See below for (and click on any of these to jump directly there):

• a Legal Update and Response to the Oct. 26 Email From Pacifica Foundation General Counsel Arthur Schwartz
• a strange development in the recent Delegate/LSB elections
• brief KPFT update
• brief update on loans
• how to help us keep going!

The following are just a few examples of misleading and/or false statements made by General Counsel Arthur Schwartz:

Arthur Schwartz claims:  In the Oct. 26 email, General Counsel Arthur Schwartz says “The bylaw proposal was defeated because the staff voted no.”
New Day’s response:
Whether the proposal won or lost depends on how one interprets the California law governing non-profits like the Pacifica Foundation. New Day is simply asking the appropriate court to make that determination. Thus, any claims by Schwartz et al that “they won” or “New Day lost” are at best misleading and premature.   (Note:  The Listener-Members voted YES by a margin of 56% to 44%. The much smaller group of station staff collectively voted no, with the opposition heavily concentrated in the 2 eastern stations, which overcame the YES vote from western station staff at KPFA, KPFK and KPFT. Overall, if the votes of the two classes are taken together, the YES vote won by a margin of 55% to 45%. So the question before the court is whether California law will hold that the overall majority YES vote will prevail or not.)

Arthur Schwartz claims:
New Day solicited funds to “sue Pacifica.”
New Day’s response: New Day is soliciting funds to seek a legal ruling by the court on how the applicable California law should be interpreted and therefore who won the June Bylaws Referendum. Note that New Day has not suing anyone; the current Pacifica Management is suing New Day…and using Listener-Member donations to do it. These lawsuits seem to us to be designed to bully, intimidate and discourage New Day’s legal efforts. With your help, they will not succeed.

Arthur Schwartz claims: “New Day Pacifica has only one or two members … and no bylaws.”
New Day’s response: 6800 People voted for the New Day Bylaws, and New Day Pacifica (NDP) has at least a dozen people active on its leadership team and thousands of supporters!  NDP is essentially a group of devoted Pacifica Foundation supporters working to reform the Foundation’s dysfunctional governing structure in order to preserve and sustain the Foundation in its crucial role as a progressive independent media voice speaking truth to power. The fact that current Pacifica management is using Listener-Member donations to sue New Day (as well as the 4 individuals named in the new Bylaws as “transition officers” and eight individuals who ran for LSB positions in the recent elections) has made many others associated with New Day reluctant to list their names publicly. That doesn’t mean they don’t exist. It just means that to the extent bullying and intimidation are current management’s goals, they have at least in part achieved that end.
As to bylaws, NDP has been focused on drafting, passing and implementing the Pacifica Bylaws Reforms, not on establishing itself as an independent organization. 

Arthur Schwartz claims: NDP is “using the … names it got from Pacifica to raise money….” And has not yet filed to declare the election results improper.
New Day’s response: Yes. Raising money from and communicating with the Pacifica Listener-Member list is within our rights under both the old Pacifica Bylaws and California corporate code. Otherwise we could not continue our fight on behalf of the majority who voted YES for reform. That money is now being used to get the bylaws that the majority of Pacifica voting members support.  In order to do that we have had to defend against Pacifica’s allegations, and to try to make sure that we were in the appropriate court.  In the meanwhile,  our cross-complaint dealing with the key remaining election question of “who won” has not yet been filed, but will be soon.

Arthur Schwartz claims: “Money [NDP] has attempted to collect … is being paid to Jan Goodman’s lawyer husband.
New Day’s response: New Day is extremely fortunate that one of its leaders, Jan Goodman, is an attorney who’s been working pro bono on behalf of New Day. Gaining court validation of our hard won victory last June is arduous and time-consuming. Jan is doing it because she loves Pacifica and wants to preserve and revive the network. She cannot do it alone. NDP has been trying to find more lawyers willing to work for free or at a reduced rate, but that’s not easy to pull off. It’s no surprise that most attorneys want and need to be paid for their efforts. So it’s doubly fortunate that Jan is herself married to a man who’s also an attorney, Jerry Manpearl, and one who’s willing to work unpaid unless or until current Pacifica management is ordered by the court to pay damages to NDP. Most lawyers in cases like ours insist on being paid up front; it’s rare to find one who’ll work on a contingency basis. If that money comes in, the New Day leadership team is in agreement that it would be only fair for him to be compensated. If not, he will have worked pro bono. Jerry has taken the case because he too cares deeply about and wants to reform and rescue Pacifica from the dire straits it’s in. That said, even the two of them together cannot handle this case by themselves due to commitments they have to many other clients. That’s the reason we turn to our supporters for financial assistance to fill-out our legal team.

Another Strange Development – Disappearing Candidates

Four candidates in the Delegates/LSB election that just ended, who were endorsed by NDP, mysteriously disappeared from the election results posted online on elections.pacifica.org. It’s as if they were never candidates at all, which of course is not correct. They are Robert Payne, Nancy Pearlman, Will Ryan, and Adam Wolman, all from KPFK. We hope this removal of four NDP-endorsed candidates is a simple mistake that will be corrected promptly. Despite demands, so far Pacifica has failed to correct this disappearance, which is forcing New Day to ask the court to do so. Except for this peculiar but significant exclusion, candidates endorsed by NDP did very well in the elections. Thanks for voting for them!

KPFT update:

Although the PNB majority voted many weeks ago to approve sale of KPFT’s building, the sale has still not been finalized. No details have been made public.

Loan Update:

We have also learned that Pacifica’s request for a $2 million EIDL loan from the Small Business Adminstration was turned down, but Pacifica will be getting (or perhaps already received) a $500K EIDL loan from SBA. We remain concerned that Pacifica still has not provided any repayment plan for either that or the $3+ million FJC loan that uses Pacifica’s buildings as collateral

Go to newdaypacifica.org/donate to donate whatever you can in support of these efforts, or to volunteer your time for our legal efforts.

Many thanks!

Recently released referendum numbers show that both listeners and staff at KPFA, KPFK and KPFT overwhelmingly support the Vote Yes – New Day changes needed to reform Pacifica’s governance/leadership structure and save Pacifica. Vote Yes-NDP overall won 55% of the vote. (See below for vote numbers, analysis).

Pacifica files lawsuit against New Day

Pacifica management and board majority is using a staff veto strategy to declare that the bylaws referendum lost, in spite of the fact that Pacifica’s listener-members and membership as a whole on July 9 voted decisively in favor of the New Day Pacifica changes to save Pacifica.

On July 22, Pacifica filed a lawsuit against New Day Pacifica, and against the four people who ran to become Transition Officers of the Pacifica National Board in the Bylaws Referendum & Election of Officers (although Pacifica claimed that they were Officers of New Day Pacifica). Originally the complaint was mostly to have the court decide which side won the election. However, later Pacifica piled on a lot more claims to try to intimidate New Day and its supporters from standing up, speaking out in court, in public and in the courtroom. For instance, Pacifica is now claiming that the money that New Day collected to get the bylaws passed and to hire counsel to represent the YES position in court belongs to Pacifica, and New Day and the defendants should be ordered to reimburse Pacifica for these funds. See more about this below.

Pacifica is going to court to try to both bankrupt New Day Pacifica but also to squash all criticisms of Pacifica’s current financial and organizational crisis. It is expected this lawsuit will cost Pacifica at least $100,000–all on the membership’s dime.

New Day will fight to get the Vote Yes bylaws implemented so we can save Pacifica

With your support we will fight to get the court to certify an NDP victory so we can get the necessary governance changes implemented to address and turn around Pacifica’s financial and organization crises. We are currently assembling our forces and planning strategy, and will use all available political and legal means to get the Vote Yes-NDP bylaws ratification recognized.

Please donate today – more essential than ever!

Please donate $5 to $500 (or more!) for NDP expenses and legal costs to ensure the membership’s Vote Yes decision to save Pacifica is respected. We have $10,000 remaining in donations, but estimate we need to raise another $40,000 to win in court. Thanks to the more than 800 members who have donated already to support New Day Pacifica’s efforts to save Pacifica.

DONATE to New Day Pacifica

What’s happened at Pacifica since the vote?

Pacifica gave interim Executive Director huge raise despite further cost-cutting plans. Pacifica started paying Pacifica’s current executive director a salary with a six-month contract, despite the fact that she has no significant media management experience. To incur this expense at a time when Pacifica plans to lay off valuable staff at KPFK and other stations makes little sense. Pacifica needs a media-experienced ED to oversee the day-today running of the five stations, archives and affiliate network and provide strategic guidance to the Foundation and board.

Pacifica wastes $60,000 on Houston real estate agent. Pacifica hired a real estate agent to sell the KPFT building who Pacifica must pay out of the sale price, rather than hiring an experienced real estate agent who was willing to donate their services to Pacifica. This wrong-headed decision will cost Pacifica at least $60,000.

Please sign petition opposing cuts in KPFK employee severance pay. Pacifica management recently stated they plan to impose a new union contract on the KPFK staff which includes massive cuts to KPFK employee severance pay, making it easier and cheaper for Pacifica to lay off long-term staff at KPFK. Please sign this petition to support Roy Tuckman and other KPFK staff.

Vote Yes Landslide at KPFA, KPFK and KPFT—among both listeners and staff

*Pacifica’s National Election Supervisor released station percentage data only, so vote totals calculated are approximate.

*Pacifica’s National Election Supervisor released station percentage data only, so vote totals calculated are approximate.

Please check our website for updates: NewDayPacifica.org

To help us ensure that Pacifica honors the results of the membership vote:

Please DONATE to help with our expenses.

Thanks!
— the New Day Pacifica team

Thanks to the 6820 members (both listeners and staff) who voted Yes to save Pacifica.

We won this referendum by a solid and democratic majority of listeners and staff—despite Pacifica management’s announcement to the contrary.

Vote Yes-New Day Pacifica will work through the various legal and political channels available to us with your support to appeal and reverse this wrong-headed decision which allows those individuals responsible for Pacifica’s financial and organizational crisis to stay in charge at Pacifica. Pacifica needs to immediately recognize the membership’s decision to approve and implement the New Day Pacifica bylaws proposals so we can save Pacifica and all five radio stations, archives and affiliates.

NDP Bylaws Referendum Results

Pacifica is using a “staff veto” theory to justify declaring that Vote Yes lost. Pacifica posits that since the New Day proposals affect the staff, if the staff reject the proposals the vote of the overall membership is irrelevant and the proposals fail. The irony of Pacifica’s management professing concern for the opinion of Pacifica’s staff while overseeing the gutting of Pacifica staff’s benefits should not be lost on anyone. (Pacifica recently eliminated employer-paid family health insurance at KPFK and is planning to gut existing severance language protections to facilitate laying off long-term staff at KPFK.)

Question: is a “staff veto” of bylaws proposals ever permitted under the Pacifica bylaws and California non-profit law?

Yes, but only in the most extreme circumstances where the bylaws proposals would “materially and adversely affect the rights” of the staff “as to voting or transfer in a manner different than” such action affects the listener-members. (See the Pacifica Bylaws, Article 17, sections 1B-3 and 1B-4). The New Day Pacifica proposals do not “materially and adversely” affect Pacifica staff’s rights, so the membership’s majority decision (which includes both listeners and staff) should determine that Vote Yes won the referendum.

Question: doesn’t Pacifica staff support Vote Yes-New Day Pacifica?

Yes! Staff at KPFA, KPFK and KPFT overwhelmingly support Vote Yes-New Day Pacifica to save Pacifica, all five stations, the archives and affiliates. Vote Yes-New Day Pacifica also has some staff support at WBAI and WPFW. However, Pacifica management at WBAI (GM and PD) and WPFW (PD) used their positions at Pacifica management to coerce staff into voting No after they publicly endorsed Vote No this year. Last year WBAI management was even caught ordering staff to produce vote No receipts to prove they were loyal staff members!

Question: so how will New Day appeal/overturn the bylaws decision?

New Day yesterday requested arbitration as per our December 4 agreement with Pacifica to use arbitration to resolve election issues to “avoid litigation and expense to the Pacifica Foundation.” Even given this agreement, Pacifica has already hired another expensive law firm to prepare for a court fight, clearly hoping to bankrupt New Day Pacifica due to court costs.

Donations still essential:

Please donate $5 to $500 for legal costs to ensure the membership’s Vote Yes decision to save Pacifica is respected. We have $10,000 remaining in donations from you, but estimate we need to raise another $40,000 to win in court. Thanks to the more than 800 members who have donated so far to support New Day Pacifica’s efforts to save Pacifica.

Pacifica confirmed yesterday that they are selling the KPFT building in Houston to pay down a small portion of Pacifica’s $3.2 million loan that is due October 2022. KPFT is being forced to trade a fully paid off property that they own for monthly rent at a new property. KPFA and KPFK Buildings Also in Jeopardy of Sale or Lease Pacifica just announced plans for “the lease or sale of certain properties” (more than just KPFT building) “to provide sufficient cash flows to properly service the debt and provide sufficient working capital to satisfy ongoing operation expenditures and related commitments (such as payroll and related benefits)” (Pacifica audit for FYE 9-2020 filed June 30 2021, page 28). In other words, Pacifica will be selling or leasing the KPFA and/or KPFK buildings to pay its ongoing expenses including payroll and help pay off the $3.2 million loan.

WBAI Unpaid Bills as of May 19, 2021* (at least 90 days overdue) Accrued Pension $104,114.58 Health Care Bill Back $91,009.60 Pacifica National Office $512,443.62 Pacifica Radio Archives $214,384.50 Payroll Expenses $170,452.79 TOTAL $1,091,905.09 WBAI Monthly deficit: $26,693.87* (average monthly deficit October 2020-April 2021) *WBAI Treasurer’s Report, June 9, 2021 R. Paul Martin, WBAI Local Station Board Treasurer

Join Pacifica Staff in Voting Yes

Pacifica just failed another financial audit (FYE 9-30-2020) For the sixth year in a row, Pacifica’s independent auditors determined that there is “substantial doubt about the organization’s ability to continue as a going concern” (pages 2, 27-30), which is auditor language for failing an audit. Some of the main points in the audit: * Pacifica owes over $665,000 in unpaid pension costs, including $547,000 in late filing penalties, assessments and interest (page 24). * Pacifica’s current deficit is $1.7 million, which does NOT include the $3 million balloon payment due October 2021 (page 27). * Pacifica received a much-needed $1.2 million grant under the federal CARES Act, which prevented the deficit from being even more significant (page 17). KPFA, KPFK and KPFT buildings in jeopardy of sale or lease In the audit, Pacifica announced plans for “the lease or sale of certain properties” to provide sufficient cash flows to properly service the debt and provide sufficient working capital to satisfy ongoing operation expenditures and related commitments (such as payroll and related benefits)” (page 28). The national board’s recent decision to sell the KPFT building was discussed at the June 15th KPFT Budget/Finance Committee meeting. Pacifica only has 3 properties, the KPFA, KPFK and KPFT buildings.

Breaking News: Danny Glover Never Endorsed Vote No

New Day Pacifica’s Jan Goodman talked with Danny Glover on Friday and was surprised to learn that Glover has not endorsed Vote No efforts this year, despite his name and picture being plastered all over the Vote No emails, websites and on-air commercials.

Last year Glover did oppose the very different bylaws referendum that lost, but has stayed neutral this year. It’s a classic campaign dirty trick. FYI, the small print on the Vote No website does show that the Glover interview was from last year (February 20, 2020).

Glover asked that his name and picture be removed from all Pacifica materials and commercials, saying “The most important thing to me is the survival of Pacifica. I know that there are good people on both sides of the bylaws issue, and I am confident that no matter what happens with the bylaws, the goal will be to save our precious Pacifica. P.S. Please take my name and likeness off any and all endorsement lists/statements. Danny Glover” (June 14, 2021 email sent by Glover’s Communications Director)