The Utah Department of Public Safety announced on Feb. 26 that it is stripping the police department at Brigham Young University of its powers to make arrests and investigate crimes, effective Sept. 1.
The decision, three years in the making, is the first time the state has taken such an action against a police force, and the university plans an appeal. The move has its roots in questions about how BYU police officers worked with the Honor Code office at the school, owned by The Church of Jesus Christ of Latter-day Saints, and concerns that its officers don’t follow the same rules as secular law enforcement agencies.
Here are some frequently asked questions about the state’s decision and their answers.
Why is Utah trying to shut down the BYU police department?
The Feb. 20, 2019, letter to BYU from Utah Commissioner of Public Safety Jess Anderson cited two reasons. First, BYU police are accused of not investigating — over a two-year span that ended in April 2018 — allegations of an officer’s misconduct.
Second, Anderson said the police department has failed to comply with a June 28, 2018, subpoena issued by investigators from Peace Officer Standards and Training (POST) — the division of DPS that investigates police misconduct.
Anderson sent BYU what amounts to a warning letter in December 2018, and told the university that he expected its police department to comply with state open-records laws and provide information for the state’s investigation. Apparently, BYU’s response didn’t satisfy Anderson.
What does BYU say?
It plans to appeal. It contends that it met the criteria for an internal investigation and for a response to a subpoena, and that the decertification — as the state’s action is called — is on technical grounds. It says the university police department meets all the criteria for existing under Utah law and administrative rules.
So this is about BYU police not being transparent?
The failure to respond to the state’s subpoena is one of the grounds Anderson cited, but the deeper issue can be traced to 2016, when the allegations of misconduct by a BYU officer arose, based on the letter’s timeline.
That year, students and former students began publicly coming forward alleging they faced discipline from BYU’s Honor Code Office for reporting sexual abuse, if they were violating campus rules at the time of an assault. Some said their abusers threatened to report them to the Honor Code Office. BYU’s Honor Code prohibits premarital sex, sets certain rules for when and how dating occurs, contains a dress code and prohibits the consumption of alcohol, drugs, coffee and tea.
According to records released Feb. 28 by POST, which investigates police misconduct in Utah, from 2014 to 2016 BYU police Lt. Aaron Rhoades accessed a countywide database of police records and shared reports with the Honor Code Office, the university’s dean of students and the Title IX Office. The Title IX Office handles complaints about sexual misconduct and gender bias.
One of those records was about a BYU student’s sex assault report to another agency, The Salt Lake Tribune reported in 2016, and that information was provided to the Honor Code Office for its investigation into that student.
Rhoades appears to be the officer accused of misconduct referenced in Anderson’s letter. The time frame is when Rhoades was under suspicion for violating Utah’s rules on police databases. Rhoades relinquished his peace officer certification in October 2018 rather than be investigated for a possible violation of those database rules.
What’s wrong with BYU officers searching police databases for the school’s Honor Code Office?
Utah puts strict rules on when a peace officer can search police reports, arrests or traffic records. Officers need a legitimate law enforcement reason. Even then, an officer can only share the information with a narrow group of people — other cops, prosecutors and a few city or county officials on a need-to-know basis. Violating the rules can be a misdemeanor.
The same state agency that started to investigate Rhoades before he surrendered his certification has suspended a few dozen peace officers in the last decade for searching the criminal or driving history of someone they wanted to date, for example, or an ex-spouse, or some other acquaintance they weren’t officially investigating for a crime.
Don’t other universities have police departments?
Yes. But in Utah, BYU is the only private university with a police force. Police at public universities follow state record laws — disagreements at times with journalists over specific records notwithstanding — and otherwise act like city police departments.
In other states, the status of private university police records vary based on how legislators crafted laws. In 2015, for example, the Ohio Supreme Court ruled that records from private universities’ police departments must be open to the public. The next year, the Indiana Supreme Court decided the police department at the University of Notre Dame was not a public agency and didn’t have to comply with a records request from ESPN.
So Provo police would start protecting BYU?
If BYU police were to disappear, how much daily policing to provide to the campus would be at the discretion of Provo’s police chief and other city leaders, who also would decide if the city needs to add more officers. (The Utah County Sheriff has jurisdiction on the campus, too.) The university and the city, though, would have some options.
BYU could do what private Westminster College in Salt Lake City does: Use its private security guards — similar to those working at your local mall — for minor matters, then call city police for significant crimes or emergencies.
Or the university could purchase police services. Salt Lake County Community College, for example, contracts with the Utah Highway Patrol to provide campus policing. If BYU took this route, its police force of choice would presumably abide by state record laws and other policies.
What about the lawsuit and legislation concerning BYU and public records?
BYU police have released some reports over the years about various crimes on campus while maintaining the department is not subject to the state’s open-records law — the Government Records Access and Management Act, or GRAMA. Lawyers for The Tribune have contended BYU police fit the definition of a state agency and GRAMA applies to them.
In 2016, the newspaper sued to force BYU’s police to respond to a record request seeking communications between the police department and the Honor Code Office. A state district court judge sided with The Tribune, but BYU has appealed the case to the Utah Supreme Court. No hearing has been scheduled.
Meanwhile, a bill that passed a Utah House of Representatives committee on Feb. 26 would clarify that BYU police must follow GRAMA. BYU police Chief Chris Autry testified in favor of the legislation.
But the bill, if it becomes law, would not be retroactive, its sponsor says. So for The Tribune to seek the requested communications — and to resolve whether the department must comply with GRAMA requests for records created before the bill potentially becomes law — the Supreme Court appeal remains necessary.
What’s the appeals process for BYU?
BYU has 30 days from the mailing date of the Feb. 20 letter to file a written appeal and request a hearing. The hearing, whenever it is scheduled, will be at the Peace Officer Standards and Training offices in Sandy, Anderson’s letter said.
Beyond that, not much is known about how the appeal will proceed. Anderson’s letter says his office will hear the appeal, but doesn’t clarify whether that means he will reconsider the matter or designate someone to do so. The letter doesn’t specify what rules any hearing would follow, nor does the administrative code Anderson cited specify any hearing procedures.
Many administrative hearings in Utah are open to the public. The Utah Department of Public Safety hasn’t specified whether it intends BYU’s hearing to be open.
This story will be updated with new developments.
Follow @natecarlisle