top
US
US
Indybay
Indybay
Indybay
Regions
Indybay Regions North Coast Central Valley North Bay East Bay South Bay San Francisco Peninsula Santa Cruz IMC - Independent Media Center for the Monterey Bay Area North Coast Central Valley North Bay East Bay South Bay San Francisco Peninsula Santa Cruz IMC - Independent Media Center for the Monterey Bay Area California United States International Americas Haiti Iraq Palestine Afghanistan
Topics
Newswire
Features
From the Open-Publishing Calendar
From the Open-Publishing Newswire
Indybay Feature

Pacifica and Democracy

by Akio Tanaka
Pacifica has democratic governance; it should accept the democratic vote of its members.

democracy.png
In June of 2021, Pacifica members approved the New Bylaws by a 6820 to 5471 vote; however, Pacifica ruled the referendum lost saying that the referendum required separate approval of staff and listeners. The ruling was based on a debatable interpretation of California Corporations Code 5150.

In the fall of 2021, Pacifica members voted for the Delegates; however, Pacifica revoked the votes of KPFK members by disqualifying 4 candidates after the voting ended, ruling that they were endorsed on a postcard that violated the use of the membership list. The ruling was based on a debatable interpretation of California Corporations Code 6338.

Pacifica should accept the democratic vote of the members in both of these cases.

——————————————————————————————————
A. Regarding the New Day Bylaws Referendum


(1) Pacifica Wrongly Ruled New Day Bylaws Lost.

New Bylaws was approved by a solid democratic majority, but Pacifica ruled the referendum lost claiming that it required separate approval of staff and listeners.

Pacifica’s General Counsel then filed a complaint against New Day asking for injunctive relief to support its ruling.

Pacifica’s General Counsel gave two arguments.
(1) A prior agreement stipulated separate approval of staff and listeners.
(2) The Bylaws require separate approval of staff and listeners.


(1) The December 4 Agreement did not stipulate separate approval of staff and listeners.

Pacifica’s General Counsel said:
Under [the December 4, 2020] agreement, the New Day Referendum would proceed by two parallel votes, one by listener members and one by staff, with approval being contingent on majority approval from each group. (Schwartz Decl. ¶ 12 (emphasis added).


The December 4 agreement said:
“10. The voting process, and the Fair Election Rules, will be identical to the process and the rules used in February 2020, as described in the National Election Supervisor (NES) Final Election Report of March 2020, …”

The 2020 Final Report said:
“The Pacifica Bylaws Referendum consisted of two parallel votes, one amongst eligible listener members and one amongst eligible staff (paid and unpaid) members at all five stations.


The clause “approval being contingent on majority approval from each group” was not in the December 4 agreement nor the 2020 NES Final Election Report.

When there are two parallel votes, one amongst the listener members and one amongst the staff, the Bylaws and the California Corporations Code govern how the listener members and staff votes are counted, regardless of what any agreement between the parties might or might not say.

Pacifica’s General Counsel’s argument that a prior agreement stipulated that a majority approval from each group would be required for approval is not only debatable, but ultimately not relevant.


(2) The Bylaws do not require separate approval of staff and listeners.

The Bylaws and California Corporations Code 5150(b) say:
“..such adoption, amendment or repeal also requires approval by the members of a class if such action would materially and adversely affect the rights of that class as to voting or transfer in a manner different than such action affects another class.” (First Am. Compl. ¶ 14, Ex. A, Article XVII Section 1(B)(3).)


Pacifica’s General Counsel argues that the 2021 referendum would materially and adversely affect the staff in a manner different from the listeners because:
(1) it would have split the “Staff Class” into “Paid Staff “ and “Unpaid Staff” and
(2) reduced the number of guaranteed seats that staff members would have the exclusive right to hold and to elect from 5 to two. Staff would have their guaranteed Board role reduced from 22.72 % to 13.3%. (First Am. Compl. ¶ 18.)

The Bylaws and the California Corporations Code say a change in the Bylaws has to “materially” and “adversely” affect one class in a manner “different” than another class. In order to require separate approval of staff and listeners, the change has to meet all three conditions.
(1) Splitting the staff into paid staff and unpaid staff is “material” and “different” from how listeners would be affected, but allowing paid and unpaid staff to elect their own representative actually enhances their voting rights and representation and thus does not affect them “adversely”.
(2) The staff representation is reduced, but listener representation are also reduced by same proportion. Reducing the number of guaranteed seats that staff members would have is both “adverse” and “material”, but it is not “different” from how listeners would be affected.

The New Bylaws do not “materially” and “adversely” affect the staff in a manner “different” from the listeners, so the New Bylaws do not require separate approval from staff and listeners.


(2) Pacifica’s General Counsel is a Vocal Opponent of the New Bylaws.

Pacifica’s General Counsel Arthur Schwartz made the following disingenuous comments at the 2-8-22 Listener Forum: https://fccdl.in/v8tUXDBKIW

“I am not a member of any faction. I am for Pacifica.”

“They [New Day Pacifica] are appealing to factional interest, and I think we have to tell these people that factional fight has to stop. Pacifica is moving forward, our new ED and our new general counsel have no interest in the fight of the past.”

“People should put pressure on Jan Goodman, who is really the force behind that lawsuit, and New Day to stop attacking Pacifica, and stop costing us money in that litigation.”

—-
Arthur is being disingenuous in several ways

He has been a vocal opponent of New Day from the very beginning, and in repeated on-air statements and in other forums he misinformed both the PNB and members alike about the contents of the New Day Amendments, saying things like:

“[W]hat bothers me most about these [New Day] bylaws is that, for—whether it’s 1-1/2 months or 3 month I’m not sure—there would be four people running Pacifica, no Board. They could do whatever they want, ... And it somehow hits me in the gut that WBAI would be back off the air, if these four people just got to run it, without a Board, without representation from anybody else in the United States from any of the stations...a total dictatorship .” (4-15-21 PNB Meeting)

What the new bylaws actually say is that the 5 Station Representative Directors will attend the first PNB meeting which “shall be between 10 and 15 days after the approval of the Bylaws”. Thus, there would never be a time -- let alone 1 ½ to 3 months - -when the new officers would serve alone. Mr. Schwartz's repeated comments were part of an ongoing false narrative that were used to sway people into voting against the bylaws.

Lastly, given the clear majority that voted for the new bylaws, Mr. Schwartz was and is not only a "member of a faction," but -- and perhaps most importantly -- a member of a minority faction.


(3) Upholding the Vote of the Members in the New Bylaws Election

The Pacifica members voted for the New bylaws by 6280 to 5471 margin.
Pacifica’s General Counsel’s arguments that the New Bylaw requires separate approval of staff and listeners are invalid.
Pacifica should accept the democratic vote of the members.

——————————————————————————————————
B. Regarding the KPFK Delegates Election

The 2021 Delegates election was held in the fall, few month after Pacifica members voted in June 2021 on New Bylaws proposed by New Day Pacifica.

Sometime after the Delegates election voting ended and vote tally had began or had been completed, National Election Supervisor disqualified 4 KPFK candidates endorsed by New Day Pacifica, revoking the written ballots of members who voted for the 4 candidates.

The reason given for the disqualification was that they the candidates were endorsed by New Day on a postcard which was also soliciting funds to support the New Day legal defense against the lawsuit filed by Pacifica regarding the Bylaws referendum.
National Election Supervisor ruled that New Day violated California Corporations Code 6338 by soliciting such funds.
National Election Supervisor ordered 4 candidates to send a postcard apologizing for breaking the law.
National Election Supervisor disqualified the 4 candidates because they did not send the postcard.


(1) New Day Did Not Violate California Corporations Code 6338

Following are different accounts of what was on the postcard:
- National Election Supervisor’s report said: “on the back side, it was a screed attacking Pacifica and calling on members to donate money to the New Day legal effort Exhibit 7.”
- Pacifica’s General Counsel said at 3-20-22 KPFK LSB meeting, “one side of the postcard, it said, donate money to New Day, so they can fight Pacifica.”
- The actual New Day postcard said: “Please donate $5 to $500 (or more!) for NDP expenses and legal costs to ensure the membership’s Vote Yes decision to save Pacifica is carried out.”
- Pacifica members voted for the New Bylaws by a 6820 to 5471 margin.


California Corporations Code 6338 says:
(a) A membership list is a corporate asset.  Without consent of the board a membership list or any part thereof may not be obtained or used by any person for any purpose not reasonably related to a member's interest as a member.  Without limiting the generality of the foregoing, without the consent of the board a membership list or any part thereof may not be:
(1) Used to solicit money or property unless such money or property will be used solely to solicit the vote of the members in an election to be held by their corporation.


California Corporations Code 6338 allows members to solicit funds to solicit the vote of the members in an election.
The members voted for the New Day Bylaws referendum by a 6820 to 5471 margin.
Pacifica ruled the referendum lost, based on a debatable interpretation of California Corporations Code 5150, and then used member donated funds to file a complaint against New Day asking for injunctive relief to support its ruling.
The members who voted for the New Day Bylaws have the right to defend their vote against the Pacifica lawsuit.
A vote is not a vote until it is cast and properly counted.
New Day was soliciting funds to ensure the votes of the members in the June 2021 referendum election are counted according to the law.

New Day did not violate the California Corporations Code 6338.
The 4 candidates did not violate the California Corporations Code 6338.

Thus there was no basis for disqualifying the 4 candidates.


(2) Pacifica Violated California Corporations Code 5513(d).

The National Election Supervisor disqualified the 4 KPFK candidates after the voting had ended and the vote tally had began or had been completed.

California Corporations Code 5513(d) says: “Unless otherwise provided in the articles [of incorporation] or bylaws, a written ballot may not be revoked.”

Disqualifying the 4 candidates after the voting ended revoked the written ballots of the voters who voted for the 4 candidates, thus violating California Corporations Code 5513(d).

In the 2010 KPFA staff Delegate election, the National Election Supervisor retroactively disqualified three staff voters. The court reversed the revocation of 3 staff votes. The court affirmed the fundamental right of members to have their votes counted, and to have the duly elected Delegates seated.


(3) Upholding the Vote of the Members in the KPFK Delegates Election

Subsequent to the KPFK delegates election, KPFK's new Local Station Board, absent the 4 disqualified candidates, held an election of Directors to the National Board, so the Pacifica’s disqualification of the 4 candidates had further ramifications.

KPFK should seat the Delegates who were elected before the unwarranted disqualifications, and redo the Directors election with properly seated Delegates.

——————————————————————————————————
C. Summary

(1) Pacifica's ruling that New Bylaws need the separate approval of staff and listeners was in error. Pacifica should accept the vote of the members who approved the New Day Bylaws.

(2) Pacifica's ruling that New Day violated the use of members list was in error.
Pacifica revoked the written ballots of members abridging the fundamental right of members to have their votes counted, and to have the duly elected Delegates seated.
KPFK should seat the Delegates who were elected before the unwarranted disqualifications, and redo the Directors election with properly seated Delegates.

(3) Pacifica has democratic governance, it should accept the democratic vote of its members.

——————————————————————————————————

——
California Corporations Code has one provision regarding approval by members of a class.

5150(b) Bylaws may be adopted, amended or repealed by approval of members ( Section 5034 );  provided, however, that such adoption, amendment or repeal also requires approval by the members of a class if that action would materially and adversely affect the rights of that class as to voting or transfer in a manner different than that action affects another class.

———
The proposed New Day Bylaws do NOT treat the two classes "differently."
(1) Both staff and listener Directors are directly elected.
(2) Both staff and listeners have the number of Directors reduced by the same proportion.

Thus, New Day Bylaws did not require separate approval of staff and listeners.

——
Members approved the New Day Bylaws by 6820 to 5471 margin.

—-
We are 100% volunteer and depend on your participation to sustain our efforts!

Donate

$110.00 donated
in the past month

Get Involved

If you'd like to help with maintaining or developing the website, contact us.

Publish

Publish your stories and upcoming events on Indybay.

IMC Network