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POSITION PAPER IN SUPPORT OF PACIFICA BYLAWS DRAFT B (6/07/03)
by James Ross, WBAI listener, Terry Goodman, KPFK listener, and Other Concerned Listeners

ENOUGH ALREADY!

Draft B makes a strong commitment to diversity at Pacifica. It establishes "Committees of Inclusion" to monitor and report on diversity throughout the network. It establishes election procedures for our local station boards that are legal, practical, fair and democratic. And it is the set of proposed bylaws that reflects the many months of work by bylaws sub-committees in all five station areas and consultation with the Local Station Advisory Boards and the listening community, as mandated by the legal Settlement Agreement.

The last minute proposal of the Diversity Language Committee (DLC) to add unelected members to the boards undercuts the democratic accountability the bylaws committees worked to achieve, assumes that a person's race or ethnicity is the sole qualification necessary for service on a station board, and presumes that a person of a certain race or ethnicity actually represents the views of that race or ethnicity as a whole.

Pacifica's commitment to diversity is expressed in our programming. We believe Pacifica's listeners, who support that programming, will elect diverse boards given diverse candidates pools to choose from.

After Local Station Board (LSB) and Pacifica National Board (PNB) elections, when the governance of Pacifica is more clearly representative of the membership, specific policies and programs may be established as needed to handle any issues found to be inadequately addressed in the bylaws.

After LSB and PNB elections, when the governance of Pacifica is more clearly representative of the membership, any additional bylaws amendments being proposed can be given due consideration by an elected governing body.

DIVERSITY DETAILS

Draft B states that "The Foundation is committed to diversity and inclusion of people of all nations, races, ethnicities, creeds, colors, classes, genders, sexual orientations, ages and people with disabilities in its programming, staff, management, committees and governance" and establishes National and Local "Committees of Inclusion" (COIs) to monitor diversity within the Foundation.

LEGAL PROBLEMS OF ADDED SEATS MODEL PROPOSED BY THE BOARD DIVERSITY LANGUAGE COMMITTEE

Proposed post-election adjustments for diversity are in violation of California and federal law, in that they treat election candidates differently based solely on race, gender, ethnicity, or other characteristics. Such adjustments are only legal when narrowly tailored to remedy a history of egregious inequity, which Pacifica does not have. Relevant law includes the Fourteenth Amendment Equal Protection Clause, California Unruh Civil Rights Act, Federal Civil Rights Act Title VI, and multiple decisions of the United States Supreme Court regarding issues of equal protection and affirmative action. Many of us disagree with the conservative courts' interpretations of the Equal Protection Clause limiting the use of "quotas" and "set asides" to achieve equity in access to education and employment, but that law is now long-established. Possible consequences of enshrining illegal diversity adjustments in the bylaws or allowing Committees of Inclusion to add members to the LSBs and/or PNB on the basis of race include:

1) Expensive, lengthy and onerous litigation
2) Uncertainty in Pacifica governance during litigation
3) Loss of funding from Corporation for Public Broadcasting and other federal and state funding sources
4) Giving the conservative/reactionary courts the opportunity to establish more "bad law" in precedential rulings that could extend restrictions on affirmative action into new areas of non-profit law.

The Interim Pacifica National Board has a duty to steer the Foundation away from such problems. It has received the advice of civil rights attorneys from the NAACP Legal Defense Fund and the MALDEF (Mexican American Legal Defense and Education Fund) to avoid establishing diversity requirements in the bylaws, yet the Diversity Language Committee has persisted in this approach. Even an attorney friendly to this approach concluded after reviewing their proposal that "it is assumed that whatever diversity plan Pacifica adopts will be challenged in court."

Current proposals for post-election adjustments attempt to skirt illegality by allowing diversity goals based on demographic data from ill-defined sources to be applied by Committees of Inclusion with little accountability. This approach does not resolve the fundamental legal problem of seating members on our boards on the basis of race/ethnicity. If the diversity goals established by Committees of Inclusion are not met, these proposals require additional candidates to be seated on the LSBs on the basis of their race or gender, which is prohibited under current law.

OTHER PROBLEMS OF DIVERSITY LANGUAGE COMMITTEE ADDED SEATS MODELS
1) Changing the results of an election is anti-democratic. The point of elections is for the voters to choose who they want to represent them. Seating candidates who have failed to achieve the required number of votes negates the voters' ability to choose, and risks the seating of candidates who have been rejected by the voters based on their views, not on their race or ethnicity.
2) The decision of the voters should be final, not adjusted by any established power bloc (which the COIs would likely become).
3) Candidates seated though an added seats mechanism are not accountable to any constituency. Their votes on the LSBs dilute the votes of the elected board members.
4) The terms designed to qualify historically or societally underrepresented groups for added seats are vague and subject to conflicting interpretation.
5) The idea that the local board must have someone from every demographic group falsely assumes that the LSB will ignore the concerns of groups not represented, and also that a person of a certain demographic group represents the views of that demographic group as a whole.
6) Excessive discretion in the selection of demographic data sources, the setting of diversity goals, and the addition of seats is proposed for Committees of inclusion, whose decisions on these matters are not subject to any check, review, or approval.

POSITIVES OF THE "DRAFT B" BYLAWS:
1) Truly democratic elections using proportional representation with single transferrable votes (STV) will allow all constituencies to choose freely who they want to represent them.
2) Proportional representation prevents a majority (51%) of the voters from controlling 100% of the seats --- Instead, one-fifth of the voters elect about one-fifth of the seats, one-third of the voters elect about one-third of the seats, one-tenth of the voters elect about one-tenth of the seats, etc., so that our boards will be truly representative of the voters' choices.
3) Under STV, no votes are wasted. Surplus votes from elected candidates and from eliminated candidates are proportionately transferred to the second choices of their voters. This is not "winner-take-all" voting system and no candidate becomes a "spoiler" by splitting the votes of a candidate with a similar constituency.
4) Votes cast on the basis of race/ethnicity count the same as votes cast on the basis of political or other views. Candidates are not limited in the development of their constituencies and coalitions are encouraged.
5) The Committees of Inclusion as proposed in Draft B will monitor station programming and staffing for diversity, and will to work to improve the diversity of election candidates. Station management and LSB committees will be expected to address the concerns of the COIs and must report progress to the PNB quarterly.
6) Under Draft B, the COIs are special purpose advisory committees, not a new "executive branch" with broad power and authority. Under Draft B, the COIs are NOT empowered to add members to an LSB who were not elected by the voters.
7) Finally, and most importantly, Local Station Boards will be truly accountable to the Pacifica membership, and the vote of the membership regarding its representatives will be final.

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http://groups.yahoo.com/group/Pacifica_Diversity/message/544

From: Teresa Allen [iPNB -KPFT, DLC]
Date: Wed Jun 11, 2003 6:12 am
Subject: Minority Report

Sheila,
Sorry about the delay. Rather than a Minority Report, this is a statement of my increasing discomfort with the latest DLC direction. Although I first embraced the concept of added seats as positive and thinking out of the box(esp. after the advice of Ted Shaw & Mr. Saenz), that concept evolving with demographics set a tone more and more one of endless division, with a suspicion and loathing of our own leadership.

When it comes down to it, I'd rather the bylaws statement focus on common ground; more concentration on instilling confidence rather than control-- glass half full rather than empty. For me, the DLC details focused on division of all people into categories and inevitably a posturing(inviting cronyism?) to determine who more merits representation.

The tone that I sensed seemed to indicate that the COI could become a power base, used to pressure a contrived "diversity" over democracy. I don't assume that underrepresented groups are inferior, neither do I find it constructive to assume "whites" having hateful motivations.

To repeat my words in another recent post,:
"On the whole I see Pacificans as positive, cooperative, mission-driven and altruistic-- and seek out people who have these attributes and visions. I find it unproductive to pursue my work with the approach that I should continuously see the people that I work with as hurtful and threatening and use most of my energy "protecting" myself against their taking advantage of me."

Mr. Lubell's responses did not convince me that this very aggressive approach would be more constructive than Draft B.

Teresa J. Allen

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From: David R. Fertig [iPNB -KPFK, DLC]
Date: Wed Jun 11, 2003 2:13 pm
Subject: Re: Minority Report

Teresa,

This is a well-stated expression of some of my feelings also. Thank you.

-Dave Fertig

From: Terry Goodman
Sent: Thursday, June 12, 2003 4:15 PM
Subject: Affirmative Action under Bylaws Draft B

EXECUTIVE SUMMARY

In its governance structure, Pacifica will go far beyond any requirements of equal opportunity law, by applying affirmative action in its outreach for candidates and by using proportional representation in its elections.

AFFIRMATIVE ACTION UNDER BYLAWS DRAFT B

This message is in answer to the claim by some that Pacifica's commitments to affirmative action and diversity under bylaws Draft B would not be "aggressive."

Aggresive language requiring immediate remedy is more appropriately considered for policy statements and board rulings responding to findings of Human Resources staff, Committees of Inclusion, regulatory agencies, funding sources, or courts of law than for permanent inclusion in corporation bylaws.

CURRENT REQUIREMENTS

Under current regulations, Pacifica stations must annually certify compliance with FCC regulations concerning equal employment opportunity as published under section 73.2080 of title 47, Code of Federal Regulations, or any successor regulations thereto.

Currently, Pacifica must file annual reports with the FCC and the CPB identifying by race and sex the number of employees in each of the following full-time and part-time job categories: (i) Officials and managers. (ii) Professionals. (iii) Technicians. (iv) Semiskilled operatives. (v) Skilled craft persons. (vi) Clerical and Office personnel. (vii) Unskilled operatives. (viii) Service workers. In addition, such reports must state the number of job openings occurring during the course of the year. Where the job openings were filled in accordance with the regulations, the reports must so certify, and where the job openings were not filled in accordance with such regulations, the reports must contain a statement providing reasons therefor. The statistical reports must be available to the public at the central office and at every location where more than five full-time employees are regularly assigned to work.

Pacifica, like all broadcasters, must also comply with the Americans with Disabilities Act of 1990 (42 U.S.C. 12101); the Civil Rights Act of 1964 (42 U.S.C. 2000e); the Equal Pay Act of 1963 (29 U.S.C. 206); the Age Discrimination in Employment Act of 1967 (29 U.S.C. 621-34); Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d); Title IX of the Education Amendment of 1972 (20 U.S.C. 1681); Title V of the Rehabilitation Act of 1973 (29 U.S.C. 790-94), and the EEO provisions of Section 298 of the Communications Act (47 U.S.C. 398).

As a California Corporation, Pacifica must also comply with the Unruh Civil Rights Act and California Proposition 209.

PROPOSED BYLAWS

Beyond it's mandatory compliance with applicable laws, Bylaws Draft B incorporates the following additional provisions:

ARTICLE ONE, SECTION 4. COMMITMENT TO DIVERSITY

"The Foundation is committed to diversity and inclusion of people of all nations, races, ethnicities, creeds, colors, classes, genders, sexual orientations, ages and people with disabilities in its programming, staff, management, committees and governance."

ARTICLE EIGHT, SECTION 4. COMMITTEES OF INCLUSION

"In addition, there shall be established, in each of the Foundation's radio station areas, standing committees of the Board to monitor the under-representation of communities in their respective radio station areas. These "Committees of Inclusion" shall include one Director and three LSB members from each radio station area who shall be elected by their respective LSBs, and such additional committees as those four shall choose by majority vote. The Committees of Inclusion will monitor both station programming and staffing in consultation with the LSBs. They will also monitor the diversity of election candidates and work with the LSBs' appropriate committees to improve the diversity of election candidates at the local and national level. These Committees of Inclusion shall monitor diversity participation in consultation with the general manager, local committees and the Board, the status of which will be published and maintained in each respective radio station area. Communities deemed to be under-represented by the Committees of Inclusion will be identified and the extent of their under-representation shall be communicated to the Board, the respective LSBs and any local outreach committees. Station managers and appropriate LSB committees will be expected to consider these communities in their future decisions about staffing, programming, and candidate outreach, subject to any applicable state and federal laws and regulations. All station managers and Committees of Inclusion will report to the Board and their respective LSBs quarterly on the status of diversity within their radio station areas. The Board shall query and monitor radio station areas with identified under-represented communities and any plans for addressing these under-represented communities' increased participation. Where necessary with due notice, the Board will suggest and/or direct managers and committees to implement specific measures to improve the status of under-represented communities in their respective radio station areas. The Board will assist and encourage station managers and Committees of Inclusion in finding new ways to improve recruitment efforts in their respective radio station areas."

In its governance structure, Pacifica will go far beyond any requirements of equal opportunity law, by applying affirmative action in its outreach for candidates and by using proportional representation in its elections.

For these reasons and others, I recommend acceptance of Bylaws Draft B, for now. postponing further amendments until after the election of representatives by the membership.

--Terry

• Diversity Language committee proposal and bylaws draft B side by side