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Responses to the lawyer's current bylaws draft
1-21-03


The lawyer's 2nd bylaws draft
Response index

Below are responses and proposals from Andy Norris - WBAI LAB, Larry Romsted - WBAI area, Bob Lederer - WBAI, Donna McWaters - KPFT LAB, John Wenger - KPFK area, Eve Moser - WBAI area

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Carol - pls fwd to iPNB if possible.

A few comments:

1) Art. 12, Sec. 4(A): "To inspect and copy the record of all Members' names, addresses and voting rights, at reasonable times, upon five (5) business days' prior written demand on the Foundation, which demand shall state the purpose for which the inspection rights are requested; .." Five days? In practice, to meet this requirement the Foundation would essentially have to maintain a public listing of all members and their addresses (prove me wrong please). Not wise. At all. The implications are horrible, with the likes of Ashcroft and Ridge at large.

2) Art. 8, Sec. 2: Standing Cmtes of the Board of Directors comprise distinct Finance and Audit committees. This is a significant advance that I support. However, in order to work, it will require a pool of expertise on the Bd of Directors: enough Directors to form a Finance Cmte, and an Audit Cmte. Realistically, this means the 23-person Bd. of Directors should have 8 to 10 (min.) people familiar with accounting, auditing, taxation, budgeting, and capable of handling fiscal management of a $10M-$20M, 200 employee, multi-union, multi-state, not-for-profit entity. There has been little or no discussion on how to attract enough people with these skills to fill almost one half of the board. This must be discussed in the elections.

3) While the draft is well written (plain english) for the most part, some bits are opaque - to me anyway. Articles 11 is hard to understand but seems to remove a good deal of responsibility from the Directors. Hypothetical Question; if Art. 11 had been in the old bylaws would listeners, LAB members, and PNB members have been able to pin the members of the old PNB against the wall and gain the current bylaws revision? If the answer is YES - no problem; if NO, then I am concerned. Can someone on the iPNB please ask the lawyers.

4) In general I think this draft is far superior to Finck/1. While not a lawyer, it seems to me to cover most of the issues. The details on the LSB and Bd of Dirs elections and responsibilities look decent. One area that is hard to gauge is indemnification and how this removes the Directors from direct responsibility (something that ought to be maintained - someone has to be responsible!).

5) Minor points for the lawyers:

Art. 3, Sec. 5 There is a reference to the non-existent "Section 1(B) of Article 15 of these Bylaws"

Art. 3, Sec. 8(A) Reference to Section 9 of same Article does not make much sense.

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I am confident that every iPNB members will have read this new draft closely and will be ready to address and resolve all of my concerns, plus those of other LAB members and listeners when they meet this Friday. Please convey my thanks in advance to all iPNB members for their onerous work.

Andy Norris
WBAI LAB member

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From Larry Romsted - WBAI area

February 12, 2003

To: Carol Spooner and iPNB members:

Carol: please send these comments to all the iPNB members.

I have read the latest draft of the new bylaws from the attorney Finck--once. They are a vast improvement over the his previous draft. Democratic process are well explained and many of the motions passed in straw polls are included. There also seems to be some new language that I do not remember from the past or from straw polls. They are also vast; 42 pages. The attempt to "keep them simple" clearly failed, but perhaps spelling it out is better than assuming that everyone will act ethically in the future.

None of us has time before the iPNB Bylaws committee meeting this Friday to analyze them in detail, cross check whether a provision missing in one section may actually be in another, compare them completely with previous drafts, or make sure that all straw poll points are included.

Having said that, I think there are problems primarily from three tendencies:

(a) greater centralization of power at the PNB level;
(b) reducing listeners to their lowest level in a democracy, the right to elect their representatives, then please be quiet until the next election; and
(c) a sense that transparency is diminished

What follows are 12 points with comments on the bylaws from those perspectives.

1. A major missing piece is the Bylaws Convention.

The first full draft written by attorney Finck, which showed both his additions and deletionsl there was the following provision, which he deleted and has not been reinstated in the latest draft:

SECTION 3. BYLAWS CONVENTION
No later than April 2004, the national Board of Directors of the Pacifica Foundation shall hold a Bylaws Convention to review and revise the Foundation Bylaws. The members shall vote to ratify the revised Bylaws sections.

This provision should be added to the new Bylaws.

2. Loss of Transparency.

The sections that describe under what conditions the Directors of the PNB (Article 7, Section 7, Open Meetings) and the Delegates of Local Station Boards (Article 4, Section 6.C Members & Public Participation) can hold closed meetings is incredibly strengthened.

Minutes of closed meetings of the PNB and LSBs "must be put under seal" (Article 12, Section 1 A, Minutes) sealed such that members can never see them.

What is this business? Where is the transparency? The bylaws should make it as difficult as possible for the PNB and the LSBs to hold closed meetings. This language encourages the practice.

3. Access of Corporate Records.

Article 12, Sections 4-8 are lacking in detail about what must be available for inspection and that can be copied.

This is very disturbing. Especially given the type of promotional, good news reports that Dan Coughlin has made to date (they do lift my spirits, but they are really lacking in detail) and that a full budget report from the Treasurer has yet to be released.

4. No provision for Program Councils is included anywhere that I can find. Program Councils provide a direct venue for members to contribute to program development. Completely missing. Many listeners fought for a new Pacifica because they saw contributing to programming as a new way for listeners to participate in peoples' radio.

5. One of the straw polls passed at WBAI Bylaws Subcommittee meetings is simple:

NO APPOINTED SEATS!

In article 6, Section 1, C. Number. The new bylaws give the PNB substantial flexibility in changing the number of Directors on their own.

"The Board shall consist of a minimum of twenty (20) directors and a maximum for [sic] twenty- three (23) directors.

This means that the majority on the PNB will have to increase the size of their majority by increasing the number of directors and appointing them. This is unnecessary. If expertise is need, non voting people can be solicited for advice.

Article 6, Section 4A and 4B. Nomination and Election of At-Large Directors and Elections, respectively.

I do not fully understand this section, except that it relates to representation by affiliates. Cannot tell if the At-Large Directors are different or the same as that option to increase board size in Section 1, C. However, it reads like the number of Directors could be increased almost without limit as the number of Affiliate sections increases. Could even imagine the possibility of the affiliates dominating the LSBs of the original stations.

Section 4B give the PNB members the power to elect "at large" Directors.

Again, this permits the majority on the PNB to increase the size of its majority and further centralize power.

I do not remember any of this language being in the earlier bylaws drafts.

6. Article 6, Section 7. Removal of Directors. There is no provision for members to remove directors directly.

7. Listeners have no formal rights to participate in the work of the PNB or the LSBs. They only have sometime at meetings to comment. One of the straw polls passed by the WBAI Bylaws Subcommittee was the right of listeners to make formal proposals to both the PNB and LSBs on which the PNB and LSB members should consider and on which they should vote. Electing representatives is the base of democracy, but it is the lowest form of participatory democracy. Members should have built in rights to participate.

8. Article 3, Section 6A, Annual Meeting.

Why is there no annual meeting of the members. I thought that was built in before based on Roger Manning's proposals.

9. Article 4, Section 3, H. Calls for the LSBs to conduct "Town Hall" style meetings at least twice a year. All they require of the LSBs is to "listen" to the listeners. That is a toothless provision and an open invitation to ignore listeners--again.

Article 4, Section 4. Other LSB Powers and Authority. This section also permits the PNB to revoke the powers of the LSBs almost without check. Removing LSB powers need some way to have discussion and check before it is implemented.

10. Article 5, Sections 1A and 1B. National and Local Elections Supervisors.

These positions should be paid. Overseeing elections is crucial to democratic functioning in Pacifica. These elections must be run smoothly and as free as possible from influence by candidates, LSB or PNB members. I think it would be a mistake to rely on volunteers to do this work because a volunteer is never fully committed (nor are paid people, but the commitment is higher) to the task and other responsibilities can interfere.

Also, ballot counting should be the responsibility of the Local Elections Supervisors for their elections and witnesses should be free to watch the ballot counting process. Sending all the ballots to the national office defeats the openness of this process.

11. Article 5, Section 6. Fair Campaign Provisions.

Some indication should be provided to the amount of air time candidates will receive. The amount of air time should NOT be up to the judgement of the Station Manager, PNB or LSBs.

12. Article 7, Section 9. Accessibility. This article provides for ADA defined accessibility for national meetings--which is good. There is no equivalent provision for LSB meetings.

13. Article 8, Section 2, Standing Committees. There is no standing committee to focus on outreach and diversity and Affirmative Action. This should be a major commitment of the PNB.

Enough.

Larry Romsted
WBAI Land

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From Bob Lederer, WBAI

Upon my quick review of the latest by-laws draft, these are a few small but important points that stand out concerning election procedures, aside from the critical lack of measures to insure LSB/PNB diversity. The following opinions and proposals are my own only.

Bob Lederer
WBAI producer

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ARTICLE FIVE
ELECTION OF DELEGATES

SECTION 2. ELIGIBILITY; NOMINATION OF DELEGATES

A. ELIGIBILITY

(1) Any Listener-Sponsor Member in good standing may be nominated for the position of Delegate on a LSB of a Foundation radio station with which s/he is affiliated by obtaining the signatures on the nomination petition form of fifteen (15) Listener-Sponsor Members in good standing who are also affiliated with that radio station...

PROPOSED CHANGE: Restore the language in the iPNB consensus version (post-Houston-meeting) that added after "in good standing" the phrase "not including station management" (or more precisely worded: "not including radio station management employees"). General Managers are appropriately included as NON-voting ex officio members of the LSB, but it would be inappropriate for them (or other management personnel) to be electable as voting members, as the LSB has powers to review their work. Also, since Delegates are eligible to be elected to the PNB, this would open the door to a management role on that body, which would also be inappropriate.

The only restriction in the current draft on management, which is fine but does not solve this problem, is in Article 3, Section 1 - Members Defined, as follows:

Radio station management employees and Foundation staff employees who are not employed at a Foundation radio station shall not qualify as Staff Members, however, such employees may qualify as Listener-Sponsor Members by contributing the requisite minimum dollar amount as set forth in Section 1(A) of this Article of these Bylaws.
In sum, I support voting Listener-Sponsor Membership for management employees, but not eligibility for nomination as delegates or directors.

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SECTION 4. ELECTION TIME FRAME
In a Delegate election year, the nominations for vacating seats shall open on July 28th and remain open for sixty (60) days, closing on September 24th. The local election supervisors shall thereafter prepare the written ballot listing all of the candidates and setting forth all other information required by these Bylaws. Ballots shall be distributed, or otherwise made available, to the Members on October 1st. To be counted all ballots must be received by the LSB on or before November 15th (the "Election Close Date") All ballots shall be held sealed until the Election Close Date, the day after which they shall promptly be delivered via overnight express mail to the Foundation's principal office to be opened by the National Elections Supervisor and counted together. The National Elections Supervisor shall have up to 15 days after the Election Close Date to count said ballots and to certify the results to the LSB and the Board, which results must also be reported to the Members by December 2nd on the Foundation's website.

PROPOSED CHANGE:

This time frame includes no time whatever for campaigning (including on-air debates), which is key to a meaningful election. I believe that in KPFA's LAB election cycles, there was a 30-day period for this. Also this is the amount of time that Carol Spooner included as a campaign period in a December posting detailing her projection of the time needed to implement this year's elections. To those who may say it is possible to allow campaigning/debates during the 45 days that Members have to mail in their ballots, I would that that would be manifestly unfair to those who decide to vote early.

Therefore, I would propose that all dates specified in this section starting with Nov. 15th (the "Election Close Date") be moved back by 30 days.

**************

SECTION 7. 2003 TRANSITION ELECTION
Following the adoption of these Bylaws, and consistent with that Settlement Agreement dated December 12, 2001 , there shall be an election for all Delegate seats for each LSB. The interim Board, by resolution, shall establish a nomination and election timeframe for said elections, which timeframe may be shorter and on dates other than those set forth in Sections 2(B), 4 and 5 of this Article 5 of these Bylaws....

PROPOSED CHANGE:

I believe it would be unwise to shorten the timeframe for the very first LSB election. Except at KPFA, nomination and voting within Pacifica is an unfamiliar process to listeners, and it will begin immediately upon by-laws ratification. Carol Spooner's projected timetable (see above) allocates only 45 days for nominations. Not only does this sharply limit the time to fully educate listeners about the nomination process and the responsibilities and duties of LSB members, but it also severely undercuts the ability to do thorough outreach for a broadly representative pool of candidates from the various communities. A 15-day extension of nominations -- to simply bring this period into conformity with the period for all future election cycles -- seems a most minimal price to pay for increasing the chances of a broad-based candidate pool. Indeed, even 60 days may prove inadequate for this task.

Therefore I would propose deleting the phrase "shorter and" after "which timeframe may be."

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From Donna McWaters - KPFT LAB

Article Four, Section 9. REMOVAL OF DELEGATES (from LSB) (E) upon the majority vote of the class of the Members who originally elected the Delegate voting in an election to remove said Delegate...

We expect about 20 percent of Members to vote in the election. Why should we expect over 50 percent to vote in a recall? Shouldn't this say "upon the majority vote of a quorum of the class of the Members who originally elected..." Unless the word "quorum" is added to this clause, then recall by the Members will be impossible.

Article Seven, Section 8. ACTION BY UNANIMOUS WRITTEN CONSENT The PNB can make decisions without any meeting. Huh? What happened to transparency? Could this section *at least* have some limitations added? I would prefer removal of the section. This is a radio network. Meetings can be held without face-to-face meeting and broadcast or webcast so the Members can at least listen to who is advocating what!

And wasn't there agreement from at least 3/5 of the LABs that PNB Directors should be elected to one year terms rather than three year terms? Greatly reduces the need for recall; greatly inhances the LSBs' ability to elect diverse Directors because they would be electing four Directors at once instead of one, then two, then one; eliminates the problem of incomplete second terms because of being term-limited out at the LSB level. Yes, there would be more turnover on the PNB, but good, hardworking Directors could be relected up to their maximum of five years on the PNB. And slackers would not be reelected (unless they are REALLY good politicians).

Donna McWaters
soon-to-be Listener-Sponsor Member
KPFT

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From John Wenger - KPFK area

1. Article 16, Section 1, B (1), Voting and Aproval of Bylaws Amendments

The problem is that the election time can be set by the board to make it less likely for bylaws amendments to be passed. To ensure that bylaws amendments get a fair chance, they should be voted on during regular Pacifica elections for LSBs. And this in turn means that these elections should be every year. The only reason not to have annual elections is to save money, and bylaws amendments alone justify the costs of annual elections.

2. Article 16, Section 1, B (4), Voting and Aproval of Bylaws Amendments.

What is a quorum of the Members and the Staff? This should be defined here, or cross referenced to where it is defined? Is this an onerously large number? Can listeners really amend bylaws?

3. Article 16, Section 1, B (5), Voting and Aproval of Bylaws Amendments.

All bylaw amendments can be blocked by the opinion of one lawyer working for the national board. Seems like an anti-amendment loophole to me. There must be some workable appeal if the attorney says no.

4. Article 16, Section 2, B (5), Voting and Aproval of Articles of Incorporation.

All Incorporation Article amendments can be blocked by the opinion of one lawyer working for the national board. Seems like an anti-amendment loophole to me. There must be some workable appeal if the attorney says no. This is the same problem as 3. above, except that 3. refers to Bylaws, and 4. refers to Incorporation Articles.

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Open Meetings requirements in the proposed bylaws are inadequate.

Article Seven, Meetings of the Board of Directors, Section 7, Open Meetings, page 24.

We need all of the meetings to be open, to the extent possible, and not just telephonic meetings. The requirement should be to make every effort to netcast all meetings, not just the telephonics ones.

By the way, the term "webcast' is inaccurate, since no 'web' protocols are used. The web protocols are http and https, and they are used only to make a connection with streaming protocols for netcasting the audio streams. So say 'netcast' or something, but not 'webcast'.

Beyond this, we should aspire to videocasting all of our meetings across the Internet, and not just audiocasting them. So let's have wording which supports reasonable efforts to do this too. I regularly attend computer group meetings in LA that are vidocast around the world, where my friends inEurope watch and listen to them. These meetings are then archived on the net for future viewing and listening.

This should be done, not only for openness, but also for providing additional access to people with mobility disabilities. It is fine to require wheelchair access to the meetings, but that does not help me at all if I am confined to a hospital bed.

At the very least, the bylaws should support the efforts of the listeners to audiocast and videocast, plus to audio and videorecord all of the meetings that are open to the public.

Call this the Patty Hefley amendment, if you like, in honor of her pioneering efforts to videorecord the WBAI LAB meetings.

If finances allow, then the secretary should keep audio recordings of all of the meetings (Nixon Tapes) to be both archived, and placed upon Pacifica websites for audiostreaming. The costs for this are coming down quickly.

The national board should have to meet the same recording requirements of the local boards. These sections should be reconciled: LSB and PNB should have parallel requirements. A bunch of work needs to be done here. Where is the Recordkeeping and Rulemaking section for the PNB that is in the LSB section?

Local station boards should have to meet the same openness requirements as the PNB, specifically being open to audiocasting, videocasting and both audio and videorecording, ideally by the boards, but also mandating support for the listeners to do these activities.

The bylaws should mandate support for openness in meetings to the maximum extent possible.

John

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From Eve Moser - WBAI area

ART. ONE, SEC. 1. NAME. Everyone calls it "Pacifica" and probably always will. So please add the term "Pacifica", to let the sentence read, "The name of this corporation is the Pacifica Foundation, and it shall be referred to in these Bylaws as "Pacifica" or as "the Foundation".

ART. TWO. OFFICES OF THE FOUNDATION. Deja vu all over again. There's no check on the Board here. This needs a statement ensuring that the Board share its thinking with the membership and solicit its input before opening or moving offices. It doesn't prevent the Board from acting, but keeps actions transparent and the Board accountable.

ART. THREE. MEMBERS OF THE FOUNDATION. SEC. 1. MEMBERS DEFINED. A Member is an individual. Put the definitions in the singular. Clear up the ambiguity in the use of the term "volunteer".

SEC. 1A LISTENER-SPONSOR MEMBERS (2). Re "volunteers". There needs a mechanism here to mimimize the possibilities for abuse.

SEC. 1B. STAFF MEMBERS. Everyone who wants a voting membership in Pacifica needs to help fund it. Why are staff members exempt from the requirement to contribute $25? They should not be exempt.

SEC. 4. WAIVERS. Mechanism needed to mimimize possibilities for abuse.

SEC. 5. RIGHTS. The Members must have the right to vote on any and all amendments, not just certain amendments.

SEC. 8D. VALIDITY OF WRITTEN BALLOT. Why is this section here? (1) Why should an attorney-in-fact vote in place of a member? (2) A single individual, who qualifies for membership, is entitled to one ballot, period. Eliminate this stuff about co-tenants and co-holders.

SEC. 8E. VOTING; COUNTING SYSTEM - ELECTION OF LOCAL STATION BOARD DELEGATES. Instead of this lengthy description, just state that election of LSBs will be by the single transferable vote method. Spell out the details in a policy-and-procedures document and cite the reference to it here.

SEC. 8F. ELECTION AND VOTING SUPERVISION. This section needs revision!!! As this is a first mention, it needs to be indicated here that the "national elections supervisor" and "local election supervisors" are independent of Pacifica, not current employees, officeholders, or candidates, and indicate ARTICLE FIVE, where they are described more fully.

Ballots for local elections should be counted locally, where local folks can witness, all under the supervision of the local election coordinator. REWRITE!!!

LSBs must have no role in the running of elections, since they are officeholders and possibly also candidates for re-election. The only exception I can see is an LSB member whose term is expiring and isn't running again.

SEC. 11. PROXIES. As I understand earlier sections, members will vote by mail ballot when matters are to be voted on outside of a meeting. Conversely, if matters are to be voted on at a meeting, mustn't there be a means by which people not attending the meeting can vote? Isn't this what is meant by a "proxy"? If so, we need 'em here for Members. Please clarify this section.

ART. FOUR. LOCAL STATION BOARDS. SEC. 2. COMPOSITION OF THE LSB. If "associate station" people are to sit on the board, let them be elected by the membership. Then they will be accountable to the membership and deserving of a vote on the board. If they are not elected by the membership, they don't deserve a vote on the board.

SEC.14. INSTANT RUNOFF VOTING METHOD. Why is this section here?

ARTICLE FIVE. ELECTION OF DELEGATES. SEC. 1. ELECTIONS SUPERVISORS. This needs SERIOUS REVISION!!!

My understanding was that in anticipation of an election, the Pacifica Board of Directors would appoint a national elections supervisor. This would be a person independent of Pacifica (not a current employee, boardmember, or candidate), an expert in election matters associated with or recommended by the Center for Voting and Democracy or similar organization. The national elections supervisor would in turn appoint people of similar qualifications to serve as local election supervisors (coordinators). The local election coordinators would form local election committees from volunteer station staff and listeners. Current LSB members and candidates would NOT be eligible to serve on the election committees. The local election committee would certify everything that needed certifying. The local election committee,under the direction of its local election coordinator, would count the ballots after the election.

ARTICLE SIX. BOARD OF DIRECTORS. SEC. 1C. NUMBER. To whom are at-large board members accountable? Once such a category of board members exists, how, practically speaking, can it be eliminated? Why can't people who want to sit on the board as representatives of Affiliate Stations stand for election by the membership? Then they would be accountable to the membership and deserving of a vote on the board.

SEC. 7. REMOVAL OF DIRECTORS. In this arrangement, members can't recall directly but only if enough local votes can recall the same person from the local board. What if that Board member is bad news but the locals don't recall him and neither does the Board. Not good. The membership should be able to recall a director by direct recall.

ARTICLE 12. CORPORATE RECORDS. SEC. 4. MEMBERS' INSPECTION RIGHTS. What constitutes "a purpose reasonably related to [one's] interest as a Member of the Foundation"? Please put in plain English what a Member has to do to examine the membership rolls of the Foundation.

ARTICLE 16. AMENDMENT OF ARTICLES OF INCORPORATION AND BYLAWS.

*** MISSING: REVIEW OF THESE BYLAWS WITHIN 3 YEARS!! ***

SEC. 1. AMENDMENT OF BYLAWS. A. PROPOSING AMENDMENTS. A petition signed by at least 1% of all members would mean about 1000 people. Two thirds of the Board or an LSB means fewer than 20 people. It should not take more Members to propose an amendment than it does Board or LSB members. Are you saying that one Board member is worth 50 non-Board members? I beg to differ.

B. VOTING AND APPROVAL. If Board members and LSB delegates vote, then do those LSB delegates who are also Board members get two votes while the other LSB delegates get one? This is bad. No person should have more voting power than any other person.

There is no excuse for preventing the Members from proposing and voting any and all amendments. And they need to do so on the same basis as the board members.

SECTION 2. AMENDMENT OF ARTICLES OF INCORPORATION. Same as above, but worse. This lets the same 2/3 of the Board or an LSB propose, but requires 2% of the Members - about 100 times as many Members as boardmembers. This unequal treatment of Members/Board members is truly disgusting.

It should be far more difficult to amend the Articles of Incorporation than to amend the bylaws. But it's not accomplished by hamstringing the membership while allowing a tiny number of Board members such a free hand. The safety of Pacifica and its beautiful mission deserve far better.

Eve Moser



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