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Indybay Feature
Pacifica’s General Counsel and the Bylaws Referendum
by Akio Tanaka
In 2021, Pacifica members voted for the New Bylaws by a 6820 to 5471 margin.

Pacifica’s General Counsel’s arguments ruling the referendum lost do not hold up to scrutiny.

democracy.png
In 2021, Pacifica members voted for the New Bylaws by a 6820 to 5471 margin: however,

- Pacifica’s General Counsel ruled the Bylaws referendum lost.
- Pacifica’s General Counsel argued that a prior agreement required the referendum to be approval by staff and listeners.
- Pacifica’s General Counsel argued that the Bylaws required the referendum to be approval by the staff.

The members who oppose the new Bylaws embraced Pacifica’s General Counsel’s ruling and arguments; however,

- Pacifica’s General Counsel’s arguments ruling the referendum lost do not hold up to scrutiny.

———-
Regarding Pacifica’s General Counsel’s argument that a prior agreement required approval by staff and listeners.

Pacifica’s General Counsel, Arthur Schwartz 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 clause “approval being contingent on majority approval from each group” is neither in the December 4 agreement nor the 2020 NES Final Election Report.
- When there is a members vote on a Bylaws amendment, the California Corporations Code 5150(b) governs how the votes are counted, regardless of any agreement.

Pacifica’s General Counsel’s argument that prior agreement required “approval being contingent on majority approval from each group” is not only debatable, but ultimately not relevant.

————-
Regarding Pacifica’s General Counsel’s argument that the Bylaws require the referendum to be approval by the staff.

Pacifica’s General Counsel argues that the 2021 referendum would materially and adversely affect the staff as to voting in a manner different from the listeners because:

- It would have split the “Staff Class” into “Paid Staff “ and “Unpaid Staff”, and
- 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 new Bylaws would NOT materially and adversely affect the staff as to voting in a manner different from listeners because:

- The Directors are directly elected by the respective members. Splitting the “Staff Class” into “Paid Staff “ and “Unpaid Staff” allows the 2 Staff Directors to be directly elected by the respective “Paid “ and “Unpaid” staff members.
- The number of guaranteed seats that listener members would have the exclusive right to hold and to elect is reduced in the same proportion as the staff members.

The conditions specified under California law, 5150(b), that must be met in order for approval of both listeners and staff to be required, were not met. Therefore the clear and simple majority vote of listeners and staff taken together is sufficient for the New Day bylaws to be approved. The ruling by Pacifica's General Counsel to the contrary was invalid.

————
Pacifica’s General Counsel 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. Pacifica’s General Counsel’s repeated comments were part of an ongoing false narrative that were used to sway people into voting against the bylaws.

——
Summary

Pacifica’s General Counsel’s arguments ruling the referendum lost do not hold up to scrutiny.

In 2019, Pacifica auditors, Rogers & Company, said:
“We believe that all divisions should restructure their Boards with fewer members, which would hopefully reduce the number of disparate voices and result in more effective governance. Bylaws should be re-written to be more effective, restrict voting participation, and restrict impediments to efficient Board actions and procedures. The current process lends itself to protracted and unproductive discourse between participants....”

Pacifica should follow the advice of the auditors.

In 2021, Pacifica members did by a 6820 to 5471 democratic vote.



by Paul DeRienzo
The original. laws were the result of a 2001 agreement addressing "hot button" issues that led to the foundation of Democracy Now! using the same hard fought voting and representational methodology the writer is opposing. Should the decision to fund DN production be rescinded? Should the decisions made by all 5 boards be rescinded? You are opening up a Pandora's box that could revisit 20 years of decisions, made under false assumptions that in 2001 made perfect sense to most if not all listeners and staff. It might make all the present and former board members potentially libel for decisions made a long time ago. That said, I opposed the original bylaws because as I predicted the balkanization of each station by ideology would result. That's what the "new" bylaws are attempting to address, but Pacifica is ideological and freedom for both advocates of the Kremlin's position and Ukraine nationalism should either learn to work together or form their own separate media organizations if they hate each other so much. Many in NY do support splitting off WBAI into an anti-racist radio station associated with other like minded media, while the west coast can go about their hippie peacenik views unmolested by east coast Weather style advocates. Is that what the US left wants? I usually don't comment on this stuff because the Foundation is famous for its gaslighting and I've experienced plenty of that at Pacifica. But since a new Pacifica civil war could destroy the whole network, including the California stations it's important to revisit the 2001 history and understand the role of the various groups who promoted law suits that crippled Pacifica in the first place.
by 25+ KPFA member
KPFA is really struggling with their fundraising this time. I believe it's partly because they have constantly had putin apologists on various programs since putin ILLEGALLY and AGGRESSIVELY invaded Ukraine. I had been a 25+ year member but no more. It appears that there are many people who feel the same way. As far as I am concerned, KPFA and Pacifica have blood on their hands.
by Ann Garrison
This doesn't seem to be a response to Aki's post, which appears to be a repost of his objections to the New Day by-laws election. Instead it seems to be a response to the comment about Putin apologists. Correct? I'm going to respond to that.
by Ann Garrison
In response to the comment "Won't contribute to Putin apologists again":

This comment points to the politically diverse, highly opinionated, and contentious audience that has attempted to crowd under Pacifica's umbrella throughout its history. How much divergence of opinion can the network tolerate and remain on the air?

For many who have tuned out and/or stopped contributing, or sworn they will, there was some defining on-air moment or on-air tendency like the "Putin apologists" you're referring to. There are others who are equally angry and alienated by what they perceive to be "NATO apologists." (I'm among them.)

For some the last straw was Bonnie Faulkner or someone else being thrown off the air. For others, it was Russiagate and Trump Derangement Syndrome. For others, it's been COVID reporting of one sort or another, or humanitarian interventionist narratives pushed by a lot of the network's prime time hosts.

I don't have an answer except to continue to defend—and, in some cases, produce for—the shows that I believe come closest to truthful and helpful broadcasts. There are a handful.

Otherwise, and I think this is true of many other listeners, I turn to writers and podcasters with editorial viewpoints and areas of inquiry that are more compatible with mine.

"Things fall apart; the centre cannot hold," wrote Yeats, but as Martin Amis wrote, roughly, "Of course it can't. It never has held and it never will."
by +25 year member
Pacifica/KPFA is not an umbrella. It is spearhead of ill informed personal opinion and it is dangerous. I personally will not cry if they go off the air.
by Ann Garrison
I imagine you'd have loved Philip Maldari's lead Sunday Show segment yesterday, "What’s Wrong with the Left on Ukraine?”
I hated it, which illustrates my point about the divergent, often polar opposite viewpoints of those within the Pacifica/KPFA audiences.

by +25 year member-no more
Thanks for the programming note but I no longer listen to KPFA or any Pacifica station. I have moved on. So should you.
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