Utah moves to decertify Brigham Young University’s police department; school plans to appeal

(Rick Egan | The Salt Lake Tribune) The police station at Brigham Young University on Tuesday, Feb. 26, 2019.

Police officers at Brigham Young University would lose their authority to make arrests and investigate crimes on Sept. 1 under sanctions announced Tuesday by Utah’s commissioner of public safety.

It’s the first time in Utah history the state has moved to decertify an entire police department, said Marissa Cote, a spokeswoman for the Utah Department of Public Safety, or DPS. The private school, owned by The Church of Jesus Christ of Latter-day Saints, said it plans to appeal.

A letter released Tuesday by DPS revealed the ongoing dispute between it and BYU police as well as campus administrators. The letter, addressed to university President Kevin Worthen, says BYU police face decertification for two reasons.

First, the department did not conduct an internal investigation into allegations of misconduct by a specific BYU police officer during a two-year time frame ending in April 2018.

The specific misconduct allegations are not detailed in the letter, but it was during that same timeframe that state officials began an inquiry into how BYU police officers access and share the department’s own reports and the records of other Utah County agencies. Utah’s regulations typically restrict police database queries to legitimate law enforcement purposes.

The Salt Lake Tribune obtained BYU documents in 2016 that showed that BYU police Lt. Aaron Rhoades accessed a countywide database of police records to collect information from another police department for an Honor Code investigation by the school in one case.

Honor Code investigations are administrative matters involving university rules. The Honor Code at BYU forbids alcohol and coffee, restricts contact between male and female students, imposes a strict dress code, and bans expressions of romantic affection between people of the same gender.

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

Cote said BYU police will continue to be certified until Sept. 1, though the department can appeal the decision and ask for a hearing before then. In a statement issued Tuesday afternoon, DPS said the decision to decertify BYU was made by Public Safety Commissioner Jess Anderson and was the culmination of three years of reviews.

“It is important to our Department that all law enforcement agencies and officers in Utah are held to the highest standard,” the statement said. “We expect transparency and accountability by all who serve the public.”

BYU said it disagrees with the grounds cited by DPS for decertification. It said DPS believes campus police “failed to meet criteria” for an internal investigation and a response to a subpoena. “BYU, however, believes that University Police met all applicable criteria and is surprised that the commissioner is issuing a letter on these technical grounds,” it said.

Neither Cote nor BYU spokeswoman Carri Jenkins knew when an appeal hearing would occur. Anderson’s letter to Worthen said it would be Anderson who would hear the appeal.

(Trent Nelson | The Salt Lake Tribune) Utah Department of Public Safety Commissioner Jess Anderson speaks at a news conference at the University of Utah in December 2018.

It’s unclear whether the practice of searching police records for information related to potential Honor Code violations went beyond the one case connected to Rhoades. In one data sample The Tribune obtained in 2016, BYU police searched for and accessed about 6,500 initial reports, plus an undisclosed number of supplemental reports, from 21 other Utah County police forces in the 18½ months that ended Sept. 15 of that year.

Police officers from other departments said that number seemed high, and the number of searches by BYU police declined after DPS began its investigation of the department.

DPS has never disclosed what it found in its investigation into BYU’s use of records and denied public record requests filed by The Tribune. The newspaper is appealing that decision.

Officials in the Utah Attorney General’s office announced in October that they had decided months earlier to not file criminal charges against Rhoades in connection with the DPS investigation. A panel of prosecutors had decided the case against Rhoades “lacks a reasonable likelihood of conviction,” the office said.

Ric Cantrell, Utah Attorney General Sean Reyes’ chief of staff, said changes were made within the police department in connection to the records-sharing issue, but declined to elaborate. “We are satisfied that the structure that allowed this to happen has been remedied,” he said at the time.

On Oct. 25, Rhoades voluntarily relinquished his peace officer certification rather than undergo a state investigation by Utah Peace Officer Standards and Training (POST) into his use of police databases. Rhoades did not return messages seeking comment Tuesday. Jenkins said Rhoades is no longer employed at the university.

BYU police Chief Larry Stott retired in 2018. Reached by phone Tuesday, Stott declined to discuss the decertification effort or his former department’s use of databases. But Stott did compliment Rhoades.

“I think he was an honorable man," Stott said, "and I highly value my friendship with him.”

(Francisco Kjolseth | The Salt Lake Tribune) BYU campus in Provo, Friday, Dec. 7, 2018.

In its statement Tuesday, BYU noted that the university has run and funded its state-certified police force for nearly 40 years.

“BYU continues to believe that the best way to protect its students, and to protect BYU’s campus without putting a disproportionate fiscal burden on Provo’s taxpayers, is to have comprehensive police protection through Provo City and University Police,” it said.

Provo Mayor Michelle Kaufusi issued a statement Tuesday afternoon encouraging BYU and DPS to find a solution to the dispute.

“We have full confidence in our Provo City Police Department to rise to the occasion if additional demands are placed upon them,” the statement said. “Ours is a nationally and internationally recognized police department, one that provides the highest level of professionalism.”

There’s an ongoing debate about whether BYU’s police should be subject to Utah’s record laws like every other police force in the state. The Salt Lake Tribune has sued to force BYU police to abide by the Utah Government Records Access and Management Act, or GRAMA. The newspaper received a favorable ruling from a state district court judge, but BYU has appealed to the Utah Supreme Court. A hearing has not been scheduled.

In his December letter requesting information, Anderson said he was aware of the judge’s decision in The Tribune’s case and that BYU was appeaIing it, but added: “I expect BYU PD to be subject to and comply with the Government Records Access and Management Act.”

Attorneys for the campus argue in the appeal that as a private institution, BYU should not be subject to record laws meant for government agencies.

But before the Senate Judiciary Committee Tuesday, BYU general counsel Heather Gunnarson and BYU police Chief Chris Autry said the school supports SB197, a bill in the Utah Legislature that would require BYU police to follow GRAMA. The bill’s provisions would not be retroactive, according to the bill’s sponsor, Sen. Curt Bramble, R-Provo.

In 2016, The Tribune requested communications between campus police and the school’s Honor Code and Title IX offices as reporters covered allegations that BYU had disciplined students who reported sex crimes if they were violating the Honor Code at the time of the assault. The Tribune’s lawsuit seeks those records.

As part of sweeping reform later in 2016, BYU granted amnesty to students reporting sexual assaults. The Salt Lake Tribune won the 2017 Pulitzer Prize for Local Reporting for its coverage of BYU and other campus sexual assault issues.