A judge decided last week that a former BYU professor’s no-contest plea could be allowed as evidence in a jury trial for the wrongful termination lawsuit he brought against the university.

Richard Thwaits, former chairman of the animal and veterinary sciences department at BYU, filed a lawsuit claiming the university unlawfully dismissed him after learning about his no contest plea to a third-degree felony charge of practicing medicine without a license.

At the time of the plea, BYU was investigating claims that Thwaits had been providing prescription medication to students. He resigned his position as chairman while BYU investigated the claims against him with the understanding he would be able to stay on as a faculty member. Thwaits entered into a plea in abeyance as part of an agreement reached with prosecutors in August 2001. BYU fired Thwaits in January 2002.

“BYU conducted a long and careful investigation based on information from other employees at the university,” said Carri Jenkins, spokeswoman for BYU. “We certainly disagree with Mr. Thwaits’ suit. We intend to vigourously defend ourselves and we expect to prevail.”

As part of his plea in abeyance, Thwaits needed to remain free of any criminal wrongdoing for 18 months. He did, and the no-contest plea was erased, technically giving him a clean criminal record. Thwaits and his attorney, Evan Schmutz, filed a motion contending the jury should not be told about the plea because he honored its terms, so it should be as though the plea never happened.

Robert Clark, an attorney representing BYU in the case, said BYU did nothing wrong by terminating Thwaits after learning about the plea in abeyance. Utah code states a plea of no contest means the defendant does not want to challenge the charges, and the court can look at it as a guilty plea when considering sentencing. Clark also said Utah law allows employers to consider criminal records during the hiring or evaluation of an employee.

“The university terminated Dr. Thwaits because of evidence they had,” Clark said. “The university is not in any way trying to punish Dr. Thwaits at this point. This is a lawsuit he has brought against the university.”

BYU attorneys argued any information concerning the university’s decision to terminate Thwaits’ employment should be heard by the jury during the trial.

Fourth District Court Judge Fred Howard dismissed Thwaits’ motion, saying the jury could be told about the no-contest plea during the trial.

Thwaits originally filed lawsuits against BYU and four other people who worked with him in the department of biology and agriculture at the university. He dropped two of those lawsuits shortly after filing the case. The other two suits were dropped after Judge Howard wrote a memorandum granting a motion for summary judgment, dismissing Thwaits’ claims of defamation against them.

The trial is scheduled to begin Nov. 28.



Copyright Brigham Young University 16 Nov 2005