(Note for those who read the hard copy given out at the 8/27 meeting: Since then, I have made considerable revisions/additions to the preface and the "reference note and thoughts" at the end. In addition, I fixed several problems in Sections 4 and 5 identified at the meeting and subsequently.)

Bob Lederer
bob@healthaction.info

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POSSIBLE BY-LAWS PROVISIONS FOR SHARING LOCAL &
NATIONAL BOARD POWERS
August 27, 2002

The following are very tentative suggestions by WBAI listener activist Donna Gould and WBAI producer Bob Lederer, offered mainly to stimulate more focused discussion on the options for SHARING power between the local and national boards. We are in no way wedded to this, and welcome all constructive criticisms and suggestions. (Note from Bob L.: Since the time Donna and I agreed on a first draft of this on 8/27, I have made several revisions but have, despite repeated attempts, been unable to reach Donna to obtain her input; she is out of town. Thus, I cannot guarantee that this version fully represents her views, but in the interests of time, think it’s important to put this out now.)

This is based on a model that separates Local Station Boards from a National Board of Directors. Unlike Draft B, it does NOT authorize each Station Board to exercise "all and any corporate powers of the Pacifica Foundation with regard to that station." It is based, instead, on the notion of shared power in decision-making. Whether or not the Station Boards would be defined as standing committees of the National Board of Directors is unclear -- legal advice would be helpful here.

In general, this proposal provides that local decisions and problems that are beyond the scope of the General Manager's day-to-day administrative discretion would no longer be addressed by an executive-based, often top-down "chain of command" -- i.e., Executive Director to General Manager (or occasionally vice versa). Rather there would be a collective, bottom-up "legislative" process, first locally, and for key decisions, nationally -- i.e., Station Board (usually in conjunction with General Manager) to National Board committee to -- in very limited circumstances -- full National Board.

Under this scheme, the Executive Director would be an ex-officio adviser to the relevant National Board Committees on these issues, and -- once decisions are made -- the administrative implementer of any aspects where her/his involvement is needed. This would move Pacifica away from a model where a sole executive--even if installed and technically firable by an elected National Board--has sole decision- making power over vital matters affecting local stations, with little recourse in case of decisions they disagree with.

The main point of our draft is to specify with whom the Station Boards will consult about particular decisions. Our model provides that in most cases, such decisions could only be overruled by the National Board in exceptional cases in which that National Board finds that the local decision is either:
   a) in conflict with the Pacifica Mission, or
   b) a threat to the Foundation’s financial stability.

This "fail-safe" provision is necessary for two reasons: 1) to ensure that the National Board can meet its fiduciary responsibility for all five stations, while avoiding the need for Pacifica to purchase expensive liability insurance for the huge number of Station Board members nationwide; and 2) more importantly, to fulfill the National Board's broader responsibility to see that no station departs from the fundamental social goals of the Foundation due to problems with a particular elected Station Board.

We can't forget that some of Pacifica's stations have gone through years of "ideological cleansing" of leftist programmers, especially those serving communities of color, which in turn has led to a huge loss of progressive listeners. That programmatic skewing is only gradually being reversed in some stations. While Station Board elections are both required and essential, it is uncertain whether the short-term results will be mission-supportive Boards at all five stations.

Also, there have been past instances where even well-intentioned, progressive local boards (not just at Pacifica) got caught up in a mutually reinforcing relationship with a dysfunctional or even actively harmful General Manager. Elections, even with recall, don't necessarily prevent this human dynamic. This risk could be heightened if that Board itself hires and later reviews the Manager with no outside scrutiny--Board members can develop an emotional investment in validating that person's performance, lest they be shown to have erred in their initial choice. Thus the need for external checks and balances by a majority of National Board members from other signal areas, with the input of the Executive Director.

Note that not all issues of Station Board authority are covered here, so more work remains to be done.

Nor does this version address or endorse a specific method for choosing National Board members, although it is based on the general idea that they should be democratically chosen and recallable -- either elected by the Station Boards (which are themselves elected) and/or elected directly by Station listeners and staff.

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Suggested text:

Station Boards

Duties: The ongoing duties of the Station Boards with regard to their stations are:

1. Conduct community needs assessments in order to evaluate the station on the fulfillment of the Foundation's Mission. Mandate change (if needed) in the direction, though not the specific details, of programming.

2. Monitor the station's compliance with corporate responsibilities and state and federal law.

3. Ensure regular communication with the station's members and the broader listenership. This includes announcing and arranging for the occurrence, conduct and broadcast of open Public Advisory Meetings.

4. Play the central role in the selection and review of the General Manager, as follows:

   a) When the position of General Manager is open, the Station Board would set up a General Manager Search Committee, with a composition it would determine in cooperation with station staff representatives and (where applicable) staff unions. The Committee would include Station Board representatives (one of whom would simultaneously be a National Board member who serves on the National Personnel Committee*) as well as representatives of both the paid and unpaid staff. They could call upon the Executive Director and the national staff for administrative help in the search/selection process (advertising, reference-checking, etc.). After the Committee agreed on a candidate for General Manager, its nomination would be automatically referred to the National Personnel Committee of the National Board. If that committee approved the nomination, the Executive Director would hire the person. If the Personnel Committee had serious concerns that the candidate would undermine the Pacifica Mission or the station’s financial stability, they could reject the nominee, but would have to provide the Search Committee with a detailed, written statement specifying how their decision met those criteria. In that case, the Search Committee would make another nomination, and so on, until the National Personnel Committee accepted their nomination.

   b) The General Manager Search Committee (or a Station Board Personnel Committee) would periodically evaluate the performance of the General Manager, and then discuss their evaluation, and work out mutually agreed upon goals, with the General Manager. If after a reasonable interval, the Search Committee concluded that the General Manager had failed to meet the mutually agreed upon goals, the Search Committee could recommend corrective action, up to and including dismissal, to the Station Board, and if ratified by them, to the National Personnel Committee. The National Personnel Committee could authorize lesser corrective action, but only the full National Board would have the power to dismiss the General Manager. In addition, the National Personnel Committee could initiate an investigation and, if needed, corrective action concerning a General Manager who they determine is acting contrary to the Pacifica Mission or endangering the station's financial stability. As with the hiring process, any decision by the National Personnel Committee that contradicted the recommendation of the Station Board would have to be justified with a detailed written statement of how that decision met those criteria.

5. Play a major role in the process of station budget development and approval, as follows:

In consultation with the Station Board and staff, the General Manager would develop a proposed annual budget for the station and submit it to the Executive Director and the Station Board simultaneously. The Station Board would then review the proposal in consultation with the Executive Director, make any needed changes, and submit it to the National Budget Committee of the National Board (on which the Executive Director would sit as an ex officio member). After the Committee makes any needed changes, the full National Board would review and vote on the budget. In the two rounds of national review (National Budget Committee and full National Board), only those changes urgently needed to conform to the Pacifica Mission or insure financial stability could be made. [An alternative, perhaps better, approach would be blend the local part of the process described above with Article 6, Section 4 ("National Budget Committee") of the Draft B (Spooner/KPFA). That language allows considerable leeway for that Committee and the full National Board to alter the Station Boards' budget proposals, not simply for the narrow reasons suggested here.]
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*We are proposing that the by-laws include a National Personnel Committee of the National Board, composed of one National Board member selected by each Station Board from each of the five stations, with the Executive Director as a nonvoting ex-officio member. The reason for proposing that the local Search Committee include that station's rep to the National Personnel Committee is so that the latter body will have the benefit, in its deliberations, of someone who fully participated in the local search/selection process and thus can advocate and answer questions about the process used and the rationale for the Search Committee's decisions.

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Reference note and additional thoughts by Bob Lederer:

When fashioning any set of checks & balances between local and national boards, we should keep in mind recent publicly posted comments by Carol Spooner, in response to questions from WBAI listener activist Jamie Ross:

"...the full board has a "duty of care" as to the supervision of ALL foundation activities, at all stations. The board may delegate its authority to supervise station activities to an Executive Director, a General Manager, or to a committee of the board ... so long as the board believes the the individual or committee is COMPETENT. However, if the board delegates its station supervisory authority to a committee that is made up ENTIRELY of directors, then the presumption is that the committee IS competent ... and the rest of the directors would NOT be liable for their acts unless something REALLY BAD went on for a long time and the full board knew about it and did nothing about it."

"On the other hand,if the [national] board delegates its supervisory authority to a committee [such as a Station Board] that is NOT made up ENTIRELY of directors and includes some non-directors, then the…board of directors must 'supervise' the committee (just like it would an Executive Director or General Manager). If the full board negligently supervises the committee, then the directors could be held liable for its harmful acts by reason of failure to properly carry out their 'duty of care.'"

[....]

"If the local boards are NOT made up entirely of directors, then the national board would have to maintain the override or veto power in all cases & could not be overridden by, say, 3 out of 5 of the local boards."

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This last point seems the key to a "hybrid" or "compromise" model -- delegating much power to a Station Board, with the presumption that what they say will generally go (as opposed to the current by-laws which leave most power over local station affairs in the hands of the General Manager and/or the Executive Director), but leaving the escape hatch of a National Board override or vote in cases of a serious deviation from Pacifica's mission or a threat to its financial stability.

In other words, many (but not all) of the Station Board's powers as delineated in Draft B, Article 6, Section 1, Para. B) could be exercised unimpeded without an automatic vote by the National Board -- except in certain specified areas: General Manager selection, budget, anything else? One possible procedure for the remaining powers might be as follows:

1. All other policy-making (as opposed to purely advisory) decisions by a Station Board about management, staff, programming, fundraising, or any other area that fall under the National Board's fiduciary responsibilities would be automatically forwarded to the Executive Director and members of the relevant National Board committee (or if legally required, to the entire National Board--we need advice on this) for their INDIVIDUAL review (i.e., not necessarily on the agenda of that committee.)

2. Only if a National Board member made a motion or the Exec. Dir. (as an ex officio member) requested a motion to override would the matter even be discussed by the relevant National Board committee or the full National Board. Then the matter would be considered and voted on at the soonest possible meeting/conference call, without seeking to create constant "emergency" meetings or calls.

3. To prevent gridlock, the by-laws would specify a time limit, say 30 days, after which if no motion to override is made by the Exec. Dir. or any National Board member, the Station Board's policy would automatically go into effect.

4. All of the Pacifica-wide policies in effect at the time of seating the new Station and National Boards -- whether set by the National Board or the Executive Director (e.g., no corporate underwriting; no hate speech; nondiscrimination in hiring; various personnel policies; and many more) -- would remain binding on all 5 local stations unless changed by the new National Board or the Exec. Dir., although Station Boards could ENHANCE them for their station. Going forward, the new Natl. Bd. and the Exec. Dir. would operate with a spirit (not a by- laws provision) of adopting, wherever possible, NATIONAL POLICIES about issues that concern universal principles of fairness, good management, following the Mission, etc. This would have two benefits:
   a) provide some consistency in insuring that all 5 stations' internal practices and overall programming uphold the Mission; and mesh systems such as personnel, budgeting and accounting that should be synchronized; and
   b) reduce an otherwise crushing workload for both each Station Board and the National Board members who would otherwise have to review and in some cases vote on a mountain of generally similar policies drafted separately by each of the 5 stations. This would leave the Station Boards free to focus on the unique problems and policies that only apply to their local reality.

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In this vein, I would support having the by-laws explicitly grant the National Board power to make policy on limited aspects of local programming and staffing -- i.e., to insure adherence to the Mission (as suggested in a straw poll among attendees at a WBAI by-laws meeting a few weeks ago). Here, we should consider some of the language in the "annotated" (KPFA Elections Committee/Blanchet) version of Draft B: (Article 6, Section 2, Para. B – Duties of the National Committee, which under our proposal would be the National Board) –

   "(8) ensure that the staff of the Foundation, including its managerial staff, at the national and local levels is diverse consistent with national and regional signal areas' demographics respectively and that an atmosphere is maintained at all levels that is free of discrimination."

   "(10) ensure that national and local programming is instituted that addresses the concerns, needs and interests of the diverse communities the Foundation serves, especially those of marginalized and voiceless communities."

I would also propose adopting the very similar language in that same "annotated" Draft B under the duties of the Station Boards, in terms of local staffing and programming. This language, I might add, is very similar to that contained in the report of the Pacifica Now! Anti-Racist Working Group, which the I-PNB endorsed in June as a framework for action on these issues.