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Add an EventPacifica Foundation can’t dodge $300,000 defamation award for fired executive
U.S. District Judge Stephen Wilson in Los Angeles today confirmed the arbitrator's decision to award John Vernile damages for defamation even though the arbitrator had agreed with Pacifica that he wasn't wrongfully terminated. Earlier this week, the judge had denied Pacifica's motion to throw out the award, rejecting the nonprofit's argument that the arbitrator had exceeded her power because some the purported defamation occurred after Vernile was fired and none of it "arose" from his employment.
Arthur Schwartz, a lawyer representing Pacifica Foundation, said that the arbitrator's ruling was an affront to free speech and that the nonprofit will appeal the judge's ruling.
"We are in the somewhat absurd position where an arbitrator rules that Mr. Vernile was lawfully fired for his misconduct, that there was no 'whistleblower' retaliation, that he had improperly acted with the consent of only a minority of our board to close a station in New York City and fire its employees, but that after he was fired he was defamed because someone on the radio called him a 'coupster' acting 'with a rogue faction of the board,'" Schwartz said in an email.
Although Pacifica Foundation is absolutely within their right to appeal Wilson's ruling, it's unlikely to succeed and would have to post a $450,000 bond to stay enforcement of the judgment, said Stephen Jaffe, Vernile's attorney.
"Judge Wilson followed the law and came down with the correct decision," Jaffe said Monday in a telephone interview. "The only reasons to overturn the arbitrator's award would have been if she had a conflict of interest or ignored the underlying law."
The conflict that cost Vernile his job centered around WBAI, the original home of the Democracy Now! radio show that focuses on activism and social justice issues. According to court filings, Vernile, who was hired in July 2019, was confronted with a host of dire financial and compliance problems at the radio station. In October of that year, he shut down local programming at WBAI and sent the Brooklyn-based station's staff home.
Vernile's actions caused an uproar and WBAI went to court to stop them. The nonprofit's board, comprised among others of representatives of all five stations, voted to terminate his employment the following month.
Meanwhile, according to the arbitrator's findings, supporters of WBAI had held a rally in support of local programming and in opposition to the shutdown where many prominent New Yorkers appeared.
"Speakers at the rally denounced Vernile, claiming that he was part of a 'rogue' group that had staged a 'coup' with the intent to sell WBAI and its signal to benefit other stations," according to the arbitrator. "A number of WBAI programmers, including WBAI Program Director Linda Perry, discussed the October 7 action on the air, repeating the claim that Vernile had been hired to sell WBAI and its signal and was part of a rogue group that had staged a coup. Other programmers called him a 'rat,' a 'crook' and other epitaphs [sic]."
The arbitrator concluded that Vernile had failed to prove that Pacifica terminated him because he was a whistleblower. Although Vernile made a prima facie case that his reporting of various violations of laws and regulations was a contributing factor in the termination of his employment, she said, Pacifica has proven by clear and convincing evidence that the board fired him primarily because it decided that he had exceeded his authority when he shut down WBAI’s local programming and discharged its staff without full board approval.
However, the arbitrator agreed with Vernile that he was defamed by false statements of fact made by WBAI programmers because there was not a shred of evidence, she said, that he had been hired to sell or to steal WBAI or its signal, or that his intention in shutting down local programming on Oct. 7 was to sell WBAI or its signal.
A New York State Supreme Court judge has signed a temporary restraining order blocking the shutdown of WBAI, the radical freeform radio station that was abruptly taken off air this week by its parent company after six decades of broadcasting.
The ruling was handed down by Judge Frank Nervo late Monday. Hours earlier, the station's longtime owner, Pacifica Foundation, fired most of the WBAI staff, changed the locks on the doors, and replaced local programming with shows produced by Pacifica's other stations. Staff members and volunteers for WBAI said they were stunned by the sudden takeover.
Their request for injunction accuses Pacifica's newly-hired executive director, John Vernile, of sending agents into the station's Brooklyn studios for a pre-dawn coup. "Nothing in the Pacifica Bylaws allows such a takeover by its Executive Director, who acted without even debate or a vote by Pacifica's Board of Directors," alleged attorney Arthur Schwartz, who also produces a show on the station.
A hearing on the issue is now scheduled for October 18th. In the meantime, Pacifica is prohibited from seizing equipment, terminating employees, or preventing WBAI from broadcasting.
But according to Schwartz, Pacifica had not yet complied with the injunction. "They're still controlling the signal for Times Square and the website," he told Gothamist on Tuesday morning. "They have an inside person giving them passwords."
He added that staff members arrived at the Brooklyn offices on Monday night following the ruling and broke the locks on the doors. They found their computers disconnected and papers haphazardly scattered.
As of 10:30 a.m., WBAI was playing nationally-syndicated content. An unsigned message, apparently posted by the parent company, greets visitors on the website. It reads in part:
As a network we hold each other together, we act in the spirit of solidarity and fiduciary responsibility. The WBAI staff has tried for several years to mitigate a ballooning debt and has been unable to do so. WBAI has accumulated $4 million debt to the Pacifica Central Services - a weight our stations, Archives, and National Office have had to carry. Additionally, we as a network of stations must secure $3.2 million to repay a loan that is due in full in 2021.
On Monday, October 7th the Pacifica Foundation had to suspend most of the local NY operations. We were necessitated to act in the most responsible way we saw in order to stabilize and secure the future of 99.5fm WBAI and the network. While this decision was abrupt it was after careful examination of all possibilities.
WBAI has long struggled financially, and has been plagued in recent years by management turnover, layoffs, and a now-settled lawsuit with its former landlord, the Empire State Building.
Attorneys for the station, however, allege that the true impetus for the seizure was a recent promotional piece, in which longtime producer Mimi Rosenberg says the words "Stop Trump." Pacifica executives allegedly cautioned that the language threatened the station's FCC license, and demanded Rosenberg's show be pre-taped and reviewed for content.
After WBAI station manager Berthold Reimers refused, Vernile penned a letter on September 27th putting the station on notice. "As a result of your unacceptable performance, this letter represents a written warning," reads the note, included in court documents.
Pacifica staff, including Vernile, did not respond to Gothamist's inquiries. In a statement immediately following the shutdown, the network vowed to "relaunch WBAI, once we are able to create a sustainable financial structure station." It's unclear what that structure would look like, and employees for the station say they've been given no clarity from executives.
"It's because they don't like the content," Schwartz told Gothamist. "It's ironic that WBAI would get taken off the air by a progressive foundation for saying 'Stop Trump.'"
Producers for the station plan to meet tonight. A local station board meeting will be open to the public on Wednesday.
It was the same way when his dad ran for office. People disappeared or were silenced, Dan Rather was shouted down by the aspiring candidate from CIA, and Bush did not fail in his mission, even though most of his party thought it was either inappropriate or impossible. Even Jerry Ford opposed the ascension of GHW Bush to the presidency.
The problem is, these spooks know how to cover up the hard evidence of their misdeeds.
You must rally now: if Pacifica is to survive, money is needed. Perhaps the judgement amount can be reduced, but it likely is gone forever, after the seizure by federal marshals.
The calls for donations to save Pacifica are far different than the usual year end fundraising seen elsewhere.
Make this one your priority.
David Roknich,
INDYRADIO
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