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1. Purpose. The purpose of the
Memorandum of Understanding (Figure 1) between EBSA and the
Office of the Inspector General [Office of Labor Racketeering
(OLR)] is to improve the effectiveness of the Department's
enforcement activities in relation to organized crime and
racketeer infiltration, control, and influence in the employee
benefit plan field, and to strengthen the protection afforded
to employee benefit plan participants and their beneficiaries.
2. Background. OLR and EBSA have
agreed to exchange information in investigations involving
matters of interest to both agencies. The agreement provides a
mechanism for EBSA and OLR to cooperate to the maximum extent
possible under applicable laws, rules, and regulations to
achieve Departmental objectives in connection with
administration of ERISA and to remove organized crime and
racketeer control, domination, and influence from employee
benefit plans.
3. Plans Targeted by OLR. On a
quarterly basis, OLR will provide EBSA with a list of all
employee benefit plans involved in cases it has targeted for
investigation or audit. The sole exception consists of any
investigation by OLR in which it has been personally
determined by the Deputy Inspector General that the
investigation is of a highly confidential nature. It is
contemplated that this exception will be rarely used.
4. Plans Targeted by EBSA. EBSA
will, on a quarterly basis, provide OLR with a list of all
matters currently under investigation by EBSA, which can
reasonably be considered to contain matters within the
jurisdiction of OLR. Such matters consist of investigations,
which involve individuals reputed to be affiliated with
organized crime and matters in which OLR has previously
expressed some interest.
5. OLR Targeted Industries. EBSA
will, through its National Office, provide OLR with a list of
all employee benefit plans, which are affiliated with unions
within industries, identified by OLR and which are targeted to
be audited within the 90 days following the transmittal of the
list. EBSA’s list will be provided on a quarterly basis
after its receipt of OLR's list of targeted industries.
6. Identifying Plans Affiliated with
Unions within Targeted Industries. To facilitate gathering
information to fulfill EBSA’s obligations pursuant to the
Memorandum of Understanding, EBSA will identify during the
case opening whether a labor organization is involved in the
employee benefit plan being investigated. If a labor
organization is involved, the LM number of that organization
will be included in the case opening information. In addition,
the business, product, or service code of the industry will be
included in the case opening information. The codes to be
inserted are those which are now used by employee benefit
plans in completing Form 5500s.
7. Indices Searches and Requests for
Information. Upon request, OE and each Regional Office
(after consultation with OE) will conduct and furnish to OLR
results of any indices searches and information concerning
specific individuals or organizations in its files, subject to
restriction under Rule 6(e) of the Federal Rules of Criminal
Procedure, applicable restrictions of the Internal Revenue
Code (IRC), and restrictions of other applicable laws.
Upon request, OLR will furnish EBSA with
results of indices searches and information from its files
concerning specific individuals or organizations, subject to
Rule 6(e), the IRC, or other applicable restrictions. OE and
each RO (after consultation with OE) are authorized to
transmit such requests to OLR.
8. Other Investigative Aids. When
requested by OLR, OE will furnish other materials which may be
of investigative assistance, such as computer printouts of
reporting employee benefit plans. OLR is under a similar
obligation to respond to requests from EBSA. The manner for
channeling such requests to OLR shall be the same as in
paragraph 7 above.
9. Need for Immediate Action by the
Other Agency. If a Regional Office develops or acquires,
during the course of an investigation or otherwise,
information indicating a possible need for prompt action by
OLR, the facts of the matter should be brought to the
attention of OE, which will inform OLR. In emergency
situations, such notification may be by telephone. This
disclosure is subject to the restrictions under Rule 6(e) of
the Federal Rules of Criminal Procedure, applicable
restrictions of the IRC, and restrictions of other applicable
law. OLR is under a similar obligation to promptly provide
EBSA with information obtained by it which indicates a
possible need for immediate action by EBSA.
10. Potential Criminal Violation in
Plans Previously Identified to OLR. OE will inform OLR of
information concerning alleged criminal violations obtained in
EBSA investigations involving employee benefit plans which
have been previously identified to OLR. OE will notify OLR
upon receipt of the information from the RO.
11. Referral of Cases to SOL. When
an ROI is referred to the Office of the Solicitor (either PBSD
or RSOL) with a recommendation for enforcement action, OE will
furnish a synopsis of the case to OLR. At the request of OLR,
OE will make available, subject to relevant legal
considerations, the underlying documents and other materials
pertaining to the ROI. If OLR determines that it has an
interest in investigating any matter brought to its attention
through this procedure, OLR will notify OE so that appropriate
arrangements for coordination of any such investigation with
EBSA enforcement action can be made. Under no circumstances
will OLR initiate any contact with plan officials based on
information obtained pursuant to this paragraph without prior
consultation with EBSA.
12. Closed Cases. When a Regional
Office closes, without a recommendation for enforcement
action, an investigation which has previously been identified
to OLR, OE will be informed of the closing through the Form
215. OE will then notify OLR that the EBSA investigation has
been closed.
13. Subpoenas. When a subpoena
requiring the production of documents in the possession of an
employee benefit plan, service provider, or other party is
served by either EBSA or OLR, the investigator shall take all
reasonable steps to ensure that those documents or copies of
those documents are returned no later than 30 days after the
return of the subpoena. If the investigator is unable to
comply with this requirement, he/she will make arrangements so
that the parties from whom the documents have been subpoenaed
can retrieve the originals or copies within a reasonable time
thereafter. Under no circumstance may EBSA subpoenas be used
for purposes of assisting an OLR investigation.
14. Relations with Other Agencies.
OLR does not have the authority to represent EBSA in any
matter involving an ongoing investigation with regard to
coordination and communication with DOJ, or any other agency.
EBSA will communicate directly with such agencies and in the
event that a dispute arises which cannot be resolved at the
local office level, the matter will be referred by memorandum
(or in emergency situations, by telephone) to the Criminal
Coordinator, OE who will attempt to resolve the matter with
OLR or DOJ.
(Figure 1)
I. Purpose
The purpose of this memorandum is to
improve the effectiveness of the enforcement activities of the
parties to this agreement in relation to organized crime (OC)
and racketeer infiltration, control and influence in the
employee benefit plan field, and in relation to the protection
of employee benefit plan participants and beneficiaries.
II. Coverage
This agreement applies to the Office of
Inspector General (OIG)/Office of Organized Crime and
Racketeering (OOCR) and LMSA Pension and Welfare Benefit
Programs and the Special Investigations Staff (hereinafter
collectively "PWBP").
III. Objective
Enforcement of the civil and criminal
provisions of ERISA and related Title 18 statutes is essential
to any serious attempt to address the problems of organized
crime and racketeer influence in the Employee Benefit Plan
field and to the protection of employee benefit plan
participants and beneficiaries. It is understood that to the
maximum extent permissible under applicable laws, rules and
regulations, PWBP and OOCR shall work in concert to obtain the
DOL objective of removing OC and racketeer control, domination
and influence from Employee Benefit Plans, and to achieve the
other objectives of the Department in connection with the
administration of ERISA. OOCR and PWBP recognize their
responsibilities to exercise their respective investigative
powers and perform their duties in a manner that is consistent
with the requirements of applicable law. All of the provisions
contained herein shall be construed accordingly.
IV. Effective Date
This agreement shall become effective on
April 15, 1980.
V. Responsibility And Authority
1. PWBP is responsible for administering
the Department's programs and operations and establishing
policy related to ERISA.
2. OOCR is responsible, among other
things, for administering the Department's participation in
the Organized Crime Strike Force Program.
3. It shall be the mutual responsibility
of the parties to this agreement to coordinate activities
subject to this agreement in order to determine the most
effective strategy in accomplishing the desired objectives.
Moreover, pursuant to previous agreements between DOL and
the Criminal Division - U.S. Department of Justice, a
Work Group has been established involving representatives of
both Departments. The Work Group serves as a coordination
mechanism for matters of mutual concern. OOCR shall
participate in the Work Group as appropriate.
VI. Working Relations
1. PWBP and OOCR will cooperate in an
effort to control organized crime and racketeer influence in
employee benefit plans through civil and/or criminal
enforcement, and to achieve the other objectives of the
Department in connection with the administration of ERISA.
2. It is anticipated that some matters of
mutual interest to OOCR and PWBP may be coordinated, and any
differences resolved, at the local field level. In the
absence of agreement as to the strategy to employ in any
given case, the matter should be referred to the Work Group.
3. Within 30 days after the effective
date of this agreement, and quarterly thereafter, PWBP will
provide OOCR with a list of all benefit plans targeted for
audit within the following 90 days which are affiliated with
unions within industries which have been identified by OOCR,
and of all other matters presently under investigation which
reasonably can be considered to be within the jurisdiction
of OOCR.
Within 30 days after the effective date
of this agreement, and quarterly thereafter, OOCR, will
provide PWBP with a list of all employee benefit plans
involved in matters which it has targeted for investigation
or audit; provided however, that this provision does not
apply in the case of any investigation determined by the
Deputy Inspector General to be of a highly confidential
nature.
4. Each office will, upon request,
conduct and furnish to the other, results of any indices
search.
5. Each office will, upon request,
furnish to the other information concerning specific
individuals or organizations in its files, subject to
restrictions under Rule 6(e) of the Federal Rules of
Criminal Procedure, applicable restrictions of the Internal
Revenue Code and other applicable law.
6. Each office will, upon request,
furnish to the other matters which may be of an
investigative aid, such as available computer printouts of
reporting benefit plans, etc.
7. Subject to the restrictions under Rule
6(e) of the Federal Rules of Criminal Procedure, applicable
restrictions of the Internal Revenue Code and other
applicable law, if either office develops or acquires,
during the course of an investigation or otherwise,
information indicating a possible need for prompt action by
the other, the facts of the matter should be brought to the
attention of the other as quickly as possible. PWBP will
also inform OOCR of alleged criminal violations involving
benefit plans previously identified to OOCR pursuant to
paragraph 3 above.
8. At the time PWBP refers a report of
investigation to the Office of the Solicitor with a
recommendation for enforcement action, PWBP will furnish to
the Office of Organized Crime and Racketeering a synopsis of
that report of investigation. With respect to any such
synopsis, at the request of OOCR, PWBP will make available,
subject to relevant legal considerations, the underlying
documents and other materials pertaining to the report of
investigation. In the event that OOCR determines that it has
an interest in investigating any matter brought to its
attention through this provision, OOCR shall first notify
the Division of Enforcement, PWBP, so that appropriate
arrangements for the coordination of any such investigation
with the PWBP enforcement action can be made.
9. Whenever PWBP closes, without
recommendation for enforcement action, an investigation
previously identified to OOCR pursuant to paragraph 3 above,
notice of such closing shall be furnished to OOCR.
10. When in the course of an
investigation conducted by OOCR at the direction of a grand
jury, or conducted by PWBP, a subpoena is executed for
documents in the possession of an employee benefit plan,
service provider or other party doing business with a plan,
the investigators of the agency involved in the execution of
the subpoena shall take all reasonable steps to ensure that,
not later than 30 days after the commencement of the
execution of the subpoena, the party from whom such
documents were subpoenaed has available either the originals
(returned) or copies of the original documents, or will
otherwise make arrangements so that the parties from whom
the documents have been subpoenaed can retrieve the
originals or copies upon request and within a reasonable
time thereafter.
11. Notwithstanding any provision of
paragraph 7 supra, neither OOCR nor PWBP has the authority
to represent the other in any matter involving an ongoing
investigation with regard to coordination and communication
with local strike forces, the Department of Justice or any
other agency. PWBP or OOCR, as applicable, will communicate
directly with such agencies and, in the event any dispute
arises which cannot be resolved at the local office level
the matter will be referred to the Work Group.
Signed this 24th day of March 1980.
For the Office of Organized
Crime and Racketeering
Office of Inspector General |
For the Pension and Welfare
Benefit Programs
Labor-Management Relations Service |
/s/ Ronald Goldstock
Deputy Inspector General |
/s/ Ian D. Lanoff
Administrator |
|