|
ANA Lawsuit Heads to Court
 | By David L. Ganz
August 23, 2007 |
The American Numismatic Association and Executive Director Christopher Cipoletti are gearing up for a Sept. 25 trial against former ANA employees and consultants.
The ANA board acted Aug. 13 to remove co-plaintiff Cipoletti from day-to-day management responsibilities of the ANA with instructions to focus on the pending litigation. He has been replaced on an acting basis by former ANA President Kenneth Hallenbeck.
Although Cipoletti was listed "of counsel" to a Colorado Springs firm as late as August 2007 while he was still the ANA's full-time executive director, on behalf of the ANA and himself as co-plaintiff he hired Denver lawyers and sued former computer consultants to the ANA, as well as several former employees in El Paso County, Colo., district court, according to documents filed July 22, 2005.
The plaintiffs' law firm of Davis, Graham & Stubbs, LLP, claim the suit was brought "to protect the security of its Internet site and the privacy of membership and other confidential information."
Named as defendants are ANA life member and former computer consultant John Nebel and his consulting firm, Computer Systems Design Company of Colorado Springs. The other defendants are Wayne Abraham, a former ANA controller and former interim executive director; Barbara "Susie" Nulty, a former ANA Internet technology director, and Larry Lee, former ANA curator.
Joel W. Cantrick of the Denver law firm Ducker, Montgomery, Aronstein & Bess, P.C., who represents Nebel and Computer Systems Design, and other defendants, said "the allegations of the complaint are not well-founded."
Seven separate claims for relief are put before the court, awaiting the defendant's response.
The first claim is for intentional infliction of emotional distress by outrageous conduct, and pits Cipoletti against Nebel, Nulty, Abraham and Lee. The second claim is for intentional interference with prospective business relation and economic advantage, and pits the ANA against Nebel, Nulty, Abraham and Lee.
Third is a routine breach of contract claim (ANA against Computer Design Systems), fourth is a claim of breach of settlement agreement between ANA and Abraham, fifth is a civil theft claim against all defendants, sixth is a breach of fiduciary claim against Abraham, Nulty and Lee, and finally a civil conspiracy claim against all defendants is lodged.
Among the allegations: "In February 2003 through June 2003, [Wayne] Abraham [the former ANA controller] faxed and e-mailed Cipoletti multiple times demanding that Cipoletti meet with him and threatening Cipoletti with legal action, over his termination of employment five years earlier."
The complaint continues that Abraham stated in June 2003 that he still had control over ANA documents, in violation of his settlement agreement with ANA.
Moreover, the complaint alleges, Abraham "threatened to instigate legal action" and involve "legal authorities," including government agencies. In addition, he told Cipoletti, "I am challenging you as a man to meet with me anywhere, anytime and have the guts and courage to tell me to my face why you screwed me."
The drama continues with the claim against former ANA Museum curator Larry Lee. "In late summer 2003, the ANA made several security and staffing changes. The ANA put in place additional security measures relating to the museum and vaults. Lee told the ANA that he was unhappy with these changes because it altered his ability to unilaterally access vaults and the ANA's museum collection."
The complaint claims that "Lee was also upset as a result of staffing decisions that were made, particularly regarding the individual selected to be Lee's supervisor." It goes on to say that "After that time, Lee engaged in disruptive and subversive behavior including, but not limited to, submitting reimbursement requests for unapproved meetings and inappropriately disclosing the terms under which certain employees ended employment with ANA."
The complaint explains Lee's termination from the ANA. "In early November, 2003, Lee took an ANA employee to lunch. During that lunch, Lee told the employee that Cipoletti was stealing from ANA and asked her to obtain documents from the ANA finance office."
The complaint says that the unnamed employee "refused, and reported the behavior to her supervisors, including Cipoletti. Cipoletti and Lee's supervisor then met with Lee to inquire as to these allegations. Lee admitted making the statements and stated that he was "just gossiping" and "he knew his big mouth would get him in trouble some day." Cipoletti advised Lee that his resignation was accepted effective as of that date, Nov. 6, 2003.
Ultimately, a conspiracy was alleged. "In or around November or December, 2003 ANA employees witnessed Lee, Nebel and Nulty having lunch together. ANA believes that Nebel, Nulty, Abraham and Lee continued to meet for the purposes of harassing and conspiring against ANA and Cipoletti."
What evidently precipitated additional controversy is that "On May 19, 2004, Cipoletti and ANA first learned that Nebel, Nulty, Abraham and Lee, among others, are involved in or hosting websites www.ana-board.com and www.ana- board.org. ... The First Websites domain names are registered to CSDC or Nebel."
This was problematical, the complaint states, because "The First Websites contain false statements regarding the ANA and Cipoletti and also publish confidential business information that is not or should not be available outside of the ANA."
Because ANA was still trying to transition its information technology services from Nebel and Colorado Systems Design, ANA claims it chose "not to take action at that time." ANA claims its "decision was based upon the fact that Nebel and CSDC could terminate ANA's access to its data and information necessary to operate."
In April 2005, ANA claims it "heard that the First Websites continued to exist and were being updated."
Alleged further in the papers of the suit is that "the First Websites provide detailed information regarding ANA internal happenings during the time that Nulty, Lee and Abraham were employed at ANA, including incidents between them and the ANA, and their personal dislikes."
A claim is made that because "Nebel (through CSDC) operated the ANA network and server, he had access to all of ANA's business information. The First Websites further falsely accuse Cipoletti of misusing ANA funds for his personal benefit."
As the spring came in 2005, the ANA moved into an election cycle for its board of governors, and another web site sprung up. "On May 4, 2005, ANA employees told ANA about a website www.brianfanton.com," by a candidate for office in the ANA. Fanton was not named in the complaint.
ANA says it "went on the Second Website, [and] it learned that the Second Website contained statements in support of fundraising for a candidate for the 2005 ANA Board. It also discovered the following statements: (a) ANA 'endowment funds are being grossly misappropriated'; (b) The current Executive Director 'has taken virtually every title and responsibility upon himself, moonlights as general counsel for the ANA (a great conflict of interest), as well as serving as private attorney'; (c) '[A] shroud of secrecy has increased to the level that it is virtually impossible to get a straight answer, and those employees who dare to ask are quickly let go.'"
Cipoletti and the ANA are both represented by Janet Savage, a partner in the Davis, Graham law firm. Cipoletti was the ANA's outside general counsel and became executive director on the retirement of Edward C. Rochette in 2003. Under his agreement with the ANA board, he is permitted to continue to practice law.
Firing across the bow of the ANA and Cipoletti, Colorado-based Computer Systems Designs, its owner John Nebel, and longtime ANA IT director Barbara "Susie" Nulty have said, in substance, "you don't have a leg to stand on, go
pound salt."
Response came in the form of a motion to dismiss, a procedural device that allows a defendant to not even bother answering the complaint where they believe that the conduct complained of does not violate any rights.
"John Nebel is an avid coin collector and long-time life member of the American Numismatic Association (ANA). He has provided a variety of services to the organization over the past seventeen years," the motion papers begin.
They further claim that "Nebel has been a popular instructor at ANA summer seminars and has contributed thousands of photographic images to the ANA, many of which remain in current use by the organization. His photographs have appeared on the front and side of the ANA building in Colorado Springs and have been prominently displayed in the Library and the Museum."
In addition, "Nebel served as the ANA's computer consultant and Internet service provider for approximately 17 years, through his business, Computer Systems Design Company. In February, 2005, the ANA, acting by and through its executive director, Christopher Cipoletti, terminated Nebel's contract."
Both sides have attempted to use the "facts" to further their cause and Nebel is no exception. "Beyond contractual obligations, he has invested several hundred thousand dollars and much of his own personal time in providing services to the ANA in the interest of improving the organization and numismatics."
The motion continues, "In addition, Nebel has been a major benefactor of the ANA, making a $25,000 donation to the organization in 2001 and gaining recognition in The Numismatist and on the ANA donor web."
Evidently dissatisfied with Cipoletti's leadership as ANA executive director, Nebel claims in his papers to have set up an alternative Web site that was password protected and which had limited access to 26 people.
"In March 2004, Nulty and others helped Nebel gather and verify the accuracy of the information in the chronology" of various events of potential interest to ANA members "which was obtained from the ANA's own public Web site, other public records, or personal interviews."
"Nebel provided a password to any interested ANA member who requested it, but the Web site admonished the user not to disseminate the contents of the Web site without permission. The ANA has over 32,000 members. ... Twenty-six people were given passwords to the Nebel Web site, 25 of them were members and one was a former ANA employee. The Nebel Web site was visited by 23 of the 26 people who were given passwords."
Nebel's motion continues that "no member of the ANA or any Board members ever contacted Nebel to register an objection to the Web site until May 9, 2005, when Nebel received a letter from an attorney representing the ANA and Cipoletti objecting to the Web site and demanding that it be taken down the same day."
In response, Nebel says, he "immediately suspended access to the Web site and advised ANA and Cipoletti's counsel that he had done so, pending investigation and evaluation of ANA's and Cipoletti's concerns. Contrary to the allegations of the complaint, plaintiffs and their counsel are aware that the suspension of access has continued to date."
Nebel's motion claims that "Apparently, the complaint is designed to 'spin' a damaging 'story' against the defendants for consumption by the Court and the reading public. With respect to Nebel and Nulty, however, the allegations of outrageous conduct boil down to certain statements which appeared on two Web sites and certain other lawful activities."
A claim was also made that when spring 2005 arrived, as the ANA moved into an election cycle for its board of governors, another Web site sprung up. "On May 4,2005, ANA employees told ANA about a website www.brianfanton.com," the complaint says, by a candidate for office in the ANA. Brian Fanton was not named a defendant in the complaint.
Nebel responds, "At the outset, this claim should be dismissed because Cipoletti has sued the wrong parties. If Cipoletti has a problem with statements which appeared on the Fanton Web site, he should sue the persons who wrote those statements and caused them to be published, i.e. Fanton and his campaign manager, Mike Ellis, who wrote the letter containing the statements. Oddly enough, however, neither of them is named as a defendant."
The rough-and-tumble world of politics exists on many levels, not the least of which is the national coin club. The spate of lawsuits that have recently erupted with claims of defamation, interference, conspiracy and more has brought many questions from collectors.
In a defamation action, there is a legal requirement that the precise libel or slander be pleaded with specificity, that is, that what it is that was said, or written, that is false must be stated. The plaintiff must then prove that the statement was made. The defendant's burden is then to go forward and show either that the statement is not defamatory, or that the statement is
true because truth is an absolute defense to libel or slander.
The question then comes to mind as to whether or not the executive director of a congressionally chartered non-profit organization is a public figure or quasi-public figure. A person becomes a pubic figure when he gives himself over, in whole or part, to the public by seeking publicity in a voluntary manner. So if you testify before Congress, for example, send out press releases highlighting your accomplishments, act as a company spokesman, or engage in similar activities, you may have surrendered at least part of yourself to the public in that arena.
Where this all goes depends of course on the ANA board itself. Any executive director ultimately works for the board of directors, not the other way around. Where a board allows organization resources to obtain personal redress for an employee, it may have breached an entirely different obligation the fiduciary oath to its members.
The trial date is set for Sept. 25 in Colorado Springs, Colo., in Courtroom 8 before Judge Theresa M Cisneros.
Add to: del.icio.us digg
With this article: Email to friend Print
| On August 23, 2007 Pam Hampton said  On August 26, 2007 Timothy said |
Something to add? Notice an error? Comment on this article. | |