PROVO — In a surprise decision issued Tuesday night, an administrative law judge ruled that BYU can keep its police department.
After nearly two years of legal battles, administrative law Judge Richard Catten ruled in favor of the Brigham Young University Police Department’s motion for summary judgment that asked the judge to throw out the Utah Department of Public Safety’s decision to decertify the department.
The ruling was a surprise because Catten issued a preliminary ruling in November that indicated he would likely rule in favor of decertification.
But in his final ruling Tuesday, Catten said that while many of BYU’s arguments on why it should not be decertified fell flat, he ultimately made the decision based on the vague statutes in Utah regarding the rules for private university police departments and the process for decertification by Peace Officer Standards and Training, the state agency that certifies police officers.
“The biggest single cause of the conflict between BYUPD and (DPS) 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 noncriminal 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,” Catten wrote in his ruling.
According to Tuesday’s decision, BYU met the minimum requirements in responding to Peace Officer Standards and Training’s administrative subpoena.
Utah Department of Public Safety Commissioner Jess Anderson called the decision disappointing.
“Decertification was the right course of action to protect the integrity of law enforcement. Noncompliance with POST investigations erodes all integrity,” Anderson said in a statement.
BYU called Catten’s ruling the correct decision.
“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,” the university said in a statement.
In February of 2019, Anderson announced the decision to decertify BYU’s police department after a three-year investigation but said it would not take place until Sept. 1, 2019, to give time for the school to appeal. Those appeals dragged on beyond that date. Anderson said BYU failed to comply with an investigative subpoena issued by Peace Officer Standards and Training, which sought information on any internal investigations conducted on former BYU Police Lt. Aaron Rhoades.
Rhoades accessed more than 16,000 records during a two-year period on a police database reserved only for police investigations, according to attorneys for the state. The database contains protected personal information of citizens. In 21 of those incidents, Rhoades took information gathered from that database and shared it with BYU’s Honor Code Office or Title IX office — including 12 cases that weren’t even investigated by BYU police.
Most of the personal information the state says was illegally shared by Rhoades was of women who were victims of sexual assault.
The state ultimately decided not to file charges against Rhoades, who retired from the department in 2018 and later relinquished his peace officer certification. The state argued that a proper internal affairs investigation into Rhoades was never conducted by former BYU Chief Larry Stott, who retired in 2019.
When the Utah Department of Public Safety sought to conduct an investigation into the BYU Police Department and issued a subpoena, it said BYU did not properly answer it.
“My decision to decertify the BYU Police Department was made after a very arduous investigation, discussions with BYUPD, and extensive analysis. The matter proceeded to a hearing after many hours of negotiations failed to produce an agreement that I believed would result in increased transparency, agency accountability and the establishment of public trust. It was in the best interest of public safety to take action to decertify,” Anderson said Tuesday.
“Citizens deserve to trust their police department. Trust in law enforcement comes from transparency and proper accountability.”
When oral arguments in the case were presented in October, attorneys for the state argued that BYU did not act like a police department.
In his ruling Tuesday, Catten agreed with that notion.
“POST clearly expected BYUPD to act in a similar fashion to most other police agencies in the state — conduct an administrative internal affairs investigation of the officer’s alleged actions, then turn over the results to POST for further investigation. ... 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,” he wrote. “POST expected BYUPD to act in the same manner as most of other law enforcement agencies that it oversees, and it did not — clearly raising a red flag for POST.”
The judge also acknowledged that BYU “has defended itself by throwing every conceivable argument into the mix,” and said many of their arguments “fly directly into the face of the language of the governing statutes and rules and appear to be little more than straw man arguments.”
For example, when BYU argued that an entire police department should not be punished for the actions of one officer, Catten wrote, “That argument is both obviously true and, clearly is not the intent or allegation of (the state).”
BYU also argued that four investigations were conducted into Rhoades, including the one by Peace Officer Standards and Training, fulfilling its state obligations.
“The argument that the POST investigation may have satisfied any obligation BYUPD had to investigate and report its officer’s actions is completely without merit,” Catten said in his ruling. “Also, although BYUPD has specific policies for internal investigations, there is evidence that Chief Stott did not follow any of those policies in this case.”
However, Catten said ultimately the vague state statute only requires that BYU conduct an “investigation,” and said the statute is “silent as to the type of investigation that needs to be conducted.”
Because BYU met the minimum requirement for conducting an investigation, the next question was whether the department purposely obstructed the state’s investigation by refusing to turn over information.
“Based on the undisputed facts, there is no evidence that BYUPD’s refusal to provide the information requested in the POST investigative subpoena was a deliberate attempt to prevent its officer from being subject to the POST investigative process. BYUPD did provide a response, albeit based on an incorrect use of the Utah Rules of Civil Procedure,” according to Catten’s ruling.
The judge again pointed to state statutes, noting that while “there is a statutory method for Peace Officer Standards and Training to enforce its subpoena, there appears to be no statutory or rule-based guidance on how to properly lodge an objection to an administrative investigative subpoena.”
He added, “The substance of the matter is that BYUPD did respond to the subpoena, it did not ignore it, and made its objections known to POST.”
Although the state agency expected BYUPD to act as any other law enforcement agency, “unfortunately for POST, some of those expectations, while they may make sense, do not have a basis in (state law),” Catten wrote.
“The inadequacy of the statutes and rules have unfairly affected both parties in this case. BYUPD operates under a set of criteria that is certainly less than crystal clear and can leave them with doubt as to what actions are appropriate and required in certain circumstances,” he said in the ruling. “The result is BYUPD and its chief have broad, almost unfettered, discretion in determining when allegations should be referred to POST.”
Peace Officer Standards and Training did have a process for enforcing its subpoena, Catten wrote, “but chose not to utilize it for whatever reason. Beyond that, the law is silent about the appropriate way to handle BYUPD’s objection to the subpoena and, although there does appear to be a potential option available, neither party took any legal steps to pursue the matter further.”
Despite the disappointing ruling for him, Anderson said “it can still result in an important change for the BYU community. 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.”
Although he will work with BYU police, Anderson said has not ruled out the possibility of appealing Catten’s ruling.
“We will spend time during the next 30 days to more completely study the implications of this decision and the outcomes and to decide whether to appeal,” he said.
Anderson also said he hopes the ruling will prompt state lawmakers “to revisit the relevant statutes and provide additional guidance about these processes.”