Dan Siegel & Pacifica Radio

THOMAS J. HILLGARDNER, ESQ.

WBAI Plaintiff's Attorney - for Election Lawsuit

January 27, 2008

Pacifica National Board Members

Newark, New Jersey

RE: False Statements of fact and law made by Dan Siegel concerning the court proceedings in Cohen v. Pacifica Foundation

Dear Pacifica National Board Members,

I am counsel for the plaintiffs in the above referenced action and I write due to serious distortions of fact and law that were made to you by your interim Executive Director and General Counsel, Dan Siegel, at a session of the meeting of the Pacifica National Board held in Newark, New Jersey on January 26, 2008. I write to correct the record and, simultaneously, to demonstrate that, due to his conflict of interest, Mr. Siegel is an unreliable source of legal advice and facts about this lawsuit. In referring to statements made by Dan Siegel, I am operating from a transcript of his statements.

Firstly, the legal advice you receive from Dan Siegel on the issue of the validity of 12 member boards and delegate assemblies is plain wrong and he failed to articulate the legal arguments – of which he is well-aware – that militate for a contrary result to the one he recommended. Mr. Siegel chooses to ignore that the Delegate Assembly, which elects station representative directors from the local radio station, unlike the Local Station Board, is NOT a standing committee of the Pacifica National Board. Thus, the provision of Robert’s Rules that purports to extend the expired terms of members of the Local Station Board is entirely inapplicable to the Delegate Assembly – which Robert’s Rules considers a convention and not a standing committee. Thus, and where the Delegate Assembly and not the Local Station Board elects station representative directors, the provision of Robert’s Rules which purports to extend the terms of the expired members of the Local Station Board cannot and does not extend the terms of Delegates that may be seated at the convention to elect station representative directors.

Further, even as to the legitimacy of the extension of the expired terms of delegates who sit on the local station board, Mr. Siegel conveniently neglects to read, or selectively reads, key provisions of Robert’s Rules to obtain the result he desires. Most poignantly, Mr. Siegel fails to inform you that the existence of certain provisions of Robert’s Rules, which the bylaws adopt as the rule of decision as to parliamentary order for the organization to the extent they are not inconsistent with the bylaws, implies that when the bylaws were drafted, the drafters purposely chose to adopt determinate terms for delegates that expire and are not extended by Robert’s Rules. Because Robert’s Rules was adopted as the parliamentary rule when not inconsistent with the bylaws, and where Robert’s Rules urges the drafters of bylaws to avoid fixed, determinate terms for “committee members,” the inference that should be drawn is that the drafters were aware that Robert’s Rules counseled against determinate terms and chose to do so anyway. Thus, notwithstanding that the bylaws authorize a local station board to be populated by up to 24 members, when an election for twelve delegates fails for reasons other than quorum, it appears that the determinate terms of delegates expires and the size of a legitimately constituted local station board is reduced from 24 to 12. Mr. Siegel’s argument, that a provision of California Corporation Code, which he concedes to be expressly applicable to director elections and not necessarily delegate elections, is also wrong. Another subdivision of the same statute provides in relevant part as follows:

Subdivisions (a) through (c) notwithstanding, all or any portion of the directors authorized in the articles or bylaws of a corporation may hold office by virtue of designation or selection as provided by the articles or bylaws rather than by election by a member or members. Those directors shall continue in office for the term prescribed by the governing article or bylaw provision, or, if there is no term prescribed, until the governing article or bylaw provision is duly amended or repealed[.] California Corporation Code § 5220(d).

By its terms this provision of law overrides the provision cited by Siegel (i.e. California Corporation Code § 5220(b)), that Siegel claims to be applicable to delegate elections and that he purports to authorize the extension of delegates’ terms. Besides that these provisions only apply to directors’ elections and not delegates’ elections, if you made the analogy that Siegel urges, still you would be confounded by subdivision (d) which tells you that the term of the director or delegate is that set forth in the bylaws!

Being wrong on the law is one thing. Purposely distorting what happened in court for his own benefit is quite another. And one of the most despicable mis-statements of fact made by Mr. Siegel (but certainly not the most despicable) concerning the legitimacy of the election of the four delegates as the WBAI station representative is that the judge denied plaintiffs motion for a preliminary injunction, implicitly holding that plaintiffs were not likely to succeed on the merits of this claim. If Mr. Siegel was an attorney admitted to practice in the State of New York, the mis-information he provided to you about what the New York court did could be grounds for his suspension or disbarment from the practice of law. In fact, what actually happened is as follows: Plaintiffs made a motion for a preliminary injunction returnable before the Court on January 24, 2008. On the return date, plaintiffs’ made an oral application for a temporary restraining order that would have barred you from seating the WBAI delegates elected as station representative directors pending the Court’s determination of the motion for a preliminary injunction that seeks to void all actions taken by what plaintiffs believe to be are illegally constituted local station boards and a Pacifica National Board containing illegally elected WBAI station representative directors. The judge denied the application for the temporary restraining order on procedural grounds where the motion was made by notice of motion and not by order to show cause. The Court never reached the merits of the motion for a preliminary injunction and took that application under submission. Any competent lawyer knows that this conduct by the Court does not imply that the Court held that plaintiffs do not have a likelihood to succeed on the merits of their claims. Yet this is precisely what Dan Siegel told you occurred in the New York court case. Why would Mr. Siegel state to you that the Court ruled against this motion and implicitly held that plaintiffs lack a likelihood of success on the merits when this did not occur?

There are only three possibilities:

(1) he is an incompetent attorney;

(2) he has a very bad memory; or

(3) he has a dog in the hunt and is lying to you to serve his own ulterior motives.

And lastly on this matter, I remind you that Dan Siegel previously told you at your last telephonic meeting before the Newark meeting, that this issue would not even be raised at the court hearing scheduled for January 24. Not only was it raised, it is now sub judice and all actions taken by the WBAI Local Station Board and the Pacifica National Board that swing on the votes of illegal members of those entities remain at risk of being invalidated.

But the most despicable, and indeed defamatory, statement made by Mr. Siegel about the plaintiffs, is as follows: “The plaintiffs who brought the lawsuit disagreed with our position that everyone should be allowed to vote, and instead took the position essentially, that only they should be allowed to vote.” The court records speak for themselves. Plaintiffs suit seeks to permit to vote, in addition to all persons who received ballots and cast them prior to November 15, all persons who are qualified to vote, to whom defendants failed to provide a ballot by November 15, and who requested such a ballot by November 15. This class of people includes many persons other than plaintiffs, including many members of the Justice and Unity Campaign, and to say that the lawsuit sought only to permit plaintiffs to vote is a slanderous statement. We will be in touch with Mr. Siegel directly about his defamatory statement about the plaintiffs. But to the extent that he makes them in his capacity as the interim Executive Director and General Counsel, he risks imposing liability for defamation on Pacifica itself.

Furthermore, Mr. Siegel again distorts the truth when he tells you that the reason why ballots in the WBAI Delegate Election were not mailed out on October 15 was to accommodate Steve Brown who wanted to make a slate mailing. What Mr. Siegel did not tell you is that Brown was ready to send that mailing on September 10, he requested the membership list on September 10 for the purpose of sending out his mailing, and that Pacifica, ostensibly guided by Dan Siegel, violated California Corporation Code by failing to provide Brown with the mailing list, or a reasonable alternative, with 10 business days of September 10. Instead, Dan Siegel did not respond to Brown until October 14 when he agreed to provide Brown the membership list for mailing his slate mailer, but not if Brown used the mailing house of his choice. During the next 24 hours, Brown’s attorney, Carol Spooner, negotiated a compromise with Siegel that inter alia agreed to use the mailing house that Siegel specified if Pacifica gave assurances that Brown’s slate mailing would go out before the ballots. Despite that Siegel agreed to do this, the ballots went out on October 23 while Brown’s mailing went out on October 26. Additionally, I am informed that the ballots were not even printed by October 15! So when Dan Siegel spins a yarn that the reason why the ballots in the WBAI Delegate Election were not mailed out until October 23 was to accommodate Steve Brown, Mr. Siegel is either lying to you or he has a really bad memory.

And I would be remiss if I did not explain to you the chicanery behind the general extension of the WBAI election sought by interests to whom Dan Siegel appears beholden and how the National Election Supervisor appears to be wrapped around Siegel’s finger. Besides that the National Election Supervisor agreed to mail out the ballots late because Dan Siegel negotiated a deal with Carol Spooner to avoid being sued for Pacifica’s failure to provide Brown with the membership list within ten business days of its receipt of his request, it is evident that Casey Peters is under the influence of Siegel in deciding that the proper remedy for Pacifica’s gross failure to provide ballots to large swaths of qualified voters was to extend the election for all voters – not just to those to whom it failed to provide ballots. This general extension of the voting period was designed to allow voting to continue during a period when a cart was being aired on WBAI condemning the contents of Brown’s slate mailer. Indeed, Dan Siegel “counseled” Casey Peters to air this cart wrongfully claiming that the contents of Brown’s mailer constituted an attempt at commercial exploitation of the membership list. Besides that this is a false characterization of the Brown mailer, this cart was prejudicial to the persons endorsed by Brown’s mailing, including some of the plaintiffs. Siegel wanted balloting to remain open for all voters while this announcement – which smacks of fascism and thought control – aired regularly over the airwaves. Pacifica is going to hell in a hand basket to the extent that it is led by Siegel to believe that the members are too stupid to evaluate the Brown mailing for themselves, draw their own conclusions as to its propriety, and that official pronouncements must be made condemning the contents of an electoral mailing during an election. Nothing in your Fair Campaign provisions requires such official announcements and such announcements make Pacifica look like an instrument of the Ministry of Truth made famous in George Orwell’s classic, 1984.

Finally, in considering my thoughts I want to point out that these are proven facts – not just naked claims – and that you should ask yourselves why Dan Siegel would do all these things he clearly did. The obvious reason is that Dan Siegel has a conflict of interest between his interest in electing certain persons to the board of directors and his duty to the Corporation to render legal advice that is in the best interests of the Corporation. There is also an apparent conflict of interest when Casey Peters seeks legal advice from Dan Siegel where Dan Siegel puts his interests in electing certain persons to the board of directors ahead of the interest of all members to have Casey Peters run a fair election. These conflicts should be very troubling to any member of the Pacifica National Board.

I apologize for the length of this missive, but the nefarious conduct of Dan Siegel has required this point-by-point refutation. Thank you for your time and consideration of the plaintiffs’ views.

Very truly yours,

Thomas J. Hillgardner, Esq.