Comments On Proposed Administrative Regulations
13 KAR 1:030 & 13 KAR 2:100
Implementing The Michael Minger Act, 2000 Ky. Acts, Ch. 190, p. 478

S. Daniel Carter, Vice President
Security On Campus, Inc.
http://campussafety.org

September 27, 2000; 10:00 a.m.
Public Hearing Before The
Kentucky Council On Postsecondary Education
Frankfort, KY

Good morning. I am Daniel Carter the vice-president of Security On Campus, Inc. a national non-profit victims' rights and campus crime prevention organization. Gail Minger has asked me to be here today to offer our insights into the implementation of Kentucky's new campus crime reporting law named in memory of her son, the Michael Minger Act.

I greatly appreciate this opportunity to offer our comments on the proposed administrative regulations.

Connie and Howard Clery founded our organization after they discovered the university where their daughter Jeanne was murdered had kept information about 38 violent crimes from students in the three years before the murder. Working with other victims of campus violence they persuaded the Congress to adopt the federal campus crime reporting law now named in memory of their daughter, the Jeanne Clery Act.

We strongly believe that students, and other campus community members, must be able to make informed decisions about protecting themselves from dangers to their personal safety on campus. All too often though schools choose to hide dangers either to protect their image or simply for expediency.

That tendency led to the needless death of Gail Minger's son Michael at Murray State University in a residence hall arson fire two years ago this month. It is also what led the Kentucky legislature to adopt this new law, and why the Council On Postsecondary Education ought to make enforcement of it a top priority.

We have learned over the years working with federal and other states' campus crime reporting laws that there have been two major obstacles to full compliance, first the reporting requirements have not been made adequately clear to schools, and second monitoring and sanctioning has been negligible.

Here the Council has the opportunity to do things right from the beginning.

The administrative regulations implementing the Michael Minger Act ought to serve as a clear and ready handbook for compliance making the requirements very clear. The "emergency" regulations issued last month are confusing and insufficient to accomplish this vitally important task in several ways.

Seven definitions found in "Section 1. Definitions." of the regulations refer back to the Michael Minger Act statute rather than including them for easy reference. We believe that including definitions for these terms would make the regulations much more clear and less confusing.

The reference in "Section 3. Release of Information to the public." to information that may be withheld from the public crime log again refers back to the statute and does not list any of the "limitations" placed on such withholding.

Most seriously it is not clear from the regulatory language that the circumstances warranting the withholding of information are few and that only "the information that is absolutely necessary to withhold for the reasons stated in this paragraph may be withheld." Listing these provisions from the statute would make this much more clearly a narrow exception to reporting as the statute clearly calls for.

Again in sections five and six there are references back to the statute for the requirements of the crime log and list of covered crimes respectively which could be made more clear by actually quoting from those citations.

It might also be possible to make the regulations more clear if there were a single citation for both public and private schools since the requirements are identical. This could be accomplished by creating a "Chapter Three" in Title 13 of the Kentucky Administrative Regulations that would apply to both public and private schools.

Ensuring that each school official charged with compliance knows his or her obligations is also a critical factor. Copies of the regulations, the submission forms, and a cover letter explaining the materials should be sent each year to every school's president, head of police or security, and head of student services to ensure that these departments are aware of their obligations.

We are particularly concerned that while the Minger Act provides for penalties up to a $1,500 fine and or 30 days in jail for violating the crime log, timely warning ("special reports"), and fire marshal provisions of the law there are no references to sanctions or enforcement of any kind in the "emergency" regulations.

Unless school officials know that there are enforced penalties they will not feel compelled to comply.

The Kentucky legislature felt strongly enough about the type of deception involved in a deliberate violation of the Michael Minger Act that they imposed these penalties and we believe that they should be strongly enforced. We call on the Council to both take a strong stance on enforcement and include an enforcement procedure in the final implementing regulations. Complaints should be accepted from the public and random audits should be undertaken to ensure compliance as well.

While the crime log and special reports will be made available to students and others on campus directly from the institution, the annual report is only made to the Council.

Because these reports will contain campus crime statistics not found in each school's federally required report we hope that the Council will make constructive use of this data by analyzing it and making both the analysis and the raw data publicly available.

The Council also ought to consider an educational campaign to educate consumers (i.e. students and their parents) about the type of information they can expect under the Michael Minger Act and how to report suspected violations.

We also noted some potential irregularities in the "emergency" regulations that should be addressed before the final regulations take effect. First, there are several references to the "Kentucky Postsecondary Education Campus Security Act" or a variant despite the fact that section 7 of the Act itself indicates that it should be "cited as the Michael Minger Act." References to the law should uniformly refer to it either as the "Michael Minger Act" or where appropriate the "Act."

Second, we do not believe it is appropriate to add the additional provision that "off-campus" housing owned by an officially recognized student organization also be subject to the institution's "administrative control" before it becomes a reportable part of the campus. There is no statutory basis for this additional limiting element and no such requirement exists at the federal level either.

We also noted several potential conflicts with the annual report required by the "emergency" regulations and the one mandated federally. These potential conflicts could eventually lead to confusion, and the possible imposition of an unnecessary burden on institutions of producing separate statistics, not just additional ones, for the state report.

The charts to be used for submitting statistics contain two key differences from the statistics required under the federal " Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act." Specifically the use of "assault" and "manslaughter" are inconsistent with the federal reporting requirements despite the notation that "both" statutes require use of these terms.

The "Clery Act" requires that "aggravated assault" which is more serious than "assault" be used. I would recommend that to avoid confusion the Minger Act regulations require the reporting of both "aggravated" and "simple" assault. The UCR program defines each term separately.

Under the FBI's "Uniform Crime Reporting Program" the source of the "Clery Act" definitions there is no independent term "manslaughter." When Congress added "manslaughter" to the list of crimes required to be reported in 1998 the U.S. Department of Education elected to require reporting in a manner consistent with the UCR program that breaks elements of the "manslaughter" crime into to two subsets of a general "homicide" category: "Murder & Nonnegligent manslaughter," and "Negligent manslaughter."

The Council may want to consider adopting a similar approach and consolidate the "Manslaughter" and "Murder" categories so that they are consistent with the federal requirements.

In past years many schools have used state definitions to comply with their federal report obligations, but the DOE is currently in the process of collecting statistics from each institution of higher education that will have to be uniform and use the federal categories and definitions exactly.

Secondly, the notes for the campus crime statistics chart on page six of the "emergency" regulations also define "public property" differently than the federal regulations do.

According to the notes incidents occurring on "adjacent streets" where the report is "taken by institution law enforcement" must be reported as "on-campus," while incidents occurring in the same area but reported to an off-campus law enforcement agency are to be reported as "public property." The federal requirements require all incidents occurring in these "public property" areas to be included in a "public property" column regardless of the reporting agency (34 CFR 668.46(a)).

While it is inconceivable to many campus law enforcement agencies to make this type of distinction for areas they, and most reasonable people, consider to be a part of the campus, some institutions exploited a loophole in the original federal campus crime reporting law to exclude these crimes altogether even when their own agency responded to the crimes. Congress responded by making this a separate, explicit reporting requirement.

So as to avoid possible confusion and the "burden" of creating a separate group of statistics I would recommend that the Council consider adopting the federal definition of "public property" which makes no distinctions for reporting agencies.

Any change in the definitions used in the chart need not affect those used in the public crime log. The DOE has specifically indicated that schools may comply with their federal crime log requirement using state crime definitions.

There are, however, several important differences in the state and federal campus crime logs. The Michael Minger Act requires that crimes reported to all "campus security authorities" be included in the crime log, while the federal log only requires incidents reported to an institution's police or security department. The federal log though must include all crimes, while the Minger Act only requires that a specific list of incidents be included.

What this means is that a single log could be created using state crime definitions that campus police and security departments routinely use including each and every crime reported to that campus police or security department and a more limited list of offenses reported to other institutional officials who meet the definition of "campus security authority" as provided for in Ky. Acts Ch. 190, p. 478, Section 1(2).

It would be helpful if the regulations could provide guidance to schools that will help them understand the areas of difference and overlap in the Kentucky and federal public crime log requirements. Because of the limited list of crimes mandated by the Michael Minger Act Kentucky schools will not be able to meet their federal obligations with those incidents alone.

I hope that you will be able to use these insights and observations in a positive manner to increase the effectiveness of your implementation and enforcement of the Michael Minger Act.

I also hope that no other parents like the Mingers ever have to learn the hard way that a school they trusted with their son or daughter's life put image ahead of the life of their child.

Should you need any additional information, including technical documentation, or assistance please let us know and our organization will assist you in any way that we can.

I would be happy to answer any questions that you may have at this time.

__________________________________________

S. Daniel Carter, Vice President
Security On Campus, Inc.