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WAIVERS OF MEMBERSHIP REQUIREMENT NOT AUTHORIZED IN TRANSITION ELECTION

MEMO

TO: Interested Pacifica Listeners
FROM: National Election Supervisor Terry Bouricius
DATE: 10/20/2003
RE: Legal Arguments Regarding the Use of Waivers in the Transition Election

Are hardship waivers permissible in this initial transition election of Local Station Boards? This is not a question of what is just, or reasonable, but of what the Bylaws actually allow. As National Elections Supervisor I will be responsible for confirming whether the elections were conducted in "compliance with these Bylaws." Pacifica will need to have a sound legal argument in order to defend the validity of the elections, if the elections are conducted using waivers, and an aggrieved member sues on the grounds that the elections were fraudulent because non-members, granted impermissible waivers, were allowed to vote. Pacifica can use waivers only if there is a legal opinion from a competent attorney for the Pacifica Foundation that the Foundation would be likely to prevail in a court challenge of a transition election using waivers.

At the outset, it should be noted that membership requirements are among the most fundamental aspects of an organization’s Bylaws. They are not merely procedural technicalities, but rather define the very boundaries of the association. The new Bylaws specify normal membership requirements but also contain a provision for hardship waivers, and specify both general criteria for who may receive waivers and specific responsibility for who may grant waivers. The language of Section 4 of article 3 reads as follows:

"SECTION 4. WAIVER OF REQUIREMENTS The Local Station Board for each Foundation radio station (also referred to herein as "LSB") may adjust or waive the contribution requirement for Listener-Sponsor Membership set forth in Section 1(A) of this Article of these Bylaws on a case by case basis for reasons of financial hardship, where said LSB, in its discretion, determines that the proposed member has demonstrated a sincere interest in becoming a Member of the Foundation and is also genuinely unable to afford the contribution amount or to volunteer the minimum 3 hours of service."

Two questions that need consideration are these:

1. Do the Bylaws recognize the Local Advisory Boards (LABs) as fulfilling the functions of the Local Station Boards (LSBs) up until LSBs actually exist?

2. If not, do the Bylaws grant general authority to the national board that could include the power to devise a waiver procedure during the transition election?

The answer to the first question is a clear "no." The Bylaws never mention the pre-existing LABs. The Bylaws do have special provisions for the transition election (article 4, section 7 ) that read in relevant part:

"SECTION 7. 2003 TRANSITION ELECTION Following the adoption of these Bylaws, and consistent with that Settlement Agreement dated December 12, 2001, there shall be an election for all Delegates for each radio station area. The interim Board of Directors, by resolution, shall establish a nomination and election timeframe for said elections, which timeframe may be shorter and on dates other than those set forth in Section 5 of this Article of these Bylaws. …"

The waiver language in the Bylaws specifically states that the option of granting waivers belongs to "said LSB, in its discretion…." The fact that the LSB is given the discretion clearly means that other entities (whether management, or the national board, or LABs) do not have this authority. Thus, a special transition election waiver procedure or the granting of waivers by some entity other than a properly elected LSB is not provided for in the Bylaws.

As for the second question, the Bylaws give one power to the national board that could possibly be relevant here. Article 3, Section 1, paragraph A, dealing with the financial contribution requirement of listener-membership, states that the minimum contribution shall be "$25 to any Foundation radio station, or such minimum amount as the Board of Directors may from time to time decide…" Can this general language about setting a different minimum be interpreted to authorize the board to establish a waiver system with varying minimums based on ability to pay, and further to delegate those decisions to three-member committees of LABs? Presumably this language is intended to either deal with inflation over time, or a policy shift to raise or lower the general membership hurdle. The fact that the word "amount" is singular rather than plural suggests that the board cannot create variable minimums.

Some have suggested that the members of the national board "believed" they were allowing for waivers granted by LABs during the transition election, when they voted for (or against) the Bylaws. Is this just a mistake that all agree is simply a matter of typographic error? What each member of the five LABs that voted on these Bylaws understood is equally important. Apparently there are some LAB members who understood that the proposed Bylaws would not allow for waivers in the transition election. However, the fact that some individual national board or LAB members may have wished or even believed that certain provisions were contained in the Bylaws is not controlling. There is a reason that Bylaws are reduced to written words. The Bylaws define the rights of all members. The Bylaws always trump a vote of the national board, whether by a majority or even unanimous, if even a single listener-member wishes to enforce the Bylaws.