New OPNET agreement addresses civil liabilities

Last pact was made in 2007

PORT ANGELES — Governments and law enforcement agencies in Clallam and Jefferson counties are considering a new Olympic Peninsula Narcotics Enforcement Team interlocal agreement, a move that addresses issues discovered as a result of the Fager case.

The agreement addresses processes for civil forfeiture and what happens when someone sues OPNET, but should not change the day-to-day operations of the task force, officials said during a presentation to the Clallam County commissioners Monday.

“The last agreement was in 2007 and, in light of Fager, proved to be inadequate and incomplete,” said David Alvarez, Clallam County chief civil deputy prosecuting attorney. “We ended up with attorney fees of some $240,000 and the feds decided they couldn’t pay without an act of Congress.”

Steven and Timothy Fager successfully defended themselves against criminal drug charges sought by OPNET in 2009 and the seizure of Steven Fager’s property and after a series of lawsuits and appeals the state Supreme Court ruled last year that OPNET would have to pay Steven Fager’s attorney fees associated with the criminal and civil forfeiture cases.

The case involved OPNET seizing about $500,000 worth of property where the Fagers were growing marijuana — which they said was for medicinal purposes.

A search warrant — which was obtained when officers said they could smell the Fagers’ grow operation from 130 feet way — was thrown out in court, leading to evidence from a raid not being allowed in court and the dismissal of charges in 2013.

When OPNET received the bill for Steven Fager’s attorney fees, it wasn’t clear what share of the cost each agency was responsible for, Alvarez said.

The new agreement has a new section with definitions, which Alvarez said will be determining who pays what if there is a settlement or damages must be paid.

“The most important definition is probably the definition of ‘law enforcement work’ because that will tell us who is on the hook for civil liability if things go south,” Alvarez said.

The agreement says that any participant that provides law enforcement work in a case that leads to the payment or award of damages will be responsible for an equal share.

The agreement does say that if a participant is a state agency or division, such as the State Patrol, it would not be responsible for costs of civil litigation.

However, Alvarez said the state did pay a share of the Fager damages.

The agreement says that Clallam County, the city of Port Angeles and city of Sequim will rotate on an annual basis the responsibility for prosecuting civil forfeitures of real and personal property, starting with Clallam County.

Clallam County Sheriff Bill Benedict emphasized that federal officials locally expressed a willingness to pay court costs, but were unable to when it went to legal review.

“When this originally came down, at the local level, Homeland Security and Border Patrol accepted responsibility and were willing to pay their share,” Benedict said. “The feds are good partners with this. I don’t want to throw them out or not cooperate with them based on this.”

The agreement is currently under consideration by the cities of Port Angeles, Port Townsend and Sequim, Jefferson County Sheriff’s Office, Clallam County, the State Patrol, U.S. Border Patrol, National Park Service, and Customs and Border Protection Office of Air and Marine, and Homeland Security Investigation.

Alvarez said that as of Monday no agencies had signed the agreement, but that he expected cities and counties to consider the agreement within the next month.

Clallam County Commissioners are expected to sign the agreement Oct. 1.

“I just wanted to get the ball rolling, so that’s why we’re here today,” Alvarez said.

A somewhat recent addition to OPNET is the Jefferson County Sheriff’s Office, which rejoined the task force after Sheriff Joe Nole took office.

Nole said his office is providing a detective who works in Jefferson County who will help the rest of OPNET with operations in Clallam County as needed.

“The boundaries that used to separate counties and cities are blurred by the drug trade,” Nole said Tuesday. “We’re all dealing with the same people, so it makes sense to join forces and put a damper in that.”

Chief Criminal Deputy Brian King told commissioners he believes this is likely the best operating agreement out of all 17 task forces in the state.

Benedict told commissioners that in addition to fighting the opioid epidemic, OPNET is a resource for incidents that require large responses or cross jurisdictional boundaries.

This agreement would not change that.

“It’s probably been our best reactionary team to something like a triple homicide, quadruple homicide, really terrible things that can bring a lot of resources together,” Benedict said.

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Reporter Jesse Major can be reached at 360-452-2345, ext. 56250, or at jmajor@peninsuladailynews.com.

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