TO: Gary Null
J&U candidates
WBAI General Manager Don Rojas
WBAI Program Director Bernard White
Other LSB Candidates
WBAI staff
Pacifica National Election Supervisor Kenny Mostern

FROM: Caleb Kleppner

RE: Violation of Fair Campaign Provisions: use of on air resources

DATE: October 25, 2004

We received allegations of campaign violations from a number of candidates who claim that Gary Null violated the Fair Campaign Provisions on Friday, October 15, 2004, specifically Provision #1, "No Foundation or radio station management or staff (paid or unpaid) may use or permit the use of radio station air time to endorse, campaign or recommend in favor of, or against any candidates for election as a Listener-Sponsor Delegate."

Upon reviewing the recording of the show, we find that Gary Null violated the Fair Campaign Provisions by using on air resources to endorse in favor of some candidates and against others. In particular, we view this show as an endorsement against the Justice and Unity slate and in favor of candidates Alex Steinberg, Alice Shields and Patty Heffly.

Mr. Null made the statements that closely resembled the following, which we construe as endorsements that violate the FCP:

"When I hear Luanne Pennesi, Alex Steinberg, Patty Heffley, and Berthold Reimers being attacked because they raise questions about how they view the policies at the station, that is what they were elected to do, to offer oversight and insight, not to micromanage."

"The people in the Justice and Unity group are doing a great deal of misstatements and race-baiting. For example, stating that Paul DeRienzo was advocating a boycott and that there's a letter to that effect on my website. In point of fact, there is no such letter there."

"This morning they had a program that gave the Justice and Unity people an opportunity to attack others. It was filled with lies."

"Any time the group (ed: J&U) is saying that I've diminished or avoided fundraising - those are lies."

We view this as a serious violation of the FCPs and therefore impose the following sanctions and remedies:

1. Gary Null shall be banned from the air until the election is concluded on November 29, 2004. Station management shall retain the right to keep Gary Null on the air for fundraising purposes as long as Null refrains from commenting on the LSB election and related issues.

2. The disadvantaged candidates from Justice and Unity shall be given 15 minutes of airtime during one of Gary Null's scheduled shows to respond to this violation. The candidates can divide the time however they choose. These candidates are: Marion Borenstein, Omowale Clay, Lisa Davis, Sara Flounders, Cheryl Ife Griffin, Ed Marshall, Nick Martielli, Berta Silva, and Evan Tobias. Station management shall schedule this air time as soon as possible given the current fund drive.

3. The candidates who were neither supported nor opposed were also disadvantaged, but to a lesser degree than the Justice and Unity candidates, so we will give these candidates one additional airing of their carts, which will occur immediately after J&U's 15 minutes. These candidates are: Rolando Bini, Mitchel Cohen, Sharon Davis, Andrea Fishman, David Goldman, Harry Lichenstein, Pat Logan, Robert Owens, James Ross, Shoreh Tehrani, and Paul Zulkowitz.

If any candidate feels that I have mistakenly placed them in the categories of candidates explicitly helped by Null, hurt by Null or not mentioned by Null, please bring it to my attention and I will review the tape after listening to your explanation.

At present, only Gary Null is subject to sanction as a result of his violation of the Fair Campaign Provisions. However, the candidates who benefited from Null's statements on air should additionally be aware of the following.

In his memo of July 30, 2004, concerning Fair Campaign Provision Enforcement, the National Election Supervisor made clear that candidates who benefit repeatedly from the inappropriate use of airtime by staff may be sanctioned even if they did not participate in the violation. In particular, this memo states:

[If] an individual receives an on-air endorsement, and there is no evidence that that individual played an active role in getting the on-air staff member who endorsed to violate the Fair Campaign Provisions - a written warning is adequate. The warning should make clear that it is the responsibility of the candidate to ensure that such a violation does not happen again. The warning should also indicate that three such violations, even if they occur without the candidate's foreknowledge, will result in the imposition of censure.

In addition to the sanctions imposed upon Gary Null, this memo shall be interpreted as a first warning to the candidates who benefited from Null's comments.

WBAI staff are again reminded that they must refrain from using station resources to promote listener candidates. This includes most importantly on air resources, but it also includes use of station phone, email and web sites, as well as events promoted on air by WBAI. Staff are free to call in to the station and attend community events, but they should keep their staff status private. The reasoning for this is that name recognition of station staff is high precisely because of their access to on air resources, and the FCP clearly are designed to prevent station staff from having undue influence on the election due to their name recognition.

Therefore station staff are free to call in to radio shows, including on air candidate forums, but they should refrain from identifying themselves publicly and they should refrain from mentioning their staff affiliation. Paid staff should refrain from calling to shows during work hours.

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WBAI--99.5 FM in New York---Peace and Justice Radio
On the Web at http://www.wbai.org.