Responding to False Allegations from Those Opposed to Bylaws Reforms
First of all, we need to make clear that we’re not going to stoop to the level of those opposed to Bylaws reform who make outlandish allegations with no real facts to back them up. We don’t know why some of those people, call those of us proposing the bylaws corporatists or whatever other names they think may get the attention of Pacifica members. And frankly, we are shocked and dismayed with the intensity of the false allegations about the intentions of us in the Pacifica Restructuring Project (PRP) and about what the new Bylaws would and would not do. We are going to continue to stick with the facts, rather than act like what you see certain politicians doing on TV and with tweets – which is what we are also seeing from some opposed to Bylaws reform
None of us in PRP wants any underwriting or sponsorship of programs or stations by large corporations or similar entity. We don’t want them threatening to withdraw sponsorship if we don’t do what they want regarding shows we broadcast.
We are proposing a hybrid board that takes the best of both types of boards – with some elected and some appointed and experienced members with proven skills with non-profits and media. After all the new Board members are seated, the elected members (chosen by the members of each station) will participate in selecting the at-large board members. Few non-profits have all elected boards. The new Bylaws will ensure that members can still participate in choosing board members, but also make sure that people with governance skills are on the boards. The proposed Transition At-Large board members have been chosen because of their experience, skills, and expertise. The Pacifica National Boards (PNBs) for the last 17 years or so have had few members with any skills such as reading a financial statement or solving financial problems, and the ones with those skills are often out-voted by those having political agendas.
Direct election of a Director from each of our five stations makes them more accountable to the members, too. Now, Directors are accountable only to the Delegates/Local Station Boards, many of whom were not even elected by the members but who are filling vacancies of those driven away by the dysfunction on our LSBs.
Managers across Pacifica have noted how the LSBs have done more harm than good, serving to run off supporters (especially major donors) than to attract donors and volunteers. It’s even difficult to get enough candidates for the LSBs who actually want to help their station – many do nothing but just attend meetings, give advice about topics they know little about, and try to micromanage.
Community Advisory Boards are necessary because they are mandated by the FCC in order to keep our broadcast license. Current LSB members who actually want to help their station may serve on their CAB or other local committees (to help with fundraising and outreach, for example). At some stations it’s hard to find CAB members because those interested in programming want to run for their Local Station Board instead. The LSBs have little power beyond choosing among themselves who will serve on the Pacifica National Board. But the LSBs cause a lot of problems. Eliminating the LSBs will save a lot of money and rancor and may encourage more listeners to serve on their local CAB. Direct election of PNB is more democratic, and smaller boards mean that each board member will have a greater ability to get things done.
Those of us working on writing the new bylaws had a lot of discussions about whether there should be staff on the board. We didn’t all agree. However, in the end we opted for no staff on the PNB. The reasoning is that staff already have a lot of power, especially if they are on the air. We’ve had a number of good staff members on our boards, but we’ve also seen a number who abuse their position, putting pressure on local management in decisions about hiring and giving people shows – especially for themselves and their friends. Making good radio and being a good board members are different skills and some LSB members are in denial about conflicts of interest. Even though there have been staff on the PNB (5 total at a time), most have not been very active board members. It’s been hard to find staff who want to run because our long non-productive meetings take a lot of time and cause a lot of frustrations.
No one wants to sell any stations or swap, but it might come to that, especially if our governance (which is in turn defined by our Bylaws) is not reformed. The other thing that might happen is a signal swap (of a license for one with fewer people in the broadcast area). No one wants that either, l but it would be better than the sale of a license. Selling buildings or swapping a license is more likely with the current system than if we can get new Bylaws with Board members who know how to attract donors, get grants, etc.. The financial reality is that something has to happen to generate a lot of money in a big hurry. The only buildings Pacifica has (in Berkeley, LA, and Houston) are collateral for the loan that is due in full April 2021. Pacifica is going down a financial rabbit hole, new bylaws or old. Under the new bylaws there’s a good chance of saving our buildings and licenses. Our lawyers, accountants, and auditors, plus even the California AG’s office have told us the best chance to save Pacifica is to reform our governance, and that without reform our Foundation is unlikely to survive . Under the current bylaws, drastic actions are almost certain to be needed to pay off the big loan next year.
The nine of us who worked to write the new bylaws are very much in favor of keeping the whole network intact, if that’s possible. Statements to the contrary, by those opposed to Bylaws reform, are just not true.
The new bylaws, just like the current ones, call for a membership vote for or against the sale of major assets. We changed the quorum from 10% of the membership to 5%. We didn’t do that in order to sell anything. We did it because currently, for most elections in Pacifica, it is very hard to make quorum. We all know that a vote on anything controversial, such as selling or swapping a license, would involve way more than 10% of the members, so the change in quorum would be irrelevant in such cases, if they ever happen. Most members don’t want to vote on anything. Any sale or swap of a broadcast would also require FCC approval and be subject to challenges from members, so it would not be easy to do even if the Board wanted it. We have no idea what the new board will decide to do about the dire financial situation, but we know that the current Board majority has been unable to agree on any way to pay off the loan, and seems to instead be hoping for a miracle, such as someone donating $3 million to this Foundation that has a governance that has facilitated deficit spending and increased debts for years.
For more responses to incorrect allegations about the new Bylaws, see Aki Tanaka’s letter.
Susan da Silva and Bill Crosier
When They Go Low, We Go High
I love the cliché “When they go low, we go high“. There have been a lot of opportunities to apply that lately, in reference to the proposed new Pacifica Bylaws.
You’ve probably seen some of the flurry of e-mails from opponents of Bylaws reform, many with some very misleading statements (to put it politely). Most are coming from current and past board members. I’m sure most Local Station Board members have good intentions, but that’s not enough. They’d like our governance to work, and may wonder how they can help their stations if the LSBs are ended. After all, they got to be LSB members under the current Bylaws, and many of them sincerely would like to think that if they just keep trying, we can use our boards to solve the problems of our stations.
But a few of them keep sending out insults, empty and meaningless rhetoric and slogans about the new Bylaws, along with some completely false statements about the new Bylaws. These are scare tactics, which unfortunately others keep repeating. Some of the people opposed to reform have even contacted the proposed new Transition At-Large Board members (named in the new Bylaws) in attempts to run them off. None of this is the way to resolve problems. We are not going to stoop to the level of our opponents who are doing that and questioning the motives of those of us working to reform Pacifica’s governance to make it work for our stations, instead of continuing a system that so many people have realized does more harm than good. Those people include managers across our network, accountants, attorneys, auditors, and even the deputy California Attorney General responsible for non-profits chartered there, all of whom have said we must reform our governance if Pacifica is to survive.
Pacifica needs solutions to its financial and organizational problems, if our mission is to survive and thrive, not empty slogans and scare tactics.
So what are well-meaning LSB members to do? Instead of fighting to preserve a failed system (See our Why New Bylaws web page) and spreading misinformation, under the new Bylaws they can join the CPB-required Community Advisory Boards and various committees and work groups at our stations, to do actual work to help ensure our stations meet community needs, to help raise money, and help get new listeners. This is a lot better than wasting huge amounts of time and energy fighting with each other for control of a governance system that has failed Pacifica and which has been unable to reverse our very serious financial and listenership declines – which have dramatically interfered with fulfilling our mission.
So when you hear people throwing around slogans and trying to scare you into keeping a system of governance that has so clearly failed to promote the Pacifica mission, tell them you’d rather look at hard facts and real data (on this web site), and vote for the new Bylaws to give Pacifica a chance. Our country, and our world, needs Pacifica more than ever, with the increasing dominance of a few giant broadcasters. Stand up for independent media and a Pacifica governance structure that can succeed.
Court Again Rules in Favor of PRP, Requires Pacifica to Play Fair
In the court hearing held Feb. 14, 2020, held because of the gross unfairness in the election plan approved by the PNB, Judge Roesch gave the Pacifica Restructuring Project most of what PRP asked for. Of course, we’ll have to see if Pacifica actually complies. Given Pacifica’s recent history in fighting bylaws reform, we’re not so sure.
1. There will be 3 election inspectors. Pacifica’s attorney Arthur Schwartz tried to name himself as one, but the judge said he was not qualified based on his bias.
2. PRP’s website URL and PRP’s 1000 word statement should be on all election materials., with up to two links.
3. Each side should have equal opportunities to communicate with the members. Pacifica has to follow through with the agreement PRP made re our own show on WBAI/WPFW, although that won’t be explicitly in the rules.
Gregory Wonderwheel, attorney for PRP, provides more details:
The court ordered that there shall be three independent Election Inspectors. Ms. Penaloza shall continue as a paid Election Inspector under contract as the National Elections Supervisor and the other two Election Inspectors shall be volunteers.
Mr. Terry Goodman was confirmed as the choice of the Petitioners.
The Respondent Pacifica Foundation is directed to name the third Inspector who shall be someone who is not currently a regular full time or part time employee of Pacifica Foundation or any of its five radio stations, including staff members (paid or unpaid) of any Pacifica radio station, Pacifica Officers or Directors, or Station LSB Delegates, and must have not stated a position for or against the Proposed Bylaws. If Respondent does not name their Inspector by 5:00 P.M. PST on 2/17/2019, then Petitioners shall name the third Inspector.
The three Election Inspectors are to work independently of both the Petitioners and Respondent Pacifica Foundation and their respective attorneys. If the Election Inspectors contact one attorney then they should copy the other attorneys. There should be no separate contact with the attorneys that is not shared with the opposing counsel.
When a third Inspector is named, if either party objects for cause, then it will be for the two Election Inspectors already appointed to determine the challenge of the third and report.
The three Election Inspectors are to to serve under the conditions and provisions of California Corp. Code §5615 without interference or direction of the parties or their attorneys:
(a) In advance of any meeting of members the board may appoint inspectors of election to act at the meeting and any adjournment thereof. If inspectors of election are not so appointed, or if any persons so appointed fail to appear or refuse to act, the chairman of any meeting of members may, and on the request of any member or a member’s proxy shall, appoint inspectors of election (or persons to replace those who so fail or refuse) at the meeting. The number of inspectors shall be either one or three. If appointed at a meeting on the request of one or more members or proxies, the majority of members represented in person or by proxy shall determine whether one or three inspectors are to be appointed. In the case of any action by written ballot (Section 5513), the board may similarly appoint inspectors of election to act with powers and duties as set forth in this section.
(b) The inspectors of election shall determine the number of memberships outstanding and the voting power of each, the number represented at the meeting, the existence of a quorum and the authenticity, validity and effect of proxies, receive votes, ballots or consents, hear and determine all challenges and questions in any way arising in connection with the right to vote, count and tabulate all votes or consents, determine when the polls shall close, determine the result and do such acts as may be proper to conduct the election or vote with fairness to all members.
(c) The inspectors of election shall perform their duties impartially, in good faith, to the best of their ability and as expeditiously as is practical. If there are three inspectors of election, the decision, act or certificate of a majority is effective in all respects as the decision, act or certificate of all. Any report or certificate made by the inspectors of election is prima facie evidence of the facts stated therein. (Amended by Stats. 1984, Ch. 812, Sec. 2.) http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=5615.&lawCode=CORP
Judge Roesch Order Posted – Requires Pacifica to Allow Members to Vote on New Bylaws – But…
Update to my blog post of Jan. 26 — Judge Roesch issued his official written order (verbal order given Jan. 23), and it’s here: Judge Roesch Order 2020-02-06.
This order was in response to the Pacifica Board Directors who tried to prevent Pacifica members from being able to vote on the new Bylaws. As I wrote on Jan. 26, the judge told those in court on Jan. 23 that he would require that Pacifica allow the members to vote on whether to approve the new Bylaws, ordering that the ballots be sent on Feb. 18 or shortly thereafter, to everyone who was a Pacifica member as of Jan. 2 . Members will have 30 days to vote.
However, actions by the Pacifica National Board to delay voting on the Bylaws, and attempts to prevent the members from voting at all, have required us (the Pacifica Restructuring Project) to go to court to require Pacifica to uphold the member’s rights. The Board has spent considerable amounts of members’ donations to prevent them from being able to vote. Luckily, the judge recognizes the members’ rights and ordered ballots be sent out.
But last week the Pacifica National Board approved an election plan that was seriously flawed, and that not only allowed but had provisions that would actually require that only people opposed to Bylaws reform would get air time on our stations. The Communications section of that plan, which was incorporated into the NES contract, is here. Board members opposed to the new Bylaws also aired a long special program on two of our stations, in which numerous untrue statements were made, no one in favor of the new Bylaws was represented, and the Board members producing the show presented a very one-sided (and incorrect) story about the Bylaws. So PRP had to go back to the judge again to ask for fairness in communications with members – both on the air and with the ballots – with equal time for both sides. Here’s what PRP filed with the court this week. It’s easier to follow if you read them in this order:
- Motion (request of judge) for orders to conduct fair election
- Proposed orders to conduct fair election
- Crosier declaration
- Spooner declaration
- Wonderwheel declaration
- DaSilva declaration
- Goodman declaration
The judge is expected to issue a ruling on these fairness issues on Feb. 14.
Good News! Judge Says Pacifica Must Allow Members to Vote on New Bylaws
On Thursday, January 23, Judge Frank Roesch ruled that Pacifica must stop delaying a vote by the members on the proposed new Bylaws, set the new notice period with on-air announcements as starting on January 2, and ordered that ballots be sent to the members on the 46th day after Jan. 2 (which would be Feb. 16) or as soon after that as possible.
The judge did not like the argument from members of the Pacifica National Board who urged everyone on the PNB to vote yes for the new Bylaws in order to defeat them by sending them to the stations Delegates for a meaningless vote (that could take up to two more months) and thereby delaying a member vote until after the deadline. Under our current Bylaws, Bylaws changes proposed by petition of the Members (as these new Bylaws are) can be approved by the Members and it does not matter whether the PNB nor Delegates (LSBs) of each station approve them or not.
Still be to be determined is whether the leadership of Pacifica’s broken governance will allow a fair presentation of both sides of the new Bylaws issue. On Dec. 20, 2019 (the same date that the PNB majority followed the pro-tem chair’s direction to vote yes on the new Bylaws in an attempt to kill them), the PNB directed that an extremely one-sided and misleading essay on the new Bylaws be posted on Pacifica’s web site, and broadcast announcements on our stations have directed listeners to go there where they see that essay first. PRP hopes that Pacifca’s governance will allow both sides to get an equal chance to be heard.
So far, the Pacifica National Board has caused tens of thousands of dollars of listener donations to be spent on legal fights and maneuvering in order to prevent Pacifica members from exercising their right to vote on the new Bylaws, but then have blamed PRP for supporting this right of the members. The vote on the new Bylaws is expected to cost much less than elections for Delegates/LSB members. The latter require separate elections at each station for listeners and staff (10 elections total), with huge numbers of candidates and candidate statements to deal with, while the Bylaws election will have just one yes/no question on it (and no separate elections for each station), making it much simpler and less expensive for that election.
Of course, the Pacifica Restructuring Project encourages all members to vote yes for the new Bylaws, to end the ongoing dysfunction and failure to deal with Pacifica’s financial and governance crisis, and to support management who can work to fulfill the Pacifica mission instead of micromanaging by board members.
A Letter to Pacifica Members re Criticism of the Proposed New Bylaws
Dear Pacifica Radio Members,
New Bylaws are being proposed to change the governance structure of the Foundation.
Understandably, there have been some criticism of the new Bylaws.
Following is an argument in support of the new Bylaws.
What listeners, staff, and affiliates want is a financially viable network that is supported by members who subscribe to the station for its programming.
In order to have a financial healthy network, the network needs a board where the members spend the board meeting time, working to bring financial stability to the Foundation, instead of fighting factional battles.
Pacifica’s current democratic governance structure that we had over the last 17 years has failed to do that.
In 2019, the board had 39 open meetings and 23 closed meetings over 44 days.
1. At the end of 2019, the board had not completed previous year’s audit, risking the non-profit status of the foundation.
2. At the end of 2019, the board had not come up with the plan to pay off the $3.25 million loan due in full on April 1, 2021.
There are reasons the current democratic governance structure has not worked.
1. Democratically elected Board have resulted in creating factions where fighting factional battles became more important than looking after the business of the foundation,
2. Factional alliance became the criteria for getting on the board rather than skills and expertise needed on the board, further dividing the board.
The main arguments against the new Bylaws are that the new Bylaws are undemocratic and will create self-selecting Board.
1. It is true that the self-selecting Board that precipitated the 1999 crisis did not work, and we do not want to return to that.
2. However, we had democratically elected Board over last 17 years, and that has not worked.
The proposed new bylaws tries to avoids the negative aspects of the previous boards and retain the positive aspects of the previous boards.
1. Five Station Representative Directors are democratically elected by the stations members. Because the members will directly elect one Director from each station, that individual will more likely have the skill set needed on the board, They will present themselves, their qualification, and vision to the voters rather than in the past when people were elected based on the slate they were running on.
2. Six Directors appointed by the Board will bring experience and expertise that station representatives might not have.
Another argument against the new Bylaws is that it will do away with our Local Station Board and turn it into an advisory board.
1. With the current Bylaws the LSB IS an advisory board with the exception of electing Directors. With the new bylaws Station Representative Directors will be democratically elected by the members.
2. Corporation for Public Radio (CPB) mandates that each station has a Community Advisory Board (CAB), so the advisory role of the LSB can be folded into the CAB.
Another argument against the new Bylaws is that the quorum for membership votes would be only 5%, instead of the current 10% of members, making it easier to sell assets like a station.
1. Many times over the past 17 years stations have had difficulty reaching quorum, sometimes delaying the elections of the Local Station Boards for several weeks. The 5% quorum of membership will give the members who are interested the ability to elect Directors and to vote on measures that require their approval.
2. Only reason the network would be in a situation where they would even consider selling a station is if the board is so dysfunctional that they cannot manage the financial affairs. That is what we are trying to prevent!
Another argument against the new Bylaws concerns staff and affiliate representation.
1. The new Bylaws remove staff directors, but the staff has large influence in the selection for the one station representative because of their position.
2. Currently affiliate directors are selected based on factional alliance.
3. The staff and affiliates will benefit from a financially healthy network rather than no network.
One should be mindful of where the most vocal opposition comes from.
1. There are bad actors who are eyeing the $100 Million in assets, and want to keep the current dysfunctional governance structure.
2. There are those that have carved out a niche within the current factional governance structure and want to keep that power even though the factional governance structure is imperiling the Foundation.
3. What is ironic is that those who say they are for democracy are trying to block the members, who finance the network, from voting on the type of governance structure members want.
As you weigh whether to keep the current governance structure or try a new governance structure, remember that Pacifica needs a credible and responsible National Board that can bring financial stability to the Foundation, so that staff is free to produce programs that follow the Pacifica mission, and the listeners and the affiliates are motivated to financially support the network.
PRP Responds to Misleading, False, and Defamatory Legal Filings by PNB
Pacifica filed some rather astounding materials with the court in Alameda County on Jan. 8, containing declarations with outright false statements.
The Pacifica Restructuring Project responded with legal filings to set the record straight, and to make it clear to the judge, which group (PRP) was working on behalf of the members, and which group (some of the PNB) was making statements in a desperate attempt to prevent the members from being able to vote on new Bylaws to fix Pacifica’s dysfunctional governance. The filings by Pacifica, as stated in PRP’s reply, were “a thicket of misrepresentations of fact, false innuendos, speculations, and irrelevant red herrings intended to be prejudicial”.
The new PRP filings, that reference the ones filed by Pacifica’s attorney, are:
- Reply Points and Authorities for further orders to carry out alternative writ of mandate (the main filing, that references the others below)
- Crosier Reply Declaration & Exhibits A-D
- Exhibit E (NES Election Report for 2018 Delegates Election)
- Crosier Exhibits F-J
- Wonderwheel Reply Declaration
- Spooner Reply Declaration
- DaSilva Reply Declaration
Then on Jan. 16, the day after the above reply was filed, PNB Directors Aaron, Steinberg, and Sagurton posted a special “emergency” meeting of the PNB for Jan. 23, to seat newly-elected Directors a week earlier than previously scheduled, in an attempt to get ahead of the judge’s ruling in the case. The Pacifica Restructuring Project filed the following response:
- , in response to improper setting of special meeting by certain members of the PNB in an attempt to get new Directors seated before the judge rules on the case
Update, Jan. 23, 2020: Citing advice from their own legal counsel, the PNB members who had called for the special “emergency” meeting, to seat new Directors just before the judge ruled on the case, cancelled the Jan. 23 PNB meeting.
PRP asks judge to require Pacifica to comply with notice requirements and allow time for member vote
The Pacifica Restructuring Project filed new papers with the court on Dec. 27, 2019, to help ensure that Pacifica members get to vote on the new Bylaws, despite maneuverings by those opposed to letting the members vote. The filing asks the court to require Pacifica to broadcast notices of the new Bylaws in compliance with the current Bylaws, to allow more time for that to be completed and for ballots to be sent out so that the members can vote on the new Bylaws, and for seating of new Directors to be delayed until that is done.
This followed a rather astounding Pacifica National Board meeting on Dec. 20, 2019, in which the Chair pro tem of the PNB, Alex Steinberg, urged PNB Directors to vote “yes” on the new Bylaws proposed by PRP, in order to help defeat them, as a yes vote by the PNB then makes the Bylaws go to the Delegates of each station, before going to the members for a vote. Even if the PNB and/or the Delegates voted to not approve the new Bylaws, the Members still get to vote on them and a vote of approval by the Members would override however the PNB and Delegates vote. Thus, the PNB and Delegates voting accomplishes nothing other than delaying a vote by the members of Pacifica. The PNB yes vote was clearly a vote to not approve the Bylaws, as stated by the Chair Pro Tem and posted on pacifica.org, and was simply a ploy to delay a member vote until after the (extended) deadline of Feb. 1, in order to prevent the member vote from taking place.
The National Election Supervisor, Renee Penaloza, had previously verified that the PRP Bylaws petition had enough valid signatures (at least 1% of Pacifica members) to be a proper petition, even though she was hired late — after the Notice Period for Bylaws amendments had already been completed, but without notices broadcast on Pacifica stations as the current Bylaws require to be done during each day of the notice period. Such a failure to broadcast notices had killed other proposed Bylaws amendments in early 2019..
Because both California law and the Bylaws guarantee the right of members to vote on new Bylaws or amendments submitted by a member petition, PRP is asking Judge Roesch to affirm that right but also to require that Pacifica fulfill the other notice requirements in the current Bylaws before the vote. Therefore, PRP is also asking the judge to extend the deadline for completing the member vote, as it cannot start until the broadcast notices are completed.
The new papers filed with the court are:
- Motion for further court orders
- Declaration supporting the motion, with exhibits
- Draft order for judge
The judge is expected to give a ruling on January 23 regarding this, so stay tuned for further updates.
Judge sets Notice Date for Bylaws amendments after PNB fails to do so
On Oct. 21, 2019, Judge Frank Roesch granted an alternative writ of mandate, as requested by the Pacifica Restructuring Project, and set the “Notice Date” for Bylaws amendments as the following day, Oct. 22. He also ordered that Pacifica comply with the rest of the Bylaws regarding notice for Bylaws amendments, in order to start the process that is required before voting on them.
The amendment process that is required by the current Pacifica Bylaws, and which Judge Roesch ordered Pacifica to follow, is in Article 17, Section 1.
The judge’s order was in response to a filing by PRP made after the PNB failed to set a notice date so that Bylaws amendments could be considered and voted on.