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Text Of Proposed Minger Act Regulation (PDF file) Text Of The Michael Minger Act Michael Minger Act Information Page
Security On Campus, Inc.
601 S. Henderson Road, Suite 205 King of Prussia, PA. 19406-3596 tele: (610) 768-9330 Howard K. Clery, Jr. Constance B. Clery Benjamin F. Clery Howard K. Clery, III S. Daniel Carter Donald Baldwin Frank Carrington, Esq. |
Comments On Proposed Administrative S. Daniel Carter, Vice President November 21, 2000; 1:00 p.m. Good afternoon. I am Daniel Carter the vice-president of Security On Campus, Inc. a national non-profit campus security advocacy and victim assistance organization. Gail Minger has asked me to appear here today and comment on the administrative regulation proposed by the CPE to implement the “Michael Minger Act.” I appreciate this opportunity to speak here today as well as the ongoing commitment and hard work of the CPE to develop these important regulations. Once this process is completed, students and employees at Kentucky colleges and universities will be better informed, and more prepared to avoid dangers on their campuses. We have two major outstanding concerns, one-ensuring that the regulations make it clear that the statute strictly limits the circumstances where information may be withheld from the crime log, and two-the development of an enforcement mechanism for the Act. The language that addresses the withholding of crime log information is not explicit enough as currently proposed, and the regulation does not address enforcement at all. The Campus Crime Log Our principle concern about the crime log language is that it fails to state that institutions must not withhold information unless such withholding is specifically permitted by KRS 164.9481(1)(b)1. We believe that the regulation would be clearer if it used the phrase “an institution will not withhold any information from the crime log except as provided for by” rather than “an institution may withhold information on an incident…subject to the limitations established in.” The statute is drafted in a manner that makes it clear the exception dealing with the withholding of information should be construed as narrowly as possible, and the regulation should reflect that. Mrs. Minger has made it clear to me that eliminating any possible confusion about when information may be withheld is her top priority and I hope the CPE will take our concerns very seriously. Secondly, schools should have to affirmatively state in a written policy that “all crime log information will be made available to the public as soon as possible and not later than the time frame specified by KRS 164.9481(1)(b)” rather than merely having to design a policy to “ensure that information is available to the public as soon as possible.” This way it will be clearer that twenty-four hours is the outside limit. Thirdly, the regulation should make it more clear that if an institution archives their crime log it should be made available within two business days of a request. The current proposal merely indicates a school must “respond” within that time frame, and conceivably the response could be a denial of access, a delay, or an incomplete portion of the requested information. We would like to see the language explicitly require that the crime log itself must be produced within two business days of a request for public inspection. Lastly, it should be made clear that the provisions addressing the withholding of crime log information currently found in “Section 3. Release of information to the public.” apply exclusively to the crime log, and not the annual or special reports also required under the Act. This could easily be done by consolidating sections 3 and 5 into a combined section 3, and renumbering all subsequent sections accordingly. We would recommend that the current text of “Section 5. Campus Crime Log.” be inserted at the beginning of a new section 3, with a variation of the current text of section 3 redesignated as subsections 3 through 5. This would also more closely parallel the structure of the Act which first takes up the crime log, the withholding of information from the crime log, and then the special reports. The regulation as currently proposed does this in reverse order. Draft language for this proposed new section 3 is attached to my written statement. Enforcement Of The Minger Act The Kentucky legislature felt strongly enough about the type of deception involved in a deliberate violation of the “Michael Minger Act” that they imposed penalties and we believe that they should be strongly enforced. We call on the CPE 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. I would encourage the CPE to work with the state Attorney General, Fire Marshal, and other law enforcement agencies to develop an enforcement plan in advance of any situations developing that would necessitate a hastily devised enforcement approach. 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. Additional Concerns For the purposes of clarity I will address our remaining concerns in the order they appear in the proposed regulation, rather than in order of priority. On page two, line seven the United States Code cite for the “Clery Act” is incorrect. It should properly be cited as 20 U.S.C. § 1092(f). The regulation improperly identifies the title (28 instead of 20) and omits the paragraph (f). It would also be helpful to explain that 34 CFR § 668.46 is the federal regulation implementing the “Clery Act” given later references to that citation. On page three, line seven the regulation requires an institution to exercise “some administrative control” over the property of an officially recognized student organization before crimes occurring at that property become reportable. We do not believe that this additional requirement of “administrative control” is either necessary or appropriate. The statute, KRS 164.948(1), clearly states that “residential facilities operated by any officially recognized student organization” are to be included within the meaning of the term “campus.” No additional conditions are imposed here, or on the public property areas also included within this definition of “campus” for which clearly an institution would not exercise control. The federal guidelines, found at 34 CFR § 668.46(a), only require that a building be “owned or controlled by a student organization that is officially recognized by the institution” before it becomes reportable. Clearly in adopting the term “operated” in the “Michael Minger Act” the legislature intended to closely parallel this provision. Such residences operated by an officially recognized student organization where the institution does not exercise administrative control need not be included in a list of properties “controlled” by the institution but should nevertheless be included in a separate list of properties that crime report information is collected from. Should an institution be unable to obtain crime report information for any of these areas that they do not exercise administrative control over, assuming they made a good faith effort to obtain that data, under KRS 164.9487 they are not liable for failing to report crimes for these properties. On page four, line eight “Section 6. Crime.” the proposed regulation states that the “meaning of a crime…to the extent possible, shall be consistent with the Uniform Crime Reporting System of the federal government.” In addition to definitions, the UCR program establishes reporting standards which should also be adopted for use in compiling statistics under the “Michael Minger Act” to the extent possible. Any conflicts should of course defer to the Kentucky statutory requirements, including that non-law enforcement institutional officials must report. These standards when appropriate are also used in compiling “Clery Act” statistics to determine which crime to report when more than one crime occurs in a single incident, to “unfound” or delete baseless complaints from the statistics, and to make other important decisions. We would recommend that “definitions and standards of” be inserted between “the” and “Uniform” on line ten of page four. This will provide significant additional guidance to schools. On page five, line ten the regulation requires institutions to identify on their reports the year “in which the crime was committed,” however this is inconsistent with how the federal Uniform Crime Reporting program and the “Clery Act” requirements provide for the collection of statistics. Specifically, 34 CFR § 668.46(c)(2) provides that an “institution must record a crime statistic in its annual security report for the calendar year in which the crime was reported to a campus security authority” not the year it was committed. For the purposes of record keeping and uniformity we would encourage the CPE to adopt this standard as well. Because the CPE is statutorily authorized to collect only a single year’s statistics at a time, if an incident occurring in the previous year was not reported to campus officials until after that year’s report was submitted the incident would never be included as it would not be appropriate to include it in the next year’s report using the standard the proposed regulation would establish. Table 3, found on pages nine and ten, uses the year reported while tables 1 and 2 use the year committed. We would therefore recommend rewording the headers of tables 1 and 2 to delete “Committed” and replace it instead with “Reported” and amending the footnotes accordingly. The regulation should also include a list of state crime categories and their parallel “Clery Act” categories so that data from one report can easily be converted for use in the other. It would be helpful, for example, if it could be made clear that the state definition of “assault” (1st through 4th degree) is comparable to the federal “aggravated assault” definition used by the “Clery Act” and that “reckless homicide” is comparable to “negligent manslaughter.” Also, in the table footnotes the regulation indicates that “Clery Act” definitions should be used for all terms not in bold, however “Criminal Damage” is not in bold and isn’t used by the “Clery Act.” This term should be in bold. We believe the inclusion of table 3 “Incidents Reported by Non-Law Enforcement Officials” to be unnecessary and inappropriate. All crimes reported to “campus security authorities” whether police or not should be included and counted equally as the statute requires. All such crimes should be properly reportable either as a completed or attempted crime, in table 1 or 2 respectively. Footnote four to table 3 is especially outrageous. The intent of including non-police campus officials was to capture incidents that for one reason or another were not reported to either on or off campus police, not to capture “potential crimes for which there was insufficient probable cause for investigation.” Whether or not the victim, or the institution decided to proceed with reporting an incident to the police may not depend upon whether or not there was “probable cause.” An institution may wish to avoid bad publicity, and a victim may wish to avoid having to testify. That wouldn’t necessarily make an incident one without “probable cause.” We would recommend the deletion of table 3 from the regulation. Inclusion of it diminishes the seriousness of the crimes that would be included in it and that is a disservice to the victims of those crimes, as well as those who will rely upon this information to make decisions about avoiding dangers on campus. Additionally, table 3 disregards all of the geographic categories required under KRS 164.9485(3)(a). Should the CPE decide to retain this table it should include the same geographic breakdown used in tables 1 and 2. Conclusion Again, I appreciate this opportunity for us to express our concerns about the proposed regulation implementing the “Michael Minger Act” and hope that our observations will be useful to you. I would be happy to answer any questions that you might have at this time.
__________________________________________ Proposed Consolidated Crime Log Section Section 3. Campus Crime Log. (1) An institution shall maintain a campus crime log as required by KRS 164.9481(1). (2) Information contained in the campus crime log shall include all data elements required by KRS 164.9481(1). (3) An institution shall develop and maintain a written policy stating that:
(4) The policy described in subsection (3) shall set forth the conditions, subject to the limitations of KRS 164.9481(1)(b)1, under which an institution may withhold information on an incident. (5)(a) An institution may archive campus crime log entries after sixty (60) days have elapsed from when an incident was originally reported.
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