J’Accuse…!
We accuse Pacifica governance of:
- Financial mismanagement for the last 10 – 20 years
- Deliberate or incompetent destruction of the excellence in broadcasting that is Pacifica’s heritage
- Driving the Foundation to the brink of bankruptcy
- And, recently, of stealing the Pacifica national election as well as the local election at KPFK
The first three are obvious. The last we’ll explain here, and then request your contribution for legal fees to continue fighting for your rights. We can’t do it without you.
New Day Pacifica
Inquiring minds want to know: Why are legal bills at the Pacifica Foundation so high? Why are member dollars, desperately needed to support the Pacifica Network’s five stations, being siphoned off to pay law firms?
Is it because, as some conspiratorial-minded people would have it, there are scary people trying to drive Pacifica into bankruptcy? Or is there something that Pacifica itself is doing to drive up legal fees? (You guessed right: It’s the latter.)
Let’s take a look at the latest round of the Pacifica “legal wars” for the full story.
2021 ELECTION FOR AMENDED BYLAWS AND TO ELECT FOUR INTERIM OFFICERS AND DIRECTORS
In 2021 a group of Pacifica members concerned about the Pacifica Foundation realized the best way to help was to revise the bylaws to make the organization’s governance more functional — and then to convince a majority of listener-members to vote for reform.
Seventeen executive directors in 20 years was too much; a $2 million judgment against WBAI was too much; a $3 million loan secured by Pacifica’s real estate with no repayment plan was too much; being continually on the brink of bankruptcy was too much; continued failure to raise sufficient operating funds by WBAI and sometimes the other stations (now including KPFK) was too much; continued loss of $1 million per year in grants from the Corporation for Public Broadcasting was too much; continued decline in membership and listeners was too much; continued degradation of the quality of programing and the programmers was too much.
Something had to be done.
NEW DAY PACIFICA IS FORMED AND PACIFICA AGREES (theoretically) TO ARBITRATE DISPUTES RELATING TO THE ELECTION
Analyzing that it was the governance structure that was dysfunctional, not just individuals, these members formed an organization for the purpose of passing amended bylaws, New Day Pacifica. Bylaws revisions were drafted. If the referendum passed, the bylaws would be revised and transition officers elected. After continued fights and battles with Pacifica governance and management, Pacifica and New Day Pacifica agreed to arbitrate disputes “to address issues which might arise” and “to avoid litigation and expense.”
After a long campaign a vote on the referendum was finally held. The new bylaws and the election of four national officers and directors won a solid majority of the votes of all members. Overall the vote was 55% (6817) YES and 45% (5459) NO. However, of the fewer than 500 staff members who voted, 59% (255) voted NO, to 41% (178) YES votes — but only because WBAI staff voted 99% to 1% NO. Voting experts say a 99% vote is likely only to happen when there is fraud or intimidation. In fact staff and listeners at WBAI were told over and over that if the referendum passed, the station would be closed and the staff fired — a lie. Staff at three stations solidly approved of the referendum.
In spite of the overwhelming vote in favor of the referendum, the then–Pacifica National Board (PNB) majority and national management, apparently seeking to maintain power under the status quo, insisted that both listener members and staff members had to each vote yes as a group — and declared that the referendum lost. New Day believes this is clearly not the law and is incorrect, a decision based on management’s overwhelming desire to keep control and not the law. Seventy-seven staffers at WBAI, according to management, controlled the election.
PACIFICA REFUSES TO ARBITRATE
When it became clear that there was a dispute about whether the majority vote of the members would determine the outcome, arbitration would have been the quick, inexpensive way to resolve things.
Why wouldn’t the majority vote absolutely determine the outcome? Because there’s a state law and bylaw which states that if staff would be “adversely and materially affected differently from the listeners as to voting,” the staff as a group would have to vote yes. Are staff materially and differently effected? New Day contends — and the numbers support — that staff is actually treated better as to voting under the revised bylaws, and therefore the bylaws reforms won. Management disagrees.
Instead of arbitrating this simple and clear issue, as New Day requested, Pacifica Management filed a law suit (think: big bucks!) against New Day and the proposed PNB officers who would be seated if the revised bylaws were implemented.
The cost to members of fighting and refusing to arbitrate? Pacifica won’t say, but our educated guess is more than $60,000 so far.
Pacifica has spent members’ donations as if Pacifica were a fat-cat corporation with oodles of money in its coffers. It’s as if the board majority members have been thinking, “It’s not my money, so why not spend as much as necessary stalling a decision so we can stay in power?” Bolstering this inference is the latest news from the board majority: They are now planning to wrongfully eliminate this year’s Delegate elections — perhaps because New Day–endorsed candidates swept last year’s elections at three of the five Pacifica stations, and if elections were held this year, the New Day movement for reform, which continues to include a majority of Pacificans, would likewise become the majority on the board.
WITH REGARD TO THE KPFK LOCAL STATION BOARD ELECTION
Pacifica’s bylaws and California law provide that members/New Day have/has the right to send postcards and emails to all other members on Pacifica’s mailing list to raise money to support candidates and/or bylaws amendments. The logical extension is that they also have the right to raise money from these members to see that bylaws amendments passed by a majority of members are implemented. Otherwise corporate management could squash any movement for change by just ignoring the will of the membership, by filing a lawsuit to stop the change, and stripping the reformers of their right to raise money from the membership to fight to implement the changes the reformers had the right to raise money for to pass the amendments in the first place.
New Day is fighting for the reforms the majority voted for, changes for which there is no question campaign money could be raised. Neither the courts nor the legislature has addressed this particular question, which is why the court will decide it, in the present litigation.
Reasonably believing New Day had the right to do so, New Day sent a postcard on about September 2, 2021 endorsing eight candidates in the KPFK LSB election and on the flip side of the card asking for donations to defend against the above lawsuit.
After the mailing, the National Election Supervisor and Pacifica’s General Counsel told New Day Pacifica that sending out such a fundraising solicitation to the membership was illegal (something that NDP attorneys disagree with). They then resorted to a sort of blackmail, telling New Day that unless the eight NDP-endorsed candidates endorsed “admitted” they broke the law, the candidates would be disqualified.
Of course the candidates, who did not know or approve of the contents of the postcard, just that they were being endorsed by New Day, refused to submit to such intimidation.
Two weeks later, without any process whatsoever, including never communicating directly with the candidates to ask their side of the story, and ignoring New Day’s explanation that the candidates knew nothing about the contents of the postcard, Pacifica added all eight candidates as defendants in the above existing lawsuit. (Think: more money flowing from Pacifica’s coffers) With a stroke of the pen, in an attempt to intimidate, Pacifica disrupted the lives of well-meaning Pacifica supporters who did nothing but volunteer to be involved in Pacifica’s governance by running for the LSB. One candidate was in fact intimidated and soon dropped out. The others stayed in.
Former national board member Grace Aaron, part of the clique that opposed New Day, and a candidate herself, running against the NDP-endorsed candidates, emailed Pacifica General Counsel Arthur Schwartz that four of the above candidates whom she supported (two of whom were on her slate) knew nothing about the postcard. Having never spoken with any of the candidates, Schwartz then told these four that he/Pacifica was not going to take action against them because Aaron said that they were OK. So although all eight were equally uninvolved in the conduct of New Day in sending a solicitation, only four of them ended up being “disappeared” from the results of the election — based solely on Aaron’s preferences.
And then management sat on its hands, leading New Day and the candidates to believe that management had changed its mind. KPFK members were sent ballots with all eight of the New Day–endorsed candidates, and members were allowed to vote. Management did not advise voting members that some candidates were threatened. No further mention was made of disqualification to the candidates or to the members. Voting members believed their votes would be counted. Management admits that it did not institute any hearings, bring any charges, or tell the members or candidates that their votes would not be counted. Only when votes were in and tabulated did management take action: not a hearing, not charges, not arbitration, not an investigation — they merely disappeared four candidates and published the results of the election without the names or vote counts of the disappeared candidates, as if they had never run.
Under the Bylaws, the National Election Supervisor (NES) has the right to disqualify candidates for breaking Fair Campaign rules, but that power is limited to those who break the Fair Campaign rules. The bylaws do not give the NES the right to disqualify candidates for any other reason. None of these candidates broke any of the Fair Campaign rules, but the NES disqualified them anyway. Thus their disqualification is far beyond the purview of the election supervisor.
Management realized after Simply Voting (an independent company Pacifica uses to count the ballots) counted the votes that the New Day–endorsed candidates won the vast majority of the KPFK Local Station Board listener seats. Only then, ex post facto, did management decide to disqualify the winning candidates.
Management went back to Simply Voting and told them to recount without including these four candidates, then published those altered results.
The three New Day–endorsed candidates whose votes were counted came in number 1, 2, and 3. It has since been learned that if the votes for the three remaining New Day endorsed candidates were included in the count, all six of the remaining New Day candidates would have been elected. (One of the eight dropped out as soon as she was improperly accused of wrongdoing and one candidate, sadly, died after the election was completed.)
PACIFICA OPPOSED NEW DAY’S MOTION FOR A QUICK RESOLUTION
After Pacifica decided to end arbitration and sued New Day, New Day made a motion under a special code section (Corp Code §5617) asking the court to immediately decide who won and who lost the election. Instead of taking advantage of this legal shortcut, which would have allowed Pacifica the opportunity to avoid the costs of a drawn-out court battle, Pacifica spent thousands more dollars and fought against the motion for an early decision — stalling and adding attorneys’ fees. The judge, instead of immediately deciding whether the bylaws passed, ruled it did not have the authority to make a decision, leaving the issue to be decided at a trial. Pacifica won this Pyrrhic victory, putting off a quick decision which would have ended the lawsuit and saved tens of thousands of dollars.
After being sued by Pacifica, New Day and the other defendants filed a cross-complaint, presenting their position hoping to bring the matter to a head as quickly as possible.
In addition to using up member resources as described, Pacifica’s attorneys have continuously wasted time and money trying to prevent New Day from raising funds to fight the lawsuit that Pacifica management filed.
Pacifica lawyers then made a motion to try to stop New Day from fundraising, claiming that the money they were raising was really Pacifica’s (!!!). The court rejected their motion, meaning that filing this failed motion put Pacifica’s money into the pockets of Pacifica lawyers at the expense of Pacifica donors.
In addition, Pacifica attorneys spent substantial resources asking the court to silence New Day from criticizing Pacifica’s management and presenting New Day’s position with regard to who won the referendum. It took the court about 60 seconds to essentially lecture Pacifica’s attorneys that the US Supreme Court refused prior restraint against the NY Times from printing the Pentagon Papers, so the judge wasn’t about to issue an order of prior restraint against New Day.
These are only some of the ways Pacifica and its attorneys have caused this litigation to drain Pacifica’s coffers. Meanwhile, all this litigation is using up the funds members have generously donated to both Pacifica (to support the network) and New Day (to fight to implement their votes to reform Pacifica’s dysfunctional governance system). Every motion Pacifica files probably costs both Pacifica and New Day tens of thousands of dollars.
New Day accomplished another success when Pacifica recently finally agreed to try to expedite the litigation. We’re excited to see our efforts paying off, and that we won the motions with regard to fundraising, our mailing lists, and freedom of the press!
But the downside is that New Day needs to raise at least $20,000 to $50,000 more in attorney’s fees. We need your assistance to enable us to convince the court that the majority reform vote to create a more-functional Pacifica governance structure should be implemented before Pacifica disappears by continuing its death spiral.
Although this number is high, compared to the value of letting our precious community asset — the only independent, left radio network in the country — dissolve by continuing on its present trajectory, this is a fight well worth supporting.
The funds can be raised — by the team effort that got us to this point.
If the following donations were made, New Day supporters would create a fund of $40,500 with the donations of 395 people.
- 1 donation of $10,000
- 2 donations of $5,000
- 3 donations of $1,000
- 4 donations of $500
- 10 donations of $250
- 25 donations of $100
- 150 donations of $50
- 200 donations of $25
You, our supporters, won the election! We’ve come this far. We can’t give up now. Unlike Pacifica, which simply diverts the money that people donate to support their stations to pay for the lawyers to oppose the votes of the majority, New Day is depending on you to consciously make the decision to fight to implement the changes you voted for. Please donate at whatever level you can — $10,000? $5000? $500? Or even $5 if that’s all you can afford — by clicking here:
Together we’ll fight to see these essential changes get implemented so we can save precious Pacifica.
You may also Donate to New Day Pacifica by mailing a check to New Day Pacifica at 5627 Telegraph Ave, Suite 116, Oakland CA 94609
Thanks from the New Day team!
Attribution for image above: Vectorstock
