SALT LAKE CITY — The Brigham Young University Police Department didn't do "what any professional police department does," attorney Michael Hansen with the Utah Attorney General's Office argued Monday.
"What we have is a police department that doesn't act like a police department," he said.
But even if one of the department's former officers violated the law by accessing protected records and then shared them with the BYU Honor Code Office, decertifying an entire police department for one officer's actions would be an "extreme and unprecedented remedy," countered attorney Jim Jardine, representing BYU.
Utah Department of Public Safety Commissioner Jess Andersen and assistant Utah attorney general Lynda Viti, who is also legal counsel for Peace Officer Standards and Training, listened to two hours of arguments Monday from both sides regarding the ongoing debate over whether the BYU Police Department should be decertified.
In February 2019, the Utah Department of Public Safety administration announced a decision to decertify the BYU department for failing to comply with an investigative subpoena issued by Peace Officer Standards and Training, which sought information on any internal investigation conducted into former BYU Police Lt. Aaron Rhoades.
The decertification was to take effect Sept. 1, 2019, but BYU's police department has been allowed to continue operating as it appeals that decision.
An internal investigation was never conducted, however, and Rhoades' actions were never formally presented to Peace Officers Standards and Training, the state agency that certifies all law enforcement officers in Utah.
According to Hansen, Rhoades accessed approximately 16,000 records during a two-year period on a police database reserved for police investigations only. The database contains protected personal information of citizens. An investigation by the state found that in 21 incidents, Rhoades shared that information with BYU's Honor Code Office or Title IX office — including 12 cases that weren't even investigated by BYU police.
He accessed cases that were investigated by Orem police, Provo police and the Utah County Sheriff's Office.
Most of the personal information illegally shared by Rhoades was of women who were victims of sexual assault.
The state ultimately decided not to charge Rhoades, who retired from the department in 2018 and later relinquished his peace officer certification. An 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 says BYU did not properly answer it.
BYU appealed the decision to decertify, calling the state's decision "factually and legally baseless." The school later filed a motion requesting summary judgment, hoping Anderson would rule in its favor to dismiss the decertification effort.
On Monday, each side presented their arguments in what at times was very technical testimony on Utah statutes.
Jardine argued that it doesn't make sense to decertify an entire department based on the actions of one officer. He talked about case history, noting that not even the Colorado City Police Department in Arizona was decertified, despite attempts by the federal government to do so because of its previous ties to the Fundamentalist LDS Church.
Tip-toeing through the tulips in the Spillman file ... and you don't conduct an investigation? You have a chief of police who didn't do what he was supposed to.
–Michael Hansen, Utah Attorney General's Office
Jardine also argued that Stott did take disciplinary action against Rhoades by removing him from his position and not allowing him to have access to the Spillman database anymore. But because Stott determined there was no criminal conduct, he was not required to report Rhoades' actions to Peace Officer Standards and Training.
Furthermore, according to state statute, Jardine argued that only an "investigation" needed to be conducted into Rhoades, which he claims were many, and not specifically an "internal investigation."
Jardine also argued that the department handed over 6,000 pages of documents to the State Bureau of Investigation, even though up until 2019 BYU police did not believe they were subject to GRAMA, or open records requests. He also noted, however, that not complying with GRAMA is not grounds for decertification.
Hansen countered that at issue is Stott not conducting an internal investigation into Rhoades and reporting those findings to Peace Officer Standards and Training — something he said is "mandatory" by the state — and then not responding to the legal subpoena.
"Tip-toeing through the tulips in the Spillman file ... and you don't conduct an investigation?" Hansen argued. "You have a chief of police who didn't do what he was supposed to."
Hansen said he found it curious that during Stott's 18 years as chief that he never once referred an officer to Peace Officer Standards and Training.
"It's hard to believe you have that smooth-running of a police department," he said.
And although Hansen agreed that the decertification was based on BYU's failure to comply with the state's subpoena and not GRAMA requests, those still "go to the whole issue of candor and transparency" surrounding the decertification issue.
Hansen said the BYU Police Department doesn't respond to subpoenas with honesty and candor, "say they are subject to GRAMA except when they don't want to be," and "doesn't act like a police department."
Anderson said he expects to make a ruling on the motion for summary judgment in two weeks. If BYU's motion is denied, the two sides will then prepare for a full trial.
Correction: An earlier version incorrectly stated Utah Department of Public Safety Commissioner Jess Anderson presided over the hearing, but it was administrative law Judge Richard Catten.