Calm Posted January 7, 2021 Posted January 7, 2021 (edited) 45 minutes ago, rongo said: merely stating my opinion and what it looks and seems like to me. Then state it as an opinion rather than fact because you get stuff wrong and don’t correct it sometimes. If you state something as fact, it could mislead someone into thinking you know something when you don’t because there is a lot you are knowledgeable about and they may assume this is another area you have researched or have experiences in. I don’t issue CFRs because I don’t like what someone says, I ask if I don’t see a foundation for something. Many times I am interested and want to be sure it is a fact so I can then share it with others. But I don’t want to share what is only someone’s opinion. I do not approve of what BYU police did in both the connection with the Honor Code Office and how it was handled afterwards to the extent I am aware of what they did and I would have been happier if they had been decertified, so my CFR has nothing to do with my liking of the situation and everything to with my trying to understand what actually happened. I think Stott should have resigned when the connection was first discovered and Rhoades put on suspension and then fired. But I am not going to make claims when there are logical other reasons for something (such as retirement because of age). If you had addressed as purely optics, as in ‘no matter why Stott retired it, it looks bad and BYU probably should have made an exception to their policy of not announcing retirement to avoid it looking worse’, I wouldn’t have cared plus I would have agreed it looked bad. But I couldn’t find any info dealing with being able to avoid testifying by retiring/resigning nor did any article I looked at mention it and that is why I CFRed you. Edited January 7, 2021 by Calm 4
Okrahomer Posted January 9, 2021 Posted January 9, 2021 On 1/7/2021 at 10:12 AM, 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. Not commenting on the "appearance" of his retirement, but Chief Stott was 70 years of age when he retired in 2018. Given his age, one wonders how "abrupt" his retirement really was? He also was the one who requested the investigation of BYUPD in 2016, but he did not retire for more than 2 years following. His actions don't really point toward an effort to avoid testifying. 3
Calm Posted January 9, 2021 Posted January 9, 2021 (edited) I am wondering if there might be mandatory retirements for staff and admin at BYU. Hummm..... not too late to call friends, but it has been awhile...think I will wait till husband gets home and see if he knows about BYU retirement policies. He tends to make good friends with the staff and adjuncts and some of them work at BYU on something’s or have. Edited January 9, 2021 by Calm
rongo Posted January 9, 2021 Posted January 9, 2021 1 hour ago, Okrahomer said: Not commenting on the "appearance" of his retirement, but Chief Stott was 70 years of age when he retired in 2018. Given his age, one wonders how "abrupt" his retirement really was? He also was the one who requested the investigation of BYUPD in 2016, but he did not retire for more than 2 years following. His actions don't really point toward an effort to avoid testifying. 3 minutes ago, Calm said: I am wondering if there might be mandatory retirements for staff and admin at BYU. Hummm..... not too late to call friends, but it has been awhile...think I will wait till husband gets home and see if he knows about BYU retirement policies. He tends to make good friends with the staff and adjuncts and some of them work at BYU on something’s or have. It may have just been a coincidence that he happened to retire right in the thick of all this --- totally unconnected with or influenced by the controversy. And it may not have. As for him being 70, why that precise time, and not, say, a few months later or earlier? He apparently was plugging along at 70. There is in my opinion the appearance that he and Rhoades were at least convenient fall guys, but maybe nothing could have been further from anyone's minds with this. It did have the happy result of placing them (so far, and maybe permanently) beyond where they would have to answer questions or comply with the records requests that BYU/BYUPD have been fighting not to have to comply with. I don't think we'll ever know. Nobody who knows would say anything at this point. 1
Calm Posted January 9, 2021 Posted January 9, 2021 1 hour ago, Okrahomer said: His actions don't really point toward an effort to avoid testifying. The only difficulty is he was retired for some time before it was made public. If something is not public, there must be something wrong or intended to be sneaky, right? Or so some seem to believe. 1
Okrahomer Posted January 9, 2021 Posted January 9, 2021 41 minutes ago, Calm said: The only difficulty is he was retired for some time before it was made public. If something is not public, there must be something wrong or intended to be sneaky, right? Or so some seem to believe. Yes. I agree that it has a certain negative “appearance.” Do we know that Stott did not provide statements as part of the DPS investigation? 1
Kenngo1969 Posted January 12, 2021 Posted January 12, 2021 I'm reading through the ALJ's decision now. Suffice it to say, I'm discovering why excerpts or summaries were provided to the media rather than the full decision itself. It may not be my place to say because I'll never occupy the rarefied air of an ALJ (hey, that rhymes! ), but, in my opinion, the decision isn't very well written. But whaddo I know? Perhaps I'll simply post the ALJ's decision in its entirety and allow those of you who are so inclined to puzzle over it yourselves. Tee-hee! 1
JustAnAustralian Posted January 12, 2021 Posted January 12, 2021 3 hours ago, Kenngo1969 said: I'm reading through the ALJ's decision now. You don't happen to have a publicly available link by any chance do you?
Kenngo1969 Posted January 12, 2021 Posted January 12, 2021 24 minutes ago, JustAnAustralian said: You don't happen to have a publicly available link by any chance do you? I have a copy of the decision (I obtained it through a request via the Utah Government Records Access Management Act). If anyone has any idea where I could have a PDF document hosted, let me know.
rongo Posted January 12, 2021 Posted January 12, 2021 14 hours ago, Kenngo1969 said: I'm reading through the ALJ's decision now. Suffice it to say, I'm discovering why excerpts or summaries were provided to the media rather than the full decision itself. It may not be my place to say because I'll never occupy the rarefied air of an ALJ (hey, that rhymes! ), but, in my opinion, the decision isn't very well written. But whaddo I know? Perhaps I'll simply post the ALJ's decision in its entirety and allow those of you who are so inclined to puzzle over it yourselves. Tee-hee! What I'm reading into what you're saying (and please correct me if I'm wrong) is that the full decision doesn't dispel claims that the courts went really easy on BYU/BYUPD (harsher way of saying it: ran interference or gave special treatment). Obviously, those who are dead-set on finding that will find that regardless of anything, but it's nice when people can't insist that the Church gets special treatment in Utah.
Kenngo1969 Posted January 12, 2021 Posted January 12, 2021 (edited) 3 hours ago, rongo said: What I'm reading into what you're saying (and please correct me if I'm wrong) is that the full decision doesn't dispel claims that the courts went really easy on BYU/BYUPD (harsher way of saying it: ran interference or gave special treatment). Obviously, those who are dead-set on finding that will find that regardless of anything, but it's nice when people can't insist that the Church gets special treatment in Utah. Okay, I'll correct you, since you're wrong. (Remember, you invited me to do that. ) I think ALJ Catten arrived at the right decision, and, provided his mistakes in grammar and punctuation, along with the poor way he constructed the opinion (in my opinion ... but again, whaddo I know? I'll never be an ALJ, pro tem or pro hac vice* or otherwise) haven't obscured his reasoning so as to prevent me from following it, I think he did so for (a) sound, correct reason(s). Still working on how to post the decision. Give me a (few) minute(s). * Latin for temporary and for this occasion only, respectively. Edited January 12, 2021 by Kenngo1969
rongo Posted January 12, 2021 Posted January 12, 2021 4 minutes ago, Kenngo1969 said: Okay, I'll correct you, since you're wrong. (Remember, you invited me to do that. ) I think ALJ Catten arrived at the right decision, and, provided his mistakes in grammar and punctuation, along with the poor way he constructed the opinion (in my opinion ... but again, whaddo I know? I'll never be an ALJ, pro tem or pro hac vice* or otherwise) haven't obscured his reasoning so as to prevent me from following it, I think he did so for (a) sound, correct reason(s). Still working on how to post the decision. Give me a (few) minute(s). * Latin for temporary and for this occasion only, respectively. Oh, bad grammar and punctuation and organization --- not bad logic or application of the law. That's a big difference. Thanks for the analysis!
Kenngo1969 Posted January 12, 2021 Posted January 12, 2021 1 hour ago, rongo said: Oh, bad grammar and punctuation and organization --- not bad logic or application of the law. That's a big difference. Thanks for the analysis! Yes, although perhaps the poor organization (in my opinion) has affected my ability to follow ALJ Catten's logic.
strappinglad Posted January 12, 2021 Posted January 12, 2021 1 hour ago, rongo said: pro tem or pro hac vice* veni vidi vici ... Take THAT kenngo1969 !! 1
smac97 Posted January 12, 2021 Author Posted January 12, 2021 7 minutes ago, strappinglad said: veni vidi vici ... Take THAT kenngo1969 !! Semper ubi sub ubi! 1
Kenngo1969 Posted January 12, 2021 Posted January 12, 2021 Here's the ALJ's full decision (if this works). In 3, 2, 1 ... https://www.scribd.com/document/490526728/ALJ-Catten-Decision-Re-BYUPD-Decertification 1
Kenngo1969 Posted January 12, 2021 Posted January 12, 2021 (edited) 1 hour ago, smac97 said: Semper ubi sub ubi! Well, I really couldn't go "commando," even if I wanted to, so ... Edited January 12, 2021 by Kenngo1969
JustAnAustralian Posted January 13, 2021 Posted January 13, 2021 Does this mean that any police agency in Utah can now just refer straight to POST for investigation, and have their investigation requirement satisfied with no effort to actually investigate themselves? 1
bsjkki Posted January 13, 2021 Posted January 13, 2021 24 minutes ago, JustAnAustralian said: Does this mean that any police agency in Utah can now just refer straight to POST for investigation, and have their investigation requirement satisfied with no effort to actually investigate themselves? Good question. They should fix the statutes.
Kenngo1969 Posted January 13, 2021 Posted January 13, 2021 (edited) 11 hours ago, JustAnAustralian said: Does this mean that any police agency in Utah can now just refer straight to POST for investigation, and have their investigation requirement satisfied with no effort to actually investigate themselves? No, not to the extent that ALJ Catten's decision is recognized as precedent. (Frankly, for reasons which are too complicated to get into here, I'm not sure to what degree his decision would be recognized as precedent if POST/DPS were to be confronted with a similar set of facts in the future regarding a different law enforcement agency, but perhaps that's what he's trying to do, to say, "Hey, Legislature! You need to fix this!")* Quote The biggest single cause of the conflict between BYUPD and UDPS 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 non-criminal 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. 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. Also, even the statute that directly applies to all law enforcement agencies with certified officers, including BYUPD, Utah Code § 53-6-211(6), provides agencies with little guidance regarding the type of investigation necessary or the standard for referring the case to POST for further review. The result is BYUPD and its Chief have broad, almost unfettered, discretion in determining when allegations should be referred to POST. UDPS, POST, and the Commissioner, suffer from the same issues, including issues related to Utah Code § 53-6-211(6). Given the minimal requirements of Subsection 211(6), how can they determine with any certainty when an agency is or is not in compliance with the statute? Also, the vagueness of some of the private college or university certification statutes and rules and specificity of others create enforcement issues for the Commissioner. For example, in contrast to the vagueness of Utah Code § 53-6-211(6), Utah Admin. Code R698-4-5 is very specific and gives the Commissioner only two options regarding the certification of a non-governmental police agency such as BYUPD - certification or revocation. The statutes and rules combine a minimal and potentially confusing requirement with a specific outcome. The rules do not provide the Commissioner with any clear remedial options, short of revocation, for a violation of BYUPD’s certification requirements. The imprecision of the certification statutes and rules make it difficult for POST to perform its regulatory duties with respect to private college and university law enforcement agencies under its jurisdiction. Despite the lack of a complete statutory and regulatory scheme and the accompanying statutory interpretation arguments, the outcome of the case is clear. The SBI investigation requested by BYUPD complies with the minimum requirements of Section 211. By causing this investigation, which resulted in a referral to POST, BYUPD performed its duties under Utah Code § 53-6-211(6) and is in compliance with the certification requirements of Utah Admin. Code R698-4. In addition, although BYUPD objected to the POST investigative subpoena by use of a clearly inapplicable rule [footnote omitted], it did reply. POST had a process available to enforce the subpoena 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 appears to a potential option available,7 neither party took any legal steps to pursue the matter further. Because BYUPD caused an investigation that meets the requirements of Utah Code § 53-6-211(6) and responded to the investigative subpoena, BYUPD has not violated its certification criteria and its certification is not subject to revocation by the Commissioner on that ground. Although he says that the DPS investigation satisfied the investigation requirement imposed by the relevant statute, later, in what, essentially are his findings, he says this: Quote a. A private college or university law enforcement agency is required to comply with the investigation and referral obligations set forth in Utah Code § 53-6-211(6). In other words, the agency is supposed to conduct its own investigation and then turn the results over to POST. However, because that requirement, heretofore, was less than crystal clear, ALJ Catten ruled that in this case, BYUPD's request that the State Bureau of Investigation investigate the matter of potential access to law enforcement databases for non-law-enforcement purposes satisfied the requirement under the statute that an investigation be conducted. *In any event, this set of facts virtually is unique. I cannot envision a scenario in which another private entity maintains an agency similar to BYUPD, with full police powers, potentially running afoul of POST/DPS. Edited January 13, 2021 by Kenngo1969
smac97 Posted January 27, 2021 Author Posted January 27, 2021 15 hours ago, Kenngo1969 said: Aaaaaaand ... the latest! From the article: Quote The Utah Department of Public Safety announced Tuesday that it will not appeal a recent ruling that allows BYU to keep its police department. Commissioner Jess Anderson on Tuesday sent a letter to Chris Autry, the managing director of the Brigham Young University Police Department, stating, “I have chosen not to pursue an appeal of Judge Catten’s order on your motion for summary judgment. “The decision to decertify BYUPD was difficult and weighed heavily on me, but I was left with no alternative, given the evolution of choices made by BYUPD. I respect the decision made by Judge Catten, his time invested into legal research and analysis, and his decision identifying a lack of statutory clarity and guidance under these circumstances,” Anderson wrote. ... After it was learned that an officer had accessed protected records that contained personal information about students and shared it with the BYU’s Honor Code Office, the Utah Department of Public Safety requested records and information from BYU police. But the state contended BYU never properly answered its subpoena and didn’t act the way every other certified police department in the state acts and should act. Catten’s ruling was a surprise because he issued a preliminary ruling in November that indicated he would likely rule in favor of decertification of BYU’s police force. Although Catten’s ruling found a lot of problems with BYU’s arguments about why it should not be decertified, the bigger problems were with vague state statutes 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. Because Catten found BYU had met the minimum requirements in responding to an administrative subpoena from Peace Officer Standards and Training, he ruled in BYU’s favor. In his letter, Anderson said he now looks forward to working with state lawmakers to address the issues raised in Catten’s decision. “It is my sincere hope that policy changes within BYUPD combined with legislative changes will make future administrative action unlikely. I look forward to working with BYUPD to establish appropriate policies and procedures that will create agency transparency, accountability and public trust,” he wrote. This sounds like a good resolution. BYU has fixed its problems. The legislature is tweaking the statutes that were previously vague. DPS and BYUPD are mending fences. Thanks, -Smac 1
Kenngo1969 Posted January 27, 2021 Posted January 27, 2021 3 hours ago, smac97 said: From the article: This sounds like a good resolution. BYU has fixed its problems. The legislature is tweaking the statutes that were previously vague. DPS and BYUPD are mending fences. Thanks, -Smac It is a good resolution. That said, I'm puzzled by what I think is the unduly-adversarial position assumed by Commissioner Anderson at the outset. I could understand it if BYU/PD were intransigent or if its response or attitude were belligerent. It's been awhile since I look a look at the record (correspondence between BYU/PD and DPS/POST, et cetera), but it seems to me that the tenor of BYU's communications was, "We want to work with you to fix any problems," whereupon Commissioner Anderson dropped the "I'm-recommending-that-BYUPD-be-decertified 'bomb'." When I read that, I wondered, "What's going on? What's the back story that we're not getting here? I also wonder what led to ALJ Catten's change in position, from hinting strongly he was likely to rule in POST/DPS's favor and to order BYUPD's decertification to doing the opposite when he issued his decision.
bsjkki Posted January 28, 2021 Posted January 28, 2021 19 hours ago, Kenngo1969 said: It is a good resolution. That said, I'm puzzled by what I think is the unduly-adversarial position assumed by Commissioner Anderson at the outset. I could understand it if BYU/PD were intransigent or if its response or attitude were belligerent. It's been awhile since I look a look at the record (correspondence between BYU/PD and DPS/POST, et cetera), but it seems to me that the tenor of BYU's communications was, "We want to work with you to fix any problems," whereupon Commissioner Anderson dropped the "I'm-recommending-that-BYUPD-be-decertified 'bomb'." When I read that, I wondered, "What's going on? What's the back story that we're not getting here? I also wonder what led to ALJ Catten's change in position, from hinting strongly he was likely to rule in POST/DPS's favor and to order BYUPD's decertification to doing the opposite when he issued his decision. We will never know.
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