Some overviews of the PACIFICA Bylaws Hearing
KPFA report lower down on this page
From: Max Blanchet
I just came out of the bylaws hearing at the CAL Superior Court in Oakland. In spite of efforts by a certain Attorney Slater representing Mr. Ford, a former PNB member, to have PACIFICA put in receivership due to violations of the Settlement Agreement by the parties and by certain parties requesting more time for the process to arrive at some more definitive closure, the judge:
1) Ruled that the first vote on June 26 -- 7 for B out of 10 voting with 3 abstaining and therefore not voting -- constituted the required 2/3 majority and that even if it were not so, the real progress achieved to date constituted substantial compliance with the settlement agreement.
2) Ordered Dave Fertig to communicate this decision to the chairs of the LABs, which would have until July 24th to approve Draft B and if necessary convene special meetings towards that goal.
3) Gave PACIFICA until January 31, 2004, to complete the process -- namely the election of the LABs, the election of the new PNB, and the selection of the NCOI and LCOIs. The Judge had complimentary words for all engaged in the process of resolving the complex issues relating to diversity at PACIFICA for these are indeed the same, difficult issues American society is grappling with.
Max Blanchet [KPFA area]
From: Gregory Wonderwheel
By Gregory Wonderwheel
The first item of business the court addressed was the appearances. Fertig, on behalf of the Board majority, Spooner, as a director in pro per, and Seigel, for the Adelson lawsuit, introduced themselves in the court room. Seigel introduced Errol Maitland, who was sitting next to him, as one of his "clients." The court then asked which attorneys were on the phone. David Slater (Gary Null's corporate and personal attorney) stated that he was on the phone representing Ken Ford and Robert Farrell. He stated that they were having trouble finding local counsel. The court told him that he could appear "pro hac vice" (for just this case) if he wanted to apply to the court to do so. Slater seemed reluctant and said he preferred to get local counsel. Of course the court wasn't going to wait for that, and said he had a choice: either agree now to file an application to appear pro hac vice, with a "modest filing fee", by Friday, in which case it would be granted "nunc pro tunc" (meaning retroactive to today), or Slater could not appear today. Slater said he would apply by Friday. So the court let him appear.
Then Greg Gieselman spoke up on the phone and announced his presence stating that he was a KPFT LAB member, not an attorney. The court stated that any party to the underlying lawsuits and their counsel or any current members of the iPNB or their counsel could appear but not others. At one point several minutes later Fertig questioned whether Slater had contacted Farrell and at that point Slater said Farrell was listening in on the phone. Farrell then announced his presence and confirmed to the court that he had requested Slater to represent him but had not "retained" him. (By that I took it to mean he hadn't paid Slater any money.) (Apparently according to his post on this list Paul DeRienzo was also listening on the phone, but he never announced it to the court.)
The court then stated that he had read the documents submitted to the court and named them by title: Pleading by Fertig; Pleading by Spooner, including declarations from Fertig, DaSilva, Gendelman, Maldonado, Brooks, Heffley; the pleading of Bryant dated 7/7/03 -- the court mentioned it did not have a filed stamp on it; the email from Leslie Radford; the letter from Robert B. Robinson; the letter from Bryant; and the letter from David Slater.
[Slater's letter dated July 2, 2003, introduced himself as general counsel for Gary Null and Associates, Inc. and Null's personal attorney. It includes the statement, "My client's principal, Gary Null, is aligned with Ken Ford and some other prior board members who believe that the Pacifica Foundation has become totally unmanageable." Slater argued that the iPNB has violated the settlement agreement by engaging in excessive terminations and failing to adopt bylaws. He argued that even Draft B bylaws were illegal. He requested that the court continue the hearing in order for Ken Ford and other past directors to get local counsel. He also requested that the court appoint a receiver for Pacifica because the iPNB has violated so many of the provisions of the Settlement Agreement.]
[Radford's letter argued for an extension so that the iPNB could continue to discuss the bylaws and argued against Draft B being chosen at this time. It included this fun paragraph: "There have been repeated efforts by those opposed to diversity remedy to misdirect and impede the process of achieving Bylaws. Without intending to impugn any one person and for exemplification only, and In spite of my reluctance to do so, the situation is critical, and I have attached a document I composed regarding the tactics of one such person, Ms. Carol Spooner, lead plaintiff in the Listeners' suit. Mr. Fertig has also been an outspoken partisan opposing diversity remedy." (Capitalization and other punctuation and missing articles as in original.)]
[Bryant's "pleading" also on behalf of LaForest consisted of many pages of argument. It included an argument that the telephone meetings were not allowed under Robert's Rules of Order. (They misquoted RRO about personal phone calls to get board member's approval on a matter not decided at a meeting; while phone meetings are specifically allowed under Calif. Corp. Code) They also argued that the 'none' votes by the three directors should be counted and they re-quoted from the RRO section on "2/3 of those present." (Instead of the section on 2/3 of those present and voting.) They called the multiple choice vote that was taken a "preferential vote." (In fact it wasn't preferential voting which is actually what Robinson had proposed, i.e., to state first, second, third, choices.) They argued that the Board needed time to digest the Univ. of Mich. cases to determine what could be done for diversity in the bylaws. They asked the court to grant an extension. They asked the court to order the Board to hold additional meetings: first to select an attorney to consult; meet again to consult with the attorney regarding the implications of the Univ. of Mich. cases; meet a third time to deliberate on the results of the second meeting and forge a new bylaws draft; then send the new draft to the attorney for comment; and then the board will meet a fourth time at the scheduled August 15-17 meeting to vote on the bylaws. ]
[Robinson's letter said that he agreed with the extension of time but not with asking the court to make a decision today. He requested that the court order the Board to come to Oakland so the court could mediate a board meeting on the diversity issue and if that failed then to have the court arbitrate a decision.]
The court then took each party or counsel in sequence. First Fertig presented his motion to have the court find that there was substantial compliance with the Settlement Agreement based on the 8 to 5 vote that occurred with a "balanced majority" only one short of a full 2/3 of those present and voting. Fertig presented the case that the Dick Gregory was not showing up at meetings and that other board members were voting no on all the options, also that the Board was deadlocked and not likely to reach any different conclusion if discussions continued.
Spooner presented her view that the first vote on the multiple choice question was a 7 out of 10 vote, with the 3 "none" votes counting as abstentions, and therefore the settlement agreement had been fully complied with. Spooner pointed out the inaccuracy of the FCC statement by Slater. Spooner also said that delay would only hurt Pacifica, that 3 of the 5 LABs had given preliminary approval of Draft B, and that beside the diversity issue any changes to the drafts now that included the COIs being independent committees would likely not pass 3 out of 5 of the LABs.
Seigel stated that he had to be careful with what he said because his clients had very different views. He stated that Gendelman and Maldonado had made declarations in support of Draft B but had not stated expressly in their declarations that they supported the motions. (This was a specious statement since their declarations stated in the caption "Submitted in Support of Spooner's Motion to Enforce Settlement Agreement.") He then stated that Errol Maitland and Anne Emerman, opposed the motions, and that Dave Adelson supported extending time for more discussion and asked for the court's assistance either directly mediating or with someone appointed by the court.
Slater then argued that the Board had failed to follow the Settlement Agreement and therefore had violated the court's order. He stated that there were "over 50" employees terminated since the iPNB had taken over Pacifica. (He said this at least twice.) He pointed out the iPNB had failed to pass bylaws on time. He said that even Draft B was a violation of "FCC" regulations because it made the station boards have governing powers. (Of course this is a wrong statement: first, the FCC has nothing to do with it beyond making sure the license is in the hands of the Board which it will continue to be--increasing the size of the board from 15 to 24 is not the sky falling in as Slater predicted, and second it is the CPB funding that requires community advisory boards and the stations may create CABs separate form the Station Boards to keep the CPB funding.) He asked the court to appoint a receiver for Pacifica since the Board had failed so much.
The court then gave everyone one more opportunity to say something.
Fertig stated that the Board had not failed so bad as to need a receiver. He said if the Board could move ahead with the bylaws every thing could be resolved by January 2004. The court asked which date in January and Fertig said by mid January, the 15th.
Spooner outlined in greater detail the time line in the bylaws for the election as stated requiring two months for candidate applications, campaigning and election ballots out by Oct. to be received in Nov. and counted by Dec. 1st. Station Boards to be meet in December and elect directors to be seated in January. Spooner pointed out the inaccuracy of the Slater's statement that Draft B violated FCC or CPB rules and that Draft B had been reviewed and approved by both a California nonprofit lawyer, Finck, and an FCC lawyer, Crigler. Spooner said that if the court was to order allowing continued discussion that she agreed it should be court supervised.
Seigel did not make further comments.
Slater asked the court to continue this hearing in order to let his clients file a motion for the court to appoint a receiver. The court denied that motion to continue and said that Slater's clients were free to make such a motion any time they wanted while the Settlement Agreement was in place.
Over the phone Gieselman asked the court if he could make some comments. The court said that if it were to allow him to make comments that there were many people in the court room who also would want to make comments, and the court observed that many were nodding their heads. The court said it was not a public forum but a hearing where only the parties, directors, or their counsel had standing. The court therefore told Geiselman that he would not be allowed to comment.
The court then stated its findings:
The court began by stating a couple of observations: first, that the iPNB should be applauded in making considerable progress in implementing the Settlement Agreement, and second, that it is a reasonable endeavor to address issues of diversity, inclusion and nondiscrimination and that these issues are the most challenging facing our society at this time, so it is not surprising that a consensus was not able to be reached.
The court stated that it was sitting as a court in equity and that this means it's decision has to be determined by what is in the best interests of the Pacifica Foundation. The court said that the iPNB had had 15 months under the Settlement Agreement but was unable to complete its work and that the sooner the work is completed the sooner Pacifica will again be independent to function with a new board and without the court's supervision.
The court granted Spooner's motion and ruled that the June 26 vote for the multiple choice question of A, B, or C did comply with the Settlement Agreement requirement of "2/3 of those present and voting" being a majority of 7 of the 10 directors voting with the three directors vote of "none" being abstentions. The court stated that it had considered the points and authorities presented by Spooner regarding the language "present and voting."
The court also granted Fertig's motion and stated that even if it had not found the full compliance of the first vote that the later vote was substantial compliance under the circumstances and that the court would approve Draft B on this separate basis. (By making this separate ruling, the court set the bar impossibly high for anyone considering an appeal of the decision, since the discretionary ruling of "substantial compliance" in a court of equity is virtually impossible to get an appellate court to over turn.)
The court ordered the secretary to record in the minutes that the Board approved Draft B by 2/3 majority vote of 7 of 10 present and voting with 3 abstaining. The secretary was ordered to transmit Draft B by email to ll the LABs to conduct special meeting if necessary to vote on those portions that are required by the Settlement Agreement. Upon the approval of 3 of the 5 LABs Draft B will be the bylaws of the foundation.
The court ordered that the authority of the iPNB be extended no later than January 30, 2004, or until the seating of a newly elected board of directors, whichever comes first.
When the court completed its ruling and adjourned the hearing, the spectators broke into applause.
Date: Tue, 08 Jul 2003 16:33:19 -0400
I'm sending this to the Alliance list because I'm too angry to look up anyone else's address. You may post widely if you so desire.
I guess congratulations are in order. I'm going to repeat the question I asked in the teleconference meeting on June 26: If you win and get Draft B imposed on the foundation, what will you have? Do you want a bunch of pissed-off colored people?
Well, you can rest assured that you do have one pissed-off colored person--me. I thought that the judge would at least ask us to compromise.
I know you all really are pleased with yourselves. But think about what you've done. We have bylaws that have absolutely no remedy in place in the likely (and do mean LIKELY in a place like Texas) event that all-white local boards are put in place. Is this also something that you wanted?
Am I bitter? You damned skippy. I'm pissed off, bitter and frustrated. Not just because we didn't win (as you like to point out to me, Carol) but also because this Foundation really does need to acknowledge that it's got race issues up the ying-yang. And those issues need to be ADDRESSED AND RECTIFIED. If I didn't know it before, this last contretemps with you people has proven it.
But like I said, congratulations.
From KPFA news report. Pacifica Bylaws Ruling Christopher MartInez Tuesday, July 8, 2003
anchor intro: A CALIFORNIA JUDGE GIVES THE GREEN LIGHT TO NEW BYLAWS FOR PACIFICA, KPFA'S PARENT RADIO NETWORK. SUPERIOR COURT JUDGE RONALD SABRAW APPLAUDED THE INTERIM PACIFICA BOARD FOR MAKING PROGRESS ON COMPLEX ISSUES AND SAID THE SOONER WORK IS COMPLETED, THE SOONER PACIFICA CAN BE RETURNED TO INDEPENDENCE AND VIGOR. SABRAW MADE HIS RULING AT A HEARING IN OAKLAND THIS MORNING. KPFA'S CHRISTOPHER MARTINEZ REPORTS.
A COURT SETTLEMENT ENDED THE CRISIS PARALYZING THE PACIFICA RADIO NETWORKO AND NOW ANOTHER COURT RULING CLEARS THE WAY TO RE-DEMOCRATIZE PACIFICA. AN INTERIM PACIFICA BOARD THAT TOOK OVER FROM THE OLD MANAGEMENT HAS SPENT THE LAST YEAR AND A HALF WORKING ON NEW BYLAWS. THE FINAL STICKING POINT WAS LANGUAGE TO INSURE DIVERSITY THROUGHOUT THE NETWORK. LAST MONTH THE INTERIM BOARD VOTED ON 3 COMPETING PROPOSALS. 2 GARNERED ONLY 1 OR 2 VOTES. A THIRD, CALLED DRAFT iBi, GOT 7 VOTES FROM THE 13 BOARD MEMBERS PRESENT. 2 MEMBERS OF THE BOARD WENT TO COURT TUESDAY MORNING TO ASK A JUDGE TO RULE THAT THE VOTE MET THE 2-THIRDS REQUIREMENT, OR AT LEAST TO ACCEPT THE VOTE AS SHOWING SUBSTANTIAL PROGRESS. A LAWYER FOR FORMER INTERIM BOARD MEMBERS URGED THE JUDGE TO APPOINT A RECEIVER FOR THE FOUNDATION. BUT IN THE END, THE JUDGE RULED THAT THE VOTE COMPLIES WITH THE SETTLEMENT AGREEMENT. JUDGE SABRAW CALLED THE BOARDiS WORK, IN HIS WORDS, "A REMARKABLE ENDEAVOR TO TRY TO ADDRESS ISSUES OF DIVERSITY, INCLUSION AND NON-DISCRIMINATION." DAVE FERTIG IS AN INTERIM BOARD MEMBER FROM KPFK IN LOS ANGELES. HE SAYS HE WENT TO THE JUDGE BECAUSE THE BOARD WAS DEADLOCKED AND MIRED IN DELAYS.
Fertig: We're pacifists right? We're supposed to work things out. But unfortunately we couldn't do it without some court intervention. But frankly I do believe that some of the prior board members from the prior regime so to speak, many of whom I would laud in many respects, have none the less been absent without leave from the process. I regret frankly, that we had to come to court to do this because I would have loved to have seen a cooperative resolution, but a resoloution there had to be, and there it is.
DRAFT "B" CREATES COMMITTEES OF INCLUSION TO MONITOR DIVERSITY IN THE NETWORK. DRAFT A HAD STRONGER LANGUAGE, ALLOWING THE COMMITTEES OF INCLUSION TO CHANGE THE NUMBER OF SEATS ON BOARDS IF DIVERSITY GOALS WERE NOT MET. LOCAL STATION BOARD MEMBER ERROL MAITLAND OF WBAI IN NEW YORK SUPPORTED THAT DRAFT. HE SAYS DRAFT "A" WOULD HAVE SENT A MESSAGE TO WHAT HE CALLS "THE NE'ER DO GOOD LIBERALS IN PACIFICA LAND".
Maitland: And that they shot down because at the core of their -- these white people on the Pacifica board felt that black folks, that niggers came in and messed up their nice laid back foundation and they wanted to take it back . They wanted to take it back to the bosom of Berkeley where it can become a lily white organization again, free from niggers.
BUT BOARD MEMBER CAROL SPOONER SAYS IT'S NOT JUST A WHITE LIBERAL ISSUEO AND PACIFICA NEEDS TO COMMUNICATE ACROSS THE CULTURAL, RACIAL AND ETHNIC SPECTRUM IN ORDER TO TAKE BACK THE COUNTRY. SPOONER IS AN INTERIM PACIFICA BOARD MEMBER FROM THE KPFA AREA. SHE SAYS UNDER THE NEW BYLAWS, ALL 5 PACIFICA STATIONS WILL HAVE BOARDS ELECTED BY LISTENER MEMBERS AND STAFF MEMBERS, AS KPFA HAS NOW. THE BOARDS WILL HAVE MORE POWER OVER STATION MANAGEMENT.
Spooner: So we're going to have a lot more local autonomy and a lot more local authority than has existed in Pacifica for about 15 years, and I think this will be a great benefit to KPFA, where we won't be taking orders from some national board, where most of the board members know nothing about KPFA, our local board committee will be effective in supporting and building and strengthening our wonderful station here.
JUDGE SABRAW'S RULING MEANS THE BYLAWS GO NEXT TO THE 5 LOCAL STATION BOARDS FOR APPROVAL. A MAJORITY OF THE BOARDS HAS ALREADY VOICED SUPPORT FOR THE BYLAWS. LOCAL BOARDS WILL SCHEDULE THEIR ELECTIONS THIS FALL, AND A NEW PACIFICA NATIONAL BOARD WILL BE SEATED BY THE END OF JANUARY 2004. REPORTING FROM OAKLAND FOR KPFA NEWS, I'M CHRISTOPHER MARTINEZ.
[Maitland audio on line: http://acksisofevil.org/audio/maitland.mp3]
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