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Pacific bylaws etc: what is the reality these days?
8-30-02


From: Caveman
Date: Sat Aug 30, 2003 2:16 am
Subject: Re: FW: FYI - You have just disqualifed yourself as a candidate and ...

--- In NewPacifica@yahoogroups.com, sheilahamanaka [WBAI area] wrote:
> Wow Ms Chesney
> I had no idea WBAI could be heard all the way out there in California.
> I also had no idea Free Speech was illegal for candidates.

Your statement did not violate the elections provisions of the new bylaws. You did have the free speech right to make your statement, although unfortunately it was inaccurate in several respects.


> In fact I had no idea I was a candidate. Please eavesdrop on me more
> often. You are a fount of information.
> I don't recall mentioning another WBAI LSB candidate's name - or are you
> telling me that Carol Spooner and David Fertig are moving to New York???!!!
>
> But more to the point, are you telling me I am LEGALLY BOUND by
> anti-affirmative action bylaws?

Well, you're not legally bound to participate in Pacifica elections or governance. If you do, the new bylaws, including their strong affirmative action provisions, will be applied to you and everyone else. And, yes, as the duly established bylaws of a non-profit corporation, the bylaws are legally enforceable under California corporation law.


> I think not.
> I will never be BOUND to OBEY RACISM.

I'm glad to hear it. However, I'm a bit worried about your usual definition of racism. To you, if the listeners and staff elect whomever they like by proportional representation, that's racism.

Well, Sheila, the elections are going to be held, and the voters' wishes ARE going to be respected, so you might as well get used to the fact. We're all going to have to live with the results. Nobody is going to like everybody that gets elected. That's just how real- life democracy works.

On-air advocacy for or against candidates will not be allowed, for obvious reasons. The candidates will be given air time to speak for themselves, but regular programmers will have to stay out of it. Otherwise, the existing programmers or management at each station would be able to give a huge advantage to whichever candidates they liked. This would obviously be unfair.

The rules WILL be enforced. Let us hope that the Elections Supervisors, local and national, will be both firm and fair.


> Plus, don't cast your Draft B-ush B-aby shoes in B-ronze, YET.

I'm not sure exactly what this means. But as of this moment, the bylaws are in effect in Pacifica. They went into effect on August 23rd. If you disagree with the legality of their passage, you can go to court and argue your theory. As I will explain below, you would not have much of a case, but you're free to try if you disagree.


>
> For those of you who missed my little moment on "Throw Down Thursday" I
> simply explained to the WBAI listeners that a small group on the iPNB is
> attempting to foist Draft B onto the entire organization.

A small group on the iPNB? Well, actually, the new bylaws were passed by a majority of the iPNB, and a majority of three of the five LABs. In two e-mail campaigns from Pacificans all over the country (one directed at the national board, one at the KPFK LAB), well over 95% of those writing supported passing the current bylaws. The latter involved about 800 or 900 e-mails and snail mails, with only 23 against the bylaws. All the rest of the messages were in favor of passage.


> They - that is,
> Carol Spooner, David Fertig and, following closely on their heels, Leslie
> Cagan - seem to have decided all by their lonesomes that Pacifica needs no
> affirmative action remedies DESPITE THE OVERWHELMING SENTIMENT AT THE
> CHICAGO MEDIATION/FACILITATION.

The Chicago facilitated discussion was convened in an attempt to patch over differences and see if we could find common ground. The body of participants had no voting power. There were some straw polls taken, with mixed results. There was broad support for some form of compromise to add seats to achieve more diversity, but unfortunately there was little agreement on how to go about doing that. There was also little prospect for any new draft to pass the national board and three local boards. That's why KPFK revoted and passed the bylaws--so we could stop fighting over it and get on with elections.


> No, they just couldn't live with all those
> people of color expressing their true FEELINGS about RACISM.

Well, they seemed to live with Miguel Maldonado without any trouble. He's one of the most passionate progressives of color you could hope to find. The same goes for Joe Wanzala. Or do you only count people of color you agree with?


> They were just
> plain outnumbered! Luckily for the de facto executive committee,
> anti-affirmative actionites at KPFK had managed a REVOTE and passed B with a
> simple majority vote (instead of two-thirds)

Yes, they passed it with a simple majority vote. Not two-thirds. Not three-fourths. Not four-fifths. Not five-sixths. They passed it with a simple majority, because that's the margin that was required.

From the Settlement Agreement, Section 3b (my emphasis):

"Any bylaws concerning the number or manner of election of directors and/or LAB members must be approved by MAJORITY VOTE of three (3) of the five (5) LABs."

http://www.wbai.net/pnb01/pnb_settlement12-12-01.html


> / But - they learned that trick
> from Carol Spooner.
>
> What they don't seem to ever learn is that when you kick people in the
> head they GET MAD. People just don't like legal trickery,

What legal trickery? The L.A. board had three votes on passing the current bylaws. They voted yes in June, no in July, and yes in August--all close votes. Sometimes voting bodies reverse themselves. A closely divided board, and some board members who change their minds--where's the trickery in that?

The only trickery I can recall was used by Chair Lydia Brazon on August 4th to prevent the revote that should have happened at that meeting. A LAB member, Don White, made a perfectly proper motion for a revote on the bylaws, and Lydia stopped it by citing rules that are nowhere to be found in Robert's Rules of Order.

But the vote on August 23rd was a straightforward vote by paper ballot. Even Lydia didn't argue with it.

To keep a board member from changing his or her vote after a change of heart--that WOULD be just the sort of legal trickery that most people don't like. Fortunately, there would be no legal basis for it. Thom Irwin, and all the other KPFK LAB members on both sides of this issue, voted their consciences, as was their right to do.


> especially when
> it's illegal.

Actually, there was nothing illegal about the revote. This gets a little nit-picky, but here's the relevant part of Judge Sabraw's July 8th ruling:

http://www.wbai.net/bylaws_revise/br_ct_doc_transcript7-8-03.html

paragraph 1: "THE COURT: Local advisory boards who shall convene special meetings of their respective local advisory boards not later than July 23rd to vote on Draft B as to those portions concerning the number and manner of the election of local and national boards and shall transmit to the foundation secretary the results of those votes not later than July 24th, 2003."

paragraph 2: "And further, that Draft B shall be the Pacifica Foundation bylaws upon receipt of the required approval by majority vote of at least three of the five local advisory boards pursuant to paragraph 3.b of the Settlement Agreement."

Note here again that the judge specifically says "majority vote"--not two-thirds, or any other amount.

The requirement in paragraph 1 was met. All five LABs did indeed vote by July 23rd. Three of them voted down the bylaws, so they were not passed at that time.

Note, however, that there is NO time limit stated in paragraph 2. Legal rulings are very carefully worded. The time frame in paragraph 2 was deliberately left open, so that, if the bylaws didn't pass initially, we could work it out on our own, without further judicial intervention. (Courts are busy, and usually prefer this.)

I mean, think about it--the judge knew the bylaws might get voted down in July. He didn't want to make it impossible for us ever to pass bylaws after that. So he left it open-ended. Besides, he couldn't change the terms of the settlement agreement, which requires two-thirds of the national board and three of the five local boards.

This difficult requirement has now at last been met. The bylaws have been passed. On to elections, and a new, democratic Pacifica!

--Michael Lubin [KPFA area]


>
> Now, finally, as an aside, although I admit it amuses me, will you
> please stop spreading false rumors about my personal life? It's really none
> of your business and it makes you look like a provocateur. Let's stick to
> politics, okay?
>
> ----------
> From: Heidi Chesney
> Date: Fri, 29 Aug 2003 01:15:12 -0000
> To: Sheilahamanaka@e...
> Subject: FYI - You have just disqualifed yourself as a candidate and ...
>
> you put the on air host in jeopardy of suspension until elections
> period is over. These are the new legally binding bylaws. Everytime
> you go on the air to negatively campaign against another, you are in
> violation Pacifica's Bylaws, and you put the host in violation as
> well. If that is your intention, then you're doing a good job. If
> that is not your intention, you should cease and desist Post Haste,
> as well as offer a formal apology indicating you were not aware of
> this clause in our new bylaws.
>
> Article 4 Section 6:
>
> Excerpt:
>
> "In the event of any violation of these provisions for fair
> campaigning, the local elections supervisor and the national
> elections supervisor shall determine, in good faith and at their
> sole discretion, an appropriate remedy, up to and including
> disqualification of the candidate(s) and/or suspension from the air
> of the offending staff person(s) (paid or unpaid) for the remainder
> of the elections period."
>
> Full Text of Article 4 Section 6:
>
> ARTICLE FOUR, SECTION 6. FAIR CAMPAIGN PROVISIONS
>
> 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 candidate(s) for
> election as a Listener-Sponsor Delegate, nor may air time be made
> available to some Listener-Sponsor Delegate candidate(s) but not to
> others. All candidates for election as a Listener-Sponsor Delegate
> shall be given equal opportunity for equal air time, which air time
> shall include time for a statement by the candidate and a question
> and answer period with call-in listeners. No Foundation or radio
> station management or staff (paid or unpaid) may give any on-air
> endorsements to any candidate(s) for Listener-Sponsor Delegate. The
> Board of Directors may not, nor may any LSB nor any committee of the
> Board or of an LSB, as a body, endorse any candidate(s) for election
> as a Delegate.
>
> However, an individual Director or Delegate who is a Member in good
> standing may endorse or nominate candidate(s) in his/her individual
> capacity. In the event of any violation of these provisions for fair
> campaigning, the local elections supervisor and the national
> elections supervisor shall determine, in good faith and at their
> sole discretion, an appropriate remedy, up to and including
> disqualification of the candidate(s) and/or suspension from the air
> of the offending staff person(s) (paid or unpaid) for the remainder
> of the elections period. All candidates and staff members (paid and
> unpaid) shall sign a statement certifying that they have read and
> understood these fair campaign provisions.
>
> Go to http://wbai.net/bylaws_revise/br_draft_B6-19-03.html for full
> text of Pacifica's Bylaws .


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