MEMORANDUM

TO: Members of the Board of Education

La Grange Elementary School District 102

CC: Dr. Kyle Schumacher, Superintendent

FROM: Darcy Kriha, Partner
Kriha Boucek LLC

DATE: May 27, 2021

SUBJECT: Legal Opinion Regarding COVID-19 Surveillance Testing

Attorney-Client Privileged Communication1

Waived by majority vote of the Board of Education on May 27, 2021

1. When did the D102 Board of Education authorize this legal opinion? Why?
During the D102 Board of Education meeting held on March 18, 2021, board member Bessie Boyd
read a statement during the open session detailing her concerns with board member Ed Campbell’s
involvement in the D102 COVID-19 surveillance testing program. Dr. Boyd asked a series of
questions, including whether Dr. Campbell had acted in an ethical manner and whether he had
profited financially through the use of D102 COVID-19 surveillance data. Dr. Boyd’s comments
during the open session meeting resulted in a fair amount of media coverage, including a Patch
article by reporter David Giuliani published on March 23, 2021 and a New York Times article that
mentioned Dr. Campbell and Safeguard by reporter Apoorva Mandavilli first published on March 30,
2021. Dr. Boyd had nothing to do with the publication of the NYT article. Dr. Boyd was not quoted in
the NYT article nor did the article mention D102.
This memorandum will help answer the questions posed not only by Dr. Boyd, but also other
members of the board of education, in an effort to provide full transparency to the larger D102
community and all D102 stakeholders.
On April 7, 2021, Special Agent Justin Burt of the U.S. Department of Education – Office of Inspector
General (OIG) contacted Dr. Boyd via telephone and asked to schedule a meeting with her to discuss
the allegations that she made concerning Dr. Campbell during the March 18, 2021 board meeting.

1
The agenda for the board meeting scheduled for May 27, 2021, reflects that the board will discuss this
memorandum in open session and includes an action item for the board to vote to waive the attorney-
client privilege.
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 We later learned from Special Agent Burt that not only did he read the newspaper articles, but he
had also been contacted by a staff member at the Illinois State Board of Education alleging that Dr.
Campbell had received in excess of $700,000 in public funds from D102 for purposes of funding his
initial ‘research and development’ of a COVID-19 surveillance testing program through a company
that he had incorporated in September 2020 called Safeguard Surveillance LLC.
Dr. Boyd and I met with Mr. Burt on April 23, 2021, which is described more fully in question #5
below. Special Agent Todd Rathbun of the Federal Bureau of Investigation (FBI) was also present
during this meeting. It should be noted that Dr. Boyd immediately informed Dr. Schumacher
regarding the OIG Special Agent’s request to meet with her. Dr. Schumacher and Dr. Boyd apprised
me of this situation just prior to the start of the D102 open session board meeting held on April 8,
2021. We agreed that I would attend the OIG meeting with Dr. Boyd as her counsel. I advised Dr.
Schumacher and Dr. Boyd on the evening of April 8, 2021 that we should refrain from informing the
rest of the board members about the OIG/FBI request to meet. At that time, I was unsure of the
scope of their request and I thought it prudent to maintain the confidentiality of the situation until I
could learn more.
Against this backdrop, I attended the D102 Board of Education closed session meeting held on April
8, 2021 to address an employment matter relating to the D102 COVID-19 surveillance testing
program. After discussion, the consensus of the board was that no further action was warranted
under the circumstances. This employment matter was unrelated to the subject of this
memorandum. On a separate, but related note, the board voted that same evening during open
session to continue the D102 COVID-19 surveillance testing program for the remainder of the 2020-
2021 school year.
I also attended the next D102 Board of Education meeting held on April 29, 2021, this time to
update the board regarding the OIG meeting held with Dr. Boyd on April 23, 2021. The OIG Special
Agent had asked Dr. Boyd and me to keep our conversation on April 23, 2021 confidential, but I
informed him that I felt an obligation to update the board of education, which he understood.
It was during the April 29, 2021 board of education meeting that the board authorized me to draft
this legal opinion, in the form of questions and answers. I consider this memorandum a working
document that can be updated to include additional questions as the board directs.

2. Is the Board of Education able to waive the attorney-client privilege and share this
memorandum with the public?
Yes. As reflected in footnote #1, I have counseled the D102 board of education that it has the
absolute right to waive the attorney-client privilege that otherwise governs this memorandum. In
these situations, I routinely recommend that the board affirmatively vote to waive the privilege. An
action item is listed on the agenda for the May 27, 2021 board meeting. It should be noted that the
Board of Education holds and ‘enjoys’ the right to waive the attorney-client privilege governing this
memorandum in its sole discretion. It is not a right that I hold as legal counsel for the Board.
In situations where an OIG/FBI investigation is active or ongoing, I would generally recommend that
the board of education maintain the confidentiality of a related legal opinion until the investigation
had concluded. While the status of the OIG/FBI inquiry in this situation is not completely known to
us at the present time, the OIG/FBI special agents have not requested any follow up interviews with
D102 staff or board members. They have also not requested any additional records other than the
spreadsheet that is attached. My general sense is that their inquiry is drawing to a close without any
findings or charges.

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3. Can members of the Board of Education ask additional questions and can this memorandum
be updated?
Yes. This memorandum addresses the rather complicated and novel issue of COVID-19 surveillance
testing and I consider it a working document. I have asked that each board member review this
memorandum closely and make suggestions for corrections and/or pose additional questions that
they believe are relevant and appropriate for me to address.

4. What if an individual board member, or the Board of Education as a whole, would like to
pursue further investigation of this matter with another entity, e.g., Illinois State Board of
Education (ISBE), Federal Bureau of Investigation (FBI), Office of the Inspector General (OIG),
State’s Attorney, Attorney General, Illinois Public Access Counselor (PAC), etc.
As an initial matter, I have concluded that no further investigation of this matter is warranted or
legally required under the circumstances, as will be more fully explained in this memorandum.
Throughout my research and work on this memorandum, I have remained vigilant for evidence that
would require further investigation by another entity. I do respect and recognize the fact that each
board member has the right, individually, as citizens, to refer this matter to another entity for
investigation. I can reassure the board members that I will take no offense if they decide to do so.
The board, as a whole, also has the right to refer this matter to another entity for investigation by
majority vote or consensus. I fully share the board’s concern that if any wrong-doing has occurred, it
should be identified and rectified immediately, by the appropriate entity or tribunal. As will become
more clear to the reader after their full review of this memorandum, at the present time, I have
found no evidence of wrong-doing or other concern that would warrant further investigation.

5. Is any other entity or third party conducting an investigation of this matter, either currently
or in the past?
Yes. Special Agent Justin Burt with the U.S. Department of Education – Office of the Inspector
General (OIG) and Special Agent Todd Rathbun with the Federal Bureau of Investigation (FBI),
interviewed Dr. Boyd on April 23, 2021. I attended this meeting with Dr. Boyd, Mr. Burt and Mr.
Rathbun. It is my understanding that Special Agent Burt also met with Dr. Campbell on May 21, 2021
to interview him and obtain his input regarding the situation.
An ‘official’ investigation has not been opened to date by the OIG or FBI; in other words, they are in
the preliminary phase of compiling information and evidence to determine whether charges should
be brought. To summarize very basically, the OIG investigates the misuse of public funds, typically in
excess of $500,000. The OIG has understandably been quite busy lately investigating the alleged
misuse of public funds that have been provided to school districts in response to the COVID-19
pandemic.
On May 17, 2021, I emailed Mr. Burt and Mr. Rathbun a spreadsheet of the costs incurred by the
District through April 2021, pursuant to their request. The spreadsheet was generated by the D102
business office and was sorted alphabetically and categorized by payee; it is attached to this
memorandum for ease of reference. I have confirmed that neither Dr. Campbell nor his company
(Safeguard) received any money or other payments from D102 at any point in time. It is my
understanding that Dr. Campbell has no interest in any of the payees/vendors listed on the
spreadsheet, with the exception of Loyola University Chicago, where Dr. Campbell is employed as an
Associate Professor in the Department of Microbiology and Immunology. There is no evidence to

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 suggest that Dr. Campbell received any renumeration from Loyola as a result of the payments that
D102 paid to Loyola.

6. When did D102 begin its COVID-19 surveillance testing program for staff and students.
D102 began its COVID-19 surveillance testing of staff and students in the fall of 2020, which
continues to this day. It is my understanding that D102 does not currently plan to continue testing
during the summer of 2021. The board has not yet decided whether to continue COVID-19
surveillance testing during the 2021-2022 school year.

7. Did Dr. Campbell notify the D102 Board of Education that he was founding or establishing
Safeguard?
Yes. During the D102 board of education meeting held on October 29, 2020, Dr. Campbell shared
with his fellow school board members that he had established a company that was dedicated to
operationalizing a rapid COVID-19 surveillance saliva test. Specifically, the focus of his work was
designed to help keep students in in-person learning. He believed that surveillance testing would be
a viable approach to limiting the spread of the virus in the school setting. It was plainly evident that
Dr. Campbell was not only interested in keeping D102 students in school, but also students
attending school in other school districts.

8. Is Safeguard incorporated as a business entity in Illinois?

Yes. The Illinois Secretary of State’s Office reports that the original date of incorporation was
September 14, 2020 as SafeGuard Screening LLC. The name of the company was changed on
November 5, 2020 to Safeguard Surveillance LLC.

9. Is Dr. Campbell still associated with Safeguard?

Yes. Dr. Campbell is currently listed as an owner/manager of Safeguard Surveillance LLC on the
Illinois Secretary of State’s Office website. Safeguard is listed as a company in good standing with
the State of Illinois.

10. Are any other D102 Board of Education members affiliated with Safeguard? How about any
D102 employees?
No other D102 board members (other than Dr. Campbell) are affiliated with Safeguard. Similarly, no
D102 employees are affiliated with Safeguard.

11. Did La Grange SD 102 pay or remit any money to Safeguard or to Dr. Ed Campbell?
No. Neither Dr. Campbell nor Safeguard have been paid any money by D102. I can also confirm that
Neither Dr. Campbell nor Safeguard has remitted any invoices or other requests for payment to
D102.

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12. Has D102 entered into a contract for goods and/or services with Dr. Campbell and/or
Safeguard? If so, did Dr. Campbell and/or Safeguard ‘up-charge’ D102 for any goods or
services or otherwise make a profit using public funds?
No. D102 did not pay Dr. Campbell or Safeguard for any work, services, or supplies. Invoices were
paid to Loyola University for supplies for the D102 laboratory. There is no evidence to suggest that
Dr. Campbell received any renumeration from Loyola as a result of the payments that D102 paid to
Loyola.

13. Has D102 entered into a contract for goods and/or services with any other individual,
business, or other provider to conduct COVID-19 surveillance testing?
No. D102 has established its own COVID-19 surveillance testing laboratory internally. D102 has not
contracted with any third party (Safeguard or otherwise) to conduct its COVID-19 surveillance
testing.

14. Has D102 hired employees to run the D102 COVID-19 surveillance testing program? Are
these individuals also employed by Safeguard? Did Dr. Campbell recommend any of these
individuals for hire?
D102 has hired employees to run the COVID-19 surveillance testing program. I have not yet been
able to ascertain whether these employees are also employed by Safeguard or whether Dr.
Campbell recommended any of these individuals for hire by D102. This is a matter of ongoing
inquiry. I have determined that there is no law or other relevant guidance that would prohibit D102
from hiring employees who are also employed by Safeguard. The board of education can discuss
whether this is an issue they would like to pursue. In other words, the board (by majority vote) can
certainly give input regarding the employees that D102 hires to operate the D102 COVID-19
surveillance testing program.
Given that the current school year is drawing to a close, I recommend that the board have these
discussions during the summer months of 2021. This is based on an assumption that the testing
program will be continuing in the fall of 2021, which is merely an assumption. The board has not yet
determined whether to continue the COVID-19 surveillance testing program into the fall of 2021.
There are potential conflict of interest issues that would be relevant if the D102 lab employees were
related to Dr. Campbell (either blood relatives or by marriage). That said, this has not been alleged
and does not appear to be applicable in this situation.

15. Who pays the staff members working at the Science Center lab and are their rates of pay
commensurate with fair market value?
District 102 pays the Lab manager $25 an hour and lab assistants $16 an hour. These rates of pay are
considered to be fair market rates for the work performed.

16. Did Dr. Campbell use public funds from D102 to fund his work? Put another way, did D102
fund any goods or services relating to Dr. Campbell’s business (Safeguard)?
No. District 102 has paid no money to Dr. Campbell or to Safeguard. There exists no evidence that
public funds from D102 were used to fund Dr. Campbell’s or Safeguard’s work.

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17. Did Dr. Campbell donate any goods and/or services to support or implement the D102
COVID-19 surveillance testing program?
Yes. Dr. Campbell spent personal time helping D102 set up and implement its COVID-19 surveillance
testing of staff and students. None of his time or services provided to D102 were compensated; they
were all volunteered. The specific amount of time he dedicated to D102 is unknown, but it was
considerable. Dr. Campbell has expressed that he was committed to D102 and wanted to use his
knowledge and expertise to help D102 students and staff remain in in-person learning as much as
possible. Dr. Campbell helped secure equipment that was donated free of charge for use by D102
related to its COVID-19 surveillance testing. The equipment is the property of Loyola University. The
equipment will ultimately be returned to Dr. Campbell and Loyola University. The D102 COVID-19
surveillance testing laboratory is located in the D102 Science Center. D102 purchased all necessary
supplies to conduct the surveillance testing through providers other than Safeguard and Dr.
Campbell.

18. How much has D102 paid to implement its COVID-19 surveillance testing (to date)?
As of April 30, 2021, D102 has paid approximately $424,625.23 to implement its COVID-19
surveillance testing of D102 students and staff (see attached spreadsheet).

19. Did Dr. Campbell contract with any other school districts to conduct COVID-19 surveillance
testing?
Yes. At least 30 other school districts in Illinois have contracted with Safeguard to provide COVID-19
surveillance testing to their respective students.

20. Did Dr. Campbell use his role as a D102 board member in furtherance of his business
(Safeguard)?
It is undisputed that Dr. Campbell mentioned that he was a board of education member at D102
during his presentations to other school districts on behalf of his business (Safeguard). I do not find
this, in and of itself, to be problematic since it was, after all, the truth. At all relevant times herein,
Dr. Campbell has been (and continues to be) a seated board member at D102. It should be noted
here that Dr. Campbell abstained from the vote that the Board took when it decided to conduct its
own COVID-19 surveillance testing program.
Dr. Campbell did affirmatively vote to include School District 96 and School District 105 in the D102
COVID-19 surveillance testing through the D102 lab. Some board members have voiced concern
with Dr. Campbell’s vote on this issue, but again, it does not violate a law or established practice.
The central issue is whether Dr. Campbell or his business benefitted financially from any of the
testing conducted in the D102 lab; the answer is that he did not. Whether one student’s saliva
specimen was tested or 1,000 students’ saliva specimens were tested per day in the D102 lab,
neither Dr. Campbell nor Safeguard benefitted financially in any respect.
It is probably fair to say (and reasonable to conclude) that Dr. Campbell and Safeguard benefitted by
‘extension’ of his D102 board membership. Board members in other school districts probably
considered him a ‘kindred spirit’ because he shared a similarity with them – that of being an elected
school board member. I can certainly understand that this perception might cause some D102 board
members discomfort. However, the bottom line is that Dr. Campbell made factual, true statements.
I cannot find any evidence that he misrepresented any facts to gain business from another school
district or board of education.

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 May the board request that Dr. Campbell stop making such pronouncements about his D102 board
membership during his presentations to other boards of education? The board may properly make
this request of Dr. Campbell and open up a dialogue with him about their concerns. Ultimately,
however, Dr. Campbell has the right to make factual statements about his business and his
membership on the D102 board of education as an elected public official. These are free speech
rights that Dr. Campbell enjoys and is entitled to.
May the board request that Dr. Campbell stop using photos of the D102 lab and D102 staff and
students in his presentations to other school districts? Similarly, the board may properly make this
request of Dr. Campbell, which I think is reasonable. It should be noted that the individual identities
of D102 staff and students were not readily apparent; in other words, even after ‘zooming’ into the
photos, one could not discern who the individuals were in the photographs.
In sum, I can find no evidence that Dr. Campbell made false statements regarding his work with
D102, either as an elected board member or regarding his assistance in getting the D102 COVID-19
surveillance testing program off the ground and running. To the extent he emphasized his board
membership with prospective clients to obtain business does not violate any law, nor is it unethical.

21. Did Dr. Campbell use any of the D102 COVID-19 surveillance testing data in furtherance of
establishing his business (Safeguard)?
Yes. D102 COVID-19 surveillance testing data was used by Dr. Campbell in relation to his company
(Safeguard). He used data that was posted on the D102 website that was not personally identifiable,
i.e., it did not identify students by name or any other distinguishable characteristic. For example,
following is a screenshot of the current information posted on the D102 website at
https://www.dist102.k12.il.us/:

The Illinois School Student Records Act contains detailed and highly prescriptive rules regarding
when student records can be provided to third parties. The Act specifically provides that student
records may be shared with “any person for the purpose of research, statistical reporting, or
planning, provided that such research, statistical reporting, or planning is permissible under and
undertaken in accordance with the federal Family Educational Rights and Privacy Act (20 U.S.C.

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1232g).” 105 ILCS 10/6(a)(4). Student records may be shared in this particular scenario without
parental consent and without providing notice to parents.
On a related note, the Illinois School Student Records Act also allows a school district to “maintain
indefinitely anonymous information from student temporary records for authorized research,
statistical reporting or planning purposes, provided that no student or parent can be individually
identified from the information maintained.” 105 ILCS 10/4(f). The Act otherwise requires either a 5-
year (temporary records) or 60-year (permanent records) retention of student records, but as it
relates to data that is not personally identifiable, the retention period is actually ‘indefinite’, if the
school district decides to maintain the data indefinitely.
There is a school of thought that the COVID-19 surveillance data is not considered a student record
since it does not contain personally identifiable information; in other words, students cannot be
individually identified on the ‘face’ of the data. Each saliva specimen is marked with a bar code that
does not individually identify the student or staff member. When the COVID-19 virus is detected in a
specimen, lab personnel provide the bar code to a D102 School Nurse (for students) or the D102
Human Resources Director (for staff members). The School Nurse or Human Resources Director then
match the bar code to the student or staff member in question and they contact the student’s
parents or staff member to refer them for diagnostic testing or to convey other information as the
situation warrants. For this reason, my legal analysis assumes that the data in question is considered
a student record. In a similar vein, I consider the data regarding D102 employees to be personnel
records.
The consent form that parents signed to allow D102 to conduct surveillance testing of their
child(ren) stated that the results would be kept confidential and used for the sole purpose of
surveillance testing. The consent form that employees signed contains similar language. This has
raised the question of whether Dr. Campbell should have used this data when parents and staff
members were not notified that this would occur.
When the board of education decided to post the COVID-19 surveillance data on the D102 website
at the end of September 2020, parents and staff members were notified and offered the
opportunity to withdraw from the program. In this way, if a parent or staff member was
uncomfortable with their data possibly being posted on the dashboard, they were given an
opportunity to change their mind and ‘opt out’, so to speak, of testing. The District did not receive a
single request for an ‘opt out’ after providing this notification.
With the benefit of hindsight, I agree that parents and staff members should have been notified that
the data involving their child’s COVID-19 surveillance testing would be used by Dr. Campbell and
Safeguard. That said, I am persuaded that Dr. Campbell’s use of this data was otherwise appropriate
and allowed by law in light of the language cited above from the Illinois School Student Records Act.
Simply put, the data that Dr. Campbell used was publicly available on the D102 website. In essence,
any person, whether known to the District or not known to the District, could access and use the
COVID-19 surveillance data that was posted on the D102 website.
Dr. Campbell was not privy to the identity of any staff member or student from the D102 data. He
had no ‘insider’ knowledge or other advantage above and beyond anyone else. He was privy to the
exact same information that was available to others.
Again, I want to stress that with the benefit of hindsight, the use of this data by third parties, even in
redacted, not personally identifiable form, should have been better explained to D102 families and
employees on the consent form they signed. I personally take responsibility for this since I drafted

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 the consent forms myself. I will update the forms to include this information to ensure that parents
and staff members are fully informed of how the data may be used.

22. Does it violate any law or is it otherwise unethical for Dr. Campbell to use the D102 COVID-19
surveillance testing data in furtherance of his private business (Safeguard)?
No. As explained more fully above, Dr. Campbell’s use of the D102 COVID-19 surveillance testing
data in furtherance of his business does not violate any law or regulation, either state or federal.
The Family Educational Rights and Privacy Act (FERPA) (20 U.S.C.. § 1232g) is the federal statute that
governs and protects the confidentiality of student records. The U.S. Department of Education has
established the Privacy Technical Assistance Center (PTAC) as a resource for school personnel to
learn about data privacy, confidentiality, and security practices related to student longitudinal data
systems, including personally identifiable information (PII). In October 2012 (updated May 2013),
the PTAC issued an FAQ guidance document concerning longitudinal student data, focused primarily
on assessment data.
The PTAC FAQ was issued pre-COVID and in that sense, does not specifically address health data.
That said, the FAQ guidance helps me assess how the PTAC might consider our situation. For
example, the following question and answer is relevant:

Question: If I am only publishing aggregate data tables, do I still need to be

concerned about disclosure avoidance?
Answer: Yes. The aggregation of student-level data into school-level (or higher)
reports removes much of the risk of disclosure, since no direct identifiers (such as a
name, Social Security Number, or student ID) are present in the aggregated tables.
Some risk of disclosure does remain, however, in circumstances where one or more
students possess a unique or uncommon characteristic (or a combination of
characteristics) that would allow them to be identified in the data table (this
commonly occurs with small ethnic subgroup populations), or where some easily
observable characteristic corresponds to an unrelated category in the data table
(e.g., if a school reports that 100% of males in grade 11 scored at “Below Proficient”
on an assessment). In these cases, some level of disclosure avoidance is necessary to
prevent disclosure in the aggregate data table.
https://studentprivacy.ed.gov/sites/default/files/resource_document/file/FAQs_disclosure_avoidance.pdf

This concept of ‘disclosure avoidance’ is critically important for school districts to address
when publishing any student data, including COVID-19 surveillance testing data. Based on my
review of the data posted on the D102 website, I have determined that there are no issues
relating to ‘disclosure avoidance’ in this situation.

23. Did Dr. Campbell’s use of D102 COVID-19 surveillance testing data violate student
confidentiality?
No. As described more fully above, there is no evidence that Dr. Campbell’s use of the D102 COVID-
19 surveillance testing data violated student confidentiality.

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24. Who ‘owns’ the D102 COVID-19 surveillance testing data?
No one ‘owns’ the data, per se. The data derives from the saliva specimens obtained from staff and
students. For purposes of this legal opinion, I consider the data to be student and/or personnel
records that are not personally identifiable.

25. Did any employee or board of education member of D102 know that Dr. Campbell
incorporated Safeguard prior to the board meeting held on October 29, 2021?
None of the current D102 board of education members (with the obvious exception of Dr.
Campbell), were aware that Dr. Campbell incorporated Safeguard prior to October 29, 2021, when
Dr. Campbell informed the board. This memorandum will be updated to include information
regarding D102 employees.

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