Board Liability: The Facts

Archer - Edmund Burke quote

As the conduct of Archer Head of School became more outrageous, her position became more intransigent, and the consequences more severe, both Anne and Michael Josephson believed that the only way to stop the controversy from escalating  out of control was to appeal directly to the Board of Trustees. The Board is responsible for the overall governance of Archer and is charged with the heavy responsibility of protecting its resources and reputation and providing guidance and resources to help the school pursue its mission.

Anne Josephson was recruited by Ms. English to be a member of the Board and she truly believed that her colleagues, many of whom were parents of current students as she was, would immediately see that there were far better ways to deal with the minor disciplinary matter that was unnecessarily and irrationally blown out of proportion.

One of their daughters, referred to as Child 1 to protect her privacy as much as possible), a senior just a few months from graduation was rude to one of her teachers in a momentary emotional outburst; she apologized to the teacher on her own that day but Anne and Michael still supported efforts to assure that C1 was held accountable. But a dispute arose when Ms. English insisted on subjected C1 to a process that both her parents and psychologist believed would be seriously harmful. Anne resigned from the Board in February 2014 after English decided to retaliate for Mr. Josephson’s efforts to advocate for C1 by removing her totally innocent sister, C1 from the school.

Ms. English rejected every effort to seek more moderate alternatives leaving the Josephsons with litigation as the only alternative unless the Board found a way to resolve the situation more amicably. Knowing that the Board tended to be very hand-off when it came to letting Ms. English do whatever she wanted, the Josephsons engaged Mr. James Kosnett as their lawyer and asked him to use every possible effort to resolve the matter without regard to litigation.

The result was a letter on April 29, 2014 to all members of the Board offering incredibly generous terms to settle all claims against Archer, the Board and individual Board members. The offer was accompanied by a 35 page detailed memorandum stating and supporting the allegations that would have to be made in court if the decisions excluding both daughters were not reversed. The offer would be open until may 15, 2014 since one of the issues was allowing C1 to participate with her friends in senior activities and graduation ceremonies.

Instead of repudiating the decisions, the Board ratified them. In addition, it was discovered that several Board members actually participated in them. For reasons that will doubtless come out in trial, the Board made no effort whatever to open discussions or conduct an objective investigation as requested by the Josephsons (see the precise terms of the offer to settle and the supporting memo at  http://msj.wpengine.com/english-settle-offer/. These actions made the board complicit in the decisions and their failure to mitigate the damages made them liable.

A few days after the suit was filed, Ms. English took the unprecedented step of formally forbidding the entire Josephson family (including two daughters that had graduated and were in college in New York) from ever coming to the Archer campus (thereby forbidding both younger daughter from accepting the invitations of their friends to be part of the audience during graduation). Again the Board received a letter from Michael Josephson asking them to allow his daughters to attend the graduation ceremonies (though there is not a shred of evidence that either girl had or intended to say anything about the lawsuit or anything negative about Ms. Archer or the school, the Josephson’s offered to put up a substantial cash bond to assure their behavior. Again the Board ignored the opportunity to provide guidance to Ms. English and to refused to mitigate the damages assuring the vigorous pursuit of claims designed to hold each Board member accountable.

Archer’s attorney never took these claims seriously and indicated his intent to label the action as frivolous making the Josephson’s liable to court sanctions.  In fact, the claims are not merely plausible, they present a compelling case.

Archer - oversight - hindsight committee

 

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