the above recitations are true and corre
2. After reviewing the record of the proceedings ,
considering the written and oral arguments of legal counsel
the police department and Officer Preston, the City Coun
findsthat Officer Preston committedthe violations contained
charges numbered 1, 2, and 4. The City Council adopts as
own the department's proposed findings of March 1, 1995 and
references to the administrative record, and incorporates tl
herein by this reference.
I 3. The City Council finds there is insufficic
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evidence to sustain Charge No. 3.
4. The City Council finds and adopts as its own,
findings of the Personnel Board in its Resolution No. 2:
pages 1:25 through 2: 3 that Officer Preston is guilty of Ch
No. 5, disrespect for and/or unwarranted suspicion of author
Therefore, the City Council orders that Off
Preston be terminated from employment with the City of Carl;
effective May 11, 1994 as set forth in the memorandum from c:
of Police Robert Vales dated April 22, 1994, unless he ag:
and consents to and conducts himself in his employ
relationship with the City for a period of one year from
date of this decision as follows:
A. He will faithfully observe all state laws, (
ordinances, department rules, regulations and directives
orders from superiors including, without limitation,
specifically including that he will not leave his beat witk
prior authorization, he will not conduct any unauthorj
investigations and that he will not conduct any surreptitj
tape recordings of anyone without permission of the appropri
supervisor.
B. He will agree to and will attend a series
counseling sessions as directed by the Chief of Police and sh
authorize the counselor to provide appropriate oral and
written progress reports to the Chief of Police upon reques
C. He shall take and satisfactorily compl
additional courses in training and education as directed by
Chief of Police. The purpose of these courses are to imprc
and clarify his performance as a patrol officer for the City
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Carlsbad.
D. Officer Preston is not entitled to back pay du
this period. If Officer Preston accepts these condition:
writing, he shall be restored to the City payroll as of
date and shall return to the work place as directed by the C
of Police.
E. That Officer Preston's failure to underti
pursue or satisfactorily complete the above conditions shal
grounds for termination or to reinstate this termination du:
this one year period. Officer Preston shall be entitled to
opportunity for a hearing within 10 days after notice of
violation of these conditions but the issues shall be lirnitec
only whether or not he has satisfied them and no other.
This decision is final subject to judicial reviet
set forth in Carlsbad Municipal Code section 1.16.010(f) wl
states:
"The time within which judicial review of this decision must be sought is governed by Code of Civil Procedure, Section 1094.6 which has been made applicable in the City of Carlsbad by Carlsbad Municipal Code Chapter 1.16. Any petition or other paper seeking judicial review must be filed in the appropriate court not later than the ninetieth day following the date on which this decision becomes final; however, if within ten days after the decision becomes final a request for the record of the proceedings accompanied by the required deposit in an amount sufficient to cover the estimated cost of preparation of such record, the time within which such petition may be filed in court is extended to not later than the thirtieth day following the date on which the record is either personally delivered or mailed to the party, or his attorney of record, if he has one. A written request for the preparation of the record of the proceedings shall be filed with the City
Clerk,
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e e ' As used in this section, 'party' means an officer or employee who has been suspended, demoted, or dismissed; a person whose permit or license has been
revoked or whose application for a permit or license has been denied; or a person whose application for a retirement benefit or allowance has been denied."
PASSED, APPROVED AND ADOPTED at a Special Open Mee
of the City Council of the City of Carlsbad on the 8th
of March 1995, by the following vote, to wit:
AYES: Council Members Lewis, Nygaard, Kulchin, Finnila,
NOES: None
ABSENT: None
ATTEST: v \ 1
&R& ALETHA L. RAUTENKRANZ, City tlerk
(SEAL) 1
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Aprtl 22,: 1994 ".
To: POLICE OFFICER PATRICK PRESTON
1 FROM: ' Chief of Police :Robert Val-
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NOTlCE OF INTENT TO TER,MINA" ..
.' This 1s to .advise'you that I am proposing. to terminate your from the posj
know. the one-day suspension that I notified you on January 24. 1994. tt would lmpose. was never ffnaked. You appealed that.disci@ine, but befi the &=OMC! Board could hear your appeal, you undertook additional misconduct. Accordingly, I now rescind that-one-day suspension and ad the .misconduct that gave rise to that suspension to the misconduct described below, as further support for this notlee of fntent to terminab
; rof Dolict Officer for the Ctty of Carbbad. -effective May- 1 1, 1994. As you
I propose to take this acuon'based upon the CoUSwlng incidents. charge: and grounds for discipline. x. ..
OF Sm -
A. - Failure to exercise good Judgement: Police Departxnent rub and Regulatlons, Section 1.02 - Obedience to Rules: Police Department Rules and Regulatlons. Section 1.40 - Truthhtiness: Police Department I and Regulations, Section 1.34 - Investfgations: Pollce Department Dfrcc 5.8 - Complatnta Against Police Employees.
8. Qranadr For On March 13, 1994, you attempted to dlscx your supertor om-ucttng an unauthom mtigauon into Sergeant Byfer's actions of approwately ten months ago in returning a dog, You were su~equcntly untmthfiri regard- your motive for con& the inve&igatton.
Your fatlure to tccdvc permission fkom anyone in the chain of c~mmani Initlate thb fmmtigatton is expnssiy forbidden by Dement Rul- a1 RegulaUons Sec~on 1.34 - Invesugatlons, and 1s entirely inconsistent VI the procedures established in Department DirectWe 5.8. - Complaints
Against Police Employees e
Durlng the fnvesugation into this matter, you indicated you were not prevlously aware of and/or familiar w!th the departmental DlrtcW
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(: regarding the procadurea for !nvestl$ating complaints against pollcc-
employees. Your ignorance of and/or disregard for these directives causc
been in exlstence at all tlmes during your employment. YOU received a cl of these dfrectfvcs when you began employment. and you were notifled tl you were responsible for being famlliar with them.
me great c~nctm becatwe these dtrcctlw8, as well as 8wmi othtn, hav
. These directives establish procedures and protocols that allow the department to senre- the community tn an emcient and coordlnatcd man . The dircctive?r also facilitate positfve ataff morale by ensurfng that each- officer who is the subject of a citfien's complaint or internal cornplaint ' receive appropaate notice of an investigation. uniform treatment. and al applicable rights under the law. . 4
Your fatlure to follow these directives undermines the department's abii to achieve these -objectives For example. your unauthorized invesugatio was inefficient and uncoordinated. Because you failed to notify your supendsors prior to conducting the investigation. you had no idea wheti
necessary. FlnalSy. your misconduct has also caused department morale suffer. The teamwork and trust that all personnd must share in order t eftlciently run the department has been disrupted by your breach of depar&rnent dlrectivea. No pvsonnel should ever have to wonder when
on had already occurred. or if any invcstigatlon was even
L if they will be the subject of an unauthorized inquiqt.
Perhaps more sexdous than your lack of cognizance of department direc is that you appear to have undertaken the investigation in order to rctai against and/or discredit Sergeant Byler. You stated durtng the internal tnveatigatfon that you had an obligation to the department to look tnto t matter and corroborate.
Yet. the followlng facta support my belief that you did not have the department's best interest in mind when you undertook thia inveNgaU1 You initiated the unauthortzed fnvesttgatlon on your first duty day after Sergeant Bylu gave you a below-standard performance cvaluation. You I informed Sergeant mer on the day you received the evaiuatlon that It w incorrect and unwarranted. You knew that Sergeant mer had revtous returned the lost dog to its owner. Accordingly. the only basts P or you t initiate the investigation apprordmateiy ten rnontha after the fact was u unsubtjtantiated mmor you heard from another offlccr. You did not mal attempt to contact anyone in the chain of command to substantiate the mmor. All of these facta sup rt the conduston that you were untmthf to the pwpose of your unau tfp om invatigation, and that you und~xtc for the speciffc purpose of discrediting and/or rttailatlng agairwt Serge Byler for giving you a below-standard performance evaiuatlon.. These II are completely inconsistent with the ethical standards that I requirt oi
i sworn members of thls department. % ."
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OUS TAPE RECOW
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Am Faiiure to &&cise goodjudgement: Police Department Ru and?!$%kons. Section- r.06: .- Wnbeccjmtng Conduct: Police Departme Ruia and Regulattons. Sectton: Ti04 .- .Obedience to Lawfir1 Order: Police Department Rules and rztgulauon~-Section ..... 1.03 - Obedience to Laws.
B. Gram& For Discinllnei .&March 13, 1994, you tape recorded Ms. . Connie Young during an unauthorized fnvcstigatton~and without her knowiedge or authorhation. On at least one occasion during the past ye you have tape recorded Sergeant Byier wtthout -his knowledge or authorization.
Califomfa Penal Code Sections 632 and.633 and I8 United Stat- Code Secaon- 25 10 and following prohibit unauthorized. tape recording8 'cxcc certain circumstances. Your acttons to tape record Sergeant Byk and prtvate ciuzen-durlng the course of an unauthorlzed In-UgaUon may y these state and federal laws.
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Regardl- of whether you. actually violated the= law8 or whether you c point to an exception in these laws that arguabiy applies. your conduct dtscredits the department because it is inconsistent wlth the sptrtt of 1 lam. Aa a poiice offlcu. your adherence to all laws should not be subjc queatton.' Carlsbad realdents and department pm~el should be able expect that you will obey ail laws designed to protect their prlvacy andr that you will requcat their pcrxn!ssion prior to tape recording them. Yc disregard for these prlvacy rtghts constitutes conducts unbecoming to i police of.Hcer who is sworn to uphold all lam.
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15.1W * AT"SBWT'T0 BRIBE A SUPERIOR OFFICER
A. - Failure to exercise good judgement: police Department Rt and Regulations, Section 1.06 - Unbecoming Conduct.
B. - On March 15.1994, during a discumton w Sergeant Bykr n=e below-standard performance evaluation f he issued to u on March 9. you told Sergeant mer that you had a.tag recording of r im making a. derogatory radal reference about. a Cartsbac resident. Your commenta to Sergeant Byier appeared to be an qtttmpt Influence him to alter the rating on your most recent performane evaluatlm.
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c " Such conduct constitutm an unethical attempt to avoid the consequence
poor work performance. Moreover, it demonstrates a flagrant disregard
department directives that' provide legitimate channels for challenging and/or rebutting performance evaluation ratings.
If you had actually suspected that Sergeant Byler had conducted himscif any manner that might bring disrepute upon the department. you had a (
. to brtng the matter to the-attention of the appropriate supervtsor pursua
. to department ruies and directives regarding investigauona and/or citlzc complaints.
That you would even give the appearance to Sergeant Byk that you mu,
' conceal information about a potenually unlawful act in cxchange for a mc favorable performance rating, corMncc9 me that you have lost sight of tl high ethical standard3 new- to perform police work in the Clty-of . cari!sbad.
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10.1993 - " OF-
A. - Faflure to utcrctsc good judgement: Police.Department Ruls
Rula and Regulations, Section 1.16 - Performance of Duty.
8. Qronndr for - You were insubordinate and/or demonstrata extremely poor judgement on december 20, 1993. when you left your bc and the Carisbad city limits without notiwng dispatch or asking pennisl from a supexvisor. W
You admitted that you did not even consider asking for approval before leavtng your beat, desplte the fact that Sergeant Byte and Acting CapW Frted counselled you to remain on your beat on at least three prtos occasions.
I and Rcguiati~~, Scctfon 1.02 - Obedfence to Rules: Poiice Department
Your per&&nt failure to obey the directives of your supervisors in thts regard ha resulted in an inefndent use of poUcc resources. Although y
saki during, the internal investigation into th& matter that you left your ' to asstat Occamldc offtcem and CarSsbad detectives make an arrest in Oceanside. you admitted that you did-not hear any of the om- at the scene request m~stance. Accordingly, your prescn- at the sene was
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MO= importantly, your unwtmgness or tnabrtlty to remain on your b~a and/or to noti@ dispatch*of your whereabouts potcnualiy endangem bot Cartabad residents and your felfow ofllctrs.
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i . .' Durlng 'your unauthorized absence, a fellow omccr who was working the other downtown beat, and who did not know you had left your beat.
Theretore,. your mlsconduct lett the downtown area wlthout pou& protcctfon' and your colleague wlthout appropriate backup. The fact that Incident occurred downtown during this particular tnstance does not mi your disregard of these fundamental rules of standard police practfce an! -less egregious.
' An; omcer who haa been on the force for four yean should be fully am both the absolute necessity to now dispatch of his or her whereabouts. of the cr~tical importance of rcmdning on his or her beat. You admitted
. 'did not even consider notifying dispatch prior to leavlng your beat. desp speciflc counselling on this very issue. Your admitted mtsbehavlor convl me that you cannot exercise appropriate judgement. that. you dl contln to disregard your supervisors' dfrecUvc3. and that I can no longer trust y to fulfill your responsibiliUcs as a Carlsbad Police Officer.
, requested and-re~eivxier@sstm tr, lea~%&utv_for a & break.
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/OR UNW-OM OF AuTa0I
I A - Failure to exercise good judgement: Department Ruled and Regulations. Section 1.06 - Conduct Unbecoming: Department Rufa ant Regulations. Section 1.26 - Courtesy.
8. - Dhcirpllnat Throughout your empl ent you.havc exhit a disrespect for and/or an unwarranted suspicion o T authority that prm you from learning from your mistake3 or improving your ablllty to make approprlate judgement cails.
Tkoughout your employment. you have exhibited an alarming levti of disrespect for and/or an unwarranted suspicion of any commanding ofR who critictzes your work performance. Each of your supertor officers hs worked hard to give you comtructtvc feedback, both orally and in your written performance 4uaUons. in order to assist you to better txtrcf~ your judgment. Each and every one of your written performance cvalua patnt3 an accurate pfcture of your strengths and weaknaes. and otllcu suggesttons for tmproving your perfo-ance.
Despite the consistentiy conatructive nature of the dqpartment efforts t help you improve your perfbrmance. you nhse to accept tesponsibtlity your own shortcoming8. Instead. you challenge each suggestion fot improvement your superior of€iccm pMde by: fnsbUng that they are wrong, claiming that they are 'out to get you", and/or qucstiontng thei~ authorte. Your defensivenas ha prevented you from hi@ accepUng th
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you have committed errors in judgement. Accepting responsibility for
emr~ is an essential ht step toward improving performance: your persistent failure to respect your superiors' directives and advice effecUv prevents you from improving.
The effective functtoning of the department requires that all offlcers accc their commanding omcers' orders and directions without question. Your consistent refection of constructive criticism and habitual questioning of your supervtsofs' authority has intedered with the efilcient administratio
improve your performance throughout your employment, No superior wf has worked wtth you for extended periods of time haa any fauh that you t ever respect their authority. Your failure to take responsibility for your ;Conduct indicates you are unwilling to improve and that you cannot provt the high level of police senrlces our community expccb and deserves
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- thedepartment. The department haa made every effort to assist you to
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The proposed discipUnary action 1s further warranted by your vt disciplinary record and perfomances evaiuatlons as described below.
1. - 9.1881 0 Belaw-8- Ped- - . Yourccdvc below-standard pert'omance evaluation for the period October I992 thrc Janua~y 1994 that rated you fRcsk in the foUawlng areas: understanding ~ practicing beat responsibility: ability to make Umeiy dccf8ion8 baaed upor available Information: ability to use tact. courtesy, and good judgement w! dealing with supervtsors: ability to be open to suggesUons. comment& criticism, and quesuons from supervtsorr: conformance with policies, procedures and work rules: knowledge and observance of department valuea: and ability to alert supervisor when problem develop which canr be routinely handled.
3. mer 19.1- 0 -ent Nee&d Fe-Errhi.tiarl: You received a below-at~ciard Perfomance evaluation for the period Ma 1.. 1992, through Septcmbu 1, 1992, that noted improvement - neec In the area8 of knowiedge of the lam, general work quality, publlc nlatfc and use of poke authority.
to ride fn a traintngxr ysn inappropriate LnvestigaUon of rcgtdent, When the re~ident rehsed a field sobriety test and ran back tc home. you fmproperiy and forcefully removed her from her residence ar axnstcd her for interfering with a police officer.
Copfea of ail documents, relevant matetld from your pemnnei flle. and
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3. &lY 14. 1- 0 VS . You were susgcnded and WID
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i' other material supportlng the proposed action are attached to this nouc
If you do not believe that this action is appropriate, you may respond ora or in writing, or both. If you elect to respond ln WrtUng. I must receive : response on or before 1700 hours, May 1 1 , 1994.
If you wish to respond orally, please contact my office no later than 1704 hours by May 4. 1994, at 93 1-2 13 1 to arrange an appotntment. I wIU conpidcr any response(s1 you make wtthin these deadline3 prtor to takfn
' hal action.
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-Police Department Investigat& Supplement dated March '29, 1994.
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. #. ' .. e Advisement dated :March 19. 1994.
Ezstmm Memorandum reference Internal Complaint Inveatlgatlon Alleging, Fossil
WO~UOM of Departmental Ruia and Regulations dated march 18. 1994
Ten-page handwrltten transcript of tape-recorded conversation betwea Omcer Preston and Ms. Connie Young.
Undated memorandum reference lost dog Incident.
' Notice of Dfscipline dated January 24. 1994. and signed January 25. 191
-tan Skeliy Hemng dated January 10, 1994. .
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Exhfbft. Notice of Intent to DWtpline dated December 18. 1994. ' ,
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-urn reference violahon of mi- submitted by Sergeant Byier.
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EmL%atton for discipline submttted by Acting Captain F)ted.
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Department Rule3 and Regulations: Section 1.02 - Obedience to Rules: Section 1.03 - Obedience to Laws: Section 1.06 - Unbecoming Conduct. Section 1.16 - Performance of Duty, Section 1.26 - Courtesy. Section 1.3d Investigations: and Sect~on 1.40 - Txuthfblness.
' aepartment Dirtctlve 5.8 - Complaints Against PoUce Employees.
.e it 13; Memorandum on trainlng tffom from Senior Offlcer Jim Marstell. z
14; Notlce of Disciplinary Actlon dated July 14. 1992.
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ern== EvaluaUons dated March 18. 1994: September 13, 1992: M& 25, 1992: June 1, 1991: JaIlUW 15, 1991: mobr 10- 1990: an
July 28, 1990.
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4 =e 22 (Dfsclpline of ah Employee] of the moat recent Carisbad Polic Officers' Aasoclation MOU.
It 10;
4 =e 22 (Dfsclpline of ah Employee] of the moat recent Carisbad Polic Officers' Aasoclation MOU.
Received: Date:
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