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3 Interim Pacifica National Board resolutions before the judge 1-2-02 |
From: Carol Spooner Date: Wed Jan 2, 2002 9:01 pm Subject: letter-brief to judge Sabraw Dear Friends, Under the legal settlement agreement, "letter-briefs" are to be submitted to Judge Sabraw and exchanged among the parties 2 days after the vote regarding any resolution that received a majority vote, but not a "balanced majority" or 2/3rds majority. We agreed at Saturday's board meeting that this means 2 "business days" after the vote -- so, that was today (Sunday and yesterday were not business days). I've been asked to post the letter-brief in support of the resolutions. Although it is long (including "Exhibits") I am doing so. We have not yet received a copy of any letter-brief in opposition to the resolutions by the board minority. We hope to have the judge's decision by Friday. Thanks for all your support!
Carol Spooner, Secretary
------ January 2, 2002
Honorable Ronald M. Sabraw
Re: Consolidated Pacifica Cases 814461-0
Your Honor: I write on behalf of nine members of the Pacifica Foundation Interim Board of Directors ("the board majority") in support of three resolutions passed by majority vote (9 to 6 or 9 to 5) at a board meeting on December 29, 2001. None of these three resolutions received a vote from any of the five members appointed by the former board majority under the Settlement Agreement (now "the board minority") or a 2/3rds majority of those present and voting. The full texts of the three resolutions are attached as Exhibits A, B and C. In order to give the Court an overview of the first interim board meeting and because there are three resolutions requiring Court review, we request the Court's indulgence in receiving a five page letter-brief. The board meeting was conducted by telephone conference call arranged through AT&T by the Foundation's assistant to the acting Executive Director. The meeting was webcast by AT&T so that the public could listen in over the internet [1], but was not broadcast by any of the five Pacifica radio stations. The meeting was broadcast live by Pacifica "affiliate" station, KFCF in Fresno. Pacifica is required to hold open board meetings as a condition of receipt of grants from the Corporation for Public Broadcasting. The meeting began at shortly after 9 a.m. PST [2] and continued for roughly 4-1/2 hours. [3] Fifteen board members were present and voting for most of the meeting, as follows: (1) appointed by former board minority: Teresa Allen, Pete Bramson, Janice K. Bryant, Leslie Cagan, and Rob Robinson; (2) appointed by former board majority: Marion Barry, James Ferguson, Dick Gregory, Wendell Johns and Bert Lee; and (3) appointed by LAB Chairs: Dave Fertig (KPFK) Barney Goodman (KPFT), Ray Laforest (WBAI) Carol Spooner (KPFA) and Jabari Zakiya (WPFW). Wendell Johns dropped off the call at some point and was not present for the vote on two of the resolutions presented here. Five out of eight items on the agenda were successfully completed during the meeting. Officers were elected (under the Settlement Agreement, election of officers did not require a balanced majority): Leslie Cagan was elected Chair, Carol Spooner was elected Secretary, and Jabari Zakiya was elected Treasurer. Three resolutions were passed by balanced majority and 2/3rds majority: (1) to restore Democracy Now! to the air immediately with back pay on a temporary basis and to negotiate a contract with the Democracy Now! producers to air that program as independent production in the near future, (2) to establish a committee to search for a new executive director for the Foundation, and (3) to require the five station managers to come to the January board meeting prepared to give a full report on the state of their station. An in person meeting of the board was set for January 11-13 in New York. The following three resolutions were passed with a majority (9-6 or 9-5), but without a balanced majority or two-thirds of the members present and voting. Thus, under Paragraph 3(i)(3) of the Settlement Agreement, these are automatically referred to Your Honor for a determination: 1. RESOLUTION ON COMMITTEE TO ADDRESS WBAI (Exhibit A) The Settlement Agreement in Paragraph 3(d)(8) provides that the "(3) Work of the Interim Board [is to] . . . "(d) address what has been identified as Hot Issues: . . . (8) Establish a committee to address the WBAI issues." At the first meeting of the Interim Board, a resolution was passed by a 9-6 majority of the board members, which established a committee to address the WBAI issues. A copy of this resolution is attached as Exhibit A. Since December 2000 twenty seven staff members at WBAI in New York have been fired or "banned" or "suspended" indefinitely from the station, including the station manager and program director. Over the past year the board has received literally thousands of reports and complaints from former and remaining staff members, from listeners, and the WBAI LAB concerning abuses of the air, including without limit, racist, sexist and homophobic "rants", vitriolic personal on-air attacks on the "fired and the banned", as well as potentially actionable libels. Many of these complaints have also been sent to the FCC and are part of the WBAI FCC "public file", and Pacifica will need to address these complaints to the FCC when WBAI license comes up for renewal with an explanation of what corrective action, if any, Pacifica has taken. The board has received reports of violence and threats of violence at the station. In addition, the board has heard questionable and unverified financial "rumors", but no financial reports, as to the funds raised during fund drives over the past year. Several members of the listening public have written over the past year of receiving "thank you" letters for pledges they did not make. One such letter is attached to the resolution. Many members of the listening public have also written to say that they will not donate again to WBAI until the "fired and banned" are restored to the air. At the past two in-person board meetings, in March and November of 2001 in Washington, D.C., more than 100 people -- listeners, LAB members, and staff members -- came personally to report these matters to the board. The resolution, as adopted on 12/29/01, was amended from the original proposed resolution in an effort to obtain support from the board minority. As originally proposed, the committee would have had the power to "investigate and take corrective action" as needed. As amended, the resolution provides that the committee has the power to "investigate and recommend corrective action to the board." Despite this significant change, none of the board minority members voted for the resolution. The board majority believes the committee must begin its work immediately and that these problems must be investigated and resolved as quickly as possible. The board majority hopes the committee will be able to make some recommendations for corrective action at the board meeting on January 11-13. We respectfully request the Court to approve the resolution. 2. RESOLUTION RE: LIFTING THE "GAG RULE" WITH CONTROLS ON ABUSE (Exhibit B) The Settlement Agreement in Paragraph 3(d)(9) provides that the "(3) Work of the Interim Board [is to] . . . "(d) address what has been identified as Hot Issues: . . . (9) End the gag rule." At the first meeting of the Interim Board, a resolution was passed by a 9-6 majority of the board members, which lifted the gag rule, and provided for controls of abuse of the air. A copy of this resolution is attached as Exhibit B. The "gag rule" has since 1995 provided station managers with the authority to remove from the air any programmer who discussed the "Pacific controversy" on the air, or permitted guests or listener call-ins to discuss these issues. It is distinguished from the "dirty laundry rule" which prohibits programmers from airing personal feuds and/or rivalries for air time on the air. Memos from the board and executive staff to the station managers in 1995 show that the original intent of the "gag rule" was to prevent listener/donors from understanding of the vast changes in direction and programming intended for Pacifica, and from withdrawing their financial support in consequence. In recent years, as public awareness grew of the controversies, the "gag rule" has been employed unevenly - frequently ignored when broken to support the changes in direction, frequently imposed when broken to oppose the changes. At this point, thousands of listeners are angry and confused, both about what has occurred over the past few years and about what this new interim board of directors intends to do about it, as evidenced by the thousands of letters and emails the board members constantly receive. The purpose of this resolution is to provide listeners with balanced discussion of the issues, and to provide programmers protection from firing for discussing these issues. The resolution provides for a "programmer review committee" both to safeguard against abuses of the air and to protect programmers from being arbitrarily removed from the air for discussing these issues. The resolution also requires the station managers to provide air time specifically for balanced discussion of these issues, and other measures to inform listeners of the controversies and actions being taken to address them. The board majority believes these actions are necessary to restore public confidence in Pacifica and to gain listener support for the Foundation during this transition period when many changes will be made, and further that Pacifica is founded upon principles of "free speech" and dialogue as a means of resolving conflicts, and that our listeners deserve a full explanation and demand it of us. We respectfully request the Court to approve the resolution. 3. RESOLUTION RE: TERMINATION OF EMPLOYMENT OF LITIGATION LAW FIRMS (Exhibit C) At the first meeting of the Interim Board, a resolution was passed by a 9 to 5 majority that terminates the employment by the Pacifica Foundation of the two law firms that represented the Foundation and the former majority board members in the now settled consolidated actions, but authorizes such work as is necessary for the filing of the stipulated judgment required under the Settlement Agreement. It is clearly not in the best interests of the Foundation, which is in considerable financial difficulty, to incur expenses for attorneys to advocate the views of any faction of the board of directors, or to employ attorneys with conflicts of interests; i.e., attorneys who simultaneously represent or previously represented the now board minority members. Such expenditures by the Foundation are not justified and the now minority members have expressed their intent to continue use of these law firms, at Foundation expense, to advocate for their point of view during any continuing judicial oversight of the Settlement Agreement. The resolution specifically provides that the Foundation may employ attorneys, without conflicts of interest, if needed to advise the Foundation as to these matters. The board majority respectfully requests the Court to approve the resolution. Thank you for your consideration of these matters. Respectfully submitted,
[signed]
[1] An archived recording of the meeting is currently available through AT&T at http://web.servicebureau.net/conf/serv?action=AttendeeLogin&xslURL=/attendee _login.xsl&event_id=1112290141&media_type=audio&general_password=null&event_ type=conference&user_type=attendee_web_user&cp_code=2337&signature=5onzxtjsf 7f4xa5bp9xwuafyp. We are uncertain how long that archive will remain available on the internet. However, if it is discontinued, the webcast was recorded by the A-Infos Radio Project and is also available for listening on the internet at http://www.radio4all.net/proginfo.php?id=4039. [2] Three board members (Lee, Barry and Gregory) were apparently informed by the AT&T operator that the call had been cancelled and, thus, they joined the call about half an hour late. The meeting, which had previously been called to order by Wendell Johns as the only remaining officer from the prior board until new officers could be elected, was recommenced from the beginning with all 15 members present and voting. [3] The meeting was repeatedly marred by shouting and out of order conduct by one member, Bertram Lee, up to and including belching and blowing "raspberries" into his speaker phone near the end of the meeting, displaying contempt for all participants, the listening public and the proceedings. Were it not for this conduct, the business of the meeting would most likely have been concluded in considerably less time. The Court is invited to listen to any 10 minute segment of the meeting at random (except the first half hour when Mr. Lee was not present) to verify that this conduct occurred. EXHIBIT A
RESOLUTION ON COMMITTEE TO ADDRESS WBAI
9 Aye, 6 No
In section 3 (Work of the Interim Board) of the settlement agreement which established this Interim Pacifica National Board, there is a list of "hot issues" identified for action by this body. Item 8 calls for, "Establish a committee to address the WBAI issues." Therefore, be it resolved that the Interim Pacifica National Board establish a committee to address the issues at WBAI. More specifically, this committee shall investigate and recommend corrective action to the board on the range of items that define the present crisis at the station. All such actions must be consistent with Foundation policies as well as the law, and the committee shall seek legal advice as necessary. The committee shall be composed of four members of the Interim Pacifica National Board (the three from the New York listening area as well as one other IPNB member) and up to five members of the WBAI LAB, to be determined by that LAB. This committee shall have the authority to invite others to work with it. The committee shall convene and commence its work immediately. During the tenure of this Committee, WBAI management and Pacifica management will observe a moratorium on hiring, firing and suspension at all levels at WBAI as well on the entering into any contracts regarding WBAI without express approval from the commitee, and WBAI management and Pacifica management will promptly provide requested information that is germane to the work of the Committee. All actions of this committee shall be reported to the full IPNB.
The List:
37 and counting (if excluding "driven from," there are 27)
(Each person is only counted once, regardless of how many positions they
held)
FIRED, BANNED, REMOVED or SUSPENDED
PROGRAM DIRECTOR
II. STAFF
BUILDING BRIDGES: YOUR COMMUNITY AND LABOR REPORT
AL LEWIS LIVE! (program cancelled)
BEHIND THE NEWS
EARTHWATCH (program cancelled)
HEALTH ACTION
OUR AMERICAS
CROSSTOWN TRAFFIC
RADIO UNNAMEABLE
ANY SATURDAY
NEWS DEPARTMENT
STATION ENGINEER
B. Pacifica Staff Working At WBAI
DEMOCRACY NOW! (program suspended)
DRIVEN FROM THE STATION
*Mario Murillo (coproducer, cohost, Friday Wake Up Call - resigned on principle due to prohibition on including Amy Goodman as cohost] Deena Kolbert (coproducer, cohost, City Watch Segment of Wake Up Call - boycotting due to compromised conditions for production/hosting) Bill DiFazio (coproducer, cohost, City Watch Segment of Wake Up Call - boycotting due to compromised conditions for production/hosting) *Errol Maitland (Technical Director, Democracy Now! and producer, Wake Up Call - driven out by intolerable working conditions that acutely threatened health) Ryme Katkhouda (producer, Cuba in Focus; reporter, Sunday News; and contributing reporter/producer for several other programs - in exile due to intolerable conditions) *Miranda Kennedy (freelance reporter, Evening News - in exile due to intolerable conditions) *Leslie George (freelance reporter, Evening News - boycotting due to intolerable conditions) Nadia Middleton (reporter, Sunday News - in exile) Vic Takeall (coproducer, Community Bulletin Board segment on Wake Up Call) Steve Marshall (producer, Liquid Sound Lounge - boycotting due to intolerable conditions) B. Pacifica Staff Working at WBAI *Juan Gonzalez (cohost, Democracy Now! - resigned on principle due to intolerable conditions) EXHIBIT B
RESOLUTION LIFTING THE GAG RULE WITH CONTROLS ON ABUSE
Whereas there have been a growing number of programmers taken off the air after their expression of support for particular views relating to the recently settled lawsuits involving Pacifica; Whereas some current Pacifica programmers have been constrained by the "gag rule" from expressing their views regarding these same controversies at Pacifica; Whereas there has been an uneven application of said "gag rule"; and, Whereas varied political views regarding the litigation, settlement and underlying issues at Pacifica warrant discussion in a respectful, open and fair-minded manner, Therefore, it is hereby resolved that the "gag rule" is immediately eliminated. Further, it is hereby resolved that, in order to provide protection from abuse of the air and to protect against the unfair removal from air of programmers, the following system is to be implemented. The effect is to freeze programming changes subject to a review process. For the period of time until the conclusion of the first in-person IPNB meeting, no programmer may be taken off the air except by the following process: When a station manager, the executive director or an IPNB member asserts that a programmer is abusing the air or otherwise should be removed, the complaint is to first go to the Executive Director (because she supervises the station managers). If the Executive Director's decision is not satisfactory, then it may be appealed to the Programmer Review Committee (a committee of four IPNB members, available by phone.) If a programmer is found by three of the four members of the Programmer Review Committee to have been abusing the air, they may be sanctioned up to and including being taken off the air until the conclusion of the first in-person IPNB meeting. It is intended that the Executive Director and members of the Programmer Review Committee shall remain available by telephone in order that this process may be used within hours so these disputes may be quickly resolved. Further, the IPNB mandates each station, in conjunction with the Local Advisory Board and signal area National Board representatives, to initiate a program, of at least 3 hours during drive time for an organized on-air discussion of the settlement agreement, which would include those who are critical of the settlement as well as those who support it. Such a show could be moderated by a neutral third party and could include time for listeners to call in and make comments or ask questions. Listeners should be informed of web sites where they can read the settlement agreement. Links to such web sites ought to promptly be installed at each station site, LAB site and on the Pacifica.org website's home page. These links would lead to sites that contain information about Pacifica and the recent controversies, as well as where people think Pacifica should be headed, etc. There should be linksto the local LAB web site as well as to local listener groups. EXHIBIT C
RESOLUTION RE TERMINATION OF EMPLOYMENT OF LITIGATION LAW FIRMS
WHEREAS, the law firms of Williams & Connolly and Fullbright & Jaworski were retained to represent the Foundation and certain of its past and current directors in three consolidated legal actions in the Alameda County Superior Court in California concerning the Foundation Bylaws and the past acts of some directors; and WHEREAS, a settlement agreement has been entered into resolving those lawsuits; THEREFORE, BE IT NOW RESOLVED THAT: The legal services of Williams & Connolly and Fullbright & Jaworski are hereby terminated concerning this litigation and any and all other matters. The Executive Director is instructed to inform both law firms that they are authorized to perform no further work on behalf of the Foundation, except as may be minimally necessary for the filing of the stipulated judgment required under the settlement agreement, and that any work that may be requested by any director, or any other party, shall not be at the expense of the Pacifica Foundation. The Pacifica Foundation shall remain neutral as to any controversies that may arise among the interim directors concerning the enforcement of the settlement agreement or court oversight of the agreement, and may retain other legal counsel, without conflicts of interest, to advise the Foundation as to these matters if needed. |
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