On August 18, 2014 the firm of Harder, Mirell & Abrams, new attorneys for Anne Josephson, and the two minor children (Child 1 and Child 2), and Michael Josephson, acting in pro per lodged an amended complaint which dropped Archer as a party and added new allegations against the members of the Board of Trustees and Elizabeth English. The new Complaint strengthens allegations against the board for dereliction of duty due to the failure of individuals to meet the standard of care required by state law to provide oversight. The allegations include more specific allegations about past conduct of Elizabeth English that the board either knew about or should have known. Plaintiff’s allege that these incidents put the board on notice of a pattern of abuse of discretion that required them to provide internal controls and guidelines. Defendant’s opposed the filing of the new complaint.
We hope you will read the entire complaint to get a coherent story of why this action was brought but you may want to pay special attention to the following paragraphs which include new allegations:
From Paragraph 6: A. English is aware of the high value Michael places on his reputation for ethics and integrity and has intentionally sought to inflict emotional harm and economic injury on Michael by statements and actions intended to diminish his reputation. Driven by long standing and intense animosity for Michael, English repeatedly subordinated her professional duties to personal motives and abused her position as Head of School to carry out a personal vendetta resulting in the infliction of severe and lasting emotional harm, financial losses and reputational damage on all plaintiffs
B. English’s animosity toward Michael began in 2009 as the result of Michael’s objection to her decision to renege on an agreement to share with parents, faculty and students the results of an Archer student behavior survey conducted by the Josephson Institute of Ethics at the behest of English. The report showed exceptionally high rates of drug use, drinking and other behaviors and, contrary to an understanding that the data would be discussed so remedial strategies could be developed, English decided to repress the data and instructed Michael not to disclose the results. Shortly thereafter, English precipitated a rancorous confrontation based on English’s erroneous assumption that Michael intended to flout her authority to discuss the data. She also aggressively rebuked Michael for agreeing to conduct a very different kind of survey for the Archer Dads organization without first getting her permission.
C. This conduct is consistent with actions she has taken against other families who were not sufficiently subservient. Instances of improper conduct resulting from her autocratic leadership and willingness to intimidate or retaliate against anyone who disagrees with her actions or challenge her judgment. Contrary to legal, ethical and professional standards regarding the proper use of authority, English has made decisions and committed acts that reveal a pattern of arbitrary and capricious conduct that were know or should have been known by each trustee.
D. In this case, English’s personal animosity was demonstrated by decisions that violated fundamental principles of student discipline. English consistently rejected conciliatory strategies, escalating rather than defusing controversy and refusing invitations to find alternative solutions. Instead, English invariably chose drastic options certain to create acrimony and inflict severe emotional trauma and other forms of damage on the Josephsons and their children. In doing so, she also subordinated the best interests of Archer to her personal interests as her actions have subjected Archer to reputational damage and deprived Archer of the many contributions the Josephson family makes to the school. The Archer Board Members either knew or should have known about this pattern of conduct, giving rise to a duty to assure that English’s actions are governed and restrained by clear guidance and internal controls to prevent the improper use of discretion likely to cause injury to students, teachers, staff and parents and subject Archer to liability and reputational injury. _________________
30. On information and belief, at least two administrators and several teachers disagreed the way English was handling the situation but they were either unsuccessful in persuading English to consider alternatives or too afraid of reprisals from English to raise objections as English had gained a reputation among staff and administrators as one who demanded complete and unquestioning support for all her actions.
31. On information and belief English sought to justify her decision to stick to her “my way, or the highway” decision regarding Child 1 by telling at least one administrator, several teachers and board members that Michael was seeking special treatment for Child 1 and was attempting to bully her by his efforts to advocate for Child 1 and by “threatening litigation.”
32. On information and belief, English has told at least several administrators, teachers and board members that she believes that any parent who would threaten the possibility of litigation rather than fully support her judgments should be excluded from the Archer community.
33. On information and belief, there are many parents who believe that any disagreement will result in dismissal of their child and based on that fear acquiesce to actions they believe are unwise and improper.
34. English’s modus operandi of making false and misleading statements to disguise her vindictive actions is demonstrated in her June 24, 2014 declaration filed in this action where she essentially accuses Michael of attempting to intimidate her: “During this time it was my impression that Mr. Josephson attempted to intimidate me and other school administrators so that his daughter could avoid having to appear before the HEC.” Given Michael’s status as a well-known ethicist this is a very serious charge. English seeks to hide her own bullying by calling her victim a bully. There was no intimidation. English had all the leverage and she knew it. She held the Josephson children hostage to her whims and her unremitting efforts to humiliate Michael and to bully the Josephson family to passively accept an improper and unprofessional decision that would, and was calculated to, cause great injury. Every single interaction between Michael and English is either in writing or tape-recorded and there is not a single word or action that English has pointed to justify her statement that she “felt” intimidated. This is a fiction designed to assassinate the reputation of Michael. On information and belief, English has used this same intimidation claim against other parents who were doing no more than advocating for their children.
35. English knew that neither Anne nor Michael were seeking special treatment but were instead attempting to induce English to follow the normal process of collaboration with parents to devise non-coercive discipline focused on the education and well-being of the child and that English had singled out Child 1 for special punitive treatment in order demonstrate her power over Michael and retaliate for his past and current unwillingness to passively accept decisions he thought were improper and injurious to either Archer (in the case of repressing data about student behavior) or his daughter Child 1.
54. The decision to not allow Child 2 to re-enroll at Archer for the 2014-2015 academic year left her as a student for the remaining part of the spring semester. However, in view of English’s past actions, both Anne and Michael were insecure about how Child 2 would be treated and whether English would find another pretext to dismiss her in mid-semester as she claimed she had the right to do.
55. In her June 24, 2014 declaration, English seeks to free herself from any liability for her unjustified actions against Child 2 by claiming that she while she did refuse to allow Child 2 to re-enroll in the 2014-2015 year, Child 2 voluntarily withdrew in the last semester of the 2013-2014 academic year. In fact, every action connected with her treatment of Child 2 demonstrates English’s intent and desire to be rid of the Josephsons and to force Child 2 to withdraw by creating such a hostile and dangerous atmosphere that continuation at the school would be humiliating, stressful and foolish. English’s conduct constructively expelled Child 2.
56. A series of letters from Anne and Michael to Coyne and English seeking clarification as to English’s expectations yielded nothing but veiled treats demonstrates her not so hidden agenda. These letters reveal English’s adamant unwillingness to explain her decisions or specify her expectations and they constitute a clear example of arbitrariness designed to convey the message that English could and would dismiss Child 2 from her last semester at Archer on a whim.
57. On information and belief, this is part of a modus operandi used by English when she wants to remove a family that has offended her in any way and approximately 10 families at a minimum experienced this form of constructive eviction. A substantial number of families have told the Josephsons of their decision to withdraw their children from Archer due to unhappy experiences with English’s autocratic style and implicit threats, based on their belief that it would be unwise and dangerous to subject their children to her apparent willingness to be vindictive. When parents become the least bit assertive, English resorts to claiming that the parent is trying to intimidate her, and when she is displeased because a parent aired a grievance or concern to others, including board members, they are quickly summoned into English’s office and confronted with a clear message – shut up or leave– couched in the diplomatic language: “Apparently, you are not happy here, I will help you find another school.”
58. One family told Michael a story that is typical of others he heard. The woman was very active in the parent group and was very well known in the Archer community. She had had two daughters at the school and the older daughter decided to transfer to another school for athletic reasons. In a discussion initiated by a board member about that decision the conversation drifted and this mother spoke openly about her concern that English was making a major mistake by hosting a dinner at her newly renovated mansion provided by Archer. This mother knew the contractor and that the renovation was over budget and cost about $1.4 million. She confided in the board member that since there was no specific capital campaign to pay for this, that any potential donor might think twice about giving money to an institution that could spend so much on lavish renovations. The next day she was summoned into English’s office and immediately confronted. English said “my board tells me everything” and that since her criticisms indicated she was “obviously not happy at Archer” she ought to transfer her other daughter as well. Though the mother insisted that her younger daughter loved Archer and was very happy, English made it so clear that she was no longer welcome that despite the wishes of the parents and the daughter they had to “get out of there.”
59. On information and belief, this incident is not unusual and the tactic of repressing any sort of dissent or discussion has occurred frequently enough that the Archer Board Members either know or should have known about this pattern of conduct and provided oversight and guidance to prevent the abuse of her discretion.
68. In a further demonstration of vindictiveness, English consciously sought to drive a wedge between Child 2 and Michael by telling her that the only reason she was excluded was because her father, Michael, acted badly in his efforts to advocate for her sister, Child 1. This was an intentional and malicious effort by English to damage the father-daughter relationship in violation of California law. This conversation did in fact, create great anger and resentment against Michael and seriously damaged their relationship.
69. English used a similar tactic attempting to drive a wedge between Child 1 and Michael when in her June 24, 2014 declaration she attached a letter (improperly revealing Child 1’s full name) she received from Child 1 by email on the day of graduation. The letter was an attempt to be gracious and grateful about Child 1’s years at Archer but English used it in this litigation to suggest that Child 1 does not support the lawsuit and that the court should appoint a guardian for her. Child 1’s response was to prepare a counter declaration including: “I hoped that Ms. English might answer my note in the same spirit in which mine was written. I never imagined she would try to use it to drive a wedge between me and my parents. I feel betrayed and hurt and I think it is disgraceful that she is trying to use my letter to her advantage in our lawsuit against her and the school.” (see C1’s full letter at __________)
83. On August 15, 2104 plaintiffs made still another effort to direct the board to its fiduciary responsibilities to Archer as an institution and to the students and parents of the school by making an offer to settle all claims without any payment of money. The offer which was not accepted by the board asked for only three commitments all intended to improve and safeguard Archer in the future: 1) Employ an independent neutral investigator to investigate and report on the truth of plaintiffs’ allegations and defendants responses. (An obligation inherent in the Board of Trustees’ duty of oversight). 2) Modify the current mandatory arbitration clause in a manner that will not deter parents from submitting contract-based disputes to arbitration nor prevent them from pursuing tort claims in court, and 3) Adopt internal controls and policies for all Archer administrators, teachers and employees to guide their interactions with students and parents including the use of discretion to impose discipline and exclude students based on the performance of a parent or guardian. In rejecting this offer (and making no counter offer), and electing to prolong this litigation and to subject the institution to further derision and cost, each Archer Board Member failed to meet their fiduciary obligation to Archer and it major constituents – students and families. (See _____________) for complete offer)