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Responses to the lawyer's current bylaws draft

The lawyer's bylaws draft
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Below is the analysis of Rafael Renteria and Leslie Radford - KPFK area


From: lradford@kpfk.org
To: webmaster@wbai.net
Sent: Saturday, January 18, 2003 7:31 PM
Subject: Diversity: Lawyer's Opinions Contradict Finck


For wbai.net.

--Leslie R.

Los Angeles activists met today with attorney Matt Goldsby, an attorney specializing in non-profit law, associated with California Lawyers for the Arts. Mr. Goldsby offered the following guidance, but was clear that he did not have the expertise to elaborate further and advised that we contact a qualified civil rights attorney.

Goldsby offered a number of opinions and insights that contradict the positions ascribed to Kevin Finck, the lawyer retained to review Pacifica's bylaws. There were two general areas of discussion. The first pertained to questions of law and diversity per se, and the second pertained to options for restructuring Pacifica that might be pursued.

1. Goldsby strongly asserted that no non-profit attorney could be considered a final expert on the question of diversity requirements. He said that only an authority on civil rights law could have a sufficient grasp of all of the intersecting parameters between non-profit law and civil rights law as they pertain to diversity requirements at Pacifica. He strongly urged activists to contact qualified civil rights attorneys for a full explication of these matters.

2. Goldsby's opinion is that Pacifica will be vulnerable to legal action by outside parties in two situations. First, he said that diversity requirements might expose the Foundation to suits by those who claim that quotas or set-asides discriminate against them. By the same token, and of equal importance, he maintained that the Foundation would be equally vulnerable to legal action if the network had diversity policies or goals that its elections failed to fulfill. In other words, in Goldsby's opinion, Pacifica would be equally vulnerable to lawsuits under both conditions.

3. Goldsby, referring directly to the Code, held that under no conditions would the establishment of diversity requirements endanger Pacifica's status as a 501(c)3 non-profit organization under Federal law. He pointed out that there is no language whatsoever under 501(c)3 that addresses diversity in any way.

4. Goldsby said that changing the Bylaws to require diversity would not necessarily invoke an audit by any State agency. More on this below.

5. He pointed out that California law regulating universities and state-funded institutions probably would not apply to a non-profit organization like Pacifica.

6. Goldsby suggested that the intersection of Federal and State laws and regulations with respect to diversity might create a precedent- setting case as pertains to diversity requirements at Pacifica. An explanation is in order: Pacifica is a minority organization according to the CPB. As such, it qualifies for different conditions for funding as does a non- minority organization. Minority organizations have to receive lower thresholds of financial support from their listeners to qualify for CPB matching funds than do non-minority organizations. Pacifica qualifies as a minority organization in part because of the racial composition of its National Board. The courts have required that Pacifica democratize. This sets up a tension and a contradiction between the requirements of the CPB and the requirement for elections - if those elections are to be held without diversity requirements - that could result in serious material harm to the Pacifica Foundation. In other words, Pacifica might lose a significant portion of its CPB funding, funding it can ill-afford to lose in the current economic crisis.

7. Finally, with respect to the specificities of the law, Goldsby suggested an oblique possibility that pertains primarily to Constitutional law. He said that religious organizations are able, on the basis of their mission, to include or exclude groups according to their beliefs, at will. He speculated that any groups' mission might be construed to have an equal moral and legal weight, as does the mission of a religious organization.

Goldsby suggested that, if experts in civil rights law were to find that diversity requirements were illegal, then several options might be available for restructuring an elections process:

1. He said the most solid possibility for ensuring diversity would be to create geographic districts for representation, much as the Congress and State Legislatures do. He suggested that this kind of structure would be very difficult for any group to challenge insofar as the Federal Government itself utilizes this principle.

2. Goldsby said that, in his opinion, setting up a requirement that the candidate pool must include enough candidates of color and enough women to make the fulfillment of diversity goals possible would be legally sound.

3. He said that setting requirements for the setting aside of seats on the basis of economic class would be legally acceptable.

4. He said that listing candidates on a ballot according to their ethnicity and gender would be legally acceptable.

5. Goldsby maintained that setting aside seats for collectives who are involved in the life of the station, as per the proposed KPFK Program Council model, would be legally sound.

He suggested that some form of the "Hybrid Model" might work if groups were not excluded from forming their own constituencies.

Finally, Goldsby was of the opinion that if diversity requirements were made a matter of policy, but not included in the Bylaws, Pacifica would most likely avoid any inspection or audits by the IRS or the Attorney General, given that only Bylaws changes, but not changes in policy, must be submitted to those authorities.

- Rafael Renteria
-Leslie Radford

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