BYU files appeal, plans to fight to keep its police department as state seeks unprecedented decertification

Brigham Young University is calling the state’s efforts to eliminate its police department an “extreme and unprecedented action” — and requested that officials withdraw their plans to decertify, and if not, vowed to fight.

The private university’s assertions came Friday afternoon in its formal appeal filed with the Utah Department of Public Safety (DPS), which announced last month that it wants to sanction BYU’s police department for several violations.

The unprecedented decertification would go into effect Sept. 1 — unless BYU’s appeal is successful.

The university, owned by The Church of Jesus Christ of Latter-day Saints, filed a 22-page response detailing its position on why it should keep its policing powers.

BYU lawyers argue that Public Safety Commissioner Jess Anderson overstepped his authority in seeking the decertification, and violated BYU’s rights to due process. They also argue the state is treating BYU’s police department differently than other agencies in Utah.

It called the state’s reasons to decertify “factually and legally baseless.”

“The commissioner’s unprecedented actions puts at risk the comprehensive oversight of campus safety and well-being of BYU’s students, employees and visitors,” the appeal reads. “BYU submits that the best way to keep [the] campus safe is through the continued certification of university police as a law enforcement agency.”

DPS officials confirmed Friday that the department received the appeal but declined to comment further.

BYU asked state officials to withdraw its notice to decertify and work with the university to resolve their issues. But it added it will defend itself in an appeal hearing if needed. That hearing is not yet scheduled.

This is the first time in Utah history that the state has moved to decertify an entire police department.

The spat between the two agencies centers around a two-year criminal investigation where state investigators concluded that BYU police Lt. Aaron Rhoades looked at private police reports created by other Utah County law enforcement agencies and passed on that information to university officials — and including those working in the Honor Code Office, which enforces a set of strict administrative rules that students and staff must follow.

In its appeal, BYU leans heavily on a recently disclosed secrecy order that was issued by an unknown judge in an unknown state court in 2016 as its explanation for the issues that has led DPS to seek decertification.

The secrecy order looms over the investigation of Rhoades’ records sharing issues, and has also prevented the public from seeing any investigative records detailing what investigators found during the two-year probe.

The Department of Public Safety has identified two main issues that led to Anderson’s decision to decertify. This is what they say and how BYU responded:

No internal investigation • DPS says BYU police did not conduct an internal investigation into allegations of misconduct lodged against Rhoades in 2016.

It was during this time that The Salt Lake Tribune obtained BYU documents that showed Rhoades had accessed a countywide database of police records to collect information from Provo police for an Honor Code investigation of an alleged victim. The documents show an Honor Code investigator contacted Rhoades in 2015 asking him for information in the rape case, and he looked at the records and relayed intimate details about the case back to the investigator. Then-police chief Larry Stott, along with Provo police, asked for a review of the department’s records-sharing practices — but DPS contends the university police did not conduct its own internal investigation, a requirement of certified police agencies.

BYU’s response • The university argues in its appeal that it could not initially conduct an internal investigation because the secrecy order prohibited police officials from participating in or conducting its own investigation. The secrecy order was later modified, according to the appeal, and a lawyer hired by the school sifted through thousands of pages of documents and interviewed several witnesses.

The attorney general’s office ultimately opted to not file criminal charges against Rhoades, but university officials say they concluded he violated university police policy. BYU disciplined him by removing his access to criminal justice databases and prohibited him from having any involvement in Honor Code matters. The university also said it made “other changes” to ensure its officers were not improperly accessing or disseminating private records, but those changes were not detailed in the appeal.

“This action was consistent with the expressed desire of the A.G.’s office to impose such discipline,” the appeal reads, “which the A.G.’s office represented to BYU as sufficient to resolve the matter.”

Failure to respond to a subpoena • In the decertification letter, DPS officials also say BYU police failed to respond to a subpoena issued as police regulators were investigating Rhoades for misconduct. A December letter to BYU police instructed the agency to allow DPS access to all “records, personnel and electronic data” so investigators could assess how its officers use a police database, the command structure at BYUPD and “the powers, authority and limitations” of BYU police officers.

BYU’s response • The university similarly argues here that the secrecy order was the reason it rebuffed subpoenas from police regulators who were about to embark on their own investigation of whether Rhoades should be able to keep his police license. (Rhoades ultimately retired from BYUPD last fall, and gave up his police certification.)

And the university noted it did respond to the subpoena: It objected to it, pointing to the secrecy order.

The private university further argued in its appeal that DPS is treating it differently from other university police departments, saying it is common for other university police to share information with other on-campus offices when necessary. Though the appeals document doesn’t point to any evidence of this.

“DPS’s effort to stop BYU from doing the same thing that goes on every day at Utah’s public universities is arbitrary and capricious,” the appeal states.

The university also said it believes that DPS violated Utah records laws and the secrecy order when it publicly released investigative documents that briefly detailed how investigators found that Rhoades accessed private police reports from Orem police, the Utah County Sheriff’s Office and Provo police and took information from those reports and shared them with BYU’s Dean of Students Office, the Title IX Office and the Honor Code Office.

BYU noted that the investigative documents — which concerned Rhoades’ police certification — had a note at the bottom of each page designating the documented as “protected.” DPS officials initially deemed that report to be a private record, but released it after The Salt Lake Tribune appealed. The newspaper noted in its appeal that when Rhoades signed a document giving up his police license, he acknowledged that investigative documents may be publicly released.

The details of the appeals hearing are still being finalized.

Anderson, the DPS commissioner, would likely hear the appeal and make the decision on whether BYU police can remain a certified agency — but BYU has also asked that a more neutral third party make that determination.