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Fertig notice of hearing
6-30-03


7-8-03 Hearing document index
settlement agreement
6-19-03 bylaws drafts

------------------------------------

JANICE K. BRYANT
[address ommitted]

July 5, 2003

Re: Case No. 814461-0 (Consolidated)
ORDER OF EX-PARTE APPLICATION

Honorable Ronald M. Sabraw
Department 22
1221 Oak St.
Oakland, CA 94612

Your Honor:

We write to follow up to our letter of July 1, 2003, and in opposition to the Motion to Deem Effective a Vote Adopting Bylaws, filed by David R. Fertig, and Carol Spooner's Motion to Enforce the Settlement Agreement.

SUMMARY OF RESPONSE

We maintain:

  • That substantial compliance has been achieved with regard to the settlement terms, including most of the diversity language, and that there is substantial agreement among the Directors as to the Bylaws; and that only one major issue remains in contention, that of adding seats to achieve diversity goals. Debate on this issue is conditioned by both legal and political questions.
  • That, contrary to the claims submitted by Mr. Fertig and Ms. Spooner, the principle difficulty in passing bylaws with respect to diverse representation has revolved around a shifting legal terrain in anticipation of and in the wake of the recent Supreme Court decisions in the Michigan cases, and the difficulty for the Directors, of rendering authoritative judgments on Pacifica's Bylaws in the absence of solidly constructed legal advice and positions based on those cases. This has led to a scenario in which competing interpretations of the law by laypersons such as Ms. Spooner and others have become indistinguishable from mere political advocacy, contributing to a needless polarization on the issues on the part of key members of the Board. We contend that the other issues raised here by Mr. Fertig and Ms. Spooner similarly lack substance, and reflect the biases inherent in any deliberative process in an institution whose purposes are similar to the Foundation's.
  • That counting the number of votes was determined in accord with rules clearly enunciated and agreed to at the time of voting, and that to change the number of qualifying votes after the fact substantially alters the Directors' intent in voting.
  • That none of the drafts presented to the Board have been determined to be unlawful, and that such determination must take into account the impact of Grutter v. Bollinger.
  • That the current difficult and painstaking process had been ongoing and negotiation remains a viable option, and that consent to motions that prematurely interrupt this process (including one by a single Director against the body on which she sits) could end in entrenched and irreconcilable partisanship among the Directors.
  • That Mr. Fertig's and Ms. Spooner's descriptions of reasons for the failure of Draft B to achieve a two-thirds majority vote are inaccurate and prejudicial in favor of the passage of Draft B, the draft both Mr. Fertig and Ms. Spooner voted for.

We envision a process along the following lines: 1) that the Board enter into substantive deliberations around the relevance of the Michigan cases to the question of the Plan to add seats to Pacifica's boards for diversity purposes, and 2) that the question of added seats be addressed in light of the Michigan decisions with respect to narrow tailoring, critical mass, and the use of race as one of several factors in determining the distribution of any seats to be added.

Further, we envision a process in which the Board will first consult with a highly qualified civil rights attorney or attorneys, amenable to all parties, in an exploration of the above-mentioned issues. We envision that the Board will then deliberate on the results of that meeting and forge a bylaws draft that incorporates the strongest possible diversity language with consideration of the advice of counsel. Thereupon, we envision that the new draft will be returned to the attorney or attorneys previously consulted in this process for full and proper legal review, and that a final vote on the Bylaws will subsequently occur at the Board's scheduled August 15-17 meeting in New York City.

REQUESTS OF THE COURT

We ask this Court for a determination that the following instructions be given to the Directors of the Pacifica National Foundation:

  • That the Directors continue to seek resolution and reach agreement on the Bylaws' diversity language, including but not limited to the face-to-face meeting scheduled for August 15-17 (in which other revisions to the drafts will also be considered), so that, in addition to further discussion among the Directors, an attorney or attorneys amenable to all parties can be consulted on key issues, and that all meetings in which decisions about Bylaws are made be held in public, face-to-face forums.
  • That the voting method for any further votes on the Bylaws be determined in advance and announced seven days prior to any vote on the Bylaws.
  • That any extension of time include the addition of this period between this date and the meeting of August 15-17 to continue discussion around the pending issues.

We thank you for your consideration of our concerns and remedies.

Respectfully submitted,

Janice K. Bryant, Director
The Pacifica Foundation

 

Ray Laforest, Director
The Pacifica Foundation





SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF ALAMEDA

Janice K Bryant,
Interim Director of The Pacifica Foundation

Ray Laforest,
Interim Director of The Pacifica Foundation

In pro per

DAVID ADELSON, et al.,
Plaintiffs,
v.

PACIFICA FOUNDATION, et al.,
Defendants.

And Consolidated Cases
Consolidated Case No.: 814461-0

[Consolidated cases: No. 814461-0,
No. 831252-3 and No. 831286-0]

Date:   July 8, 2003
Time: 10:00 a.m.
Dept.: 22
Hon. Ronald M. Sabraw, Judge
Post-Settlement proceedings

DECLARATION OF JANCIE K. BYRANT AND RAY LAFOREST, DIRECTORS OF THE PACIFICA FOUNDATION

IN RESPONSE TO

CAROL SPOONER'S MOTION TO ENFORCE SETTLEMENT AGREEMENT PURSUANT TO CCP § 664.6

AND

MOTION TO DEEM EFFECTIVE A VOTE ADOPTING BYLAWS, DECLARATION OF DAVID R. MR. FERTIG

INTRODUCTION

Although, as Mr. Fertig stipulates in his motion, substantial progress had been made toward new Bylaws for the Pacifica Foundation as required by the Settlement Agreement, one key issue remains at the center of debate: whether the Foundation can and should add seats to its local and national boards based on the order of the vote count and a fair demographic cross-section of its underrepresented, underserved, and historically discriminated against communities, in order to ensure that these communities are equitably represented in Pacifica's governance, in accord with its Mission.

CHRONOLOGY OF EVENTS

The pertinent events began unfolding in January, 2003, after near-consensus was reached on the Bylaws and the Bylaws were submitted to attorney Kevin Finck for legal review. After three of the five Local Advisory Boards (LABs) and the Pacifica Foundation National Board (Board) had voted in support of minima of 50% women and 50% or more people of color for its governing boards.

January 17: Ms. Carol Spooner, Chair of the Bylaws Committee and Secretary of the Board, announces that the diversity quotas have been deemed illegal by counsel.

February 14: The Board meets by teleconference and issues a new draft Bylaws comes out of this meeting.

February 21: A "Final Draft" is proposed.

February 24: The scheduled public meeting of the Board for February 28-March 2 is postponed until March 7-9.

February 28: A "Corrected Final Draft" is proposed, adding the Committees of Inclusion (COIs), which are charged with determining diversity goals, outreach for a diverse candidate pool, extending the nomination period if deemed necessary, and suggesting remedy. Later in Plan A, these COIs are charged with overseeing process of adding seats.

March 3: The WBAI Local Advisory Board asks the national Board for "a specific institutional commitment to affirmative action that would guarantee the inclusion of underrepresented and the historically disenfranchised in the Foundation's governance and staffing structures."

March 4: The Board meets in a closed teleconference meeting of the Board with attorney Ted Shaw of NAACP Legal Defense Fund. No report is issued publicly.

March 8: In a public meeting, the Board establishes a Diversity Language Committee (DLC) to come up with recommended bylaws language concerning diversity, to be chaired by Mr. Berry (who later turned over the chair to Mr. Laforest).

March 10: Confusion about who would serve on the DLC arises when the Secretary's notes are established to differ from the audio recording of the proceedings.

April 3: The first draft of Draft A from the DLC appears, with modifications by Ms. Spooner, who declined to serve on the DLC.

April 18: The Board moves to return the DLC Draft to that committee for changes and legal advice.

May 6: Attorney Jonathan Lubell proposes changes to the DLC language.

May 14: The DLC approves a revised Draft A, incorporating the changes recommended by Mr. Lubell. The KPFA LAB (Berkeley) votes to endorse Draft B.

May 15: The KPFT LAB (Houston), in a straw vote, supports Draft B.

June 2: Mr. Lubell offers an opinion on the latest DLC draft

June 5 The DLC completes a final draft, approved by the DLC in a 9-6 vote on June 5. The DLC submits its report to the Board the next day.

June 9: The Board comes to no agreement. Mr. Fertig announces that he has authored and is submitting Draft C.

June 24: In a straw vote, the KPFK LAB (Los Angeles) votes to support Draft B. It also votes to ask the iPNB to ask this Court for permission to use the diversity remedies used in KPFA-style elections, as noted in the Settlement Agreement, if either Draft B or Draft C should pass.

June 26: The Board meets by teleconference to consider Drafts A, B, and C, but come to no decision except to return to Court.

STATEMENT OF FACTS

The Board and the LABs have reached accord on nearly all of the Bylaws...However at the March 7-9, 2003 interim Pacifica National Board meeting the Board voted to establish a Diversity Language Committee to write language for the bylaws and to seek the advice of attorneys as to whether to the proposed language would pass legal muster. Given the Mission of Pacifica, without question the issues of diversity and affirmative action are central to the conduct of the organization in serving the diverse populations of its five signal areas.

The DLC, consisting of, from each of the five signal areas, one member of the iPNB, one member of the Local Advisory Board, and one other person chosen by the LABs, met repeatedly until early June. It retained the services of a civil rights attorney, Mr. Jonathan Lubell of New York City, to review the draft language of the DLC and issue a report to the DLC and the iPNB. The DLC filed its Final Draft Language on June 6, 2003 after consideration of Mr. Lubell's report of June 2, 2003.

On June 26, the Board held a special meeting by teleconference to vote on new Bylaws, per this Settlement Agreement. Before it were three Drafts: A, B, and C. With 13 members voting, any draft needed 9 votes to achieve the required 2/3rds support.

[All votes following are reported from 2nd Corrected Draft Minutes of 6/26/03 Meeting, posted by Ms. Spooner on the Pacifica website http://pacifica.org/governance/bylaws_iPNBvote_062703.html, and presumably identical to Spooner Declaration, Exhibit G, Minutes of 6/26/03 Meeting].

The first order of business was a pair of amendments to the pending Bylaws proposed by Ms. Teresa Allen, which were postponed until the next Board meeting because of a technical error by which the full text was not sent to the Board members

Following was a discussion of voting method, in which the Board voted to use preferential voting. Rejected proposals for voting included voting on the Bylaws by section and voting for each draft independently. The vote was 7 for Draft A, 2 for Draft B, 1 for Draft C, and 3 for none (Mr. Zakiya, Mr. Ferguson, and Mr. Lee). When asked by Chair Leslie Cagan what "none" meant, Mr. Zakiya responded that he would make that clear in a vote on the drafts separately. After consultation with the Board's Parliamentarian and over the protests of Ms. Spooner, the Chair ruled that votes for "none" were to be counted as votes for the purposes of achieving a 2/3rds plurality.

After deciding not to exclude any of the drafts, the next vote considered each draft separately. No draft received 2/3rds of those casting a "yes" or "no" vote, with Mr. Zakiya, Mr. Ferguson, and Mr. Lee continuing to vote for "none."

The next vote was to eliminate either Draft A or C, the lesser vote-getters in the preferential voting. Since Mr. Lee, Ms. Spooner, and Mr. Zakiya again voted "none," no draft was defeated by a majority.

A re-vote on Draft B garnered 8 votes in support, with Ms. Bryant, Mr. Ferguson, Mr. Laforest (later rescinded), Mr. Lee, and Mr. Zakiya opposed.

Another vote between Drafts B and C failed to reach the 2/3rds threshold, with Ms. Bryant, Mr. Ferguson, Mr. Laforest, Mr. Lee, and Mr. Zakiya voting for neither.

A motion to incorporate some elements of Drafts C and A into Draft B failed by 3-8, with only Mr. Bramson, Ms. Spooner, and Ms. Cagan in support.

The next motion was to ask this Court to revise the Settlement Agreement to allow passage of Bylaws by a balanced majority, which passed by a vote of 7 to 5, with Mr. Robinson, Ms. Bryant, Mr. Zakiya, Mr. Ferguson, and Mr. Laforest voting against.

Throughout the meeting, Mr. Lee proposed a face-to-face meeting of the Directors. He was joined in this by Mr. Ferguson and Mr. Laforest.

ARGUMENTS

I. FURTHER REVISIONS TO THE PROPOSED BYLAWS REMAIN FOR CONSIDERATION AT THE AUGUST 15-17 BOARD MEETING

Ms. Allen's proposed changes to the Bylaws were tabled until the next Board meeting. The next scheduled Board meeting is to be a public, face-to-face meeting on August 15-17 in New York City. Given that these further changes must be considered by the Board, there is no imperative to finalize diversity language before that time, and given the agreement of the Board to address these changes, the Bylaws cannot be finalized until that time.

II. THE CHAIR ACCEPTED VOTES FOR "NONE" AS VOTES TOWARD THE VOTE COUNT IMMEDIATELY AFTER THE FIRST VOTE, AND ALL DIRECTORS WHO SUBSEQUENTLY VOTED FOR "NONE" DID SO UNDER THIS RULING.

It would, of course, be impossible to posit what the Directors' votes might have been had the Chair determined otherwise. To count their votes under new rules would be to assume the intent of their vote to be other than what these Directors expressed.

III. THE CHAIR RULED TO COUNT "NONE" VOTES TOWARD THE VOTE COUNT BASED ON ROBERT'S RULES OF ORDER, NEWLY REVISED.

The Chair was advised by the Board Parliamentarian that Robert's Rules of Order, Newly Revised (10th ed., p. 390, ll. 13-24) pertained:

MODIFICATION OF USUAL BASES FOR DECISION
Voting requirements based on the number of members present--a majority of those present, two thirds of those present, etc.--while possible are generally undesirable ). Since an abstention in such cases has the same effect as a negative vote, these bases deny members the right to maintain a neutral position by abstaining. For the same reason, members present who fail to vote through indifference rather than through deliberate neutrality may affect the result negatively. When such a vote is required, however, the Chair must count those present immediately after the affirmative vote is taken, before any change can take place in attendance."

The Chair announced her intention to use this interpretation, and subsequent votes were taken after this determination.

IV. DIRECTORS WHO VOTED FOR "NONE" HAD NO BASIS TO BELIEVE THAT OPTION WAS NOT APPROPRIATE.

The viability of votes for "none" went unchallenged throughout the several preferential vote counts, including by Ms. Spooner. Ms. Spooner's comment that "We'll take a vote that says A, B, or C. You vote for one of them" did not stipulate that the vote count necessary to achieve 2/3rds had changed.

According to Robert's Rules of Order, Newly Revised, preferential voting is "not a substitute for the normal procedure of repeated balloting until a majority is obtained, and it is "useful and fair in an election by mail if it is impractical to take more than one ballot" (10 ed., p. 411, ll. 17-29). Since it is not a substitute for repeated balloting, nor was it impractical to take more than one ballot, any vote any of the Bylaws drafts should be determined by a direct vote on that draft alone.

V. THE PACIFICA FOUNDATION SHOULD NOT VIOLATE PROPER PROCESS TO PASS THE BYLAWS.

The Foundation should adhere to Robert's Rules of Order, Newly Revised (10th ed., p. 469-470, ll. 29-2:) to ratify it Bylaws:

CONDUCT OF BUSINESS IN COMMITTEES
The personal approval of a proposed action obtained separately by telephone or personal interview, even from every member of a board, is not the approval of the Board, since the members were not present in one room where they could mutually debate the matter. If action on such a basis is necessary in an emergency, it must be ratified at the next regular board meeting in order to become an official act of the board.

Although we agree to the outcomes of the teleconference, we contend that all votes taken by the Board should be ratified in public, face-to-face meetings, per Robert's Rules of Order Newly Revised. Robert's Rules of Order, Newly Revised and general practice agree that votes without in-person discussion among the parties are not suitable for full discussion, compromise, or the open and free airing of ideas.

VI. IT HAS NOT BEEN DETERMINED THAT ANY OF THE DRAFTS ARE UNLAWFUL.

Draft A stipulates that up to five seats may be added to Local Station Boards based on two criteria: first, the vote order of the number of votes received in a regular election, and secondly, the determination by the local COIs that these additions be made on the basis of the failure of the composition of the newly elected local station board to meet the previously-set goals to reflect signal area demographics: "Said additionally seated candidates shall be those unelected candidates who gained the highest number of votes in each category defined by the relevant COI as requiring additional representation after the election in order to meet the diversity goals." [Exhibit 1, Draft A, Article Eight, Section 4; ibid., Article Four, Section 7]. The determination of the goals is without reference to race or ethnicity. "such that it remedies the exclusion of historically underrepresented groups and other groups currently discriminated against" [Exhibit 1, Draft A, Article Four, Section Five].

Here, attorney Jonathan Lubell comments:

2. While the setting aside of a number or percentage of positions/seats to a specified racial, ethnic, gender, etc., group would most likely not pass legal muster, absent evidence that the Draft was designed to remedy past and present discrimination (United States v. Paradise, 480 U.S. 149 (1987), the structuring of a system where eligibility for positions/seats rests on the demographics of a defined area may well be legal. In such a structure eligibility does not mean that the nominee has been assured a position/seat by reason of race, ethnicity, gender, etc. Rather, she/he has been placed in a pool from which she/he may ultimately be voted for a position/seat. That vote will not be determined by the nominee's race, ethnicity, gender, etc. [Exhibit 2, para. 2]

Draft A does not call for quotas, nor are candidates insulated from competition; in fact, the first bar any candidate must pass is comparison with candidates in a member election.

Again, Mr. Lubell:

"The procedure for the selection of additional delegates for diversity would not put Pacifica in jeopardy. The up-to-five additional candidate would gain their seats because they obtained the highest number of votes in each demographic category defined by the COI as requiring additional representation after the election in order to meet the COI's diversity goals. It is demographic classifications and number of votes rather than set quotas for specific racial groupings that result in the candidate obtaining a seat. The provision that no person shall be named to an added delegate seat who does not receive at least 10% of the number of minimum votes required to be directly elected is consistent with Section 7's procedure for the selection of additional delegates for diversity" [Exhibit 2, Letter from Jonathan Lubell, Article 4 Section 7]

Because racial minorities are not the only underserved or underrepresented group, nor the only group discriminated against, in the local Committees' determination of which groups shall be included, it would appear that race is used in a flexible, nonmechanical way.

Nor is there any requirement in any draft that mandates staff hiring based on race. The same standards for goals adhere in all of the drafts, and no Committee or Local Station Board has decision-making responsibility for hiring. Regarding hiring, Draft A is explicit:

The National COI (Committee of Inclusion) shall: (a) monitor the diversity of the national staff and the Board of Directors and its committees and make recommendations for improvements, (b) set and implement diversity goals for the Board of Directors as set forth in Article 5, Sections 3 and 6, (c) monitor the diversity goals throughout all Pacifica network stations, and (d) communicate closely with the Local COIs regarding their progress toward their diversity goals.
Local COIs shall monitor inclusion of under-represented communities in their station programming, volunteer staff, and paid staff. . . . Local COIs shall help establish, and monitor and implement diversity goals in consultation with station management and volunteer committees." [Exhibit 1, Draft A, Article Eight, Section 4]

Further, no changes could be made to current staff based on these goals, if for no other reason than any such changes would be violations of both law and union contract.

Given the fact that the legal advice to the DLC was rendered prior to the recent decisions of the Supreme Court, there is no basis to draw such sweeping conclusions that Draft A would violate either federal or state civil rights laws. Indeed, some of the laws restricting affirmative action, are, according to the Los Angeles Times of June 24, 2003 likely to come under increasing scrutiny and challenge from civil rights groups and legislators.

The implications of U.S. Supreme Court case Grutter v. Bollinger , 539 U.S. ___ (2003). are still being digested, and the forthcoming interpretations may well affect the votes of the Foundation Directors. In a recent letter sent to several Pacifica board members, noted civil rights attorney and Harvard Law School Professor Lani Guinier stated:

Have your lawyers read the decision today? What do they say? It seems to me, if you want to stay within the bounds of today's decision, there are several things to keep in mind. First, diversity is a compelling governmental interest that permits consideration of race as one of many factors; second, race cannot be the only factor being considered; third, diversity seems to be a vehicle for diversifying the nation's leaders not just its classrooms. [Exhibit 3, Letter from Lani Guinier]

Finally, Mr. Lubell finds that diversity is essential to fulfill Pacifica's Mission as a broadcast entity:

4. While constitutionality of a quota-based Draft would require proof of the past and present discrimination it was designed to remedy(fn), a Draft designed to achieve diversity may still be regarded as meeting the strict scrutiny standard of review. Thus, although the intermediate scrutiny standard of Metro Broadcasting was later rejected in favor of strict scrutiny, no Supreme Court decision has directly rejected the application of a diversity rationale for affirmative action programs. This remains an open issue - see e.g.: J. Powell in Regents of the University of California v. Bakke, 438 U.S. 265, 311-312 (1978), stating an affirmative action Draft's taking into account the diversity of the students would be constitutionally permissible; J. O'Connor in Wygant v. Jackson Board of Education, 476 U.S. 267, 286 (1986) agreeing with Justice Powell's view in Bakke that fostering racial and ethnic diversity in higher education is a compelling interest. In Justice Powell's view a diverse student body would help foster a robust exchange of ideas. The role of the media in assuring a robust exchange of ideas may be presented as a compelling government interest because it is only with such an exchange that the First Amendment can fulfill its role. In Nat'l Citizens Committee for Broadcasting v. F.C.C., 555 F.2d 938, 948-49 (D.C. Cir. 1977), the Court of Appeals for the District of Columbia (per C.J. Bazelon) stated:
The Supreme Court has given its approval to a diversity policy based on First Amendment and antitrust considerations. The First Amendment 'rest[s] on the assumption that the widest possible dissemination of information from diverse antagonistic sources is essential to the welfare of the public.' 'The public interest' standard necessarily invites reference to First Amendment principles.
footnote: Generalized assertions of past discrimination would not be enough. City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989).
[Exhibit 2, Letter from Jonathan Lubell, para. 4]

Ms. Spooner is not an attorney. This complex issue can only be resolved with expert legal opinion as to the viability of the various Drafts A, B, or C, giving full consideration to the effect of the recent Supreme Court decisions in the Michigan cases. Given the Mission of Pacifica and its responsibility as a minority non-profit organization, for which standing it receives funding from the Corporation of Public Broadcasting, a failure on the part of its directors to give adequate time and consideration to the legality of the particular mechanisms by which Pacifica can reach or even set goals for diversity could itself be considered dereliction of duty.

VII. ADOPTION OF DRAFT A OF THE PROPOSED BYLAWS WOULD BE IN ACCORD WITH THE STATEMENT OF MISSION OF THE PACIFICA FOUNDATION AND DOES NOT CONSTITUTE A BREACH OF THE DIRECTORS' DUTIES OF CARE AND GOOD FAITH.

Of any of the drafts, Draft A is the most complete fulfillment of the Mission Statement of the Pacifica Foundation, which requires that the Foundation:

. . . engage in any activity that shall contribute to a lasting understanding between nations and between the individuals of all nations, races, creeds and colors; to gather and disseminate information on the causes of conflict between any and all of such groups; and through any and all means compatible with the purposes of this corporation to promote the study of political and economic problems and of the causes of religious, philosophical and racial antagonisms. [Exhibit 5, Pacifica Mission Statement, para. (d)]

The Diversity Language Committee, charged by the National Board to resolve the issue of diversity language for the Bylaws, and which wrote and adopted the diversity language in Draft A, was advised by Mr. Jonathan Lubell who said in pertinent part:

. . . Because of the differing legal views and the charged political setting, it is impossible to reach a conclusive determination as to whether in particular an affirmative action Draft will put the Foundation in jeopardy, or to what extent will it be put in jeopardy. [Exhibit 2, Letter from Jonathan Lubell]

The Diversity Language Committee made subsequent and sweeping changes to Draft A in light of Mr. Lubell's opinion and prior to approving it. The Board has not otherwise consulted with any civil rights attorney on any of the specific drafts by the Board subsequent to Grutter v. Bollinger.

Since the Board has not sought such consultation in light of this landmark case, none of the drafts can be, in the mind of an ordinarily prudent person, other than in the best interests of the Corporation nor would they constitute a breach of care.

VIII. NEITHER INTERIM DIRECTORS FERGUSON, LEE, ZAKIYA, BERRY, NOR GREGORY HAVE DEMOSTRATED THAT THEY ARE ACTING IN BAD FAITH, NOR HAVE THEY BREACHED THE SETTLEMENT AGREEMENT BY OBSTRUCTING ADOPTION OF BYLAWS

Paragraph 10 of the Settlement Agreement, as cited in Ms. Spooner's motion to this Court, surely does not suggest that Directors vote against their consciences merely in order to pass Bylaws, and without concern about how those Bylaws offend their judgment.

In direct votes on the drafts, Mr. Ferguson, Mr. Lee, and Mr. Zakiya voted against each draft individually, and so carried out their requirement to register their votes.

Ferguson, in one of the votes, supported Draft A. Mr. Lee repeatedly asked for and was denied a face-to-face meeting to resolve the differences, and as Ms. Spooner stipulates, he participated in the Diversity Language Committee. Some months ago, Mr. Zakiya offered the Board his draft for Bylaws.

In addition to the Directors named by Ms. Spooner as obstructing adoption of the Bylaws, Mr. Berry and Mr. Gregory did not participate in the June 26 meeting.

Mr. Berry explained that he was not present at the June 26 meeting because of a prior medical appointment, although he did participate in the Diversity Language Committee. Mr. Gregory made a good faith effort to vote by facsimile.

IX. THE SITUATION IS NOT AT AN IMPASSE, BUT RATHER, PROCESS HAS BEEN PREMATURELY INTERRUPTED.

Contrary to Mr. Fertig's account of the actions of the Diversity Language Committee, considering the complexity of the issue, particularly its legal aspects, and the centrality of diversity to the Mission of Pacifica; and given that the language would affect governance, programming, and staffing (that is to say, the whole of the organization); and given that the less controversial aspects of the bylaws have taken fifteen months to resolve, it is not unreasonable that the DLC's process took three months to reach final draft language. Further, counsel was not immediately forthcoming with the requested opinion.

Mr. Fertig himself, who later came to oppose Plan A and added seats, at one point supported and refined the section of the diversity language which called for added seats, which became the focus of the most intense debate later in the process. All members of the DLC presented and argued for positions. It was agreed from the beginning that the DLC would issue both majority and minority Reports. Thus the need to develop language which all members of the DLC agreed upon, a highly unlikely scenario, was avoided.

A request for a final meeting was sent to members of the DLC on May 31; 2003; Mr. Jonathan Lubell's final report to the iPNB, "Legal Issues Concerning Pacifica's Bylaws and Diversity" was issued June 2, 2003; the DLC meeting took place on June 5; and Final Draft Diversity Language was sent to the iPNB on June 6, 2003. Mr. Fertig only attended this final discussion for a short while.

While Mr. Fertig had the option of following the precedent, established by minority opposition at a previous juncture, of filing a minority report, he and four members of the DLC issued a minority letter, simply indicating disagreement with the Final Draft Language, thereby foregoing a full minority report, which would have given them the opportunity to present alternative or compromise language to the Board for consideration. Contrary to Mr. Fertig's motion, KPFK LAB Chair Lydia Brazon did not sign the minority letter.

Furthermore, the five LABs must be afforded the opportunity to fully consider the Drafts A, B, and C in light of expert legal opinion as the effect of the recent Supreme Court decisions. To date, the votes of the LABs taken thus far are not binding, as the Chair made clear at the June 26 Board meeting, nor are the votes of the three LABs unqualified: the KPFK LAB asked the national Board to allow the use of the KPFA-style election remedies, referred to in the Settlement Agreement, for a one-year period, if any draft without diversity remedies in its elections procedures were to pass, referring specifically to Draft B and Draft C.

The June 26, 2003 Meeting

In lieu of a full and thorough discussion of the merits of Drafts A, B, and C, which it had never compared before, the iPNB at its teleconference of June 26, conducted a series of votes to indicate how many members would support which draft.

The very nature of the meeting had been the subject of controversy. Given the serious and complex nature of the discussion, several iPNB members, responding to complaints from listeners, objected to holding a meeting over the telephone. In that meeting, Ms. Janice K. Bryant offered a compromise, seeing that none of the drafts had achieved a two-thirds majority, and suggested that that the various paragraphs of about diversity language in both Drafts A and C be put to straw polls separately, in order to clarify exactly where the controversy lay. This approach, itself an indication of willingness to work towards resolution, was not taken up by the Chair.

Mr. Fertig's report of a conversation with Mr. Ferguson in which Mr. Fertig says Mr. Ferguson "said he had no intention of opposing the instant motions" [Fertig Motion] is not proof that Mr. Ferguson intends to change his vote to support Draft B or that he necessarily supports Mr. Fertig's instant motions.

The iPNB was not informed by Ms. Spooner or Mr. Fertig until the last moments of the meeting, when Mr. Fertig made the motion, that, should Draft B fail to obtain a two thirds majority, the process would be stopped and the issue brought before this Court, as was accomplished by the closing motion made by Mr. Fertig and seconded by Ms. Spooner. Nor were members of the Board forewarned that abstentions would be used in Court to indicate that they were derelict in their Board duties and would be recorded as a "non-vote" by Ms. Spooner in her draft minutes, thus facilitating her current claim that Draft B has a two-thirds majority. This violated Robert’s Rules of Order, Newly Revised, as explained above. The Chair requested and received guidance on this point from the Board’s Parliamentarian , and on that basis she denied Ms. Spooner’s request during the meeting that Draft B be declared approved by the iPNB. It was not. Nine votes are required. It received only eight.

Given the paucity of discussion at the June 26, 2003 meeting of the iPNB, and given the need to fully consider the impact of the Supreme Court decisions, and given the limitations and indeed illegality of holding an iPNB meeting over the telephone, it is not surprising that the iPNB failed to pass any of the three drafts.

Should the Court allow a reasonable extension to consider fully the legal opinion of lawyers as to the impact of the recent Supreme Court decisions upon Pacifica's affirmative action policy, and given a full and complete, face to face discussion (in order to comply with rules set forth for such meetings in the 1999 bylaws), the bylaws might be rapidly resolved, and the elections process would begin immediately thereafter.

X. CONTINUED DELAY IN ADOPTION OF BYLAWS HAS NOT HARMED THE FINANCES OF THE PACIFICA FOUNDATION

Pacifica's fundraising efforts have almost always exceeded goals. Contrary to Mr. Fertig's report that the lack of resolution on Bylaws has hindered fundraising, KPFT has just finished a fund drive and exceeded its goal. KPFK has also exceeded its fundraising goals in every recent drive and has added 20,000 new subscribers. Three new station managers have been hired at WBAI, KPFA, and KPFK. At WBAI, the Program Director has introduced 23 new programs over the past year to better serve its diverse community, and a recent public event sponsored by the station drew five thousand attendees at New York's Riverside Church. In addition, the Foundation's debt has been substantially reduced by negotiation with creditors.

Mr. Fertig and Ms. Spooner have established no causal link between the somewhat imbalanced picture they paint of the condition of the Foundation and the passage of Bylaws, nor have they offered any substantive suggestion that passing Bylaws would result in the resolution of the administrative problems they address. Further, we maintain Mr. Fertig's and Ms. Spooner's motions have created a danger to the spirit of cooperation that will be needed to resolve these. An effort toward compromise on Bylaws issues can only serve to strengthen the Foundation.

XI THERE IS LITTLE REASON TO BELIEVE THAT A NEW BOARD WOULD NOT BE SEATED BY THE END OF JANUARY 2004.

Given a reasonable extension to fully consider the legal opinion of lawyers as to the impact of the recent Supreme Court decisions upon Pacifica's affirmative action policy, and given a full and complete, face to face discussion at the upcoming three-day iPNB meeting of August 15-17, the Bylaws can be rapidly resolved at no further expense to the Foundation, and the elections process begin immediately following resolution.

CONCLUSION

Moving parties respectfully request this Court:

  1. to require that the Directors continue to seek resolution on the Bylaws, including but not limited to the face-to-face meeting scheduled for August 15-17, in which further revisions to the drafts will be considered, so that, in addition to discussion among the Directors; an attorney or attorneys amenable to all parties can be consulted on key issues,
  2. that all binding votes about new Bylaws are ratified in public, face-to-face forums.
  3. that the voting method for any further votes on the Bylaws be determined in advance and announced seven days prior to any vote on the Bylaws.

We envision a process along the following lines: 1) that the Board enter into substantive deliberations around the relevance of the Michigan cases to the question of the Plan to add seats to Pacifica's boards for diversity purposes, and 2) that the question of added seats be addressed in light of the Michigan decisions with respect to narrow tailoring, critical mass, and the use of race as one of several factors in determining the distribution of any seats to be added.

Further, we envision a process in which the Board will first consult with a highly qualified civil rights attorney or attorneys, amenable to all parties, in an exploration of the above-mentioned issues. We envision that the Board will then deliberate on the results of that meeting and forge a bylaws draft that incorporates the strongest possible diversity language with consideration of the advice of counsel. Thereupon, we envision that the new draft will be returned to the attorney or attorneys previously consulted in this process for full and proper legal review, and that a final vote on the Bylaws will subsequently occur at the Board's scheduled August 15-17 meeting in New York City.

We also ask that any extension of time allow for the period between this date and the meeting of August 15-17 in order to continue discussion around the pending issues.

Dated: July 6, 2003

Respectfully submitted,

____________________________________
Ray Laforest
Interim Director of The Pacifica Foundation

 

____________________________________
Janice K. Bryant
Interim Director of The Pacifica Foundation

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7-8-03 Hearing document index
settlement agreement
6-19-03 bylaws drafts



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