BEFORE THE UTAH DEPARTMENT OF PUBLIC SAFETY

IN THE MATTER OF BRIGHAM YOUNG ORDER ON

UNIVERSITY POLICE DECERTIFICATION BYU UNIVERSITY
PROCEEDINGS POLICE MOTION FOR SUMMARY
JUDGMENT

Administrative Law Judge Richard Catten

On or about August 6, 2020, BYU University Police (“BYUPD”) filed a Motion for

Summary Judgment in the above-captioned matter. The Utah Department of Public Safety

(“UDPS”) filed its Memorandum in Opposition to BYUPD’s Motion on or about October 5,

2020 (after a stipulated extension of time). BYUPD filed its Reply Memorandum on October 16,

2020.

A hearing was held on October 26, 2020, at the Peace Officer Standards and Training

offices in Sandy Utah. Following the hearing, the undersigned issued a Rule 56(f) Notice and

Order on BYU University’s Police Motion for Summary Judgment and Sua Sponte Order for

Continuance. Each Party filed memoranda in response to the Rule 56(f) Notice. BYUPD’s

Motion for Summary Judgment is GRANTED. Pursuant to Rule 56(f), partial summary

judgment is GRANTED to UDPS on several specific legal issues.

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 ANALYSIS

BYUPD’s Motion for Summary Judgment.

BYUPD’s Motion for Summary Judgment essentially has three components. The

arguments are (a) the laws and rules relied upon by the Commissioner of Public Safety in his

decertification order cannot be used to decertify the BYUPD, (BYU Motion for Summary

Judgment pages 13-18), (b) even if it is determined that the statutes and rules apply, BYUPD had

no obligation to comply with those rules, (some elements of this argument are found in

BYUPD’s Motion for Summary Judgment page 19, others raised at oral argument and in Rule

56(f) Memoranda), and (c) if BYUPD had an obligation to comply with the certification rules,

they performed as required and are in compliance with their certification criteria (BYUPD

Motion for Summary Judgment pages 19-22). The arguments are discussed separately below.

Arguments (a) and (b) - Applicability and Compliance with Statutes and Rules

The certification criteria for BYUPD is found in Utah Admin. Code R698-4-4. The Rule

states “The following criteria must be met in order for the law enforcement agency of a private

college or university to be eligible for certification: ….” Among the listed criteria is R698-4-

4(4) which states: “The law enforcement agency’s officers shall be subject to all of the

requirements of Title 53, Chapter 6, Part 2.” Title 53, Chapter 6, Part 2 of the Utah Code

comprises the Peace Officer Training and Certification Act (“POTCA” or the “Act”).

In this case, a specific section of POTCA and its application is a key issue. Utah Code §

53-6-211 (“Section 211”) governs the discipline or decertification of peace officers by the Peace

Officer Standards and Training Division (“POST”) of the UDPS. POST is the state entity

charged with administering POTCA. Section 211 contains a subsection that places a burden on

2
agencies to report violation of POTCA by individual officers to POST for further investigation.

Subsection (6) reads as follows:

A chief, sheriff, or administrative officer of a law enforcement agency who is

made aware of an allegation against a peace officer employed by that agency that
involves conduct in violation of Subsection (1) shall investigate the allegation and
report to the division if the allegation is found to be true.”

Utah Code § 53-6-211(6)(a).

BYUPD argues it cannot be decertified for a violation of Section 211 since that section is

not part of its certification criteria, stating “This allegation fails as an invalid basis for

decertification because it is not one of the Certification Criteria.” (BYUPD Motion for Summary

Judgment, page 17). This argument is based on a misreading of the plain language of the statutes

and rules and leads to an absurd result. Each of which is clearly in contravention of applicable

Utah caselaw.

In State v. Hawker, 2016 UT App 123, ¶22, 374 P.3d 1085, the Utah Court of Appeals

correctly stated the applicable canon of statutory construction as follows:

“Under our rules of statutory construction, we look first to the statute's plain
language to determine its meaning.” Sindt v. Retirement Board , 2007 UT 16, ¶ 8,
157 P.3d 797 (citation and internal quotation marks omitted). In addition, “[w]e
read the plain language of the statute as a whole, and interpret its provisions
in harmony with other statutes in the same chapter and related chapters.” Li
v. Enterprise Rent–A–Car Co. of Utah , 2006 UT 80, ¶ 9, 150 P.3d 471 (alteration
in original) (citation and internal quotation marks omitted). “Normally, where the
language of a statute is clear and unambiguous, our analysis ends; our duty is to
give effect to that plain meaning.” In re Z.C. , 2007 UT 54, ¶ 11, 165 P.3d 1206.
However, “ ‘a court should not follow the literal language of a statute if its
plain meaning works an absurd result.’ ” Id. (quoting Savage v. Utah Youth
Village , 2004 UT 102, ¶ 18, 104 P.3d 1242 ). An absurd result is one “so
absurd that the legislative body which authored the legislation could not have
intended it.” Id. ¶ 13. Finally, “[o]ne of the cardinal principles of statutory
construction is that [we] will look to the reason, spirit, and sense of the
legislation, as indicated by the entire context and subject matter of the

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 statute dealing with the subject.” In re Marriage of Gonzalez , 2000 UT 28, ¶
23, 1 P.3d 1074 (citation and internal quotation marks omitted).

Id. (emphasis added).

BYUPD is correct that Section 211 does not directly provide for its decertification and is

correct that a violation of Section 211 by one of its officers does not provide a basis for the

revocation of its certification. That is not what the section says, and it is clearly not written for

that purpose. But is it also not the basis for the decertification action by the Utah Commissioner

of Public Safety (the “Commissioner”). The Commissioner is not attempting to decertify

BYUPD for the actions of its officer or a violation of Section 211, but rather the acts or failure to

act by BYUPD itself which may have caused it to fail to meet its certification criteria set forth in

Utah Admin. Code R698-4. The Notice of Agency Action letter of February 20, 2019 makes

that clear. (BYUPD Motion for Summary Judgment, Exhibit 61). By focusing on Section 211,

BYUPD is simply setting up a straw man argument that is easy for it to knock down. It fails to

examine all the statutes and rules at play and read them in context, in particular the relationship

between Section 211 and the certification criteria set forth in Utah Admin. Code R698-4-4.

As the Notice of Intent to Decertify letter from the DPS clearly states, the authority for

the certification and/or decertification of BYUPD is set forth in Utah Admin. Code R698-4-4.

It is that rule, not Utah Code § 53-6-211, that places the certification/decertification decision

before the Commissioner and sets forth specific criteria for certification.1 Utah Admin. Code

Utah Admin. Code R698-4-4 specifies as a criterion that “all BYUPD officers shall be subject to

Title 53, Chapter 6 of the Utah Code.” BYUPD agrees that this section applies to it, as well as

its officers. (BYUPD Motion for Summary Judgment Undisputed Facts paragraph 6).

1
It should be noted that the Rule only allows that Commissioner to certify or revoke certification. There are no
other intermediate disciplinary steps specifically available to the Commissioner.

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 In order to give full effect to the application of the certification criteria to BYUPD, it is

necessary to cobble together various statutes and rules.

1. Utah Admin. Code R698-4-4 sets the certification criteria for a non-governmental

university police department.

2. A specific criterion that BYUPD must meet is that its officers “shall be subject to

Title 53, Chapter 6, Part 2 of the Utah Code,” (otherwise known as “POTCA”).

3. Any action or failure to act by BYUPD, which causes it to fail to meet the

certification criteria can be a ground for revocation of its certification as set forth in R698-4-5

Utah Admin Code.

4. POTCA includes Utah Code § 53-6-211, which provides for the discipline of

certified police officers, and, therefore, any action or failure to act by BYUPD, which prevents or

shields its officers from being subject to Utah Code § 53-6-211 specifically, or POTCA in

general, is a violation of its certification criteria.

5. Utah Code §53-2-6-211(6) places certain obligations and responsibilities on law

enforcement agencies whose officers are subject to POTCA. These obligations and

responsibilities are the investigation and reporting of potential violations of POTCA to POST.

6. As an agency whose officers are subject to POTCA, failure by BYUPD to

perform its obligations and responsibilities under Utah Code § 53-6-211(6) would cause its

officers to not be subject to POTCA as required in the certification criteria in Utah Admin. Code

R698-4-4(4) and would be a violation of its certification criteria.

As set forth above, a comprehensive reading of the statutory and regulatory scheme

governing BYUPD’s certification leads to the conclusion that BYUPD can be in violation of its

certification criteria if, for any reason, it fails to subject its officers to POTCA. Any

5
interpretation that suggests BYUPD officers are subject to POTCA but that the certification

criteria does not impose an obligation on BYUPD to make sure that is the case, is an absurd

result. Why would the certification criteria, which “must be met” by BYUPD (R698-4-4 Utah

Admin Code), include a criterion that it is apparently free to ignore or violate? That is a patently

absurd result.

BYUPD also argues that it is an undisputed fact that its officers have always been subject

to POTCA but provides no evidence of that other than the conclusory statements of its former

and current chief. In any case, those statement do not address the central issue in this case,

whether in this particular instance, BYUPD’s actions or inactions prevented or shielded its

officer from the application of POTCA by POST.

BYUPD makes additional arguments to support its assertion that it cannot be sanctioned

for any failure to meet its obligations under Utah Code § 53-6-211(6). In its Motion for

Summary Judgment, it makes the argument that the Chief, not BYUPD, is the only one that can

be punished for a violation of Utah Code § 53-6-211(6). This is an argument based on the

language of Subsection 211(6) which places the obligation to investigate and report on the

“chief, sheriff or administrative officer of a law enforcement agency.” This argument fails as it

is in direct conflict with BYUPD’s own undisputed facts that assert that “University Police and

its officers are and at all relevant times have been subject to all of the requirements of Title 53,

Chapter 6, Part 2.” (Motion for Summary Judgment, Statement of Undisputed Facts, paragraph

6). Also, the fact that the statute places a responsibility on the Chief does not relieve BYUPD of

its obligations under its certification criteria.

Another argument made by BYUPD is that it is only “subject” to POTCA and it is not

required to “comply” with the Act. This argument is based on three federal court decisions from

6
other jurisdictions that interpret specific EPA regulations. This argument ignores well-established

Utah caselaw regarding statutory interpretation, including those cited by BYUPD in their papers

and the clear statement made by the Utah Court of Appeals in State v. Burgess-Beynon, 2004 UT

App 312, 99 P.3d 383 (Utah App. 2004), where the Utah Court of Appeals stated:

Furthermore, it is a "`fundamental principle of statutory construction (and ... of

language itself) that the meaning of a word cannot be determined in isolation, but
must be drawn from the context in which it is used.'" State v. Hunt, 906 P.2d 311,
313 (Utah 1995) (quoting Deal v. United States, 508 U.S. 129, 132, 113 S.Ct.
1993, 124 L.Ed.2d 44 (1993)).

Utah law is clear that statutes and rules must be read in a manner that give effect to all of their

provisions and does not render portions of a statute meaningless and statutory interpretation

cannot result in an absurdity.

The cases relied upon by BYUPD are not binding precedents, are not persuasive, and fly

in the face of Utah statutory construction law. However, it is not necessary to discuss the cases

or statutory construction in any greater detail as the argument itself is entirely irrelevant. The

phrase “subject to” that is the focus of the argument comes directly from Utah Admin Code

R698-4-4, which is one of the certification criteria that applies to BYUPD. It states: “The law

enforcement agency’s officers shall be subject to all of the requirements of Title 53, Chapter 6,

Part 2.” (Emphasis added). It clearly states that BYUPD officers are subject to POTCA, which

in this case is focused on a specific section of POTCA, Utah Code § 53-6-211. The BYUPD

obligation, as described above and stated in Utah Admin. Code R698-4-4 and which “must be

met” is to ensure that its officers are subject to POTCA – an entirely different concept. The

officers are subject to POTCA and BYUPD must comply with its certification criteria which

requires it to make is officers subject to POTCA. In other words, it is not BYUPD’s obligation

7
to make its officers comply with POTCA – just report it to POST when an officer may not be in

compliance, so that the officer is subject to POTCA’s disciplinary provisions.

This case is simply not about the BYUPD officer and the Commissioner is not attempting

to decertify BYUPD because of the actions of the officer. Officers from many, if not all, law

enforcement agencies often make mistakes or are the subject of allegations and those cases are

regularly handled by POST without any penalty to the agency. The focus of this case is entirely

different as the Commissioner is taking action because of the actions or inactions of BYUPD in

making its officer subject, or not subject, to POTCA. This case is not about whether the

individual BYUPD officer was subject to POTCA, but rather, whether BYUPD took actions or

inactions to prevent the officer from being subject to POTCA.

Looking at the allegations in that light, the language that is relevant is not the “subject to”

language of Utah Admin. Code R698-4-4, but rather the language that applies directly to

BYUPD found in that section which states: “The following criteria must be met in order for the

law enforcement agency of a private college or university to be eligible for certification.”

(emphasis added). The language that applies directly to BYUPD is obviously mandatory and the

section making BYUPD officers subject to POTCA is a specific certification criterion.

BYUPD’s argument that it is “subject to” the law but does not need to “comply” with the law

fails.

It should also be noted that the investigation and referral requirement of Subsection

211(6) is a general requirement in a state statute that applies to all agencies with officers who are

certified pursuant to POTCA. It is a standalone requirement and BYUPD, along with every

other law enforcement agency in the state, must comply with the obligations contained in the

statute – regardless of what language may or may not be present in the agency’s certification

8
criteria. The argument that BYUPD is not required to comply with the investigation and

reporting requirements set forth in Section 211 is without merit.

Finally, BYU makes the argument that, given the facts of this case, even if it was

required to investigate the allegation against its officer it was not required to report the

allegations to POST for further investigation. This argument has several components.

First, BYUPD argues that this case can be resolved by simply relying on Chief Stott’s

statement that he determined that his officer’s conduct did not “rise to the level of criminal

conduct.” (BYUPD Motion for Summary Judgment, Statement of Undisputed Facts, paragraph

15). Therefore, because the Chief had made that determination, BYUPD had no obligation to

report the case to Peace Officer Standards and Training for investigation. This argument is

legally correct given the wording of Section 211(6). However, the undisputed facts do not

support the Chief’s statement or determination and do not support the granting of Summary

Judgment. While it is undisputed that Chief Stott made the statement, there are no facts

presented that support that statement. Chief Stott describes talking with the officer on a couple

of occasions and removing his access to the Spillman database, however, no facts are presented

regarding the substance of those conversations, what information was learned, or how Chief Stott

arrived at his conclusion. 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.

(UDPS Memorandum in Opposition to BYUPD Motion for Summary Judgment, Statement of

Material Facts, Section II, paragraphs 1 and 6). Finally, the subsequent actions taken by BYU

and the Chief himself directly contradict his “no criminal conduct” determination. Despite the

Chief’s investigation and determination of no criminal conduct, BYU proceeded to hire an

attorney to represent BYU itself in the matter and to provide it with advice regarding the

9
potential for any criminal charges. (BYUPD Motion for Summary Judgment Undisputed Facts

paragraphs 37, 38 and 39; UDPS Memorandum in Opposition to Motion for Summary Judgment

Statement of Undisputed Facts, Section III paragraphs 16 and 17). BYU also hired an attorney to

represent the accused officer during the investigation by the State Bureau of Investigation

(“SBI”). (UDPS Memorandum in Opposition to Motion for Summary Judgment, Statement of

Undisputed Facts, Section III paragraphs 18 and 19). Finally, Chief Stott contacted the then

Commissioner of Public Safety and asked for an investigation that looked at BYUPD for

improper conduct or illegal dissemination of private or protected information. (BYUPD Motion

for Summary Judgment, Statement of Undisputed Facts, paragraph 29; Emphasis added).

Obviously, none of those actions are consistent with Chief Stott’s determination, after his

investigation, that there was no criminal conduct by the BYUPD officer.

While there are no facts presented in the Motion which explain how Chief Stott arrived at

his determination (there are legal arguments – but no facts), there is substantial evidence that the

officer at least committed the act of distributing records from a government agency which is

subject to GRAMA - which was the original allegation against the officer and is an element of

the alleged crime. BYUPD advances a variety of legal arguments regarding this issue but

produces little or no facts that support those arguments. In the original Motion, the primary

argument was that BYU had determined that its officer could not have committed any GRAMA

related crime because BYUPD was not subject to GRAMA. (BYUPD Motion for Summary

Judgment, Statement of Undisputed Facts, paragraph 41). That argument is clearly not supported

by the plain language of the criminal statute. In the Response to the Rule 56(f) Notice, it shifts

its primary argument to the argument that a crime could not have been committed because the

10
requisite mental state is not present, but there are no Undisputed Facts presented in the Motion as

to what the officer’s mental state was at the time of his actions. 2,3

Based on the foregoing, both the statutory scheme for certification and §53-6-211 UCA

on its own, require BYUPD to comply with the investigation and reporting requirements of Utah

Code §53-6-211. A failure to comply can constitute a violation of the certification requirement

set forth in R698-4-4(6) by preventing its officer from being subject to POTCA and, therefore,

can provide a basis for decertification by the Commissioner.

Argument (c) - BYUPD complied with the requirements of Utah Code § 53-6-211

In its Motion for Summary Judgment, BYUPD asserts that any obligation that it may

have had to investigate and report its officer’s conduct to POST was satisfied by various

investigations. It specifically points to the following four separate investigations: a) Chief Stott’s

investigation; b) the investigation by the outside attorney hired by BYU; c) the investigation

Chief Stott requested from the UDPS and which was conducted by SBI; and d) the investigation

started, but not completed, by POST. As set forth briefly below, the investigations set forth in a),

b), and d), above do not meet the standard for the granting of summary judgment. Each

2
BYUPD’s arguments refer to the lack of a “prosecutable crime” and specifically point to the Utah Attorney
General’s office as declining prosecution (BYUPD Motion for Summary Judgment Statement of Undisputed Facts,
paragraph 35; Exhibit 23). However, whether the allegation is “prosecutable” is not the standard set forth in
POTCA for the discipline or decertification of an officer. Utah Code § 53-6-211(1) sets forth the possible violations
and the rest of the section and its accompanying administrative rules set forth an administrative adjudication process
with differing rules of evidence, discovery and a lower standard of proof than a criminal prosecution. BYUPD’s
specific obligation under the plain language of §53-6-211(6) UCA is to investigate and report violations of
subsection (1) of Section 211. To argue that subsection (1) requires a “prosecutable crime” takes that subsection out
of context.
3
BYUPD makes the additional argument that a crime could not have occurred because the records accessed by its
officer had not been classified as protected under GRAMA. This argument is both disingenuous and unsupported by
any facts. First, pursuant to Utah Code § 63G-3-307(2), governmental entities subject to GRAMA are not required
to classify documents until a request is made for the document. This puts BYUPD in the position of arguing that
since the officer made no request, and distributed the documents without the government agencies knowledge, he
has not committed a crime. In other words, criminal responsibility can be avoided by distributing them without the
government entities knowledge or permission – an obviously absurd result. Second, there are no undisputed facts in
the record as to whether the specific documents in question had been classified or fell into a group classification in
any of the affected jurisdictions.

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investigation is either not fully supported by the Undisputed Facts or judgment is not clear as a

matter of law.

First is the investigation and decision not to report made by Chief Stott. This is discussed

in the previous section of this order and suffice it to say that the undisputed facts are inconsistent

with each other and do not support summary judgment.

The second investigation is the inquiry undertaken by the attorney hired by BYU. This

investigation is largely shrouded in secrecy and the only evidence presented in support of the

Motion for Summary Judgment is the summary conclusions of the attorney. It is known that the

attorney was hired to represent BYU and was acting as their legal counsel. There is no detail as

to the nature of the investigation or the evidence on which the conclusions are reached. BYUPD

has refused to disclose those details, which is certainly within its rights. The attorney’s

investigation was undertaken in order to provide legal representation to BYU and is protected by

attorney client privilege. However, without any detail regarding the investigation or the

evidence that was discovered, what we are left with is simply the opinion of BYU’s legal

counsel. While it is certainly an Undisputed Fact that BYU’s legal counsel is of the opinion that

no crime was committed by the officer, it is also undisputed that he was specifically hired to

represent his client – BYU. (BYUPD Motion for Summary Judgment, Exhibit 26; Statement of

Undisputed Facts, paragraph 37). Without more detail, that lone conclusory opinion cannot form

the basis for the granting of summary judgment. If you could simply present your legal

counsel’s opinion as a fact, would any movant ever lose a motion for summary judgment? Given

the lack of a factual underpinning for this argument, summary judgment cannot be granted as a

matter of law based on this investigation.

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 The third investigation is the investigation began by POST. 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.

The administrative scheme set out in §53-6-211 UCA and its related administrative rules

is very simple. The process is as follows: (a) the police chief of a law enforcement agency has

an obligation to investigate certain allegations of misconduct and report them to POST if found

to be true, (b) POST then conducts an investigation to determine if there is evidence of a

violation of the standards set forth in Utah Code § 53-6-211(1), and (c) POST then holds an

administrative adjudication to determine if the allegations can be proven by clear and convincing

evidence.

BYUPD is making the argument that POST’s investigation under part (b) of the process

described above satisfies any obligation it may have under part (a) of the process. Obviously,

that is not accurate. They are clearly not the same thing, nor do they serve the same purpose.

Any investigation required by BYUPD may, or may not, be a precursor to POST’s obligation to

investigate. The purpose of a BYUPD investigation is to determine if a matter should be referred

to POST. POST’s investigation is conducted to determine if sufficient evidence exists to hold a

full evidentiary hearing on the matter. As a matter of law, the POST investigation cannot satisfy

BYUPD’s investigation obligation under Subsection 211(6).

That leaves the investigation conducted by the UDPS in response to the request of Chief

Stott. This investigation turns out to be the deciding factor in this case. As previously stated, the

requirements of Subsection 211(6)(a), are simple. The statute states:

A chief, sheriff, or administrative officer of a law enforcement agency who is

made aware of an allegation against a peace officer employed by that agency that
involves conduct in violation of Subsection (1) shall investigate the allegation and
report to the division if the allegation is found to be true.

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Utah Code § 53-6-211(6)(a).

The requirements of the section are minimal. For example, in this case the specific

allegation is that the officer engaged in “in conduct constituting a state or federal criminal

offense.” Utah Code § 53-6-211(1)(d). However, the statute does not address the quantum of

evidence or standard of proof that is applicable, it only states that the allegation must be found to

be true. The statute is also silent as to the type of investigation that needs to be conducted.

UDPS argues that the investigation needs to be an administrative investigation and there is a

strong logical basis for that argument. Criminal investigations often have trouble gathering

evidence given the suspect’s rights against self-incrimination. Because it is not a criminal

proceeding, an administrative investigation can rely on the reasoning of Garrity v. New Jersey,

385 U.S. 493 (1967), to compel information that is unavailable in the criminal investigation.

However, the UDPS argument fails since the plain language of Subsection 211(6) only requires

an “investigation” and is silent as to the type of investigation to be conducted.

The Undisputed Facts in this case support BYUPD’s argument that the investigation

conducted by SBI satisfy the minimal requirements of Subsection 211(6).

• The SBI investigation was specifically requested by Chief Stott. This satisfies

the requirement that the Chief of the agency conduct an investigation. (BYUPD

Motion for Summary Judgment, Statement of Material Facts, Paragraph 29).

• The results of the investigation indicated possible conduct which constituted a

state or federal offense as described in Utah Code § 53-6-211(1)(d). This is

demonstrated by the Undisputed Fact that SBI presented the case to the Attorney

General’s office for prosecutorial review with respect to filing criminal charges.

(BYUPD Motion for Summary Judgment, Statement of Material Facts, Paragraph

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 35). Whether charges are filed or declined is irrelevant to the administrative

process set forth in POTCA. Utah Code § 53-6-211(3)(c).

• SBI referred the case to POST for further investigation pursuant to POST’s

responsibilities under POTCA. (BYUPD Motion for Summary Judgment,

Statement of Material Facts, Paragraph 36).

• BYUPD was aware that SBI had referred the case to POST. This is evidenced by

the fact that the attorney hired by BYU to represent the officer contacted the

POST investigator shortly after the POST investigation was opened. (BYUPD

Motion for Summary Judgment, Exhibit 5). Knowing that the case had been

referred, BYUPD’s obligation to refer the case was rendered unnecessary.

Based on the foregoing, the Undisputed Facts support BYUPD’s assertion that the

investigation requested by Chief Stott, performed by SBI, with results referred to POST, satisfies

the requirements of Utah Code § 53-6-211(6) and BYUPD is entitled to Summary Judgment on

this issue as a matter of law.

BYUPD’s Alleged Failure to Respond to the POST Subpoena

The second ground for decertification relied upon by DPS is BYUPD’s alleged failure to

respond to an administrative investigative subpoena issued by POST. This allegation is

grounded upon the same statutory basis as the previous allegation. That BYUPD took action or

failed to take action that resulted in one of its officers not being subject to POTCA.

Following the referral of the case to POST by SBI, POST issued an administrative

investigative subpoena to BYUPD as part of its investigation of the BYUPD officer. The

subpoena requested the contact information for the officer and witnesses and a copy of the

“internal administrative investigations” of the officer conducted by BYUPD.

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 BYUPD responded to the subpoena with an objection pursuant to Rule 45, Utah Rules of

Civil Procedure, and provided none of the requested information to POST. The basis of the

objection was that the information was protected by either a secrecy order issued by the 4th

District Court or by attorney client privilege.

The statutes and rules that govern this subpoena are minimal or nonexistent. However,

the ability of POST to issue the subpoena is one of the few things that does have the clear

support in the law. Utah Admin. Code R728-409-4(10) specifically authorizes POST to issue

subpoenas during an investigation when it states, “Witnesses and other evidence may be

subpoenaed during an investigation pursuant to Sections 53-6-210 and 53-6-308.” Section 53-6-

210(2) provides that “willfully” disobeying a “properly served” subpoena issued by POST is

punishable as a class B misdemeanor. In this case, there has been no allegation that the

subpoena issued by the POST investigator was not properly served. Nor is it disputed that

BYUPD did not supply POST with the information requested in the subpoena and that POST

took no action to enforce the subpoena.

The question that remains, for the purposes of this Motion, is whether BYUPD’s failure

to provide the information requested by the subpoena is, as a matter of law, an act that obstructed

POST’s ability to investigation the BYUPD officer. Actions taken by BYUPD to obstruct or

interfere with the ability of POST to subject BYUPD officers to POCTA could be grounds for

the revocation of its certification as set forth previously in this Order.

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. (BYUPD Motion for

16
Summary Judgment, Exhibit 36). The response set out its legal objections to the request and the

email exchange with POST counsel indicated its willingness to work toward a process for

determining what information could be provided. (BYUPD Motion for Summary Judgment,

Exhibits 37 and 38).

In BYUPD’s defense, it should be noted that while there is a statutory method for POST

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. Given the absence of a

statutory process, the form of the objection essentially becomes irrelevant. 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.

Based on the undisputed facts, it can be determined as a matter of law that BYUPD

responded to POST’s investigative subpoena by informing POST of its objections to releasing

the information and offering to work towards a resolution of the matter. POST chose not to

pursue enforcement of its subpoena. BYUPD’s objections to the subpoena do not constitute a

failure or obstruction to make its officer subject to POTCA, as set forth in its certification

criteria, and BYUPD is entitled to Summary Judgment on this issue.

CONCLUSION

The Parties took a very different approach to the statutes and rules that are at play in this

case. POST clearly expected BYUPD to act in a similar fashion to most other police agencies in

the state – conduct an administrative internal affairs investigation the officer’s alleged actions,

then turn over the results to POST for further investigation under §53-6-211 UCA.4 If BYUPD

had followed that course, then the officer surrendering his certification would have been the end

4
Cases referred from law enforcement agencies are only one source of referral to POST. Events which may trigger
a POST investigation are set forth in Utah Admin. Code R728-409-4.

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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. However, some of POST’s expectations and resulting arguments regarding cases referred

from police agencies are based on POST’s common practices, built up over years of handling

similar referrals from other law enforcement agencies. POST expected BYUPD to act in the

same manner as the most of other law enforcement agencies that it oversees, and it did not –

clearly raising a red flag for POST. Unfortunately for POST, some of those expectations, while

they may make sense, do not have a basis in Subsection 211(6). For example, POST’s

arguments continually point to the need for an “administrative investigation” or “internal affairs”

investigation of the officer. Given the duties and role of POST, that expectation makes sense

since there are substantial evidence gathering differences between an administrative

investigation, such as an internal affairs investigation or the investigations conducted by POST

(and which is the norm within police agencies), and a criminal investigation.5 But that

expectation is not supported by the language in Subsection 211(6), which just requires an

“investigation.”

On the other hand, BYUPD has defended itself by throwing every conceivable argument

into the mix. Many, such as their argument that BYUPD cannot be decertified because of a

violation of Section 211, 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, BYUPD argued that

5
A primary difference being the gathering of evidence following a warning based on Garrity v. New Jersey, 385
U.S. 493 (1967) which has the effect of making incriminating statements given in an administrative investigation
unusable in a criminal prosecution as they are “coerced statements” made in violation of the officers Fifth
Amendment right to remain silent. Whether BYUPD, as a non-governmental agency, can effectively use the
principles set out in the Garrity case, or administer a Garrity Warning is on open question that does not need to be
resolved in this case.

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it cannot be decertified for the actions of its officer. As described above, that argument is both

obviously true and, clearly is not the intent or allegation of the Commissioner.

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-

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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,6 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.

6
A reading of Rule 45, Utah Rules of Civil Procedure reveals that none of its provisions apply in this circumstance
as it is clearly written for civil litigation pending in a court. The sections on issuance, service, appearance, response,
and enforcement are all related to court proceedings and are either inconsistent with or in direct conflict with the
subpoena issued in this case under the authority of the Utah Administrative Code and Title 53 of the Utah Code.
7
One possible solution would be to request a declaratory order from the agency regarding the validity of the
objections and the applicability of specific statutes and rules, pursuant to Section 63G-4-503 of the Utah
Administrative Procedures Act.

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This legal conclusion is supported by the undisputed facts set forth in the Motion and, therefore,

it is appropriate to grant BYUPD’s Motion for Summary Judgment.

ORDER

IT IS HEREBY ORDERED AS FOLLOWS:

1. BYUPD’s Motion for Summary Judgment is GRANTED and the February 20,

2019, Notice of Agency Action to decertify BYUPD is dismissed.

2. Pursuant to Rule 56(f), Summary Judgment is hereby GRANTED to UDPS on the

following specific legal issues:

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).

b. The failure, by a private college or university certified under Utah Admin.

Code R698-4, to comply with the requirements of Utah Code § 53-6-211(6), or any other failure

to make its officers subject to POTCA, is a violation of the certification criterion set forth in

Utah Admin. Code R698-4-4(6).

c. An investigation conducted by POST does not satisfy the investigation and

referral obligations of a law enforcement agency set forth in Utah Code § 53-6-211(6).

Dated this 4th of January 2021.

_____________________________
J. Richard Catten
Administrative Law Judge

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 CERTIFICATE OF SERVICE

4th day of January 2021, I caused a true and

I HEREBY CERTIFY that on this _____
correct copy of the ORDER ON BYU UNIVERSITY POLICE MOTION FOR
SUMMARY JUDGMENT be served via electronic mail upon the following:

JAMES S. JARDINE
SAMUEL C. STRIAGHT
Attorneys for BYU PD
jjardine@rqn.com
sstraight@rqn.com

J. MICHAEL HANSEN
LYNDA L. VITI
Assistant Attorneys General
Utah Attorney General
jmhansen@agutah.gov
lviti@agutah.gov

_______________________________

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