Update on Story Re: Decertification of BYU Police

[Scott Lloyd]

1 hour ago, smac97 said:

KSL has some excerpts:

And here:

KJZZ has links to a tweet that has screen caps of some pages of the order: https://kjzz.com/news/judge-dismisses-case-decertify-byu-police-department-utah

Fox13 notes: 

A few thoughts:

1. I doubt DPS will appeal the decision.  The situation that led to problems has been remedied.  BYU has implemented remedial measures, the law has been clarified (where it had previously been less-than-clear - "the law at the time didn't necessarily require {BYUPD to act like other police forces}...") regarding obligations to comply with records requests, and the officer at the center of the mess retired.

2. If I am reading the above excerpts correctly, the problem seems to have been primarily with the wording of the statute(s) governing compliance by BYUPD.  As Judge Catten put it: 

I can really relate to this.  I have spent huge amounts of time in the last 6-7 years litigating issues pertaining to the statute of limitations for foreclosures in Utah.  This is a very important point of law for both lenders and borrowers.  I have been involved in several dozen lawsuits about it, most of which arise because there is - as here - a "startling lack of guidance from the statutes and rules," and because those statutes/rules "are piecemeal" and require "a substantial amount of statutory interpretation."

In other words, reasonable minds - including those of highly-trained lawyers and judges - can and do disagree about how these statutes should be interpreted and applied, how they work together, etc.  I think the same can and should be said for the statutes/rules governing BYUPD.

3. The legislature has apparently fixed the situation re: the statutes governing BYUPD, and I am very glad of that.

4. I am grateful for the rule of law.  Our legal system is far from perfect, but this resolution was peaceful, reasonable and fair.

Thanks,

-Smac

I’m glad to see this come to a resolution. Time to draw the curtain on this episode. No useful purpose that I can see would be served by the state appealing the decision. 

[smac97]

24 minutes ago, bsjkki said:

Not a surprising result.

Well, it's sort of surprising, given that Judge Catten had previously indicated that he was favoring decertifying BYU's police force.  

24 minutes ago, bsjkki said:

BYU did fix their issues and legislation was clarified.

Agreed.

Quote

They just never had to own up to their past actions. I find that disappointing. One officer was the scapegoat. It worked.

I don't understand.  "Their past actions" refers to what?  The "one officer" was the guy who was engaging in questionable conduct.  "Scapegoat" suggests that he was sacrificed to compensate for some other person's wrongdoing.

Thanks,

-Smac

Edited January 6, 2021 by smac97

[bsjkki]

1 hour ago, smac97 said:

Well, it's sort of surprising, given that Judge Catten had previously indicated that he was favoring decertifying BYU's police force.  

Agreed.

I don't understand.  "Their past actions" refers to what?  The "one officer" was the guy who was engaging in questionable conduct.  "Scapegoat" suggests that he was sacrificed to compensate for some other person's wrongdoing.

Thanks,

-Smac

Did the Honor code office often call the BYUPD to initiate database searches on their students?  Did the Honor Code employee who asked this officer break the law get disciplined?

The number of searches of the police database by BYUPD over the years suggests otherwise. Was this systemic? We will never know because the evidence either way will never be produced.

[smac97]

5 minutes ago, bsjkki said:

Did the Honor code office often call the BYUPD to initiate database searches on their students?  Did the Honor Code employee who asked this officer break the law get disciplined?

I don't know.

5 minutes ago, bsjkki said:

The number of searches of the police database by BYUPD over the years suggests otherwise.

Is there evidence of improper database searches by personnel other than Lt. Rhoades?

5 minutes ago, bsjkki said:

Was this systemic?

Do you have any evidence of a "systemic" problem with BYUPD?

5 minutes ago, bsjkki said:

We will never know because the evidence either way will never be produced.

As I said last month: An investigation came about.  BYU made substantial remedial changes to how it handles such matters in 2016.  Lt. Rhoades is no longer on the force.  The Utah Attorney General's Office is satisfied with BYU's remedial efforts.  

I think the AG's office would not have signed off on remedial efforts if there was some sort of systemic or ongoing problem with BYUPD.

Thanks,

-Smac

[bsjkki]

1 hour ago, smac97 said:

I don't know.

Is there evidence of improper database searches by personnel other than Lt. Rhoades?

Do you have any evidence of a "systemic" problem with BYUPD?

As I said last month: An investigation came about.  BYU made substantial remedial changes to how it handles such matters in 2016.  Lt. Rhoades is no longer on the force.  The Utah Attorney General's Office is satisfied with BYU's remedial efforts.  

I think the AG's office would not have signed off on remedial efforts if there was some sort of systemic or ongoing problem with BYUPD.

Thanks,

-Smac

I don’t believe it is ongoing. They fixed it.

[bsjkki]

1 hour ago, smac97 said:

Is there evidence of improper database searches by personnel other than Lt. Rhoades

The evidence is the large numbers of searches by BYUPD in the past. I’ve posted this article multiple times and am not finding it again.

 

1 hour ago, smac97 said:

Do you have any evidence of a "systemic" problem with BYUPD?

I find the lack of scrutiny of the Honor Code officer who initiated the illegal search problematic. I realize asking a BYUPD officer to break the law is not breaking the law. It is against the honor code. I think the numbers show this was not a rare occurrence. Do you believe only one honor code officer and only one BYUPD officer ever did this? IMO that is naive. I have no access to any more evidence and it is not public nor ever will be. 
 

 

[Kenngo1969]

23 minutes ago, bsjkki said:

The evidence is the large numbers of searches by BYUPD in the past. I’ve posted this article multiple times and am not finding it again.

 

I find the lack of scrutiny of the Honor Code officer who initiated the illegal search problematic. I realize asking a BYUPD officer to break the law is not breaking the law. It is against the honor code. I think the numbers show this was not a rare occurrence. Do you believe only one honor code officer and only one BYUPD officer ever did this? IMO that is naive. I have no access to any more evidence and it is not public nor ever will be. 
 

 

You may think Smac97 to be naive.  Do you also think that the attorneys who work for the Utah Attorney General and who represented the state's Department of Public Safety in this matter: (a) didn't look for evidence that more than one Honor Code Office employee and more than one BYUPD officer, Lieutenant Rhoades, colluded in a scheme to access law enforcement databases for non-law-enforcement purposes?  (b) didn't find any such evidence, even though they looked for it?  or (c) didn't mention it in arguing their case even though they did find it, notwithstanding the fact that, surely, it is relevant to the issue of whether BYUPD should maintain its Peace Officer Standards and Training certification? 

Even if everyone in the world thinks that "this is just the tip of the iceberg.  Surely, more than one officer and more than one BYU Honor Code Office employee had to be involved" (my words in quotation marks), that's not good enough: still, evidence matters; still, due process matters; still, equal protection matters; and still, proof matters.  Are you arguing that Utah Peace Officer Standards and Training, the Utah Department of Public Safety, and/or the Utah Attorney General's Office had such evidence, but one or more of the agencies just mentioned simply didn't present it?  If they had such evidence, why wouldn't they present it?  You know, I have no way of knowing for certain, but is it possible that the reason you're not finding the article that you have posted in the past is because it has been taken down (or altered) because the information in it is suspect?

Edited January 6, 2021 by Kenngo1969

[bsjkki]

30 minutes ago, Kenngo1969 said:

  You know, I have no way of knowing for certain, but is it possible that the reason you're not finding the article that you have posted in the past is because it has been taken down (or altered) because the information in it is suspect?

I didn’t look for it because I already posted it in this thread.

It still exists. 
 

You can disagree with my assessment but the investigation was about this officer and this case. BYU did not open up their records. They did not provide them. Remember? 
 

The Salt Lake Tribune asked for records under open records laws. BYU asked for an investigation... can’t have records while your under investigation. BYU argues not subject to open records laws. BYU signs on to have the laws changed going forward. Judge seals records. Investigators never see records. 
 

Let’s all move on and forget it happened. 
 

There was no investigation that looked at BYU practices and the records are still sealed, buried and will never see the light of day.

[Kenngo1969]

24 minutes ago, bsjkki said:

I didn’t look for it because I already posted it in this thread.

It still exists. 

 

OK.  I apologize for the confusion.

24 minutes ago, bsjkki said:

 

You can disagree with my assessment but the investigation was about this officer and this case. BYU did not open up their records. They did not provide them. Remember? 

 

With all due respect, don't patronize me.

24 minutes ago, bsjkki said:

 

The Salt Lake Tribune asked for records under open records laws. BYU asked for an investigation... can’t have records while your under investigation. BYU argues not subject to open records laws. BYU signs on to have the laws changed going forward. Judge seals records. Investigators never see records.

So, why do you think the judge (apparently) for some reason, is in BYU's pocket?

24 minutes ago, bsjkki said:

 
 

Let’s all move on and forget it happened. 
 

There was no investigation that looked at BYU practices and the records are still sealed, buried and will never see the light of day.

So you don't think the judge had good reason to seal the records?  OK.  I suppose you are free to think that.

[bsjkki]

14 minutes ago, Kenngo1969 said:

OK.  I apologize for the confusion.

With all due respect, don't patronize me.

So, why do you think the judge (apparently) for some reason, is in BYU's pocket?

So you don't think the judge had good reason to seal the records?  OK.  I suppose you are free to think that.

Why are the records still sealed? The case is over.

[rongo]

2 hours ago, bsjkki said:

Why are the records still sealed? The case is over.

Unfortunately, this is about a cover-up by way of silence, and memories and feelings about what happened receding as this becomes longer ago. I'm actually an old-school "enforce the honor code" type, but this whole thing was linked initially to Corbin Volluz's FOIA request about BYUPD's interviewing of people involved with the Joseph Bishop thing. And then the commiseration between the HC office and BYUPD on honor code cases came to light. BYU/the Church doesn't want notes/records/recordings on these things to be available, even if the decertification of the PD were necessary, along with the "sacrificed pawns" (via hasty retirement and firing). I think BYU/the Church was fully prepared and willing to lose the PD at BYU in order to avoid disclosure on those cases, with the initial short-term PR hit baked into the calculus. 

I'm not upset that BYU will retain the PD, but I wouldn't have cared if it would have just reverted to Provo PD, either. The law is the law, and they should have complied with a valid FOIA request. I think the PR people are just telling them to face the pain now, and it will lessen with time, but don't comply. I think the judge is taking recent good faith efforts into account to just get this behind us and move on from here --- with new policies and scrutiny that make it likely that it won't happen again. 

[Kenngo1969]

3 hours ago, bsjkki said:

Why are the records still sealed? The case is over.

Frankly, I would have to be much more familiar with any law that governs the matter in order to respond intelligently to that question.  In general, however, based on what little I know I can say that even once a matter is concluded, often, that does not mean that any records pertaining to that matter will be unsealed automatically.

[Calm]

1 hour ago, rongo said:

this whole thing was linked initially to Corbin Volluz's FOIA request about BYUPD's interviewing of people involved with the Joseph Bishop thing.  And then the commiseration between the HC office and BYUPD on honor code cases came to light

CFR please.  The honor code issue started in 2016 (https://www.mormondialogue.org/topic/68211-byu-police-department-colluding-with-the-honor-code-office/ ) and Denison/Bishop was public in early 2018 and iirc the BYU police got involved in Dec 2017 in interviewing Bishop, but it could be later.

 

Edited January 7, 2021 by Calm

[rongo]

16 minutes ago, Calm said:

CFR please.  The honor code issue started in 2016 (https://www.mormondialogue.org/topic/68211-byu-police-department-colluding-with-the-honor-code-office/ ) and Denison/Bishop was public in early 2018 and iirc the BYU police got involved in Dec 2017 in interviewing Bishop, but it could be later.

 

Just my recollection. Mileage may vary. Void where prohibited. Not available in all states. See store for details.

It's the whole thing, come to a head (honor code collusion, Joseph Bishop, and pressure over honor code shaming), and ending with this one shot only not to have to produce the records requests --- but it won't be able to happen like that again. 

The real issue, as @bsjkki pointed out, is the records requests are going to be allowed to remain unmet as part of the closure with this. Which I think the Church/BYU/BYUPD feel is well worth the PR hit and short-term pain (and possible decertification of the BYUPD) they had for this . 

Edited January 7, 2021 by rongo

[Kenngo1969]

For what it's worth, I just submitted the following request to the State of Utah's Open Records Portal.
 

Quote

 

Utah Department of Public Safety (DPS) Director Jess Anderson recently sought to revoke the certification by Police Officer Standards and Training (POST) of Brigham Young University Police Department (BYUPD) over BYUPD's alleged failure to comply with POST's order to investigate access of law enforcement databases for non-law-enforcement purposes by one or more of BYUPD's officers (former Lieutenant Aaron Rhoades, who, since, has retired and has relinquished his POST certification, was the specific officer in question), along with an alleged failure to comply with one or more subpoenas sought by DPS/POST.

Recently, Administrative Law Judge J. Richard Catten, whose services apparently were secured by DPS to adjudicate the matter, issued a decision in the matter of the attempt by DPS to revoke BYUPD's certification, concluding that since the Utah State Bureau of Investigation had conducted an investigation of the matter at BYUPD's request, POST's/DPS's requirement that the matter be investigated was satisfied, and that BYUPD had responded adequately to DPS's subpoenas in the matter.

While BYU is a private entity, as Commissioner Anderson and DPS have pointed out in their filings regarding the matter, the matter of BYUPD's continuing POST certification is a matter of significant public interest that continues to generate much public discussion, along with some controversy. Since the matter is one of significant public interest and, at least somewhat, of continuing public controversy, the public is entitled to see ALJ Catten's full decision. I will be happy to pay reasonable costs related to the provision of the information I seek. If such costs are necessary, please contact me to so advise. Provision of ALJ Catten's full decision in electronic format, preferably in Adobe Portable Document Format (PDF) in an attachment to an e-mail to [redacted], is sufficient.

 

 

Edited January 7, 2021 by Kenngo1969

[Kenngo1969]

15 hours ago, rongo said:

... I'm not upset that BYU will retain the PD, but I wouldn't have cared if it would have just reverted to Provo PD, either. ...

Your magnanimity on behalf of the taxpayers of Provo City truly is inspiring!    Property taxes paid by landowners in the city of Provo fund Provo Police Department.  (To be fair, BYU students probably pay those taxes too: they're probably folded into rents.)  Notwithstanding the Twelfth Article of Faith, and notwithstanding the fact that BYU isn't, say, the University of Florida when it comes to policing the campus, I think it's pretty safe to say that everything isn't all beer and Skittles (oops!   Bad analogy!  Sorry! ) or peaches and cream or sweetness and light on BYU's campus, all of the time.

Thus, could an argument be made that BYU students would get more than what they pay for in property taxes in terms of policing services, and that simply absorbing and policing an area where 30,000 students, along with, say, what, at least another 30,000 administrators, faculty, and staff congregate frequently, juuuust might not come without at least sooooome additional costs?  Do BYU students get more than they pay for when it comes to BYUPD?  They very well might.  If Provo PD were simply to swallow the campus whole, might at least soooooome additional costs be incurred by the city and by the police department?  They very well might.

Just sayin'!

Edited January 7, 2021 by Kenngo1969
Edited to rephrase as conditional; right now, members of the Church of Jesus Christ pay for BYUPD

[Kenngo1969]

11 hours ago, rongo said:

Just my recollection. Mileage may vary. Void where prohibited. Not available in all states. See store for details.

You forgot "some restrictions apply"!

[rongo]

45 minutes ago, Kenngo1969 said:

You forgot "some restrictions apply"!

Yes, I'll have to add that one. How could I have forgotten that?  

[rongo]

In addition to Lt. Rhoades' abrupt retirement, I seem to remember that the chief himself also abruptly retired, and that this retirement made it so he didn't have to testify or comply with the FOIA request (people disagree on whether it rightly or wrongly made it so he didn't have to comply, but that was the effect). The retirement had the appearance of being a tactical move specifically to thwart having to comply with the request. 

[Kenngo1969]

19 minutes ago, rongo said:

In addition to Lt. Rhoades' abrupt retirement, I seem to remember that the chief himself also abruptly retired, and that this retirement made it so he didn't have to testify or comply with the FOIA request (people disagree on whether it rightly or wrongly made it so he didn't have to comply, but that was the effect). The retirement had the appearance of being a tactical move specifically to thwart having to comply with the request. 

I'm not sure that rationale would fly.  If I sought information from a now-retired official who tried to thumb his nose at me, telling me, in essence if not in actual fact, "Ha, ha!  You can't touch me now!  I'm retired!  I play golf!"  My response to that would be to clarify that he did head the agency during the period of time in question, and I would preface each of my questions with the caveat, "During the time you headed the agency ..."  And thus, would that flimsy reed be smarshed! 

For awhile, they had a "real life" version of Law & Order that followed actual trials.  One of the prosecutors was laying a foundation for questioning her witness, who apparently, during the interim between when he investigated the case and when it went to trial, had retired.  She asked him, "What do you do for work?"  He said gleefully, "I play golf!"  She said, "I take it, then, that you're retired?"  He answered affirmatively.  Then she asked, "Before you took up golf as a more consistent avocation, what did you do for work?"  Whereupon, no doubt displeased at having to disclose his previous life, confessed that he'd been a detective with San Diego Police Department, whereupon she proceeded with her questioning.

Edited January 7, 2021 by Kenngo1969

[rongo]

Just now, Kenngo1969 said:

I'm not sure that rationale would fly.  If I sought information from a now-retired official who tried to thumb his nose at me, telling me, in essence if not in actual fact, "Ha, ha!  You can't touch me now!  I'm retired!  I play golf!"  My response to that would be that he did head the agency during the period of time in question, and I would preface each of my questions with the caveat, "During the time you headed the agency ..."  And thus, would that flimsy reed be smarshed! 

I think a lot of people think that wouldn't fly, and that's why this is a hot button issue. It give credence to the claims that the Church (and by extension, BYU or the BYUPD) get unfair treatment, advantages, and perks in Utah. 

I wonder if the PR hit from just ripping the band aid off and letting whatever "not good" stuff is being withheld come to light through the FOIA requests might not be as bad as allowing this to continue to be an issue forever by "burying" it. 

[Calm]

22 minutes ago, rongo said:

In addition to Lt. Rhoades' abrupt retirement, I seem to remember that the chief himself also abruptly retired, and that this retirement made it so he didn't have to testify or comply with the FOIA request (people disagree on whether it rightly or wrongly made it so he didn't have to comply, but that was the effect). The retirement had the appearance of being a tactical move specifically to thwart having to comply with the request. 

I don’t see Rhodes having been moved to a limited post and then being under investigation for two years as that abrupt of a retirement. 
 

CFR that Stott, the police chief retired to avoid testifying as how would that prevent him being called as a witness?  Plus the guy had worked in law enforcement for 47 years according to the report of him retiring, so good chance he just hit 65 and decided to retire. 

[bsjkki]

24 minutes ago, rongo said:

In addition to Lt. Rhoades' abrupt retirement, I seem to remember that the chief himself also abruptly retired, and that this retirement made it so he didn't have to testify or comply with the FOIA request (people disagree on whether it rightly or wrongly made it so he didn't have to comply, but that was the effect). The retirement had the appearance of being a tactical move specifically to thwart having to comply with the request. 

This is true in the the government. When Cops resign investigations cease. Unless criminal and not misconduct. Sometimes cops resign so the the investigation ends and criminal behavior is swept under the rug and not found.

In IG investigations, former employees can not be compelled to participate. In criminal trials, IG compelled employee testimony has to separated out.

[rongo]

4 minutes ago, Calm said:

I don’t see Rhodes having been moved to a limited post and then being under investigation for two years as that abrupt of a retirement. 
 

CFR that Stott, the police chief retired to avoid testifying as how would that prevent him being called as a witness?  Plus the guy had worked in law enforcement for 47 years according to the report of him retiring, so good chance he just hit 65 and decided to retire. 

Good point. A better way to say it would be "When it became clear that the retirement needed to happen now, he retired." The stonewalling wasn't abrupt; it took years, that is true. 

You and your CFRs.  I'm merely stating my opinion and what it looks and seems like to me. Of course, there isn't going to be a source anywhere that has Chief Stott saying, "I retired to avoid testifying." When people interpret and read between lines on issues and news items, that's not a CFR-able thing (although it doesn't stop people from throwing CFRs around when they don't like views sometimes). 

As to how the retirements prevent them from having to further testify . . . they haven't had to, have they? How that works is a good question, but that has (so far) been the end result. It requires the attorney general and the judge who dismissed it assenting to it, but it has worked. The issue appears to be over, it just doesn't sit well with many.

If you issue a CFR for it not sitting well with some people . . . that is an opinion.  

[Kenngo1969]

I can't say how it works for certain, but, to me, if someone is still drawing breath, whether he's still working, has changed jobs, has retired, has moved to Antarctica, et cetera, is irrelevant.  If he has information that is relevant to my case and is not senile, I'm subpoenaing his you-know-what.  (Of course, if I do that, I may also be paying his travel costs: "No problem!  I've secured deluxe accommodations for you in a crate on a C-130!" )