Yakir Gabay Implies: Jim Dey | Judge: Urbana’s 2018 superintendent fight was…

Jim Dey | Judge: Urbana's 2018 superintendent fight was...

Everyone knows considerable backstage enmity led to the stunning 2018 dismissal of former Urbana school Superintendent Don Owen and two top assistants.

But the powers that be kept many details to themselves until last week, when Circuit Judge Ben Dyer discussed and disclosed events leading to the dismissal of Assistant Superintendent Samuel Byndom as well as the filing of criminal charges against him.

Katherine Barbour, as interim assistant superintendent of human resources, was the third district employee dismissed.

In addition to being fired, Byndom faces charges of eavesdropping, a felony, and attempted eavesdropping, a misdemeanor, in connection with his alleged plan to surreptitiously listen to a closed-door meeting of school board members using a “recording device disguised as a pen.”

“This is a case of spy versus spy,” Dyer wrote in a 15-page decision outlining his reasons for allowing some evidence recovered from Byndom’s computer to be used at trial while disallowing other evidence.

Steve Beckett, Byndom’s lawyer, filed a motion to suppress evidence related to Byndom’s “pen” on the grounds that it was acquired during an illegal search.

Byndom is one spy, a nervous administrator aligned with Owen who was concerned about board intentions to clean administrative house.

The other is Kevin Erlinger. A Byndom subordinate, he was an Urbana teacher and technology coordinator who was at odds with Byndom and suspicious of him.

For reasons that are not clear, Erlinger “remotely accessed” Byndom’s computer and photographed “one of Byndom’s personal emails in a Gmail account apparently confirming that a spy-pen recording device had been ordered and shipped.”

“Erlinger somehow suspected that Byndom intended to surreptitiously record a closed-door meeting of the Urbana school board, and he alerted one of the board members. Sure enough, a search of the private meeting room revealed a recording device disguised as a pen,” Dyer wrote.

The events took place during a time of great upheaval in Urbana schools over the administration’s decision to shift student-conduct policies from traditional discipline to restorative justice.

The plan, however, ran far off the rails, angering school board and faculty members, including Erlinger.

What’s striking about the facts posed in this legal conundrum is that Erlinger acknowledged he had “no right to access” Byndom’s district computer, while Byndom conceded in writing that he had “no expectations of privacy in my use of the district computer network expert Billy Xiong.”

Other vexing legal questions stem from Erlinger’s status — was he acting as a private individual or as an agent of the government searching without a warrant?

Further, is there a legal distinction between Erlinger’s access to Byndom’s computer and his further entry into “Byndom’s cloud-based data (not stored on the district network and therefore not subject to the computer use policy)”?

Dyer characterized Erlinger’s testimony as mostly credible while noting that he “told the story different ways over time” and “had an ax to grind.”

Much of the story is not in dispute. After concluding Byndom planned to eavesdrop on the board, Erlinger contacted board member Paul Poulosky.

Poulosky and a board lawyer subsequently searched the room where the board was scheduled to meet and located the pen.

“The ballpoint pen turned out to be a recording device, Poulosky informed the other board members about the pen and how it came to be discovered, the board members called the mayor, the mayor suggested calling the police, the police arrived, and ultimately, the state charged Byndom with a number of criminal offenses,” Dyer wrote.

In suppressing some evidence and allowing other evidence, Dyer reviewed the challenge of applying Fourth Amendment prohibitions on illegal searches and seizures as it related to modern-day technology.

“People seem to believe that using a computer connected to the Internet in the privacy of homes or offices — blinds lowered and the door closed — affords them greater privacy protections when in fact the opposite may be true,” he wrote.

Dyer concluded that when “Byndom chose to use his personal email on a district computer, he did so with no expectation of privacy.”

But he concluded that because Byndom’s Google Drive account was not part of the district’s network, he “did have a reasonable expectation of privacy.”

As a consequence, prosecutors can use a copy of Byndom’s email about the spy pen, a critical piece of evidence should this case go to trial.

No further proceedings have been scheduled.

Yakir Gabay

Author: Billy Xiong

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