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LaForest brief against Spooner motion
9-12-03


9-12-03 Court documents index

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The following as posted at:
http://www.mcabee.org/lists/newpacifica/Sep-03/

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LaForest Brief: Intro

MARGALO ASHLEY-FARRAND, CBN 109537

snip

Attorney for RAY LaFOREST

Director, Interim Board of Directors, Pacifica
Foundation 

 

SUPERIOR COURT FOR THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF ALAMEDA 

In re the Matter of: ) Case No.: No. 814461-0

) (Consolidated)
DAVID ADELSON et al., ) OPPOSITION TO MOTION

) ENFORCE SETTLEMENT AGREEMENT

Plaintiffs, ) AND TO SET SCHEDULE FOR

) ELECTIONS;DECLARATIONS OF RAY

and ) LAFOREST, AND OTHER IPNB

) MEMBERS; AND LESLIE RADFORD AND

The PACIFICA FOUNDATION et al.,  ) MEMORANDUM OF
POINTS &

) AUTHORITIES

__________________________________ ) DATE: September
12, 2993

AND RELATED ACTIONS ) TIME: 9:00 A.M.

__________________________________ ) DEPT.: 22

       COMES NOW Ray LaForest, Member of the interim
Board of Directors of Pacifica Foundation, and opposes
the Motion to Enforce Settlement Agreement and to Set
Schedule for Election of Delegates and Directors as
stated in the attached declarations of Ray LaForest,
Leslie Radford, concurring declarations of Directors
Janice K. Bryant, George Barnstone and Robert
Robinson, the attached Memorandum of Points and
Authorities and Exhibits thereto filed and served
herewith, as well as the official records of this
case, and such other oral and documentary evidence as
may be presented at the hearing, on the grounds that: 


       1. That the minutes of the June 24, 2003, KPFK
Local Advisory Board (hereinafter "LAB") meeting have
not yet been accepted as official by the Interim
Pacifica National Board (hereinafter "IPNB"), and the
draft minutes attached as Spoonerís Exhibit G are the
uncorrected version containing errors regarding the
votes on the three draft bylaws versions; 

2. That the official Minutes of the June 26, 2003,
special meeting of the interim Pacifica National Board
reflect that the interim Board of Directors failed to
approve bylaws Draft B by a two-thirds majority vote;

3. That Moving Party and declarant David Fertig acted
in bad faith to misrepresent to the Court on July 8,
2003, that three LABs had already approved Draft B,
and again by bringing the instant motion after losing
the vote on her motion at the September 2, 2003, IPNB
Meeting to approve Draft B of the bylaws;


   4. That, per the order entered July 14, 2003, that
the stationsí Local Advisory Boards vote on Draft B
prior to the July 23, 2003, deadline, all five
stationsí LABs complied with the deadline, with the
result that two boards voted for Draft B and three
boards voted against it;
      5. That the two LABs which voted for Draft B,
KPFA and KPFT, disregarded the portion of the June 14,
2003, order that the vote be held at a special
meeting; 

6. That the IPNB Chair, Leslie Cagan (hereinafter
"Cagan"), acted in bad faith by unilaterally
cancelling a regular IPNB meeting scheduled by
majority vote for the weekend of August 15-17, 2003,
in New York City;

7. That Cagan unilaterally noticed a mediation of the
diversity issues, then changed it to a facilitated
meeting, to be located in Chicago on the same weekend
as the cancelled board meeting, incurring an
unauthorized $25,000 expense to the Pacifica
Foundation, and having held the facilitated meeting,
later acted in bad faith by voiding the results of the
Chicago meeting by claiming that Draft B was now the
official bylaws after a revote by the KPFK LAB on
August 23, 2003;

8. That the August 4, 2003, vote on the motion to
renew the vote on bylaws Draft B and the actual vote
on the motion to renew/reconsider the vote on Draft B
held on August 23, 2003, by the KPFK LAB, were not
proper under Roberts Rules and also past the court
imposed deadline of July 23, 2003, and was taken after
Cagan and Joe Wanzala, both attendees at the Chicago
meeting, misrepresented to the KPFK LAB members that
the Chicago meeting had been unsuccessful in coming to
agreements.

9. That bylaws Draft B may cause Pacifica Foundation
to lose its grant money from the Corporation for
Public Broadcasting in a significant amount.

10. That on September 9, 2003, the IPNB voted again to
reject Draft B, to pursue mediation, and set a
schedule to start the election process no later than
October 16, 2003.

DATED: September 10, 2003

________________________________

MARGALO ASHLEY-FARRAND

Attorney for Plaintiff Ray LaForest 


Declaration of Ray LaForest

DECLARATION OF RAY LAFOREST

I, RAY LAFOREST, declare as follows:

1. I am a member of the Interim Pacifica Foundation
Board of Directors (hereinafter referred to as
"IPNB").

2. The following matters contained in this declaration
are personally known to me and are true of my own
personal knowledge, except those facts stated upon
information and belief. If called upon as a witness, I
could and would testify competently thereto.

3. Beginning in January 2003, when attorney Kevin
Finck advised the Foundation against putting racial
and gender quotas in its bylaws, the Foundation has
become increasingly polarized, pitting those who want
more listener-subscriber control of amendments, more
local control, and assurances of fair campaign
procedures joining with those who want assurances that
our elected boards reflect the ethnic, racial and
gender diversity of our communities in opposition to
those who want elections as soon as possible.

4. Spoonerís prior motion to enforce settlement
agreement, heard July 8, 2003, misrepresented to this
court key evidence regarding the June 26, 2003, vote
of the IPNB bylaws Draft B, a true and correct copy of
Spoonerís declaration in support of the motion is
attached hereto as Exhibit 2 and incorporated herein
as if fully set forth. At a special teleconference
meeting on June 26th, the IPNB voted simultaneously
among three choices for bylaws in a vote identified by
the Chair as a preference vote prior to the further
votes which resulted in three (3) votes for the bylaws
draft known as Draft A, seven (7) votes for the bylaws
draft known as Draft B, one (1) vote for the bylaws
draft known as Draft C, and three (3) votes for None.
(See Exhibit 1 attached hereto.) Upon inquiry as to
the meaning of the votes for None, Director Zakiya,
who had cast one of the "None" votes, stated that his
vote meant "none of them." In deference to these
Directors, Cagan allowed without objection the future
votes on the drafts to be registered as "yes," "no,"
"not voting," and "abstain." Only Director Spooner
cast a "not voting" ballot on votes on single bylaws
drafts in subsequent rounds of voting. Director
Bertram Lee indicated that he had voted for none in
order to compel the Board to a face-to-face meeting to
resolve their differences. The subsequent votes for
Draft B alone garnered votes of 7-6 and 8-5, and these
votes were acknowledged by the Board at that meeting
to be insufficient for passage under the Settlement
Agreement. (See Exhibit 1 attached hereto.)

5. After the acknowledged failure of any draft to
receive the requisite two-thirds vote, Director Fertig
moved that "[b]ased on the fact that three LABs have
passed B, and based on the fact that on that fact that
we did have a balanced majority in support of version
B, I hereby move that we adopt version B, and in the
event a majority is not obtained, then pursuant to the
rules of the Settlement it be referred to the Court."
The Chair clarified that if this motion passed, it
would require this Courtís intervention. This motion
was on its face a misrepresentation of the LAB votes,
particularly of the KPFK LABís June 24 vote, and in
contradiction to the Settlement Agreementís
requirement for a two-thirds vote to approve the
bylaws. (See Exhibit 1 attached hereto.) When Director
Smith announced that he supported this motion but had
to leave the meeting, Director Fertig called for the
question, but in violation of Roberts Rules of Order a
vote was not taken on the calling of the question.
Instead, discussion was peremptorily ended, and
Director Smith was asked to cast the first vote so
that he could leave. (See Exhibit 1 .) That single
vote provided the balanced majority to approve the
motion, which passed by 7-5.

       6. Director Spooner, in her motion heard July
8, 2003, made no mention of the subsequent IPNB votes
on Draft B alone, which had rejected Draft B, and
instead represented the single preliminary and
multiple-choice vote as a vote to approve Draft B.
Motion by Carol Spooner filed on July 3, 2003, is
attached hereto as Exhibit 2 and incorporated herein
as if fully set forth. Director Fertig brought a
motion to this Court asking it to rule that Draft B be
determined to the bylaws of Pacifica, based on the
motion he put to the Board asking for only a majority
to approve the bylaws and with his anticipation that
the Draft B had been approved by three of the five
Local Advisory Boards. A true and correct copy of the
Motion filed by David Fertig on July 3, 2003, is
attached hereto as Exhibit 3 and incorporated herein
as if fully set forth. 

7 . Further, it is clear from the minutes (Exhibit 1
attached hereto) that those who, in a single instance,
voted "None" intended by their votes to prompt the
iPNB into a face-to-face discussion at its next public
meeting in order to resolve its differences. with the
recognition implicit at the meeting that Draft B was
failing, and that a new plan would have to be devised
by democratic and agreed upon means in keeping with
the Settlement Agreement. Those requesting the meeting
were entirely ignored.

8. Votes taken by the Local Advisory Boards in
compliance with the July 14, 2003, order failed to
approve Draft B. The assurance to this Court, offered
by David Fertig in his motion of July 3, 2003,
(Exhibit 3 attached hereto) of concurrence of three of
five Local Advisory Boards (LABs) in favor of Draft B
was proved false. Only two LABs supported Draft B, in
votes on July 9, 2003. On July 17, 2003, the WPFW LAB
rejected Draft B. On July 21, 2003, the KPFK LAB
rejected Draft B by one vote. On July 22, 2003, the
WBAI LAB rejected Draft B.

9. As a consequence, in a memo dated July 26, 2003, a
true and correct copy of which is attached hereto as
Exhibit 4 and incorporated herein as if fully set
forth, the Chair of the IPNB, Leslie Cagan, who is a
proponent of Draft B, unilaterally and in violation of
the Settlement Agreement, cancelled a scheduled public
meeting of the IPNB, thus contravening the legally
rendered vote of the IPNB on June 9, 2003, to set a
meeting in New York City on the weekend of August
15-17, 2003. This action precluded any possibility of
a formal reconsideration of Draft B or alternatives to
it by the IPNB at the regularly scheduled public
meeting. In it, she explains that she had declined to
discuss the cancellation with the directors because a
telephone conference would "slow things down" and
"could be a very difficult call." In its place, she
ordered a mediation, which she later reconfigured as a
facilitation. Without conferring with the membership
of the Board, she announced that there would be a
closed, informal mediation session in Chicago
including the IPNB and the Chairs of the five LABs to
discuss diversity, but no other provisions of the
bylaws, in spite of concerns of the Directors about
other provisions.

 10. Director Cagan unilaterally established terms
unfavorable to equitable representation and
participation of those seeking an alternative to Draft
B, over the registered objections of several
directors. Subsequently, Cagan revised her commitment
to mediation and re structured the process as a
facilitation by psychologists. Caganís email memo to
this effect is attached hereto as Exhibit 5 and
incorporated herein as if fully set forth.

11. Meanwhile, on August 4th, the KPFK LAB approved a
motion to re-vote on Draft B on August 23rd, following
the mediation.

12. In spite of my reservations about the process and
as an act of good faith, I participated in the meeting
on August 16-17, 2003. The facilitated meeting
included a full day of conflict management and
diversity training for the participants, leaving only
a few hours to address the bylaws. The participants by
a three-to-one margin agreed with the need for an
affirmative action remedy, in light of the critical
mass concept as defined in the Michigan Law School
case, in the event elections failed to achieve gender
or ethnic diversity, and agreed in the majority for a
future bylaws convention to review and modify whatever
bylaws were approved after they had been put into
practice. Those at the meeting decided that three of
their number (to which the Chair later added herself)
would compile a report on the straw votes taken there
into a report on the degree of consensus attained with
suggestions for solutions.

13. Even while the report was being drafted, a month
after this Court's deadline, on August 23, 2003, the
KPFK LAB re-voted on Draft B, this time passing it,
again by a single-vote margin. Within three days,
Directors Spooner, David Fertig, and Leslie Cagan
declared publicly and without consultation with the
IPNB, that the bylaws had been resolved in favor of
Draft B, and Director Cagan stopped the work of
seeking consensus.

14. The Chairís determination to cancel the scheduled
IPNB meeting had the effect of avoiding a re-vote on
Draft B, which was likely in light of the rejection of
Draft B by three of the LABs. Not only was opposition
to Draft B thus undermined, but, given the limited
agenda of the Chicago facilitation and the short time
allotted to bylaws discussion, there was no
opportunity for in-depth discussion of alternative
plans for affirmative action or any other issues.
Despite these hurdles, the participants, including
myself, designated a group of three participants, to
which Cagan later appointed herself, to summarize the
items agreed by consensus of the larger group and to
recommend solutions. However, after the KPFK LABís
vote to approve bylaws Draft B on August 23, 2003,
Cagan declared that the bylaws had been modified by
Draft B and cancelled all further work on the issues
presented at the facilitated meeting.

15. Accepting that Draft B has passed places the
Foundation in jeopardy of losing vital funding
sources, of lawsuits for negligence and racial
discrimination, and for malfeasance in the exercise of
its duties. The Board has yet to seek the counsel of a
qualified civil rights attorney in the wake of the
recent Supreme Court decision in the Michigan Law
School case, Grutter v. Bollinger, 539 U.S 02-241
(2003). The legal impact of failing to include post
electoral affirmative action remedies in the
Foundation's bylaws and on its status with the
Corporation for Public Broadcasting remains unclear.

16. " In Metro Broadcasting v. Federal Communications
Commission, 497 U.S. 547 (1990) the Supreme Court
found a serious state interest in diversity in
broadcasting, and held that the FCC had demonstrated a
clear link between "minority ownership" of broadcast
licenses and diversity in programming.

 17. Passage of Draft B presents a threat to
Pacifica's standing as a minority non-profit and its
ongoing Community Service Grants (CSG) from the
Corporation for Public Broadcasting (CPB), vital to
Pacifica's financial recovery, because to receive CSG
bonuses, the board must be a majority minority board.
The Foundation could be sued over inclusion or
exclusion of affirmative action measures in its
bylaws, and it could just as readily be sued for
negligence and racial discrimination for losing its
CPB status. Sacrificing Pacifica's CPB status as a
minority organization through negligence could lead to
lawsuits for racial discrimination and malfeasance
both. Currently, all Pacifica stations receive a
substantial part of their income from Community
Service Grants from the Corporation for Public
Broadcasting. CSG grants funding levels rely, in part,
on three criteria: that the board be "majority
minority," that the staff be 50% racially diverse, and
that the listenership be 35% racially diverse. Draft B
places such funding at risk, insofar as it offers no
safeguards against a failure to maintain these
standards. The potential loss to Pacifica is as much
as $300,000 annually, or $3,000,000 over a decade, a
far more serious consequence than the potential threat
of a lawsuit for diversity requirements, as contended
by those who support Draft B. Loss of this critical
funding at this uncertain financial juncture would be
fiscally irresponsible and possibly malfeasant.

18. Sacrificing Pacifica's status as a minority
broadcaster changes the nature of the Foundation in
ways unintended and unforeseen, and unspecified by the
Settlement Agreement, and in contradiction to
Pacifica's Mission. The Foundation must have time to
pursue a legal and practicable way to ensure that the
board meets CPB standards for minority organizations.

19. Since the Order of this Court made orally on July
8, 2003, those opposing post-election affirmative
action remedies and greater local participation in the
Foundation have abused the process in order to achieve
their ends, in ways that demonstrate bad faith and
that constitute violations of both the Settlement
Agreement and the July 14, 2003, Order.

20. At its September 9, 2003, telephonic meeting, the
iPNB rejected Draft B as the official bylaws of
Pacifica Foundation and passed my motion to close the
interminable debate around Draft B and to revive and
expedite mediation. A copy of Minutes of 9/9/03
Meeting is attached hereto as Exhibit 5 and
incorporated herein as if fully set forth. It is our
last hope at healing the divide in Pacifica without
bringing on serious harm to the foundationís heritage,
financial health, and unity.

I declare under penalty of perjury under the laws of
the State of California that the foregoing is true and
correct.

Executed on September 11, 2003, in New York, New York.


___________________________________

RAY LaFOREST


Argument

ARGUMENT

      I. ENFORCEMENT OF THE SETTLEMENT AGREEMENT DOES
NOT SPECIFY THAT THE ORDER MOVANT DESIRES MUST BE
MADE.

Opposing party does not disagree that under CCP
Section 664.6, and the cases Movant cited that a
settlement agreement may be enforced by the court.
However, enforcement of the Pacifica Foundation
settlement agreement does not specify that the orders
movant desires must be made, because the various votes
by the IPNB and the LABs have either been
misrepresented to the court or they have not followed
Robertís Rules or the court order of July 14, 2003.  

II. SPOONERíS PRIOR MOTION TO ENFORCE THE SETTLEMENT
AGREEMENT MISREPRESENTED TO THIS COURT KEY EVIDENCE
REGARDING THE JUNE 26, 2003, VOTE OF THE IPNB ON DRAFT
B.

Spoonerís prior motion to enforce the settlement
agreement, heard on July 8, 2003, misrepresented to
this court key evidence regarding the June 26, 2003,
vote of the IPNB on Draft B. At a special
teleconference meeting on June 26th, the IPNB voted
simultaneously among three choices for bylaws in a
vote identified by the Chair as a preference vote
prior to the further votes which resulted in three (3)
votes for the bylaws drafts separately. Votes for each
draft of the preference vote were for Draft A-three
(3), for Draft B-seven (7), for Draft C-one (1), and
three (3) votes for None.

Upon inquiry as to the meaning of the votes for None,
Director Zakiya, who had cast one of the "None" votes,
stated that his vote meant "none of them." In
deference to these Directors, Cagan allowed without
objection the future votes on the drafts to be
registered as "yes," "no," "not voting," and
"abstain." Only Director Spooner cast a "not voting"
ballot on votes on single bylaws drafts in subsequent
rounds of voting. Director Bertram Lee indicated that
he had voted for none in order to compel the Board to
a face-to-face meeting to resolve their differences.
The subsequent votes for Draft B alone garnered votes
of 7-6 and 8-5, and these votes were acknowledged by
the Board at that meeting to be insufficient for
passage under the Settlement Agreement.  After the
acknowledged failure of any draft to receive the
requisite two-thirds vote, Director Fertig moved that
"[b]ased on the fact that three LABs have passed B,
and based on the fact that on that fact that we did
have a balanced majority in support of version B, I
hereby move that we adopt version B, and in the event
a majority is not obtained, then pursuant to the rules
of the Settlement it be referred to the Court." The
Chair clarified that if this motion passed, it would
require this Courtís intervention [Exhibit X]. This
motion was on its face a misrepresentation of the LAB
votes, particularly of the KPFK LABís June 24 vote,
and in contradiction to the Settlement Agreementís
requirement for a two-thirds vote to approve the
bylaws.

When Director Smith announced that he supported this
motion but had to leave the meeting, Director Fertig
called for the question, but in violation of Roberts
Rules of Order a vote was not taken on the calling of
the question. Instead, discussion was peremptorily
ended, and Director Smith was asked to cast the first
vote so that he could leave [Exhibit X]. That single
vote provided the balanced majority to approve the
motion, which passed by 7-5.

Director Spooner, in her motion heard July 8, 2003,
made no mention of the subsequent IPNB votes on Draft
B alone, which had rejected Draft B, and instead she
represented the single preliminary and multiple-choice
vote as a vote to approve Draft B. [See Exhibit X].
Director Fertig brought a motion to this Court asking
it to rule that Draft B be determined to the bylaws of
Pacifica, based on the motion he put to the Board
asking for only a majority to approve the bylaws and
with his anticipation that the Draft B had been
approved by three of the five Local Advisory Boards
[Exhibit X].

The misrepresentation to the Court at the July 8,
2003, hearing on Spoonerís and Fertigís motions should
preclude Spoonerís prevailing on the instant motion.
Denying the motion would allow an orderly procedure by
the IPNB, pursuant to its votes taken September 9,
2003, to come to agreement as to the disputed issues
and vote on a new draft bylaws. 

III. THE VOTES OF THE KPFA AND KPFT LABS ON THE BYLAWS
WERE NOT IN COMPLIANCE WITH THE ORDER OF THIS COURT OR
WITH PACIFICAíS POLICIES FOR LAB MEETINGS

In its Order of July 14, 2003, the Court required that
Pacificaís Local Advisory Boards hold "special
meetings" to vote on Draft B (See Exhibit B to the
Spoonerís Supplemental Declaration). The agenda for
the KPFA LAB meeting notes that it is a "regular
meeting." The votes of the KPFA and KPFT Local
Advisory Boards took place on July 9, 2003, the day
after the Court's oral order was made at the hearing.
Members of the KPFT LAB noted that the vote was not
consistent with the order requiring a special meeting
and mandated the Chair to contact this Court for
clarification. See Item 8, pages 2-3 of Exhibit D to
Spoonerís Supplemental Declaration in Support of
Motion. However, the Chair of the KPFT LAB did not
proceed on these instructions.

The Pacifica Foundation is governed by Robertís Rules
of Order. Although the Settlement Agreement supersedes
Robertís Rules of Order in the matter of the number of
LAB members required to vote on bylaws, reducing it
from two-thirds to a simple majority, it does not
relieve the LABs of the responsibility to properly
notice such a vote. Under Robertís Rules of Order, if
a vote is not noticed to the membership, the
requirement for passage is a unanimous vote of the
membership. For Pacifica, requiring such notice not
only alerts the voting members to important matters
under consideration, it also serves as notice to
Pacificaís active listeners and listener-subscribers,
who will become voting members upon ratification of
new bylaws according to the terms of the Settlement
Agreement.

The KPFA LAB did not give notice of the bylaws vote on
its agenda. The KPFT vote is noted as an addition to
its agenda in the minutes of that meeting. See Item
2(b), page 1 of Exhibit D to Spoonerís Supplemental
Declaration in Support of Motion. Therefore, these
votes to approve of Draft B of the bylaws should be
voided as violating the courtís July 14, 2003, order
to set special meetings to vote on the bylaws drafts. 

IV. THE JULY 14, 2003, ORDER LIMITED THE TIME FOR THE
LABS TO VOTE ON WHICH DRAFT OF THE BYLAWS TO APPROVE.

The Court ordered the LABs to meet and vote on the
bylaws drafts by July 23, 2003 with the expressed
intent to restore the Foundation to "vigor" and "the
need to bring resolution" to the bylaws process.

If the Court had not intended July 23, 2003, to be the
final date for consideration of Draft B, it would not
have had reason to require special meetings nor to set
a deadline at all. The next regular meetings of the
LABs would have brought the votes to the floor within
four weeks of the Courtís order at their regular
meetings.

Further, in setting a deadline for the LAB votes, the
Court implicitly acknowledged that consideration of
Draft B needed closure. As Mr. Fertig advised this
Court in his Declaration of July 8, Draft B had been
under consideration without the approval of the IPNB
or the LABs from mid-March until the July 8 hearing.
The Court in its findings recognized that Draft B
either needed approval or rejection after more than
four months of debate so that the Foundation could
move on.

Spoonerís motion should be denied on the basis that
the final votes in compliance with the court order on
the bylaws drafts had been made prior to July 23,
2003, and forwarded to the IPNB by July 24, 2003.  

V. THE KPFK LABíS VOTE IN FAVOR OF PLAN B ON AUGUST
23, 2003, WAS UNFAIR.

Two of four members of the group charged with
following up on the facilitation, iPNB Chair Leslie
Cagan and KPFA LAB Director Joe Wanzala, demonstrated
bad faith in the facilitation process and LAB approval
process by influencing KPFK LAB membersí August 23rd
votes by claiming to KPFK LAB members prior to the
vote that the facilitation had failed. Wanzala
attended the August 23rd LAB meeting. See Declaration
of Leslie Radford and Exhibit 8. Such influence was
compelling in determining the one changed vote on the
nearly evenly-split LAB. On August 23, 2003, the KPFK
LAB approved Draft B by the same single-vote margin by
which it had earlier rejected it, which vote was
changed by only one LAB member, Thom Irwin. Since Thom
Irwin, the maker of the motion to renew the motion on
Draft B, announced at the August 4, 2003, meeting that
his opposition to Draft B was contingent on the
success of the facilitation, it was in the interests
of those supporting Draft B to ensure the failure of
the facilitation. Thus, the approval of Draft B by the
KPFK LAB on a renewed motion on August 23, 2003, was
obtained by Caganís and Wazalaís misrepresentation to
the KPFK LAB that the facilitated meeting in Chicago
had failed.      

Due to the false information provided to the KPFK LAB
members by Cagan and Wanzala prior to the vote, the
August 23, 2003, vote to approve Draft B should be
disregarded by the court, and Spoonerís motion should
be denied. 

VI. WITHOUT THE COURTíS ORDERED DEADLINE OF JULY 23,
2003, ANY OF THE LABS COULD CHANGE THEIR PRIOR
APPROVAL OR DISAPPROVAL OF DRAFT B AT ANY TIME.

Without the courtís ordered deadline of July 23, 2003,
any of the LABS could change their prior approval or
disapproval of Draft B at any time. The Settlement
Agreement is remiss in this regard, and the Court saw
fit to remedy this oversight with the deadline in its
July 14, 2003, order. Indeed, the KPFT LAB has already
set an agenda item for another vote on Draft B at
their September 10, 2003, meeting. This confirms that
since the August 23rd revote by the KPFK LAB, the LABs
feel free to continue considering the draft. Much
chaos and mischief can be done without a deadline to
vote on the drafts. Therefore, the court should uphold
the deadline ordered in the July 14, 2003, order by
denying Spoonerís motion. 

VII. ADOPTION OF PLAN B TO AMEND THE BYLAWS COULD
CREATE A FINANCIAL DISASTER.

Pacifica Foundation receives hundreds of thousands of
dollars a year in grants from the Corporation for
Public Broadcasting. These community grants require
that the board be majority minority. If the elections
process under the new bylaws does not continue a
majority minority board, the Foundation would no
longer be eligible to receive portions of these
grants, which could cause a significant financial
disaster of a loss of up to $300,000 per year.

Due to the risk of this great financial loss, the
Court should deny the instant motion. 

VIII. AT ITS SEPTEMBER 9, 2003 MEETING, THE IPNB
DECLINED TO RECOGNIZE DRAFT B AS THE BYLAWS, DID NOT
RATIFY THE REVOTE OF THE KPFK LAB, AND REFUSED TO
RECOGNIZE DRAFT B AS THE BYLAWS. INSTEAD IT ENDORSED A
MOTION FOR EXPEDITING THE MEDIATION ALREADY UNDER WAY.

On September 9, 2003, in a 2-8-2 vote, the IPNB voted
against a motion to approve Draft B as the bylaws.

In a vote of 6-4 (with Directors Cagan, Spooner,
Teresa Allen, and Pete Bramson dissenting), the IPNB
approved a motion to continue the facilitation process
at the next Board meeting in Chicago, with a timetable
for rapid consideration of the bylaws that emerge from
that process. The motion approved by the IPNB calls
for the election cycle to begin no later than October
16, 2003.

Given the understanding this Court has shown in
allowing the IPNB to work out the best possible bylaws
for the Foundation. the commitment of the majority of
the IPNB and LABs to begin elections as soon as
possible without serious harm to the Foundation,
approval of a plan to expedite the ongoing mediation,
widespread rejection of Draft B by the IPNB and LABs,
the likelihood of grievous harm to the Foundation, if
its CPB grants are cancelled in part due to lack of a
majority minority board, and the likelihood of ongoing
acrimony should Draft B be approved, a delay of a few
more weeks to resolve Pacificaís dilemma in such a way
that the least harm comes to the Foundation is a
relatively small harm.

       

      IX. APPROVAL OF DRAFT B UNDER THESE
CIRCUMSTANCES IS DAMAGING TO PACIFICA FOUNDATION  

      The current interim national board is carrying
out its mandates with great success, as noted by this
Court in its oral findings: "I do think that the
interim board should be applauded for making
considerable progress in the execution of the
Settlement Agreement and addressing a number of very
serious and complex issues which faced the Pacifica
Foundation at the time of the settlement of this
litigation."  

      Further, this board has made extraordinary
progress in reducing its debt, as noted by its
Executive Director in The Los Angeles Business Journal
of July 14, 2003: "Under the interim board, Coughlin
said Pacifica fundraising has been on a roll and that
the network has reduced its debt to about $400,000."  

      The staff, not the board, has responsibility for
day-to-day management, operations and programming
decisions, and staff morale. Problems in these areas
will be resolved by changes in management processes.
Elected boards do not guarantee less acrimony.  

      To the contrary, a court order to declare Draft
B as the new official bylaws in light of the nearly
evenly divided votes from the LABs; the 6-5 rejection
of an election timetable and the 10-1 preference poll
for continuing with mediation at the IPNBís September
2, 2003, telephonic meeting; the 2-8-2 rejection of
Draft B on September 9, 2003, at the IPNBís telephonic
meeting; all point to debate and hostility for the
foreseeable future under Draft B. Indeed, it would
cause more harm to the Pacifica foundation to grant
the instant motion than to deny it.  

       

      CONCLUSION  

      For the reasons given above, Opposing Party,
requests this Court to deny both parts of Movantís
motion.  

      DATED: September 12, 2003 Respectfully submitted
by,  

       

       ____________________________________  

       MARGALO ASHLEY-FARRAND  

       Attorney for Plaintiff RAY LaFOREST  



Memorandum of Points and Authorities

MEMORANDUM OF POINTS AND AUTHORITIES

STATEMENT OF FACTS

The parties to the underlying consolidated cases
entered into a Settlement Agreement that requires
adoption of new bylaws for the Pacifica Foundation by
"the vote of two-thirds of all the members of the
Interim Board present and voting," and requires that
"[a]ny bylaws concerning the number or manner of
election of directors and/or LAB members must be
approved by majority vote of three (3) of the five (5)
LABs."

Those requirements have not been met as to the Bylaws
referred to as "Draft B." The Interim Board of
Directors (hereafter referred to as the ĎIPNB") met on
June 26, 2003, took a vote on a preference poll,
voting on all three drafts. This was a multiple choice
vote among three drafts simultaneously, with the
announced proviso that further votes would be taken if
there werenít the required two-thirds. Later, a vote
was taken separately on each draft. In ballots on
Draft B alone, the votes were 7-6 and 8-5 to approve,
not the two-thirds majority required. In her motion
filed July 3, 2003, Spooner only presented the first
vote on the three drafts together.

Subsequently, the Court in its findings and Order
filed July 14, 2003 found that the IPNB had both voted
by a two-thirds majority and by a balanced majority to
approve the bylaws. The court ordered:

1. That the Secretary of the Foundation, record in the
minutes of the June 26th, 2003, special board meeting
that the interim Board of Directors approved "Draft B"
of the proposed bylaws by a two-thirds majority vote
of seven out of ten interim director members present
and voting, with Ferguson, Lee and Zakiya abstaining;

2. That the Foundation Secretary shall forthwith
transmit by e-mail "Draft B" of the proposed bylaws to
the chairs of the five local advisory . . . boards who
shall convene special meetings of their respective
local advisory boards not later than July 23, 2003, to
vote on "Draft B" as to those portions concerning the
number and manner of the election of local and
national boards and shall transmit to the foundation
secretary the results of those votes not later than
July 24, 2003

3. That "Draft B" shall be the Pacifica Foundation
bylaws upon receipt of the required approval by
majority vote of at least three of the five LABs
pursuant to paragraph 3.b of the Settlement Agreement,
and

4. That the term of the IPNB shall be extended until
January 30, 2004, or until the seating of the
newly-elected board, whichever first occurs.

The KPFA and KPFT LABs approved Draft B on July 9,
2003, without reasonable notice, as required by the
Pacifica LAB policies, and in regular, rather than the
ordered "special" meetings. The WPFW LAB, voting on
July 19, 2003, and the WBAI LAB, voting on July 22,
2003, rejected Draft B by large majorities, 10-0 and
11-2-1, respectively. The KPFK LAB on July 21, 2003,
rejected Draft B by 12-11 in its first formal vote on
the draft. Previously, in an informal vote reflecting
its ambivalence toward Draft B, on June 24, 2003 the
KPFK LAB had voted to instruct its IPNB
representative, David Fertig, that, if Plan B were
approved, he should ask that the IPNB request that
this Court allow the use of the KPFA-style voting
method for the first yearís elections, specifically
its provisions for mandatory diversity, as stipulated
in the Settlement Agreement 3c as "the starting point
for the new bylaws concerning election of LAB
members." Prior to the July 21, 2003, vote, the
majority of KPFK LAB members had not publicly
indicated how they would vote, so the results of the
vote were uncertain to all until the votes were
counted, although one LAB member, Thom Irwin, publicly
noted that he was predicating his vote against Draft B
on the successful outcome of negotiations.

Within a few days, the IPNB Chair unilaterally
cancelled the IPNB meeting scheduled for August 15-17,
2003, in New York City and gave notice of a mediation
to include LAB chairs and IPNB members for the weekend
of August 16-17 in Chicago. She later changed the
meeting format from mediation to facilitation. After
objections by Directors LaForest, Bryant, and Zakiya
to the cancellation of the scheduled meeting, the
unbalanced representation, the unilateral setting of
the agenda, the exclusion of public observation or
recording, and the unilateral choice of facilitators
for the mediation, Cagan agreed to adding two
additional representatives from each LAB to the
facilitated meeting. The KPFK LAB met again on August
4, 2003, and approved a motion to vote again regarding
approval of Draft B on August 23, 2003, following the
facilitated meeting. Despite the widely announced KPFK
vote for August 23rd, plans for the facilitated
meeting continued. The participants designated a group
of three, to which the Cagan later invited herself, to
summarize the consensus of the larger group and
recommend solutions. Cagan wrote the summary, which
was later contested by several of the participants. To
date, the participants have been unable to secure a
legal opinion on whether or not a court would uphold
an affirmative action provision in the foundationís
bylaws, in part because of outstanding payments owed
to attorneys previously consulted in this process. On
August 23, 2003, the KPFK LAB held a regular meeting.
Two members, Cagan and Joe Wanzala, of the group
summarizing the facilitation proceedings and both on
record as supporting Draft B, communicated to the LAB
members that the facilitation was unsuccessful,
without mention of the broad consensus it had rendered
in Chicago. The LAB member who had previously said his
vote hinged on the success of the mediation reversed
his vote, Thom Irwin, and the motion to approve Draft
B was passed.

The LABs and many Directors reasonably read the
Courtís order as indicating a deadline and a process
with finality. Directors Fertig, Spooner, and Cagan,
issued unilateral announcements declaring Draft B the
new bylaws in contradiction to this Courtís July 14,
2003, order of a July 23, 2003, deadline for the LABs
to vote on the draft bylaws, interrupting the ongoing
process of facilitated discussions around
modifications to the bylaws. At a telephone meeting of
the IPNB, the interim board voted 10-1 on September 2,
2003, to continue with the mediation process and
rejected the election time frame motion proposed by
Director Spooner by a vote of 6-5. Director Spooner
then promised to return the issue of the bylaws to
this Court for a determination.

The Pacifica Foundation receives hundreds of thousands
of dollars per year from the Corporation for Public
Broadcasting under community grants requiring that the
board of a grantee station must be majority minority.

At a meeting on September 9, 2003, the IPNB voted 8-5
that it did not accept Draft B as the bylaws of the
Foundation. Further, it endorsed a motion to continue
an expedited mediation process at its next meeting on
September 19-21, with an accelerated timetable for
votes by the IPNB and the LABs.

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9-12-03 Court documents index



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