Responses to bylaws Draft C
drafts A, B and C side by side
From: Stephen M Brown
<copy of my letter to Dave Fertig; also posted on the other lists>
You recently wrote:
<QUOTE> I don't see how A, B or C are substantively different in terms of how COI's are comprised. <END QUOTE>
That scares me, Dave, for there is a world of difference between B and C (forget about A, which is a total disaster) regarding the duties and powers of the COIs.
For example, in the very first sentence of the COI section in Draft C, you empower these bodies -- literally! -- to take any reasonable steps required to achieve their goals. That is waaaaaaay scary, Dave.
What is even more scary is the fact that your language, further on, also empowers the COIs to redefine not only those goals, but also their composition, their lifespan, their purview -- and also, scariest of all, their mandate. Draft C creates a Frankenstein monster that can grow like a fungus and never be dismantled.
You have to be careful when you create a new body. For example, look at the Diversity Language Committee that the iPNB created. Much less endowed than a COI, yet nevertheless this committee ran wild. The iPNB found itself procedurally -- and politically -- impotent to curb its excesses or even reasonably hold it to its original mandate.
As a result, it was able to take the bit in its mouth and run away with the entire bylaws process. Think of how much less control the national and local boards will have over the COIs, to which entities your Draft C deeds a life of their own, as self-selecting, self-perpetuating "shadow governments" that will function as Political Correctness committees.These Inquisitorial Chambers, comprised of self-righteous mullahs who can set their own standards and criteria, and change them any time they please, will sniff out who is or is not "diverse" enough, and who is or is not toeing their party line of the moment.
Your COIs will be able to pressure general managers, executive directors, program directors, producers, staff members -- bypassing all of our normal channels of evaluation and consensus, and all of our elected governing bodies -- to change or abandon the programs or policies or people they do not approve of, wielding like a club the moral suasion and political clout you have given them by creating in the bylaws language a mandated legal platform from which they can launch powerful and probably irresistible attacks on whomever and whatever they do not approve of.
Can any PNB or LSB or GM or ED or PD withstand the attack of this legally mandated body should it decide to use its open-ended powers to hurl racially loaded accusations? Or demand the commencement of legally or ethically questionable policies in the name of "diversity" or "affirmative action" or some other buzz-word battering ram? Or conduct a policy of intimidation and blackmail via loaded emotional soundbites that -- if the Unity Caucus is any example -- few on the LSBs or PNB will have the courage to oppose?
And if you think the Unity Caucus was a handful -- consider that the COIs, with the duties, mandates and powers you give them in Draft C, will be like the UC on amphetamines! This should be every Pacifican's worst nightmare.
All this results from the fact that your COI language in Draft C is open-ended and vague. It allows these bodies to shape and reshape themselves without restriction, by their own fiat, with little or not accountability to either the LSBs or the PNB, and certainly not to the listeners, in whose name, of course, they will always claim to speak.
On the other hand, the COI language in Draft B is not open-ended or vague, but short and precise. It defines the both the scope and limits of the COIs -- without wandering into areas that should not be addressed in bylaws.
That you cannot see the glaring difference between the COIs as formulated by Draft B and Draft C worries me. If your intention was, as stated, to provide a compromise between the two, you might have been better advised to limit your divergence from Draft B to giving the COIs the option of delaying an election if the candidate pool is insufficiently diverse. But no more.
God knows, even this one power, whenever exercised, would generate huge problems of its own, but at least would not create the monster that the COIs could become if Draft C is passed.
Therefore I urge you to please withdraw Draft C and put your energy and prestige behind the passage of Draft B.
Stephen M. Brown [WBAI area]
Response to Steve Brown from Dave Fertig
From: Dave Fertig
(Please feel free to forward, of the above lists I am only on the Freekpfk, bylaws and Alliance lists.)
Steve, et al.:
The manner of determining who is on the COI is plainly identical in each model. And as I read them, the "powers" of COI's in "C" are far more limited than you suggest. As to the assertion the COI's can redefine their own terms, powers and manner of composition: no, they can't.
What can the COI's actually do? Frankly, most of their tasks will be those which we voted to pursue in the Berkeley meeting of June 2002: to assess, monitor and advise re: anti-discrimination, inclusion, outreach and diversity issues. And of course the power to trigger two potential extensions of nominations period. But aside from that trigger, the COI's monitor and advise, assist the Foundation, work with the Foundation, but do not have power to direct and compel specific actions beyond extending nomination periods.
And the COI's are accountable, facing election each year, as, at core, LSB/PNB committees.
It is the Pacifica Foundation that must take "all steps reasonably necessary to prevent and correct ... discrimination." That's actually language lifted from the California Fair Employment and Housing Act, Cal Gov't Code sec. 12940. Compliance with this is a power and duty of the Foundation, not a task delegated to the COI's.
But the argument against the extensions of nomination periods is weak, a little uncertainty about when an election may occur (giver or take four weeks) is a small price to pay for some relative certainty that we will have a chance to fix problems of inclusion before the vote, (instead of after or not at all.)
And frankly, I have seen no arithmetical analysis as to how B could pass, based upon who's voting how. I will not perform that in public, but it's as clear as day to me B hasn't the votes. Some are sitting on the fence and might be persuaded to go fom A to B? Tell me who.
Meanwhile, I will not stand by and idly watch a train wreck between A & B, with the concomitant and damaging delays which would flow from it. Nor have I even a meager hope that Sabraw might accept a less-than-2/3 vote for B when it represents a stark racial divide on the iPNB. Nor do I consider it acceptable to see us all hauled back to court for litigation of the underlying suits.
Nor can we stand by and watch the further division and acrimony rend our fragile network to shreds, we had better resolve this thing. And not by marginal power votes that entrench animosity and opposition, but with some amount of sharing that at least leans towards bringing people together, however incrementally, however uncomfortably.
Response to Dave Fertig from Terry Goodman
From: Terry Goodman [KPFK]
Pacifica Bylaws Draft C contains vague, confusing, and possibly dangerous language that has not been reviewed by an independent attorney.
This message is in response to your recent public reply to Stephen Brown, et. al. My comments are interspersed.
Actually, the manner of determining who is on the COI is plainly different. I can't imagine why you would say they are identical. Draft C has the advantage of specifying STV for the election of the three LSB members, and sets a range of from three to eleven additional members that is absent from Draft B. I have no problem with these selection mechanics. What I do have a problem with concerns the makeup of the COI's under possible interpretations of the Draft C language.
Under Draft B, the diversity of the COI's comes under Article One, Section 4: "The Foundation is committed to diversity and inclusion of people of all nations, races, ethnicities, creeds, colors, classes, genders, sexual orientations, ages and people with disabilities in its programming, staff, management, committees and governance."
Under Draft C, in Article Eight, Section 4, we have a specifically different criteria for COI membership: "The Committees of Inclusion shall be broadly inclusive of disenfranchised and/or under represented groups."
Why this distinction? It appears that once a group is adequately represented within Pacifica, members of that group will no longer be welcome to serve as members of the COI's, irrespective of their experience or other qualifications. Moreover, while the term "disenfranchised" could be interpreted to mean those who are denied various rights and protections, in the context of bylaws this could very easily be interpreted to mean those who do not have the right to vote in Pacifica elections, i.e. non-members.
This idea is particularly disturbing when we look at another change that Draft C would impose. Article Three, Section 10 adds the language "... for the 2003 elections for Local Station Boards, the record date for the same purpose shall be thirty (30) days before the date on which the first written ballot is distributed, or made available, to the members." In Draft B, the record date is forty-five (45) days before ballot distribution.
This change does nothing other than make it easier for latecomers to Pacifica to qualify as LSB candidates in the transition election. Underlying it is the assumption that the Pacifica membership is so lacking in diversity that we will need to recruit LSB candidates from outside the organization and quickly get them joined up during the nomination period.
Perhaps it would be a good idea to bring into the COI's non-members representing underrepresented local communities, especially if such candidates have a knowledge of affirmative action law possibly lacking in the COI's otherwise, but will the iPNB recognize when they vote on this language that it invites into the governance of Pacifica persons with no demonstrated commitment to the Pacifica Mission?
I have the same concern about the dedication to Mission of any LSB candidates joining Pacifica in order to run for board seats.
Diversity is a legitimate commitment for the Foundation to make,
not an altar upon which we should be prepared to sacrifice the
Foundation Mission itself.
I suspect what Stephen, et. al. were referring to was the last paragraph of Article Eight, section 4: "The National Committee of Inclusion shall develop a written document for approval by the Board of Directors which shall be called 'Committees of Inclusion Operational Guidelines' that describes the committees' charge and policies regarding implementation of that charge."
Stephen realistically expects that the National COI will submit a document defining their charge in a manner that will increase their delegated authority, and that the document will further delegate authority from the National COI to the Local COI's.
We might justifiably expect that a responsible PNB would reject
any Operational Guidelines that grant excessive authority to the
COI's; but, having seen Pacifica racial politics in action in the
bylaws revision process, I think you should grant that Stephen's
caution on this score has merit.
I'll grant that this is your vision and intent in offering the proposal, but I will call your attention to two bits of language that argue for a different interpretation.
Article Eight, Section 4, Paragraph 2 states "Any and all actions of the National Committee of Inclusion or any of its local subcommittees may be overridden by the Board of Directors if it deems it appropriate or necessary." This sounds at first like a prudent limitation and check on the powers of the COI's, but to make any sense at all it means that the COI's must indeed have the power to take some action, rather than to just monitor, recommend, and advise. If it anticipates the PNB revoking the specific authority of COI's to extend nomination periods, the only actions for which you interpret the proposal as granting authority, it should say so. I think a more reasonable interpretation, in context, is that "any and all" refers to something "other and else."
What that may be, I'll address shortly.
Compliance with fair employment practices is the responsibility of Foundation and station management, not governance. This blurring of enforcement responsibilities allows the PNB and the COI's to interfere with Foundation and local station management affirmative action compliance, with unknown consequences. It is the responsibility of management to understand and apply all relevant affirmative action laws and regulations, and to acquire whatever expertise is needed to fulfill that responsibility. No such expertise is mandated for boards or COI's in any of the bylaws draft proposals.
The beginning of Article Eight, Section 4 states: "For the purpose of taking all steps reasonably necessary to prevent and correct manifestations of discrimination, as well as institutional racism and sexism, and to ensure diversity in all its institutions, there is hereby established a standing committee of the Board called the 'National Committee of Inclusion' ('COI')... "
One reading of this vague "there is hereby established" language is that that it describes the purpose of the PNB in establishing the National COI. An equally legitimate alternate reading is that this establishes the purpose of and specifies the authority granted to the National COI.
In other words, this sentence can be read as a blanket delegation by the PNB of any and all of its authority, if exercised by the National COI with the justification of preventing or correcting institutional racism or sexism.
It is, in fact, this dangerous interpretation that is most
consistent with the language of paragraph 2, wherein the PNB
reserves the right to override unspecified actions of the COI.
I'll grant that Pacifica Program Directors are or should become
experienced at handling the disruption and pre-emption of planned
broadcast schedules, but it is never a pretty sight and always
upsets some of the programmers affected. I am also worried that
the schedules of candidates and (especially) elections supervisors
might not be as flexible as you assume. Moreover, I strongly
suspect that the very idea that extending the nominating period
will increase the diversity of the candidate pool is more hope
It's clear to some that's it's not as clear as you suppose.
This is laudable, but my advice is "Give B a chance."
It is Draft B that had the support of the iPNB at one time and very well might get it now. It is Draft B that has the best chance of LAB approval and represents the culmination of multiple compromises among factions throughout the network. It is Draft B that has been reviewed by an independent attorney with sufficient time to identify and correct the sort of vague language vulnerable to dangerous interpretation that I have pointed out above.
I think you know that Draft B is the better choice. Your compromise surrender is premature. Assuming that it is too late to repair the problems in your proposal, any consideration of Draft C should certainly be delayed until the inability of the iPNB to accept the better, safer, more legal and more responsible Draft B has been repeatedly demonstrated.
And Fertigs reply to Goodman:
On Mon, 23 Jun 2003 15:07:11 -0700, David R. Fertig wrote:
I wish I had more time to engage your argument, which I appreciate, but I will say that at no time in the past did B, as currently written, have votes to pass, nor does it now. To say we should wait is in my view dangerously unrealistic, so I guess we disagree. Your reference to "compromise surrender" misses my whole point, and raises the whole combat metaphor of victor and vanquished that unfortunately occupies so much of this debate. C is not an attempt to surrender, it is an attempt to succeed, in passing bylaws, in bridging gaps, and in moving forward. The tortured constructions of C that lead to Armeggedon are constructions, not plain readings, and I do not accept the assumption that all those elected will seek to (or recklessly) destroy the network. If I did, I wouldn't be working towards elections.
Date: Tue, 24 Jun 2003 14:13:33 -0400
Dave [Fertig] --
You argue that under Draft C the COI [Committees of Inclusion]cannot implement anything, only recommend. Even if this were true (and I disagree that it is), it still wouldn't matter.
Look what happened to the DLC [Diverstity Language Committee], which also supposedly was given only the power to recommend.
The DLC was (1) created by the iPNB and (2) had a written mandate and (3) therefore official recognition and authority. Thus the committee, peopled by UC nominees, was able to immediately leverage all three factors PROCEDURALLY to get around the iPNB, by finessing its instructions and enlarging its mandate, while simultaneously wielding the same three factors POLITICALLY to create an iPNB-legitimized propaganda platform from which to intimidate board members, LAB members, and listeners.
These were political actions with very real administrative effects, since they managed to tie up the process for months. Note that the DLC was in actuality the UC (which pulled strings and twisted arms to get its own members installed as a majority). But however bad the UC had been till then, it had no legitimate status as an arm of Pacifica governance until it was, in effect, given a shot of steroids by being transformed into the DLC.
Yet as bad as the DLC was, the COI contemplated by your Draft C would be even worse, since, unlike the temporary DLC, it would be a standing committee -- with us forever -- and possess a huge mandate of which the UC and DLC could heretofore only fantasize about.
Please note that the new COI would be appointed by the current LABs -- at Wbai that means Sheila, Mimi, Marian Boorenstein, Lee Kronick, AK Mackall, Errol Maitland, Gail, Fred, et al. Once in, they would be impossible to dislodge (Mimi has been on the LAB for 7-1/2 years!).
The bylaws will be a legal document, which, however, will be given the spark of life by political will. And alas, the most political will now lies with the ideologically dogmatic and inflexible members of the UC. They are dedicated, able, focussed, well-connected, have been in power at Wbai for over 15 years, and will direct all their efforts at maintaing that power through the COIs. Therefore the less power to such a potential shadow-govenrment the better.
The analogy is, I am sorry to say, to a cancer. If one already has a tumor, and it is too difficult or too dangerous to cut out of one's body (as we cannot easily cut out the UC from Pacifica's body politic), the very least one can do is not stimulate it to more rapid growth by swallowing a glass of DDT each morning before breakfast. The COI to be created by Draft C is that glass of DDT. It will stimulate the UC to ever more rapid growth.
Even if I agreed with you (which I do not) that Draft C does not explicitly grant the COI any power other than to extend the nominating period -- it still wouldn't matter. For the language is at least vague and suggestive enough to ALLOW the claim of power, and that, coupled with enough political determination and lack of scruples, which for the UC is not a problem, may be more than enough to give them their way through their usual tactics of race-baiting, intimidation, and the relentless grinding down of all opposition by never giving up (an admirable characteristic in an ally, but not in a foe).
I urge you to vote for Draft B.
Steve Brown [WBAI area]
From: Donna McWaters
Remember in the last iPNB telephone meeting when Dave Fertig characterized the COIs as "ubercommittees?"
Well, it looks to me like the COIs in his Draft C are STILL ubercommittees.
If the COIs have any more power than Draft B gives them, the first thing that will happen is that they will divide the new PNB into factions to prevent it from using its override power.
You saw how Mimi and Sheila divided the DLC. They know how to divide. Boy, do they know how to divide. They will do it in a heartbeat to the new PNB. Then the COIs will be in charge. You can bet some serious money Mimi will end up on the national COI, if you can find anybody to take your bet.
Once the COIs are in charge, every programmer, every Program Director, every Station Manager will have to toe the COI line to avoid the boot. They will stay in power by bullying everybody on the LSBs like they bullied the majority of the DLC, and by offering mediocre programming so the Members lose interest in Pacifica politics. It might be impossible to remove them once they are enshrined in the bylaws.
Please, Teresa, please vote for B. The COIs of B advise; they do not dictate. We really need the advice they are supposed to give, about how we are doing on the diversity issue. It is too easy to say, "Hey, we're doing okay!" when just maybe we really aren't. It is a very good idea to have a committee actually measuring and monitoring and reporting whether or not we are doing okay. But the actual decision-making power is already stipulated in the bylaws and should not be overridden by the COI ubercommittees.
Another issue I have with drafts C and A is the extension of the nominating period. I didn't think that was a problem, but yesterday I saw a message on the internet which changed my mind. Here's the problem: When will the campaign period of on-air interviews/statements of the candidates take place? When will the Town Hall "meet the candidates" meetings take place? How can those be scheduled before the end of the nominating period when we can't know until then whether or not the nominating period will be extended? Will they interfere with fund drives during any extensions? If the voters cannot be given a firm schedule in advance, how many of them will lose interest? If that happens, we are inviting a takeover by Second Baptist or some other outside group.
And here's the solution: The COIs need to look at the candidate pool about half-way through the nominating period and take extra outreach action right then, not after the nominating period closes. This "look and see" can be set out in Policy and does not require a rewrite of the bylaws. Draft B, as you know, does not allow extensions of the nominating period.
Please vote for B.
Donna McWaters [KPFT LAB]
From: Mark Hernandez
Draft C has made a good effort to compromise, but has two major flaws in the wording.
Draft C has made a good effort to compromise, but has two major flaws in the wording.
Article One, Section 4: inclusion of "subscribership".
This opens the can of worms...are we now limiting the Pacifica Mission to just those that pay? Are we going to eliminate subscribers if one ethnicity has a higher and less equitable number than another?
And what effect does this have on the overriding aspect of the FCC license mandate of "serving the _community_ of license"? (emphasis added).
Rather than specifically define it, and open the larger can of worms that this represents, we should not allow for its inclusion and instead concentrate on the existing language...at least, until we can actually and legitimately define the audience, listeners or subscribers, and make a better assessment.
Article 8, Section 4: establishment of national Committees of Inclusion
Nice idea; problem is in the semantics. From the language, it appears that the National Committee of Inclusion (NCOI) will have the ability to override the Local COIs (LCOI). So, when the national figures are thus viewed in aggregate, and the heavy ethnic 'overbalance' of one of the five station communities mandates a _national_ 'correction in balance', that skews both programming, employment and outreach in a negative manner.
For instance, WPFW is heavily African-American; KPFK is heavily "Latino".
Those two stations, if used to create a 'national diversity criteria', would impose artifically high diversity standards on the other three stations.
Intellectually, this is not a bad thing...however, such an external imposition would negatively impact all the _other_ ethnic programming, such as Asian, Pacific Islander, Native American, etc. etc. etc.
This would also have the lesser but no less onerous determination of hiring practices, as well as management choices.
Amendment, Art 5, Sec 5: Establish National COI
Similarly, the Allen amendments are problematic, with this being the worst and needing to be removed.
Bottom line: No accountability of this body to anyone.
Overall, Draft B is better; some of the tweaks in Draft C are reasonable, but if hammering them out is a problem (and it will be), then we would need to go with Draft B as the better choice.
From: Jim Curtis
Dear interm Pacifica National Board members and Dave Fertig,
Please Eschew Draft C and vote for Draft B. Draft A shouldn't even be a choice. It's illegalities and recipes for more lawsuits are oblivious. The "bylaws bloat" as Jabari Zakiya expressed it, caused by this morph of the "constituency model" threats the settlement even now with perpetual delays.
Draft B represents the total evolution of nearly two years of work on this by the listener members of all five station areas and has the iPNB's straw vote approval of all its details. This isn't so with Draft A which alters critical parts of previous straw poll agreements.
Draft B formulates an affirmative action policy through Committees of Inclusion which is in line with the mission of Pacifica; ie.,
..."d) In radio broadcasting operations to 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.' ...
Drafts A and C both overstep the mission's goal of creating a workable understanding between "....causes of .... antagonisms." by creating Committees of Inclusion with a executive mandate to impose segregationist and discriminatory judgments about who can or can't be involved at all levels of engagement. That the COI's judgements maybe partial based on demographics only compounds the segregationist confusion.
Drafts A and C also, both, create delays and confusion in the election process by delaying nominations so that the various station boards will be out of synchronicity with each other and national elections.
Drafts A and C also, both, raise many unanswerable governance questions and conflicts at a time when the Pacifica National Board needs to solve other pressing problems like its current financial situation.
Respectfully, Listener member, --- Jim Curtis
From: Mark Hernandez [KPFA LAB]
I'm going over your Draft C with fine-tooth comb, and it is unfortunately getting stuck on quite a few snags.
Enough that I have openly asked the KPFA LAB to reject Draft "C".
I'll go over the details as soon as I am complete, and present them, but it appears to me that in the effort to achieve a compromise on Draft "B", you've opened the door for an unfettered and unaccountable domination of Draft "A" elements, and in a manner with unpredictable consequences.
For instance, the population of the area in and around Washington, DC, is approximately 40% _white_.
By your 'compromise', this would now mean that we could no longer accept subscribers at WPFW until we achieved a 40% white subscription base; a staff composed of 40% whites, paid and unpaid; programming that is intended for a 40% white audience; and a 40% white management team.
While inclusive, it also destroys the statements of Valerie Van Isler, who proclaimed at the Los Angeles iPNB meeting that WPFW was "100% diverse"...begging the question, of course, of who is determining the context of "diversity" in the first place.
If paid staff can't define it, how are we supposed to expect unpaid volunteers to do so?
But this also goes beyond one station; it affects not only the rest of the Pacifica stations, but also creates an artificial "national" diversity level, that the proposed "National COI" will mandate...and based on _aggregate_ levels, rather than legitimately established ones.
Further, and completely unaddressed in this, is the effect that such a 'national' mandate would have on total programming...including what Pacifica makes available to the Affiliates.
You mandate the inclusion of "subscribership"; it can (and would) be argued that since the Affiliates pay for programming, they are technically "subscribers". Even rejecting that point, however, you mandate the inclusion of "programming" to be under the auspices of the NCOI and LCOI, which _does_ include the Affiliates.
Many of the Affiliates are already diverse; on what basis, therefore, will Pacifica have to _mandate_ that they carry "diverse" programming, or adhere to _Pacifica's_ "diversity standards" if they are to remain as Affiliates?
While not specifically included, such extension of Pacifica's "diversity mandate" under Draft "C" is not specifically _excluded_...and as an attorney, you should be well aware of the potential of liability in that line of reasoning.
Wearing my _other_ hat, I would also be concerned about the effect that such mandates as Draft "C" allows being imposed on KFCF, which has a unique position within Pacifica.
Would our one-person staff be required to comply with Pacifica's mandates? Our board? Our membership?
I'll forego my usual screed about the Pacifica National Board and Offices consistently neglecting to involve the Affiliates or even KFCF in such sweeping designs, but I will point out that this is exactly what you have done in your proposal...included them in an indirect manner without consideration of the totality of the consequences.
Frankly, Draft "C" is unworkable in comparison to Draft "B"...it was a nice idea, but it lacks consideration of the results it imposes.
I'm not done going over the whole of Draft "C"...but what I see already makes it clear that it is, at best, a compromise that needed more thought behind it than willingness to accommodate others for political need.
Please, withdraw Draft "C" from consideration; if you support Draft "B", we won't get _everything_ in one fell swoop, but we will at least have the foundation from which to build a better Pacifica than we have now.
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