Pacifica’s General Counsel and the Bylaws Referendum

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.

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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.

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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.

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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.

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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.

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