Unpaid leave for U-46 employees sparks controversy

Elgin Area School District U-46 in May placed three longtime computer employees on unpaid leave and threatened them with termination, allegedly for remarks made to coworkers over an instant messaging system.

District officials charged the non-union employees with "undermining the organization," "disparaging remarks" and "disruption and lowering of morale."

School board members found the evidence so flimsy, they rejected an administrative recommendation to fire the workers.

The three employees found the charges levied against them so overblown, they felt there must have been an ulterior motive driving them.

Derek Baxter pointed to what he and his colleagues, Lori Berke and Jennifer Lugar, have in common.

All three, Baxter said, have expertise that could impact the high-profile discrimination lawsuit lodged against the district in 2005.

Of the 25 people listed on the U-46 Information Systems Organization Chart, three -- and only three -- worked directly with the district's e-mail system in the first two years after the lawsuit was filed.

The system and the e-mails on it are part of the ongoing dispute over evidence between the district and the families suing the district.

Lawyers for the families suing the district have accused U-46 of routinely deleting relevant e-mails, even after the lawsuit was filed and the district was legally required to preserve evidence.

According to Carol Ashley of the Futterman and Howard law firm, much of the evidence involving the district's new attendance boundary map and the closing of district schools is on backup tapes, tapes Baxter was responsible for creating.

Baxter said that he first feared he was being targeted after reading in the July 13 Daily Herald that the district had claimed accessing those tapes would be prohibitively expensive -- and he forwarded his fears to school board members.

"The three of us just so happen to be the only employees (of Information Services) with experience working with ... the previous e-mail solution, which could be a vital resource in the lawsuit," Baxter wrote on July 20.

District officials Monday dismissed Baxter's claims, and said they could not comment further because they were personnel issues.

The district's outside council, Mike Hernandez of the Franczek and Sullivan law firm, said e-mails from the old system have been transferred to the new system, and retrieving e-mails from the old system "has not even been an issue" during discovery.

U-46 attorney Patrick Broncato said, "all three of them are still employees of the district, so any comment on the depth of their discipline, or how or if they are to be disciplined is an internal matter."

Baxter has not officially severed ties with the district.

After a district review, prompted in part by the school board's June 18 refusal to approve his firing, district officials offered Baxter a lower-level job. They required him to sign a settlement agreement and promise never to sue the district.

Baxter would receive a letter of reprimand and back pay, reducing the unpaid suspension to four weeks.

Baxter declined the offer, saying it was unfair.

Berke and Lugar declined to comment, saying they still hope to regain their jobs.

At least one of them has received an offer to return to a lower level job.

But all three agree the situation they find themselves in is bizarre and unprecedented in the history of the department.

In a June 7 letter recommending Baxter's termination, district officials cited instant messages he sent between May 14 and May 16 as the impetus for disciplinary action.

The letter accused Baxter of downloading music clips, an activity that "seriously exposes the district to potential copyright infringements."

Baxter said Monday he downloaded one 30-second demo clip as part of a test for a computer alert system.

And, he said, the Information Services department has a server carrying more than 6,000 uploaded songs.

The district letter also cited a discussion in which Baxter suggested his boss, Marcus Thimm, should take his car to perform an offsite task because "he can drive fast in his car."

The comment constituted a "disparaging remark," the letter said.

The letter also accused Baxter of overlooking a direct request from his supervisor.

The only message that could be so construed among the instant messages the district supplied with the letter was one in which Baxter said he rarely was able to finish his assigned status report ahead of schedule.

A message sent by one of his colleagues said their boss was meeting with a vendor. That message was described by the district as divulging confidential information.

During the two-week investigation into the instant messages sent by Baxter, Berke and Lugar, the district never gave them an opportunity to respond to the charges, all three said.

After meeting with the three employees on May 21, district officials determined on June 7 they had breached the district's trust and confidentiality and recommended them for termination.

The district assigned the harshest penalty, over other choices such as a written response, an official reprimand, a first suspension or a second suspension.

The information systems employees are non-union, and do not enjoy the same protections afforded other U-46 employees, many of whom routinely send e-mails to non-district employees that are highly critical of district employees and policies.

Baxter said in his 12 years with the district, he has never received any type of verbal or written warning.

The retired director of Information Services, who retired in 2003 and promoted the three workers through the department's ranks, had only positive things to say about his former employees.

"I don't understand what's going on," said Bob Kaup, "but the district owes these three people a debt of gratitude for their service and the countless unpaid hours that they put in to help implement systems and help in crises situations."