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.
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.
“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.”