In an astonishing and outrageous attempt to silence New Day Pacifica’s right to reach Pacifica members and supporters, Pacifica is asking the court to prevent New Day from merely asking Pacifica members to help fund our legal work in Pacifica vs. New Day. Communicating with you and other Pacifica members is of course utterly essential. How can we unite to save the network if we’re not even allowed to let you know what’s happening?

Pacifica seems to be saying in its most recent complaint that the New Day list of members — who voluntarily went to our website and gave their contact info in order to join the fight to save Pacifica — is actually Pacifica’s list. And they want the judge to think that the money New Day has raised is Pacifica’s money.

In addition, Pacifica is also trying to prevent New Day from making negative comments about the management of Pacifica, calling the comments libelous and slanderous, and, in a jujitsu move that tries to turn the truth on its head, blaming New Day for Pacifica’s continuing downward financial spiral. In reality, the only reason New Day exists is that members like you are desperate to halt the financial hemorrhaging and loss of listeners that’s been going on for a decade.

Pacifica’s ex parte filing, which NDP learned about only two days ago, asks the judge to prohibit NDP from: “(1) using Pacifica’s mailing list to seek donations for its legal fees to challenge the results of the failed Bylaw Referendum and (2) making slanderous or libelous communications regarding Pacifica and/or this dispute.”

Pacifica’s legal filing is filled with misleading (or worse) statements, such as the ones above where it says the NDP Bylaws referendum “failed,” and implying that we may make “slanderous or libelous communications.” That may be Pacifica’s attorney’s claim, but NDP strongly disagrees, and the referendum issue is still to be decided by the court. It’s not libel to state the truth, unpleasant as it may be to Pacifica’s leadership or attorneys. Perhaps they did not like our recent letter that included “Fire the Pacifica legal team” (point 5 in the article in that link).

DONATE to New Day Pacifica today!

NDP is fortunate to have two volunteer attorneys who have literally worked night and day, spending hundreds of hours to support New Day’s efforts to change the governance structure to a smaller, functional, democratically elected one, responsive to the needs and wishes of the members. Neither has taken attorney’s fees. And although they are handling much of the litigation, they themselves have actually been paying outside counsel to assist. New Day donations have paid for only a portion of these outside fees to date, and there are large ongoing expenses because of Pacifica’s legal efforts to stop the reforms that the majority want.

Why do we fight on? Because we must keep moving forward in turning our shared love of Pacifica into action, transforming the network and its member stations from a battered shell of their former glory into the left-media giant progressives desperately need to counter the now near-ubiquitous right-wing propaganda machine.

We cannot let the irreplaceable progressive assets of Pacifica be driven into the ground or bought out by corporate interests.

To save Pacifica and win this for you, we need:

• two of you to give $10,000 each
• at least three of you to give $2000 or more
• five of you to give $1000 or more
• 20 of you to give $500
• 100 of you to give $200, and
• 400 of you to give $50 or more.

Whether you can donate $5 or $25,000, please DONATE now to help New Day continue fighting for Pacifica’s survival.

Or mail a check to New Day Pacifica, 5627 Telegraph Ave., Suite 116, Oakland, CA 94609.

In desperation, some people have called for a boycott of Pacifica, but Jan Goodman, prospective Vice-Chair under the New Day Referendum, replied to that editorial: “PACIFICA IS OUR INSTITUTION. . . We cannot starve it to death. . . Everyone must make their own decisions about how much and to whom they donate money, but please continue to donate to Pacifica to keep it alive – since the purpose of New Day Pacifica is to help Pacifica flourish now and long into the future.”

California law guarantees the rights of members of Pacifica (and other non-profit corporations) to access the member list to communicate with other members about concerns they have with the organization, how it’s run, etc. Pacifica is clearly trying to interfere with that right, and doesn’t hesitate to use member donations to fund their efforts.

New Day Pacifica plans to continue communicating with members about critically important things you need to know about Pacifica’s dysfunctional governance, growing debt, home shopping network style programming (at KPFK and WBAI, where listener support is especially inadequate), deteriorating financial condition, loss of CPB funding, and more. And we’re not going to let Pacifica’s legal team silence us!

New Day does not want to roll over without a fight, but it takes money to fight in court. Will you join the more than 800 people who have supported New Day Pacifica (NDP) in the past? Your donations brought us over the election finish line last year, but we are now in higher stakes over-time because of Pacifica management’s unwillingness to recognize that the staff are treated equally to the listener members by the New Day Bylaws and that California law and the Pacifica Bylaws therefore require the recognition that the New Day Referendum passed.

We have done it before – with your help – and now’s the time to do it again!

Please contribute what you can. Give as if your station and your network depend on it, because they do.

DONATE to New Day Pacifica today!

We absolutely must keep moving forward in turning our shared love of Pacifica into action, transforming the network and its member stations from a battered shell of their former glory — remaking it into the Left Media giant progressives desperately need to counter the now near-ubiquitous right-wing propaganda machine. Pacifica has the power to remake our world via news, information, and analysis delivered from a fiercely fact-based, clear-eyed, independent progressive perspective. Pacifica needs to get back to providing independent news, pubic affairs, and music that other broadcasters won’t let you hear.

Pacifica, for 70 years, has been an amazing network. It has educated and kept us abreast of local demonstrations and actions as well as what’s going on in Africa, Central America, and elsewhere: around the world and around the block. But the network is on life support because current bylaws make it incredibly difficult to govern, to update the programming to give listeners what they want, and to do effective fundraising to make that possible.

Reforming the bylaws is critical, so Pacifica can survive, grow, and be more influential in crucial national and local discussions — a view that 55% of members participating in the most recent bylaws election agreed with and voted for. Yet our problems remain. Why?

New Day Pacifica’s reforms received a solid majority vote, but instead of respecting the democratic majority and relinquishing power in a peaceful transition, the board members opposed to reform have cited what we believe to be a non-relevant technicality to claim that the majority lost. We must now unlock our election victory by securing a court order recognizing the NDP victory, because the minority “powers that be” not only refuse to give up, but continue using member donations to pay attorneys to fight against the rights of members.

We are hopeful we will win, but we need your help, because courtroom fights can be quite expensive. The entrenched minority at Pacifica can simply divert the funds that listeners donate for their stations’ operations, to instead pay for lawyers to block change. But the funds to support what the majority of Pacifica members voted for have to come directly from those who support that change. In other words, from you and me and everyone who supports our cause.

We are hoping for significant donations. If a tax deduction would be meaningful to you, please let us know by writing to Info@NewDayPacifica.org but note that donations made directly to NDP are not tax-deductible.

DONATE to help NDP continue fighting for YOUR rights, and to save Pacifica

Read more about Pacifica’s efforts to derail democracy.

In 2021, there was a national referendum to both amend Pacifica’s bylaws to make network governance more workable by reducing the size of the board, creating direct election of national directors, and designate four transition Directors/officers of the Pacifica Foundation who could lead the new Board with the reform and saving Pacifica. This was the New Day Pacifica Bylaws reform.
 
The membership of Pacifica overwhelmingly voted YES for the referendum. The vote in favor of New Day’s reforms was approximately 55% to 45% of the members across all stations. The entrenched management, however, refused to acknowledge the results and instead claimed — on a disputed technicality that we believe is inapplicable to this election — that majorities of both listener-members and staff members had to separately approve.

Pacifica’s leadership claimed that staff members’ rights would somehow be adversely affected, compared with listener members’ rights, but New Day strongly believes that is just plain false.

Why Pacifica’s Claims are Not Valid

Pacifica Counsel argues that the 2021 New Day referendum would materially and adversely affect the staff in a manner different from the listeners because:

(A) it would have split the “Staff Class” into “Paid Staff “ and “Unpaid Staff”, and

(B) 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.)

Following are the effect of the proposed Bylaws on the staff.

(A) If the staff voted as one class, the Board can end up with all paid staff Directors or all unpaid staff Directors. To ensure that the staff have fair and democratic representation, there would be one paid staff Director directly elected by the paid staff, and one unpaid staff Director directly elected by the unpaid staff.

Further, neither paid nor unpaid staff (separately or combined) can currently choose their own representatives to the national Board, because they are always outvoted (by 18-6) when Delegates vote for the Directors from their station.

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”.

(B) One of the goals of the New Bylaws was to reduce the size of the National Board to help make it more functional. The number of guaranteed staff and listeners seats were both reduced by two-thirds, so listener seats were reduced from 15 to 5, and staff seats were reduced from 5 to 2. 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.

Pacifica Counsel’s argument, that the Bylaws require separate approval of both staff and listeners, is not valid.

Please Donate Now so New Day Pacifica can continue fighting for democracy and your rights!

Messing with the Delegate Election at KPFK

In addition to the national vote, there was an election in Los Angeles for members of the Local Station Board. In this election New Day Pacifica endorsed eight candidates. New Day sent an endorsement postcard to members endorsing these eight candidates on one side and asking on the other for donations to enforce the national election results in court. 

After the election results were in, management declared that four candidates endorsed by New Day Pacifica were disqualified because of a donation request in one small part of the endorsement postcard. These candidates were not notified of their disqualification, and member-voters were not notified that the candidates, whose names remained on the ballot during the entire voting period, would simply not be included in the final tallies no matter how many people voted for them — that a vote for them would be wasted. Vacated. Vanished.

It was not until after the election was completed that management announced the disqualification, without any prior notice, hearing, or justification.  They simply refused to count the votes for these candidates. Even though members had in good faith voted for them. 

It should be noted that the three candidates endorsed by New Day who were not disqualified were #1, #2, and #3 in the vote count. Voting experts have concluded that had management counted the disappeared candidates they would likely have won slots #4, #5, #6, and possibly #7 of nine Listener Station Board spots. Even the official Election Report noted that none of those candidates had violated any of the Fair Campaign Provisions. (The New Day–endorsed staff candidate also came in #1.   And in Berkeley and Houston the New Day–endorsed candidates similarly swept their elections.)

Messing with the Bylaws Election at WBAI

There are approximately 40,000 listener members and approximately 1000 staff members of Pacifica. The staff did not approve the officers directors and bylaws, voting approximately 59% “no” and 41% “yes.” But complicating this result is the fact that WBAI New York’s staff voted an eye-catchingly overwhelming 99% “no.” Without this 99% WBAI vote, Pacifica staff members overall would also have approved the changes and election. 

A 99% vote is a result that voting experts often cite as evidence of vote/voter fraud and/or manipulation.  Evidence of this includes: Management lied repeatedly to the staff about the contents of the bylaws, telling them that the PNB would be terminated and that the New Day Officers alone would be in charge of the network for months (a lie repeated incessantly) & could close down WBAI, telling staff they would be fired (not true) and the station shut down (the opposite of New Day’s mission, which is to restore each station’s financial footing and grow audiences) if the vote were yes.

Read more about Pacifica interfering with election results.

A motion was filed by your New Day legal team in Superior Court under Corporations Code 5617, which requires the court to determine a corporate election within five days. The court in its wisdom ruled that it did not have jurisdiction to rule on the merits of either election and denied the motions on that technicality. This was after considerable litigation, including the filing of numerous pleadings and a number of hearings.

We believe that the court was in error and are contemplating asking the Second District Court of Appeal for a writ of mandate ordering the Superior Court to rule differently. If we lose we will have to take the issue to trial, which will take years. Sadly, there is serious doubt about whether Pacifica will survive that long. 

Please Donate Now!

Recently, New Day Pacifica asked for Pacifica members to sign on to their new letter entitled “We the Pacifica Majority Seek Democracy and Survival of Our Network“.

Within just a few days, hundreds of people had filled out an online form to sign on to it. More people are still signing (and you can be one, too!)

Below are some of the many comments that they provided.

In 2021, the members of Pacifica Radio voted on a member initiated Bylaws referendum, for the New Day Pacifica Bylaws and election of four officer Directors.

The members voted 6820 to 5471 to approve the new Bylaws and to elect the four officers.

Listeners members voted 6640 Yes and 5216 No. 

Staff members voted 180 Yes and 255 No. 

Pacifica Counsel ruled the referendum lost claiming that it required separate approval of staff and listeners.

Pacifica Counsel gave two arguments.

(1) A prior agreement stipulated separate approval of staff and listeners.

(2) The Bylaws requires separate approval of staff and listeners.

Neither argument is valid.

(1) A Prior Agreement Stipulated Separate Approval of Staff and Listeners.

Pacifica 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 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 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 signed agreement.

Pacifica Counsel’s argument that a prior agreement stipulated separate approval of staff and listeners is not valid.

The Bylaws and California law govern how the staff and listener votes are counted.

(2) The Bylaws Requires Separate Approval of Staff and Listeners.

The Bylaws 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).)

Bylaws recognize separate voting groups; however, having separate voting groups does not mean approval is contingent on the approval of each voting group.

In the 2020 referendum, the Bylaws did required separate approvals of staff and listeners members because the proposal eliminated staff representation. The staff was materially and adversely affected as to voting in a manner different from the listeners. 

In the 2021 referendum, the Bylaws did not require separate approvals of staff and listener members because the new Bylaws proposal did not materially and adversely affected one class as to voting in a manner different from another class. 

Pacifica 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.)

Following are the effect of the proposed Bylaws on the staff.

(1) If the staff voted as one class, the Board can end up with all paid staff Directors or all unpaid staff Directors. To ensure that the staff have fair and democratic representation, there are one paid staff Director directly elected by the paid staff, and one unpaid staff Director directly elected by the unpaid staff. 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) One of the goals of the New Bylaws was to reduce the size of the National Board. The number of guaranteed staff and listeners seats were both reduced by two-thirds, so listener seats was reduced from 15 to 5, and staff seats were reduced from 5 to 2. 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.

Pacifica Counsel’s argument, that the Bylaws require separate approval of both staff and listeners, is not valid.

Summary:

In the 2021 referendum, Pacifica members voted for the New Bylaws by a solid and democratic majority of 6820 to 5471 (55% to 45%). 

Pacifica Counsel overruled the democratic vote of the members based on two arguments that are not valid.

It is also concerning that the Pacifica Counsel was strongly opposed to the proposal. (See Note.)

Pacifica needs to recognize the combined vote of the listeners and staff, who clearly want Pacifica’s broken governance fixed. 

Note:

Arthur Schwartz falsely stated at the PNB Meeting Part 2 April 15, 2021 [46:55-47:40]

“What bothers me most about these 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, 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.

And that’s the biggest part of this. That there is a period of total dictatorship by a 4-person committee that could totally change Pacifica.”

It’s been a wild ride this past two years trying to bring Pacifica back to democracy. To be the creative network of stations envisioned by Lou Hill. A network for progressive voices throughout the United States and the world. With the 2022 elections coming, we need Pacifica more than ever. For that reason, we need your continued support more than ever and we’ll return to that later, but first, here’s an update on what’s been happening.

For a year and a half, we struggled against the entrenched management and National Board. They exploited every technicality and trick to stop us.

They changed the number of signatures for the Bylaws referendum. From 400 to 2,000. We got 3,000 of you to sign, and more kept signing afterwards.

Then they mounted a campaign of disinformation, distortion, and half-truths against the New Day Bylaws. They hampered our email send-outs to members. They ran on-air programs featuring all the mentioned forms of disinformation without affording our representatives the required equal time on air to respond. All this continues to this day!

Despite all this, current management failed, and enough members were able to discern the facts, namely that Pacifica would disappear if we did not change. Thousands of members voted in the largest turnout ever for a Pacifica election. New Day won the overall vote with a 55% to 45% margin.

We thank you for your support – for the thousands of you who voted YES for bylaws and governance reform to save Pacifica, for the many who emailed and called your fellow members, and for the hundreds of you who donated to help pay expenses for New Day Pacifica (NDP). If you haven’t donated lately, this is a great time to do so.

Donate to New Day Pacifica

But the struggle goes on. The entrenched interests continue to have Pacifica in their grip, even though they’ve shown they have no solutions to Pacifica’s problems, that threaten our stations’ very survival.

Why NDP Needs Your Continued Support

Current management has interpreted the applicable California law to mean that a tiny number of staff, mostly at one station (WBAI) where the disinformation about New Day had been most prevalent, could override the vote of the majority of Listener-Members, because — according to them — staff members’ rights would be more negatively affected by the new bylaws than would Listener-Members’ rights. Since the much smaller staff group — if considered separately — voted no, current mamnagement declared that New Day lost the referendum. Suffice it say, we strongly disagree with their interpretation of the law.

Finally, Pacifica filed the present lawsuit against New Day. And against the NDP Transition Officers that you voted to put in place along with the NDP Bylaws. We had to hire lawyers to represent three of those officers to get Pacifica to drop the lawsuit against them.

Then, Pacifica filed a lawsuit against all of the candidates for the KPFK-LSB that New Nay endorsed.

An ongoing pattern of behavior indicates that this is what Pacifica’s current management does. They threaten, they file lawsuits, they use intimidation tactics to try to get their critics to quit, in apparent hopes that no one has the funds to go to court to challenge Pacifica in court.

However with your help, we’re doing just that.

There’s a chance that the end may be in sight.

Next Wednesday, Dec. 29, a judge will hear arguments on whose interpretation of the California law will prevail. We are hoping that the court makes a decisive ruling in New Day’s favor, but we’ll just have to wait and see.

Pacifica recently filed yet more legal accusations against New Day. We must respond. The lawyers must be paid. And more costs will come.

We have come really far, but we’re not quite across the finish line yet. It would be a shame to come up short. Our legal team can’t wait and needs to be paid as they work. If you think our cause is worthy, please donate whatever you can, from $10 to $10,000. It all goes to the attorneys arguing our case, and working to protect YOUR rights as Pacifica members.

May 2022 be the year that peace settles in every corner of the earth that needs it the most — including Pacifica!

Donate to New Day Pacifica

For updates, see NewDayPacifica.org

Thank you again and we hope that you, Pacifica, and all of our stations have a great 2022!