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Why Utah officials decided BYU’s police department couldn’t be saved

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Utah’s top law enforcement officer was astonished.

Jess Anderson was already concerned about how well Brigham Young University’s police department was protecting students and about its ability to remain impartial to any pressure from the private religious school.

So Anderson was sitting down with campus police Chief Chris Autry and had just learned Autry reported directly to BYU’s lawyer. And Anderson, as the state’s public safety commissioner, was “a little bit astonished” to hear Autry didn’t see a problem with that.

That mindset fit with public complaints that “students weren’t being represented in the proper way” by the department, Anderson said in a deposition last year, describing his concerns before and after that 2018 meeting with Autry.

”How can a police department and police chief act with autonomy and without undue burden of influence when you report directly to the individual that’s responsible for protecting the school?” Anderson said, explaining his reaction. “And [that] made sense as to why you would start to try to cover up certain things.”

He continued: “The general counsel is going to … protect the school first and foremost.”

The transcript of Anderson’s comments, newly released from the Department of Public Safety, is among documents given to The Salt Lake Tribune in September, five years after the newspaper first sought access to campus police records.Its pursuit of the records has included arguments before the Utah Supreme Court.

DPS was examining the campus force after The Tribune reported in 2016 that a BYU police lieutenant had opened nonpublic records in a restricted police database the previous year, gathered intimate details about a student’s sexual assault report to Provo police, and gave them to the school’s Honor Code Office.

The school is funded and overseen by The Church of Jesus Christ of Latter-day Saints, and its Honor Code Office enforces rules that include bans on alcohol, immodest clothing and premarital sex. Its staff wanted to investigate the student who had reported being sexually assaulted in 2015.

Now, newly released documents further reveal how BYU’s response to questions raised about the lieutenant’s conduct — from skipping the usual internal investigation to blocking state officials’ access to information — led to an unprecedented battle to eliminate the department.

Although Anderson decided in 2018 to decertify the force, a judge eventually ruled that BYU could keep its police department. But the judge also criticized the governing statute and rules as inadequate, saying they provided a “startling lack of guidance” for how BYU police were certified and on other agency discipline issues. Utah legislators have since rewritten the law.

BYU and The Tribune have now resolved the contested records requests without further litigation, as recommended by the Utah Supreme Court. In September, the Department of Public Safety released documents from its decertification proceedings against BYU police, with certain privacy redactions, as a result of negotiations among DPS, BYU police and The Tribune.

The new records give a behind-the-scenes look at the state’s effort to eliminate BYU’s police department.

“I did wrestle with the decision,” Anderson said in a recent interview about the decertification. “I felt the gravity. I felt the weight of it.”

An officer’s misconduct uncovered

To understand why Anderson took the unprecedented action, you have to start two years earlier — before he led the Department of Public Safety.

DPS began investigating after The Tribune’s reporting raised questions about how BYU police were using nonpublic records from other agencies.

The agency discovered Lt. Aaron Rhoades accessed nonpublic information in nearly two dozen cases and passed it on to university employees in the Dean of Students Office, the Honor Code Office and the Title IX Office, which is charged with enforcing a federal law that guarantees students don’t face hostility on campus based on their sex.

A newly released transcript shows Rhoades said this was an assignment he believed came straight from Chief Larry Stott in 2011.

“My assignment as the investigations lieutenant was to provide information to the Honor Code Office from the Utah jail booking system on students that were booked,” he said in a deposition.

But the 2015 case shows he also was researching students who reported being the victims of crimes. And Rhoades’ searches went far beyond the booking logs, which are considered public records.

DPS determined that Rhoades had accessed around 16,000 police reports from other Utah County police agencies during a two-year period. Officers are entitled to access these records only when they have a legitimate law enforcement reason to do so.

Prosecutors could have charged him with low-level misdemeanors for violating Utah’s open records laws and releasing nonpublic records. But in the end, no charges were filed.

Instead, the lieutenant gave up his police certification — which shut down an investigation over whether he should keep his policing license — and the new documents show he was given a year’s salary when he retired from the department, months after that criminal investigation ended in 2018.

One state investigator, whose name is redacted from the documents, later said in a deposition that he was frustrated Rhoades wasn’t charged and blamed politics. But the attorney general’s office said there were several reasons why it didn’t prosecute, including a concern that the resources required didn’t match the relatively minor nature of the crimes.

Investigators turn to BYU’s police department

By the fall of 2018, Anderson was leading the Department of Public Safety, which has a bureau that oversees police misconduct. And after the criminal investigation into Rhoades’ access of restricted records ended without charges, Anderson said, he was fed up.

His main concern wasn’t the officer’s conduct, he said, but how BYU police responded when it became public and the state began to investigate.

The department didn’t conduct its own internal investigation of Rhoades, he said — a requirement for Utah police agencies after allegations like that. And Anderson added it refused to comply with the government’s public records requests and subpoenas. This included requests made by policing regulators who wanted to start an investigation into whether Rhoades should keep his police certification.

“The basic, most fundamental situation here, when it comes to being a police organization, is accountability and transparency,” Anderson said in an interview. “And here we’re dealing with an organization that didn’t want either.”

BYU’s police department is one of a kind in Utah: Lawmakers gave the church-owned law enforcement agency policing powers more than 40 years ago.

“There was hardly any documentation of what the expectations were,” Anderson added, “what that authority meant, what the guardrails were for them. It was just simply granting them authority and saying, ‘OK, you as a private entity, good luck with state power.’”

(Francisco Kjolseth | The Salt Lake Tribune) BYU Police work a football game at LaVell Edwards Stadium in Provo, Saturday, Sept. 25, 2021.

With no rules made explicit, BYU argued its affiliation — as a private school — with the police department meant it was exempt from the open records laws that all other Utah law enforcement agencies have to follow.

State law also did not specify whether Anderson had the authority to decertify an entire police agency. He thought he did, reasoning that if it is the job of a public safety commissioner to certify BYU police, it certainly was possible that he could reverse that decision.

He described in his deposition that he had been in meetings with Utah officials — including then-Gov. Gary Herbert — about what to do about BYU police.

And, in December 2018, he sent a “warning letter” to then-Chief Autry, saying that he needed to see the department’s response change or Anderson would continue with his plan to decertify the campus police force.

An ‘alarming’ discussion with BYU’s chief

A month later, Anderson and BYU’s police chief sat down together. The DPS commissioner had hoped to talk candidly about how to fix problems, including addressing the chief reporting to BYU’s legal counsel, according to his deposition.

“Their natural bias then is going to go directly to, ‘How do we protect the school?’” Anderson told The Tribune. “Maybe not the victim. Maybe not a suspect. … The fact is, the bias is to protect the school. And that influence is going to be pushed back down through the chief.”

BYU officials pushed back on this assertion. “The primary focus of BYU police is and always has been to protect our students and the campus community,” school spokesperson Carri Jenkins said.

Jenkins added that this structure has since changed; BYU’s chief now reports to a managing director under the school’s vice president of administration.

In his deposition, Anderson recalled an unrelated concern that also came up during his sit-down with Autry. His office had just fired a Utah Highway Patrol trooper for alleged misconduct, and he had learned BYU police had hired that same officer.

The commissioner urged the chief to do a background check and look deeper before making the hire.

He described Autry putting his fingers in his ears, and telling him, “No, no, no, no. Don’t tell me. I don’t want to know.”

“That’s alarming and that’s concerning,” Anderson recalled in the deposition. “So it tells me that [they’re] not doing background checks or otherwise vetting the people they’re hiring, nor did they care.”

That officer still worked for BYU police in early 2020, when his policing license was suspended for more than three years. Police regulators found that while the officer was at the Utah Highway Patrol, he had claimed he worked hours he didn’t and then lied about it.

Anderson reaches a decision

Communication between Anderson and Autry continued to break down over the next few weeks, the newly released records show. And by that time, BYU had hired lawyers who were running interference in communications with the state, Anderson said.

“There’s still a culture at BYU that was very evident and came across that they don’t like people intruding in on their businesses,” Anderson said in an interview. “And it isn’t necessarily coming from the police department, but it is the [legal] counsel they are receiving.”

(Francisco Kjolseth | The Salt Lake Tribune) Jess Anderson, Utah’s Commissioner of Public Safety, led a two-year effort to decertify Brigham Young University’s police force that was ultimately unsuccessful. “I did wrestle with the decision,” he recalled in a recent interview. “I felt the gravity. I felt the weight of it.” He is pictured here in his office on Nov. 23, 2021.

Looking back, Anderson said, he wishes he would have spent more time with Autry, to better allow the two of them to look for ways to resolve issues. But Anderson felt stuck trying to battle that culture and the “countless number of attorneys” that BYU had hired, he said.

He would send suggestions about what needed to change, he said, and university officials would “redline” the document and send it back.

“They themselves kind of forgot who sets the rules,” Anderson said.

Autry recalled recently that he, too, felt frustrated with the way things were playing out with the decertification process. And Autry said he felt BYU police had done what it was supposed to in the way it handled Rhoades’ misconduct.

Anderson obviously didn’t agree. In February 2019, Anderson sent the letter informing Chief Autry that he was seeking to get rid of his entire police department.

That process would wear on for the next two years, mostly behind closed doors.

Lawmakers join the scrutiny of BYU police

The new documents reveal that, during this time, other government leaders were considering additional ways to close or reform BYU’s police department.

Legislators in early 2019 passed a bill that explicitly required BYU police to obey the state’s open records laws, from which the university claimed to be exempt. The measure was sponsored by state Sen. Curt Bramble, a Provo Republican — and the newly released documents show there was discussion about the bill including language that would have decertified BYU’s police department. But it’s unclear whether it was ever seriously considered.

A year later, then-state Rep. Lee Perry — who worked as a Utah Highway Patrol lieutenant in northern Utah — envisioned another bill that would decertify the department, the new documents show. As he followed news reports about BYU police, Perry had mulled introducing legislation that would bar a private university from having its own police department.

Perry, who has since retired from law enforcement, said he didn’t have firsthand knowledge about the investigations of Rhoades and BYU, but felt strongly that all police agencies in Utah should adhere to the same professional standards.

(AP File Photo/Rick Bowmer)In this March 7, 2017, file photo, Rep. Lee Perry, R-Perry, speaks on the House floor, at the Utah State Capitol, in Salt Lake City.

“Is it OK for BYU to say, ‘Well, we want to be police officers in this state, but we don’t want to follow the same rules as every other police agency’?” the Perry Republican said. “I don’t know if that was really happening, but it felt like that that was the message I was seeing in the news. And that was a concern to me.”

Perry said his legislation never moved forward, although he can’t recall why.

Bramble called Perry’s bill a “nuclear option” in a recent interview, one that state lawmakers planned to use only if public safety officials, the Legislature and the private university couldn’t agree on a path forward.

There was reason to hope for a different outcome, he said, given the added strain on Provo’s law enforcement agency if the university department were abolished. With BYU’s campus of 557 acres and student population of more than 33,000, policing it would be a significant task for Provo — and a largely unfunded one, since the nonprofit university doesn’t pay any property taxes to the city.

“It would’ve simply put that huge additional volume of police activity on the Provo police department,” Bramble said, “without the resources to do it.”

The judge makes his ruling

Anderson felt his decision to certify the BYU police department could have been final, with no opportunity for BYU to appeal. But he agreed it would be fair to have the case heard by an administrative law judge, mirroring the appeals process that government employees have available to them if they are fired from their job.

BYU did appeal, arguing Administrative Law Judge Richard Catten should throw out the decertification. It contended the state didn’t have a strong case and that the university satisfied the legal requirements when it asked for the Department of Public Safety to investigate the allegations of improper records sharing.

And university lawyers said the department both asked for the DPS investigation and arranged for its own, by hiring lawyer Rod Snow to do a review. One BYU attorney argued that Rhoades’ actions were “one of the most investigated events in Utah.”

Catten ultimately sided with BYU in January. He noted in his final ruling that the two sides took different approaches to what was expected after BYU’s police chief was notified about the allegations against Rhoades.

State officials expected a formal internal affairs investigation with the results turned over to policing regulators. The university took a different approach by hiring multiple attorneys, supporting a secrecy order in court and asking for the state investigation.

State law was unclear, Catten said. “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,” he wrote. “The inadequacy of the statutes and rules have unfairly affected both parties in this case.”

Anderson acknowledges he was surprised, though not completely taken off guard, by the ruling. And Autry, who by this time was leading the university’s new private security division, was ready to move on.

“I am glad it is all behind us,” he said. “BYU police kept its certification and its ability to protect and serve the BYU campus, and I look forward to BYU police’s continued service in that capacity.”

Moving forward

Earlier this year, BYU and the state worked together to pass legislation that put in the missing guardrails.

The bill — which was sponsored by Bramble, the Provo senator, and Rep. Candice Pierucci, a Herriman Republican — codified an appeals process and allows the state’s serving public safety commissioner to put a private university’s police agency on probation.

It also requires the agency to have policies and procedures that reflect current state law and “best practices,” and are approved by the commissioner. It allows for the possibility of the commissioner conducting periodic audits, with which the private university agrees to cooperate.

“There’s a high potential that the issue has been resolved to the extent that both parties are working together,” Bramble said. “And if there are residual issues, they figure out how to sit down and resolve them.’”

Pierucci said in a statement that she’s continuing to monitor that relationship, and is open to running new legislation to make more changes if needed.

The Department of Public Safety has started working more closely with BYU police.

Matthew Andrus, BYU’s current chief, describes this as a “good working relationship,” noting staff gave Anderson a tour of the police department in May. And they correspond monthly about what’s going on in the department, according to Anderson.

BYU officials said they are confident that with the law clarified, their force will never face decertification again.

It was telling, Anderson added, that after he started working more closely with BYU’s police department, the agency referred an officer accused of misconduct to state regulators for discipline. It was the first time the department had done so in its 40-year history.

“There’s no hard feelings,” Anderson said. “There was never any animosity. There was never any hatred toward BYU or anti-church or anything.”

Anderson said the decertification was simply about being transparent — and following the rules like everyone else.

BYU officials said neither its police department nor its private security force sends jail bookings or any other similar information to the Honor Code Office today, as Rhoades had been accused of doing. Andrus said his department enforces the laws — not the Honor Code — and said his officers interact with that department no differently than anyone else on campus.

— Tribune reporter Bethany Rodgers contributed to this article.

https://www.sltrib.com/news/2021/12/17/why-utah-officials/ Why Utah officials decided BYU’s police department couldn’t be saved

Yasmin Harisha

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