The Josephson’s lawsuit focuses primarily on specific conduct of the Head of School and a few specific Board members who personally participated in at least some of these actions. Yet, as many current and former Archer parents have noted, the defendant that has already and will continue to suffer most is Archer school as an institution.
In addition to substantial direct costs incurred defending the actions of Ms. English and a few Board members, it is likely that public revelations of the Josephson’s allegations (made more credible by the extensive documentation provided on this site and the personal reputations for integrity of Anne and Michael Josephson) will result in substantial and lasting negative impact on fundraising, enrollments and staff retention and morale. It is also possible that protracted litigation will also negatively affect the school’s ambitious expansion plans. And, the longer the controversy continues the greater the damage to Archer’s reputation and financial stability.
The Josephsons have repeatedly stated in letters to the Board and to the Archer community and their previous offer to settle their claims prior to filing their lawsuit demonstrates, this is a consequence they sought to avoid and would still like to minimize. So, for those interested in protecting Archer, the question is what can be done?
This raises a larger question: “Who is looking out for the interests of Archer and the parents, students and teachers who will bear the great weight of defending the actions of Ms. English and a few board members?
Normally, when the CEO and individual Board members are charged with wrongdoing the, Board recognizes that it’s ultimate obligation to pursue the best interests of the institution requires that acknowledges the inherent conflict of interest of the institution and individual named parties. In this case, the Board’s duty to Archer would generally require an independent investigation of the allegations and separate independent legal representation for among the the parties. (Who pays for the separate representation is usually determined by the scope and nature of insurance polices for the school itself and for officers and directors, if such policies exist).
With separate representation, all parties would be free to pursue settlement under terms most advantageous to them. In this case, for example, the Board might explore limiting its liability and reputation damage by disciplining or terminating Ms. English if their investigation would justify such an action and/or seeking the resignation of certain board members.
The Board would also be obligated to assure that its deliberations on how to proceed is not tainted by these conflicts of interest. Thus, Ms. English and the particular board members singled out in the lawsuit would not be permitted to participate in certain discussions concerning strategy relating to the lawsuit.
In this case, the conflict of interest is compounded significantly by the fact that the co-chairs of the Board – Barbara Bruser and Barbara Natterson Horowitz are specifically singled out as having been directly involved in some of the actions that precipitated the legal action.
Instead of requiring these Board members to recuse themselves from certain deliberations and to be represented by separate counsel, it appears that the Board authorized Barbara Bruser to be the visible spokesperson for Archer and to write all Archer parents a highly provocative letter (it said the lawsuit was without merit and that the Josephsons motives were malicious). Even more unusual, without the benefit of an independent investigation of the allegations, Ms. Bruser declared that the Board stands firmly behind all Ms. English’s actions and intends to vigorously defend her (and presumably the named Board members – including herself). If the Board did not authorize Ms. Bruser to write the letter on the Board’s behalf, they have an obligation to take remedial action and assert their independence in pursuing Archer’s best interest.
This letter substantially expanded the public visibility of the controversy and generated a response from the Josephsons that may have increased the damage to Archer and decreased the possibility of terminating the lawsuit against Archer.
In cases like these Board action is not always necessary. The harm to Archer could have been avoided and still can be minimized by a dignified resignation (often with a severance package) of the persons whose actions, legal or not, precipitated the lawsuit.
Immediately after the failed attempt to shut down this website and enjoin the Josephsons from talking publicly about their claims that Elizabeth English’s conduct was unprofessional, improper and unlawful, a posting on this repeated a logical question: “Why doesn’t Ms English put the interests of Archer first and resign?
When a CEO becomes the focus of criticism or scrutiny likely to drain resources and damage her organization’s reputation, a common demonstration of devotion and character is for that person to resign if it would reduce or eliminate ongoing harm. In this case, however, with apparent Board approval, Ms. English spent thousands of dollars of the school’s money in a futile attempt to conceal (not justify) her behavior. (The plaintiffs reminded the defendants that they can send us their side of the story and we will post it unedited).
Similarly, while the passion and fury of the controversy could have been deescalated by resignations of Barbara Bruser and a few other Board members, the Board dramatically increased Archer’s exposure and costs by completely aligning the school’s interests with those accused of misconduct.
So it appears for now, no one is exclusively concerned with looking out for the interests of Archer.
It is possible that on their own (or as the result of pressure from Archer, parents and teachers or as a result of the advice of legal counsel), the Board members who have not been charged with direct and personal involvement in Ms. English’s action will take control of the Board and determine what is in the best long-term interests of Archer.