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Judge won't decertify BYU PD over Honor Code investigations

BYU campus
Posted at 8:42 PM, Jan 05, 2021
and last updated 2021-01-06 00:23:28-05

SALT LAKE CITY — An administrative law judge has decided against decertifying Brigham Young University's police force.

In an order issued Tuesday night, Administrative Law Judge Richard Catten granted BYU's request to dismiss the case, but also sided in part with Utah's Department of Public Safety, which wanted the private university's police agency decertified.

The decision was a surprise, as Judge Catten had signaled he was favoring decertifying BYU's police force.

The judge essentially declared that while DPS wanted The Church of Jesus Christ of Latter-day Saints' private university to act like other police forces — the law at the time didn't necessarily require them to. At the center of the case are accusations that a BYU PD lieutenant improperly accessed law enforcement databases and reported students to the private university's Honor Code Office. The Church of Jesus Christ of Latter-day Saints, which owns BYU, requires students to adhere to a set of standards including no premarital sex, no drinking or drug use. Students can be disciplined for violating the Honor Code.

The case stems from reporting by The Salt Lake Tribune over people who reported being the victims of sex crimes finding themselves under investigation for potentially violating BYU's Honor Code. The Tribune's reporting on the issue prompted changes at BYU and won the newspaper a Pulitzer Prize.

Since then, news media outlets including The Tribune and FOX 13 (who have a news sharing agreement) have sought to have access to police records. The university has argued that as a private school, it's not subject to public records despite having its officers certified. The law changed in 2019 to make them subject to GRAMA.

DPS has argued that BYU failed to conduct an internal investigation into the conduct and didn't cooperate adequately with its investigation.

"The Parties took a very different approach to the statutes and rules that are at play in this case. POST clearly expected BYUPD to act in a similar fashion to most other police agencies in the state – conduct an administrative internal affairs investigation the officer’s alleged actions, then turn over the results to POST for further investigation under [the law]," Judge Catten wrote.

"If BYUPD had followed that course, then the officer surrendering his certification would have been the end of the process and this decertification case would never have happened. Instead, BYUPD chose a different course of action. It brought in multiple attorneys and obtained a secrecy order which, when combined with attorney-client privilege, resulted in much of the case being shielded from POST. However, some of POST’s expectations and resulting arguments regarding cases referred from police agencies are based on POST’s common practices, built up over years of handling similar referrals from other law enforcement agencies. POST expected BYUPD to act in the same manner as the most of other law enforcement agencies that it oversees, and it did not – clearly raising a red flag for POST. Unfortunately for POST, some of those expectations, while they may make sense, do not have a basis in [the law]."

However, the judge was critical of BYU saying it "has defended itself by throwing every conceivable argument into the mix."

"The biggest single cause of the conflict between BYUPD and UDPS is the startling lack of guidance from the statutes and rules that govern the certification of BYUPD, the process by which any law enforcement agency is required to refer allegations to POST, and the lack of a clear process for objections to an administrative investigative subpoena or the non-criminal enforcement of such a subpoena. The statutes and rules that are in place which govern BYUPD’s certification are piecemeal and it requires a substantial amount of statutory interpretation to determine how they work together," the judge said.

Judge Catten did give DPS some wins, saying "a private college or university law enforcement agency is required to comply with the investigation and referral obligations set forth" under the law. But he also found BYU had complied where it could.

In a statement on Tuesday night, DPS Commissioner Jess Anderson said he was disappointed and contemplating an appeal to a higher court.

"Decertification was the right course of action to protect the integrity of law enforcement. Non-compliance with POST investigations erodes all integrity. Despite a ruling against my administrative action, it can still result in an important change for the BYU community," he said. "The department’s errors of the past have been disclosed and appropriate parties have an opportunity to correct them. I now look forward to working with BYUPD to establish appropriate policy and expectations. We expect all law enforcement agencies, including private police organizations with law enforcement authority like BYUPD, to hold themselves accountable and to abide by the same standards."

Commisser Anderson called on the Utah State Legislature to make changes to the law to provide further clarity.

BYU spokeswoman Carri Jenkins said the university was pleased with the ruling and called it the "correct conclusion."

"BYU Police will continue to operate as a state-certified police force, which is consistent with private university police forces across the nation and ensures the university has the most effective system to provide a safe and peaceful environment for BYU’s 30,000 students," she said in an email Tuesday night.

"We have consistently maintained that the two grounds asserted in the decertification notice lacked merit. This ruling confirms that BYU Police met all investigation requirements and that BYU’s lawyers responded appropriately to the subpoena. BYU Police looks forward to working with the Department of Public Safety to follow best practices and continue to meet the certification requirements."