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by ERIC C. JACOBSON
Tuesday, Apr. 08, 2014 at 9:07 PM
ECJLA@AOL.COM (310) 204-0677 PO Box 67674, Los Angeles, CA 90067
Is the Pacifica Foundation Board Trying to Dissolve the Foundation’s Five Station Union, Place Each Station’s Broadcast License under Local Ownership, Sell WBAI into the Commercial Marketplace and Distribute the Proceeds as "Endowments" to the Remaining 4 Stations?
The destiny and character of the venerable non-profit Pacifica Foundation is now in the hands of the Honorable Ioana Petrou, a California Superior Court judge in Alameda County. The first hearing (for a temporary restraining order) in Pacifica Directors for Good Governance v. Pacifica Foundation Radio will be heard on Wednesday April 9, 2014 at 9:00 a.m. in Department 15 of California Superior Court for the County of Alameda.
The non-profit Foundation owns a small but proud network of progressive radio stations, founded, legally chartered and headquartered in Berkeley, California (back in 1946 by a pacifist and World War 2 conscientious objector Lewis Hill) and now comprised of 5 stations located in 5 cities (Berkeley, Los Angeles, Houston, New York City and Washington) in 3 states and the District of Columbia. Over 100 other community radio stations affiliated with Pacifica also carry its programs.
The Pacifica Foundation's 1946 founding mission statement commits it to (in a small nutshell) delivering educational radio programming oriented to peace, social justice and conflict resolution, wide-ranging political, cultural and artistic expression, and to "the full distribution of public information".
Since the mid-1960s Pacifica has increasingly functioned as an outlet where dissent and counter-cultural ideas and trends are aired. Frequently, it is the only place where truth can be found in an over-the-air broadcast medium, such as during the run-up to the infernal Iraq war, when virtually all other broadcast media outlets faithfully parroted the deceitful "party line" of the Bush Administration, the neo-conservative propaganda apparatus and the military-industrial complex.
Pacifica's public trust and mission precludes it from operating as a private business (selling commercials, accepting corporate underwriting, etc.) and it relies almost exclusively on the response of listeners who are asked to donate to the station during broadcast fund drives multiple times a year. Only about 80,000 listeners in the 5 station signal areas do. (Pacifica also receives a small grant from the Corporation for Public Broadcasting, when it can meet CPB's criteria.)
This places Pacifica in a state of perpetual financial precariousness, given the high cost of running and maintaining broadcast facilities and putting out non-mainstream programming with reasonable production values. For this reason non-paid programmers far out-number paid programmers on Pacifica stations. Especially considering that imperative, the quality of Pacifica programs is fairly good, and quite faithful to its idealistic mission statement (although, alas, mostly undiscovered by the general public).
In addition, the popularity of the 5 stations with their "locals" varies, and some station's listenerships are more responsive during pledge drives than others. In recent decades, for example, funds raised from listeners to Pacifica's stations KPFK in Los Angeles and KPFA in Berkeley have been employed to underwrite the operations of Pacifica's New York City station WBAI (which Pacifica's National Board and local WBAI managers saddled with prohibitively expensive leases and salary commitments to paid staff in recent decades). This became controversial even for a Foundation that takes very seriously the collectivist ideal that "we are all in it together".
Paradoxically, over the years the Foundation's broadcast licenses (sitting as they do in prime "real estate" on the FM dial) have become exceeding valuable, and may be collectively worth a quarter-of-a-billion dollars or more – IF and only if they were to (somehow) be "liberated" from the Foundation's founding non-profit charter and sold on the commercial marketplace.
At issue before Judge Petrou is the legality of a series of boat-rocking actions by a narrow majority of Pacifica National Board of Directors members that are so hasty and reckless relative to the best interests of the Foundation, its constituency of listener-sponsors that support it financially and general public, as to beg the question of what is motivating them.
Most prominently, these actions include the attempt to terminate the Foundation's (recently permanently hired) Executive Director, Summer Reese, who is widely credited with having an excellent record of stewardship since mid-2012 when she began serving in the same position on an interim basis. Among Reese's most important achievements has been stabilizing the financial woes at WBAI, Pacifica's New York City station.
Ms. Reese rose in the Pacifica ranks from yeoman service as an elected member of the Local Station Board at KPFK beginning in 2007 (the Foundation's Los Angeles station). Between 2011-2013 Reese served as Chair of the Pacifica National Board and so impressed her colleagues that they appointed her interim Executive Director in mid-2012 and subsidized her moving expenses from Los Angeles to the Bay Area where the Foundation's headquarters are located (in Berkeley). In November 2013 the Pacifica National Board (PNB) agreed to enter into a 3 year contract with Ms. Reese (upon completion of a routine background check) at a salary of 5,000 per year, and in January 2014 the PNB (satisfied with the results of the background check) executed a 3 year employment contract with Ms. Reese.
The PNB underwent personnel changes beginning in February 2014, shifting the balance of power against the faction that had approved Ms. Reese's promotion from "interim" to permanent Executive Director. The narrow majority then clumsily attempted to terminate Ms. Reese's employment on March 13, 2014 (during the last 15 minutes of a telephonic Board meeting), and sent out a press release claiming they had done so, which the New York Times (credulously) published.
As has been fairly widely reported, Ms. Reese refused to comply with the reckless actions of the narrow Pacifica National Board majority faction that purported to terminate her, declared their action to be legally invalid, in breach of her contract, and (along with concomitant actions) a dire threat to the best interests of the Foundation.
Ms. Reese reported back to work immediately upon her return to Berkeley from Foundation business, removed a lock from the front door, entered her office (along with her staff) and kept and secured possession of the vital records and accounts of the Foundation. Remarkably, for the most part Ms. Reese has been able to continue discharging the duties of her office despite a nasty campaign of sporadic harassment by members and allies of the narrow rogue PNB majority. The Pacifica Foundation offices Ms. Reese, her mother and supporters are occupying share a building with Pacifica’s Berkeley station, KPFA, where Ms. Reese’s nemesis, new PNB chair Margy Wilkinson (whose own elevation to that post is in dispute) works.
Ms. Reese has the unstinting support of 9 members of the PNB who have coalesced in the Pacifica Directors for Good Governance (PDGG) group, the plaintiff in the pending Alameda County Superior Court lawsuit before Judge Petrou. Their lawsuit seeks, among other things, to enjoin the Board majority from breaching Ms. Reese's employment contract.
So, what (on earth) is really going on? It turns out to primarily involve "battle fatigue" on the part of a small group of aging baby boomers involved with Berkeley's Pacifica station KPFA and their counterparts on the PNB, who have given up on the Pacifica Foundation's union of 5 stations in one national network. A case in point is Carol Spooner. She was the lead plaintiff in one of the two main "listener lawsuits" that succeeded in "taking back Pacifica" during the last major crisis involving the Foundation at the turn of the 21st century.
Ms. Spooner and her allies wrested control of Pacifica Foundation away from a self-perpetuating Board of opportunists who really were aiming to denature Pacifica's heritage and essence, put it into service of what the late, great Alexander Cockburn called "the neo-liberal inferno" and remake Pacifica into a benign Democratic-establishment-friendly left-of-center version of National Public Radio. Ms. Spooner then spent the next half-decade immersed in enervating factional conflicts with others who competed for power within the new framework of democratic governance for Pacifica enshrined in complex bylaws adopted following the final seizure of Pacifica in 2002 from the "ancient regime".
Ms. Spooner spelled-out the (burn-out driven) thinking of her and (presumably) her allies at KPFA (the Foundation's Berkeley station) in a published article in 2012, found online here: http://myemail.constantcontact.com/Time-for-an-Amicable-Divorce-at-Pacifica-.html?soid=1105302426303&aid=X12MM2fkcXk
In it she (astonishingly) calls for the Pacifica Foundation to dissolve its 5 station union, transfer its valuable broadcast licenses to the governing bodies of its constituent stations, sell WBAI into the commercial marketplace and distribute the proceeds as "endowments" to the remaining 4 stations. Suffice it say this is a very radical and almost certainly legally untenable proposal (given the trust and fiduciary responsibilities of any Pacifica Board of Directors to maintain fidelity to the founders' non-profit mission and the charitable nature of Pacifica's acquisition of WBAI), and would come as a shock to the vast majority of the 80,000 listener-sponsors at the 5 stations. Most Pacifica station listener sponsors like the idea of Pacifica being a small but proud "national progressive radio network" and want to build that network up, not shatter it to pieces.
The Pacifica Foundation's bylaws do include (qualified) provisions allowing 10% of Pacifica's approximately 80,000 listener-sponsors to petition for a membership-wide vote to dissolve Pacifica, which in turn would require a majority vote of the 80,000 donors. This is a political "non-starter" within the Pacifica community, and even if it weren't, attempting to "liberate" any of Pacifica's 5 stations from their founding non-profit charter would be legally (essentially) impossible.
For example, Pacifica acquired its New York City station WBAI (in 1960) as a charitable gift from philanthropist Louis Schweitzer. Schweitzer's stated purpose was "to liberate a single element of mass media technology on behalf of the public" and thereby enhance "the free marketplace of ideas." http://www.wbai.net/hist/tab_77_2.html . The law treats such charitable bequests as perpetual and although a court could permit subsequent stewards of such a donated property to divest themselves of it, under the "cy pres" doctrine, the most they could do is transfer it to another strictly non-profit organization equally devoted to the donor's charitable purpose. In sum WBAI cannot legally be sold into the commercial marketplace in the unimaginable event a majority of Pacifica listener-sponsors voted to do so.
Yet in recent interviews Ms. Reese has recounted a stunning conversation she had on this subject with Dan Siegel, the Oakland, California lawyer who brought another of the lawsuits in the "take back Pacifica" mobilization of ~2000, and who has been a protagonist in Pacifica's factional wars ever since (particularly those occurring at KPFA). In August of 2013 Mr. Siegel endorsed Ms. Spooner's proposal although they differ on some "fine points". See an exchange between Mr. Siegel and Ms. Spooner found here: https://groups.yahoo.com/neo/groups/PacificaRadiowaves/conversations/topics/10735 .
And according to journalist Paul Derienzo found here ( http://eastvillagernews.com/2014/03/after-directors-firing-wbai-sale-is-now-rumored/ ) Mr. Siegel told Ms. Reese that he (Siegel) would "sell WBAI to save KPFA", the Berkeley station. The article also quotes former KPFA Local Station Board (LSB) member and Reese supporter Tracy Rosenberg who states that "there is a 'rumor'" (one Ms. Rosenberg says she believes is true) "that 'a small segment of the board has been in negotiations with an entity associated with Comcast news channel MSNBC to take over WBAI’s license.'" Hmmm.
Although Mr. Siegel is no longer on the PNB (due to Bylaws provisions precluding any candidate or holder of public office from participating in Pacifica governance and Siegel's current candidacy for mayor in Oakland), Ms. Reese's main antagonist on the PNB majority is Dan Siegel's law partner Jose Fuentes, the member who made the motion for her termination at the very end of the March 13, 2013 telephonic Board meeting. Given the close relationship between Siegel and Fuentes, it is reasonable to assume that Fuentes and his colleagues in the Board majority are likely pursuing Ms. Spooner's outlandish "game plan".
But given the manner in which the members of the narrow Board majority have kept their evident radical intentions rather surreptitious to this juncture, the issues framed for Judge Petrou to hear April 9, 2014, are more prosaic.
As to some of those: PDGG is seeking to restrain the Board majority from breaching Ms. Reese's contract. And it is not seriously disputed by anyone that the Pacifica Foundation Board terminated Ms. Reese without stating any reason and without any "progressive discipline" in breach of the (in sum) just cause termination provisions of her contract.
The validity of the Board's 11-7 vote on March 13 to terminate Ms. Reese is also at issue. The Pacifica National Board has 22 members. The Board did not provide notice to its own members that Ms. Reese's termination would be voted upon at the March 13th meeting, and took the vote with 4 members absent and without hearing the objections of the Board's own counsel who believed the firing to be non-compliant with both applicable law and Ms. Reese's contract.
Nor has the current Pacifica National Board produced minutes of most of its (ultra-frequent) meetings since taking power in February of this year, although they belatedly did so for the March 13, 2014 telephonic meeting.
The above actions and irregularities alone seem to amply justify Ms. Reese's description of the Pacifica National Board majority as "rogue". What responsible steward of a financially-strapped non-profit Foundation exposes the organization to damages on the order 0,000 dollars (for a wrongful termination) literally weeks after permanently hiring a chief executive? Even taking factional "PNB politics" into consideration it is unfathomable that a former minority (immediately upon taking majority power) would wish to behave so recklessly towards the Foundation's most important employee.
Although there are numerous collateral issues, the current schism at Pacifica really is about much more than the left's traditional "two progressives three opinions" syndrome or "crabs in a barrel pulling each other down" tendencies. Ironically enough (for a network dedicated to pacifism), the fundamental issue is a mini-version of the one that precipitated the American Civil War, namely the right of secession of the constituent parts of the federal union:
Summer Reese and her supporters (like Lincoln and his supporters) are determined to preserve the Foundation's 5 stations in the Foundation "union" and safeguard its non-profit founding heritage.
As Carol Spooner's blueprint states, the goal of Ms. Reese's detractors and opponents is essentially to dissolve the Foundation and re-constitute each station as separate fiefs (under the control of the current rogue Board members). And (presumably not wishing to preside over stations struggling to make ends meet) the rogue Board members evidently plan to try to cannibalize the Foundation's NYC station WBAI (whose broadcast license is worth at least 50 million dollars) and distribute fractional proceeds to the other 4 stations as (in Carol Spooner’s phrase) multi-million dollar "endowments". Ahem.
As stated, this is NOT how the "cy pres" doctrine works. And given the power current Board majority members would exercise at their local stations (post-restructuring), this radical plan would further violate the founding purposes of Pacifica itself whose mission statement (in its very first sentence) defines it as an "educational foundation...no part of the net earnings of which inures to the benefit of any member of the Foundation." http://www.pacifica.org/about_mission.php
The ability of current members of the PNB to exercise more formidable executive power (alone) at their local stations, which would attend the infusion of such multi-million dollar "endowments" (made possible by the hypothetical sale of WBAI into the commercial marketplace), is clearly a "benefit" even if no current member of Pacifica achieved personal financial benefit. And I am not suggesting that current members of the PNB majority faction hope to secure any personal financial gain from their (passing strange) machinations.
I do suggest that Carol Spooner's and Dan Siegel's pipe-dream is what explains the (otherwise inexplicable) decision of the members of the PNB majority to abruptly breach Ms. Reese's contract. The catalyst for this attack on the citadel of Pacifica's institutional integrity was to have been the ever-worsening financial woes at WBAI. Through extraordinarily diligent and difficult work, Summer Reese stabilized WBAI by making some very hard choices, including relocating broadcast facilities to less expensive quarters and (because there was no other choice given Pacifica's finances) letting go most of paid staff there last year.
The very day the Board terminated her she had dispatched severance pay to the laid off WBAI staffers. In short, the Board terminated Summer not for any short-fall in performance, but because she had done her job too well and foiled the pretext the Board majority had planned to use to attempt to implement their (legally harebrained) scheme to break up the Pacifica union, sell WBAI into the commercial marketplace and direct the proceeds to the 4 remaining Pacifica stations.
One last point about the democratic governance structure that emerged out of the turn-of-the-century litigious turmoil Pacifica experienced. Listener-sponsors (donors) at the 5 stations vote for Local Station Board representatives, and those LSB reps in turn elect delegates to the Pacifica National Board.
I have voted in each election at the Los Angeles station (KPFK) over the past dozen years. Not one LSB candidate has ever advocated in their "platform" literature breaking up the Pacifica Foundation into constituent station parts, much less the idea of wholly or partially liquidating one of the 5 stations and distributing the profits to the other 4 stations.
If anyone were to so advocate it is utterly inconceivable they would have been elected. Yet (without any such mandate whatsoever) 3 out of the 4 current delegates to the PNB from KPFK, my home station here in Los Angeles, have evidently joined forces with like-minded cohorts from KPFA, the Berkeley station, to lead this effort to destroy the institutional integrity of the Foundation they have an ethical and fiduciary duty to steward with fidelity to its founding mission and in good faith.
It is a scandalous and shameful situation that will assuredly lead to increased turmoil in the form of recall elections and other legal challenges if the radical and reckless attempted ouster of Ms. Reese, who is far-and-away the most competent and effective leader the Pacifica Foundation has had since shortly after its inception, is not rescinded ASAP.
Judge Petrou can save the Pacifica community a lot of future grief by restoring the status quo ante the Board majority's ill-conceived, ill-motivated and ill-fated attempted breach of Ms. Reese's contract.
Eric C. Jacobson is a public interest lawyer in Los Angeles, California. In the past decade he has brought several "impact cases" aimed at enforcing the civil rights of California parolees and their family cohabitants and effecting a conversion from policies of "mass incarceration" to "mass rehabilitation". His legal commentaries have appeared in the Daily Journal and (on one occasion) in Counterpunch. His July 29, 2013 Counterpunch article advocated for a U.S. Justice Department prosecution of George Zimmerman for the violating Trayvon Martin's civil rights – namely Martin's federally protected constitutional right to travel to the store and back in an integrated neighborhood in Florida and retain his life.
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