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Elightening exchange with prospective "Pacifica" national board appointee 8-1-01


From: "Carol Spooner" wildrose@p...
Date: Wed Aug 1, 2001 11:08 am
Subject: Pacifica's Mission

[Dear All -- I received a reply from Mr. Ferguson (whom, I mistakenly addressed as Mr. Barnstone in the actual "Open Letter" I sent to him 2 days ago). I've pasted it below, along with my reply. My original letter to him is pasted at the bottom of this email, in case you missed seeing it. -- Carol Spooner]

July 31, 2001
Dear Ms. Spooner:

I am not Mr. Barnstone. I am James Ferguson. Unfortunately, I don't agree with your position[s]. Also, I'm somewhat taken aback by anyone who represents themself as a member of the "Committee to Remove the Pacific Board" while trying to enter into a objective colloquy. Furthermore, your one-size-fits-all prescription for Washington, DC is interesting, bordering on fascist. I must decline further discussion with you. Sincerely, James Ferguson.

July 31, 2001

Dr. Mr. Ferguson,
Yes, I did realize immediately after I emailed you that you are Mr. Ferguson, not Mr. Barnstone. One gets overtired sometimes and makes silly mistakes.

As you may or may not know I am the "lead relator" in one of the lawsuits currently pending in California against the Pacifica Foundation and its past and current directors: The People of the State of California ex rel Spooner et al vs. the Pacifica Foundation, et al.

In July 1999 I founded the Committee to Remove the Pacifica Board to support this lawsuit on behalf of Pacifica listener-sponsors from all five stations and the public interest. In our petition for standing to sue as "relators" and to prosecute the case on behalf of the Attorney General's office we were able to demonstrate to the California Attorney General that substantial questions of fact and law exist requiring judicial determination. For your information, I have copied the text of the Attorney General's initial letter granting us leave to sue, and his subsequent letter reaffirming, at the request of the Court, the California Attorney General's support for this legal action.

As to such intemperate words as "fascist", well, I was willing to give you the benefit of the doubt since it is quite possible for people with only one side of the story to be a little naive about all this. I am sad to read such "fighting words" from anyone who would seek to serve as a director of the Pacifica Foundation. The board majority for the past couple of years has indulged in such obdurate and offensive words and conduct that all "objective colloquy" proved useless -- thus, this litigation, as well as the more militant "direct action" against some of the directors (which I do not approve and never have).

Certainly, I do not propose any "one size fits all" for WPFW, or for any other Pacifica station. There is much room for diversity and creativity within the Pacifica mission. However, the Pacifica mission must be respected and carried on at the heart of all Pacifica programming, or there is no reason for Pacifica to exist.

Apparently, you have little objective information about what you might be getting into or who the players are or the reasons for the current litigation and strife. For your own benefit, I suggest you get some independent legal counsel to advise you, and also consult some of your church brethren in New York, who are better informed and more "objective" than whomever you have consulted thus far. If you join the Pacifica board, I'll see you in court, and you may find yourself liable for substantial legal defense fees and costs.

Sincerely,
Carol Spooner
Committee to Remove the Pacifica Board
(sponsors of the "listeners' lawsuit")
http://home.pon.net/wildrose/remove.htm

"September 14, 2000
Daniel Robert Bartley, Esq.
Bartley Law Offices
P.O. Box 686
Novato, California 94948-0686

Dear Mr. Bartley:

The allegations set forth by Relators raise substantial questions of law or fact regarding whether there is compliance with the purpose of the Pacifica Foundation charitable trust, whether its articles of incorporation are being adhered to, whether its assets are being properly protected, and whether it is being managed and directed in a manner consistent with the requirements of the California Corporations Code. The answer to these questions require judicial resolution.

Therefore, the application of Carol Spooner, John D. Biello, Carolyn M. Birden, Kurt Guerdrum, Arturo Griffifths, Amburn R. Hague, Leigh Hauter, and Ronald Swart, individually and on behalf of Pacifica Foundation, for Relator status to sue in quo warranto for breach of charitable trust, removal of directors, accounting, declaratory and injunctive relief ordering revision of bylaws and election of directors and definition of voting members, and such other causes of action and relief as Relators deem appropriate, against the Pacifica Foundation, and its past and current officers and directors, is hereby granted.

Sincerely,

TAYLOR S. CAREY
Special Assistant Attorney General
For BILL LOCKYER
Attorney General

July 5, 2001 Terry Gross, Esq.
Gross & Belsky LLP
One Maritime Plaza, Suite 1040
San Francisco, California 94111

Dear Mr. Gross:

The Attorney General has reviewed the Amended Complaint, and approves the filing of the Amended Complaint and each and every cause of action in the Amended Complaint. The Attorney General reiterates that the plaintiffs in this action having been granted relator status, under both CCP 803 and Corp. Code 5142(a)(5) and 5233(c)(4), to institute an action against the Pacifica Foundation and its past and current directors and officers for breach of charitable trust, removal of directors for gross abuse of authority and discretion, removal of directors for refusing to vacate offices after expiration of term, removal of directors for election in excess of authorized number, removal of directors for refusal to vacate offices after removal by members, self-dealing, accounting, declaratory relief compelling adoption of bylaws in conformity with law and defining membership, specification of number of directors, and adoption and implementation of fair, reasonable, and consistent mechanisms for democratically nominating and electing directors; unfair competition; and to sue in quo warranto for usurpation of exercise of corporate franchise.

Sincerely,
TAYLOR S. CAREY
Special Assistant Attorney General
For BILL LOCKYER
Attorney General

July 28, 2001 Dear Mr. Barnstone:

I am writing to you because I read an account of a telephone conversation Steve Freedkin had with you recently about your proposed appointment to the Pacifica Foundation Board of Directors.

Mr. Freedkin reported that you said you support "more music and less public affairs at WPFW because that's what the community wants." While there are many reasons why I urge you not to accept any appointment to the Pacifica Board at this time, not the least of which is that the appointment would be illegal and would embroil you in the ongoing litigation to declare such appointments illegal, I am writing mainly because your statement troubles me.

It appears that you do not place much value on the mission of the Pacifica Foundation. I would put it to you as an analogy. I understand you are a Baptist. If your church could gain more members by preaching the Catholic liturgy "because that's what the community wants" would you support that change in "mission." Probably not. You would probably argue that yours was a Baptist church and that, regardless of how many Catholics there were in the neighborhood, the church was there to preach the Baptist religious view to those who wanted and needed to hear it.

Of course Pacifica is not a church, but I think the analogy holds up pretty well. I understand that you served on the WPFW Local Advisory Board at one time. I would imagine that you have read the Pacifica Foundation statement of purpose at some point. Pacifica is a California non-profit public benefit corporation. Under California law, such corporations are deemed to be impressed with a "charitable trust" to carry out the express purposes stated in the articles of incorporation. While I love music and these purposes certainly include broadcasting music, I do believe there is a strong emphasis on "public affairs", and that the founders, who were pacifists, did have a good reason for that.

I've pasted the statement of purpose from the Pacifica Articles of Incorporation below. While the wording is more than 50 years old, and not "trendy" -- many people believe this mission has served well and is needed as much as ever, even if it is not "what the community" in Washington DC wants. (I wonder which part of the community?) It may well be what the community, or a significant minority of them, really needs in these times.

I do ask you not to join the Pacifica board at this time. At some time in the future when the current legal dispute is concluded and Pacifica is operating under legal bylaws, you may be able to bring an important perspective to Pacifica. But, now, I believe the addition of any new board members would only serve to prolong the strife that is tearing Pacifica apart.

Thank you for your consideration of these matters.

Sincerely yours,

Carol Spooner

Committee to Remove the Pacifica Board

web page: http://home.pon.net/wildrose/remove.htm

II [*2]

That the purposes of this corporation shall be:

(a) To establish a Foundation organized and operated exclusively for educational purposes no part of the net earnings of which inures to the benefit of any member of the Foundation. [*3]

(b) To establish and operate for educational purposes, in such manner that the facilities involved shall be as nearly self-sustaining as possible, one or more radio broadcasting stations licensed by the Federal Communications Commission and subject in their operation to the regulatory actions of the Commission under the Communications Act of 1934, As Amended.

(c) In radio broadcasting operations to encourage and provide outlets for the creative skills and energies of the community; to conduct classes and workshops in the writing and producing of drama; to establish awards and scholarships for creative writing; to offer performance facilities to amateur instrumentalists, choral groups, orchestral groups and music students; and to promote and aid other creative activities which will serve the cultural welfare of the community.

(d) In radio broadcasting operations to engage in any activity that shall contribute to a lasting understanding between nations and between the individuals of all nations, races, creeds and colors; to gather and disseminate information on the causes of conflict between any and all of such groups; and through any and all means compatible with the purposes of this corporation to promote the study of political and economic problems and of the causes of religious, philosophical and racial antagonisms.

(e) In radio broadcasting operations to promote the full distribution of public information; to obtain access to sources of news not commonly brought together in the same medium; and to employ such varied sources in the public presentation of accurate, objective, comprehensive news on all matters vitally affecting the community.

____

*1 Original Articles filed on august 24, 1946, as amended through the last amendment filed with the Secretary of State on February 2, 1976. Certified copies of the Articles of Incorporation and subsequent Certificates of Amendment may be obtained directly from the Secretary of State of the State of California.

*2 Article II was amended in whole on August 19, 1948.


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