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Motion to Enforce Settlement Agreement and to Set Schedule for Elections
9-5-03


9-12-03 Court documents index

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POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO ENFORCE SETTLEMENT AGREEMENT, AND TO SET SCHEDULE FOR ELECTION OF DELEGATES AND DIRECTORS
[C.C.P. A7664.6]

Judge: Hon. Ronald M. Sabraw
Date: September 5, 2003
Time:
Dept: 22
1221 Oak Street
Oakland, California 94612

Carol Spooner, Pacifica Foundation Interim Director, presents the following Points and Authorities in support of her motion to enforce the Settlement Agreement of the underlying actions.

INTRODUCTION

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

Those requirements have been met as to the Bylaws previously referred to as "Draft B." The Interim Board of Directors (hereafter referred to as the "iPNB") met on June 26, 2003 at a special meeting called for the purpose of voting to adopt new bylaws and approved "Draft B" by a vote of 7 to 3, with three directors abstaining. This vote was confirmed by the Court in its Findings and Order filed July 14, 2003. The KPFA LAB met on July 9th and approved those portions of "Draft B" of the bylaws by a vote of 13 to 1; the KPFT LAB met on July 9th and approved those portions of "Draft B" of the bylaws by a vote of 11 to 2; the WPFW LAB met on July 19th and rejected those portions of "Draft B" by a vote of 10 to 0; the WBAI LAB met on July 22nd and rejected those portions of "Draft B" by a vote of 11 to 2, with one abstention; the KPFK LAB met on July 23rd and rejected those portions of "Draft B" by a vote of 12 to 11 -- and finally, the KPFK LAB met again on August 23rd and, on a renewed motion to approve those portions of "Draft B," did approve them by a vote of 12 to 11 (one vote switched).

However, at a special meeting of the iPNB on September 2nd called for the purpose of setting the time frame for the transition election of new boards, as required by the Bylaws, a motion to set the time frame was defeated by a vote of 6 to 5. Several directors stated that they did not accept the KPFK LAB vote approving "Draft B" because they believed this Court had set a July 23rd "deadline" for approval of "Draft B," and that "Draft B" was "off the table" at the time of the KPFK LAB vote to approve it on August 23rd.

While it is true that this Court, in its July 14th order, did direct the LABs to meet and vote on "Draft B" by July 23rd, that date was set at the request of this moving party in her previous motion to enforce the Settlement Agreement so that the nominations period could begin on July 25th, as specified in the Bylaws, and the normal 6-month cycle of electing and seating local Delegates (Local Station Board members) and the election of a new Board of Directors by the Delegates could be completed in time to seat the new Board of Directors at the annual meeting in January 2004, as specified in the bylaws.

There was nothing in the Court's July 14th Order that foreclosed later approval of "Draft B," and in fact, the Court ordered "that 'Draft B' shall be the Pacifica Foundation Bylaws upon receipt of the required approval by majority vote of at least three of the five Local Advisory Boards, pursuant to Paragraph 3.b of the Settlement Agreement."

The iPNB does not have the right to "reject" the August 23rd vote of the KPFK LAB, nor to change the voting requirements of the Settlement Agreement for passage of bylaws, and this Court did not change the Settlement Agreement requirements by its July 14th Order. The majority vote of the KPFK LAB on August 23rd to approve "Draft B" of the bylaws as to the number and manner of election of local and national board members should be enforced by the Court.

FACTUAL BACKGROUND

Following a lengthy effort to agree on new bylaws, the iPNB voted on June 26th, 7 to 3, with 3 abstentions, to approve "Draft B" of proposed bylaws. That vote was confirmed by the Court's Findings and Order Filed July 14, 2003, which Ordered as follows:

"1. That the Secretary of the Foundation record in the Minutes of the June 26, 2003 special board meeting that the Interim Board of Directors approved "Draft B" of the proposed Bylaws by two-thirds majority vote of seven (7) out of ten (10) interim directors members present and voting, with Ferguson, Lee and Zakiya abstaining;

2. That the Foundation Secretary shall forthwith transmit by email "Draft B" of the proposed Bylaws to the Chairs of the five Local Advisory Boards who shall convene special meetings of their respective Local Advisory Boards not later than July 23, 2003 to vote on "Draft B" as to those portions concerning the number and manner of election of local and national boards, and shall transmit to the Foundation Secretary the results of those votes not later than July 24, 2003; and

3. That "Draft B" shall be the Pacifica Foundation Bylaws upon receipt of the required approval by majority vote of at least three of the five Local Advisory Boards, pursuant to Paragraph 3.b of the Settlement Agreement; and further,

4. That the term of the interim board shall be extended until January 30, 2004 or until a new Board of Directors is seated, whichever occurs first."

Pursuant to that Order the LAB's met and reported the results as directed, and the KPFA and KPFT LABs approved "Draft B" by large majorities, and the WBAI and WPFW LABs rejected "Draft B" by large majorities, while the KPFK LAB split down the middle, rejecting "Draft B" on a 12 to 11 vote. The KPFK LAB had previously voted to approve those portions of "Draft B" on June 24th by a vote of 12 to 8, with 1 abstention. However, when the KPFK LAB met again on July 21st pursuant to the Court's Order, it shocked everyone by failing to approve those portions of "Draft B." One of the "Draft B" supporters had changed his vote after the LAB Chair announced at the meeting that she would vote against the bylaws, that she had a new legal opinion that 50% minimum requirements for people of color on the boards was "legal," and that she would seek mediation if the KPFK LAB voted down "Draft B" of the bylaws.

Within a few days the interim Board Chair gave notice of a facilitated bylaws discussion to include LAB members and iPNB members for the weekend of August 15-16 in Chicago.

After receipt of this notice, the KPFK LAB met again on August 4th, and a renewed motion to approve "Draft B" was ruled out of order by the LAB Chair, and the Chair improperly ruled that it would take a 2/3rds majority to overrule her. However, the renewed motion to approve "Draft B" was scheduled for August 24th, one week after the scheduled Chicago discussions. This scheduled "revote" on "Draft B" was widely known in the Pacifica community, and was mentioned more than once by KPFK LAB members in attendance at the Chicago discussions.

The Chicago discussions, attended by 12 iPNB members and 13 LAB members from across the country, did not resolve the impasse over "diversity language" in the bylaws, and no recommendation came from that meeting for "diversity language" that could be put to a vote of the local and national boards. At the end of the Chicago meeting a small committee of four was established to try to come up with a recommendation. That small committee met several times by telephone over the following week, but was unable to reach an agreement as to any recommended bylaws language or any clear path forward. IPNB Chair Leslie Cagan served on this committee and attempted to get legal advice for the committee from an attorney from MALDEF (Mexican American Legal Defense and Education Fund) as agreed at the Chicago discussions, but was unsuccessful.

Finally, the KPFK LAB met again on August 23rd and, again by a 1-vote margin (with 12 voting YES and 11 voting NO) voted to approve "Draft B" of the bylaws as to those portions concerning the number and manner of election of local and national board members.

ARGUMENT

I. THE SETTLEMENT AGREEMENT PROVISION THAT BYLAWS ARE TO BE ADOPTED BY THE VOTE OF TWO THIRDS OF THE DIRECTORS PRESENT AND VOTING, AND THE MAJORITY VOTE OF AT LEAST THREE OF THE FIVE LABS AS TO THOSE PORTIONS CONCERNING THE NUMBER AND MANNER OF ELECTION OF LOCAL AND NATIONAL BOARD MEMBERS SHOULD BE ENFORCED.

California law strongly favors settlement agreements. See, e.g., Huens v. Tatum, 52 Cal. App. 4th 259, 265 (1997); Skulnick v. Roberts Express, Inc., 2 Cal. App. 4th 884, 8' (19'). "Absent a fundamental defect in the agreement itself, the terms are binding on the parties." A.J. Industries, Inc. v. Ver Halen, 75 Cal. App. 3d 751, 759 (1977).

Here, the parties agreed to the approvals required for adoption of new bylaws. The Pacifica Foundation and the Interim Board members are bound by that agreement. Those approvals have occurred, and the agreement should be enforced.

II. THE COURT DID NOT LIMIT THE TIME FOR APPROVAL OF DRAFT B BY ITS JULY 14TH ORDER.

The Court ordered the local boards to meet and vote by July 23rd, as requested by this moving party to prevent further dragging things out and in order to open the nominations of Delegates on July 25th, as specified in the bylaws, so that the members could elect their Delegates to elect a new board of directors by the end of January 2004, in the time frame specified in the bylaws. However, the Court could not and did not order three LABs to approve the bylaws by July 23rd, and there is no such requirement in the Settlement Agreement. The Court's order "that 'Draft B' shall be the Pacifica Foundation Bylaws upon receipt of the required approval by majority vote of at least three of the five Local Advisory Boards, pursuant to Paragraph 3.b of the Settlement Agreement" became operative with the KPFK LAB approval on August 23rd, and "Draft B" of the bylaws is the Pacifica Foundation bylaws.

III. A RENEWED MOTION IS IN ORDER AT ANY SUBSEQUENT SESSION OF THE BODY.

The Pacifica Foundation is governed by Robert's Rules of Order. Under Robert's Rules, a "renewed motion," where a motion failed to pass at a "session" of a body, is in order at any subsequent "session" of the body, and may be brought by any member of the body.

"Two general principles govern the renewal of motions:

1) No motion can be renewed during the same session in which it has already been before the assembly [exceptions omitted].

2) Any motion that is still applicable can be renewed at any later session, except where a specific rule prevents its renewal; and such an impediment to renewal at a later session normally can exist only when the first motion goes over to that session as not finally disposed of, in which case, the question can then be reached through the first motion."

Robert's Rules of Order Newly Revised (10th Edition), A738, page 326, lines 1-23.

"In a permanent society whose bylaws provide for regular weekly, monthly or quarterly meetings that go through an established order of business in a single afternoon or evening, each 'meeting' of this kind normally completes a separate session. [...] This rule is the common parliamentary law and holds except where a special rule in the bylaws provides otherwise."

The Pacifica station LABs are "societies" that meet regularly to go through an established order of business in a single afternoon or evening, and each LAB meeting completes a separate "session." Therefore, the renewed motion to approve "Draft B" of the bylaws was in order at subsequent "sessions" of the KPFK LAB after the motion first failed to pass on July 23rd.

IV. THERE IS NOTHING "UNFAIR" ABOUT THE VOTE OF THE LAST LAB TO APPROVE THE BYLAWS DETERMINING THE OUTCOME.

The Settlement Agreement required four separate bodies to meet and to vote separately and independently to approve the bylaws, or portions of the bylaws (the iPNB and at least three of the five LABs). This was not a secret ballot "election," where the results would be announced after all the votes were tallied. There was no single "election day" specified in the Settlement Agreement or the Court's July 14th Order, nor was there ever any required sequence in which the bylaws were to be approved by the iPNB and the LABs. Some LAB had to be the last to vote. In fact, if the KPFK LAB had approved "Draft B" on July 23rd instead of August 23rd, it would still have been the last LAB to vote and it's vote would have been determinative, and there is nothing unfair about that.

V. HAD ANY OF THE OTHER LABS WANTED TO CHANGE THEIR PRIOR APPROVAL OR DISAPPROVAL OF DRAFT B, THEY COULD HAVE DONE SO AT ANY TIME BEFORE THE FINAL APPROVAL OF THE THIRD LAB.

Standard parliamentary procedures provide the method for changing the outcome of a vote at a previous session.

Had the KPFA LAB or the KPFT LAB wanted to rescind their approval of "Draft B" they could have called a special meeting and done so at any time before or after the July 23rd vote of the KPFK LAB, or at any time before the August 23rd vote of the KPFK LAB. Had the WBAI or WPFW LAB wanted to renew the motion to approve "Draft B," they could have done so in the same manner as did the KPFK LAB. Given the overwhelming majorities by which all LABs voted (except the KPFK LAB) to approve or reject "Draft B," any speculation that they might have done so "had they known" the KPFK LAB had scheduled a renewed motion to approve "Draft B" is specious. And, of course, LAB members across the country were well aware that the KPFK LAB had scheduled the renewed motion for August 23rd.

VI. CONTINUING THIS CONTROVERSY OVER THE BYLAWS IS DAMAGING TO PACIFICA.

The longer this controversy continues, and the longer this Interim Board remains in office, the more damage the Pacifica Foundation suffers as a result of dysfunctional governance. While it would have been preferable to achieve a broader consensus on the boards concerning the diversity issues in the bylaws, that was not possible despite every reasonable effort that could have been made. The necessary agreement required by the Settlement Agreement has been achieved.

Rancor and hostility on the board around these bylaws are interfering with day-to-day management, operations and programming decisions, staff morale, and the ability to prioritize and plan for the future. Pacifica needs a new national board and new local board elections as quickly as possible to bring stability and accountability into Pacifica's governance. Elected and accountable local and national boards that are truly representative of the Pacifica membership (the listener-sponsor members and the staff members) rather than boards that have been appointed willy-nilly and have overstayed their terms, are needed as soon as possible.

VII. AN ELECTIONS TIME FRAME MUST BE ESTABLISHED NOW IN ORDER FOR A NEW BOARD TO BE ELECTED BY THE END OF JANUARY 2004.

There is barely enough time remaining to complete the nomination and election of delegates and the election of a new board of directors before the end of January 2004. The newly adopted bylaws require the interim board to set the time frame for the transition election to new boards. However, the iPNB has refused to do so by a 6 to 5 vote on September 2nd. Therefore, moving party requests the Court to Order the following elections time frame:

1) Nomination of Delegates shall open on September 15th and close on November 15th, 2003.
2) Ballots and candidates written statements shall be mailed to the members on December 12th.
3) To be counted, completed ballots must be received by the Elections Supervisor no later than January 2nd, 2004.
4) The ballots shall be counted and the results certified by the Elections Supervisor no later than January 7th, 2004.
5) The newly elected Delegates for each station area shall meet to elect Foundation directors on January 10th, 2004.
6) The newly elected Pacifica directors shall be seated at the first meeting of the new national board on the weekend of January 30-Feb 1, 2004.
7) If a Local Station Board election fails to achieve a quorum of votes by the Election Close Date of January 2nd, the Close Date for that station area only shall be extended for one week to January 9, 2004. The ballots shall be counted and the election results for that station area shall be certified by January 15th, and the newly elected Delegates for that station area shall meet to elect Foundation directors on January 17th, 2004.

This schedule will permit the seating of the new board before the iPNB term expires on January 30th, and will permit the annual meeting in January to occur as specified in the bylaws. Any further delays would push that meeting into February or later. February is a month when the Pacifica radio stations do one of their three annual on-air fund drives, and it would be disruptive to the Foundation to hold the annual meeting in February when the station managers could not attend. Attempting to conduct the nominations period in any less time than 60 days would likely result in less successful elections, as recruiting good candidates is a labor- intensive job that will require considerable time and effort. Accordingly, any further delay in setting the nominations and elections time frame would make it nearly impossible to elect a new board of directors before the end of January.

CONCLUSION

For the foregoing reasons, moving party respectfully requests this Court to enter an Order enforcing the Settlement Agreement, and Ordering the Pacifica Foundation to open the nominations and conduct the elections of Delegates and Directors in the time frame specified above.

Dated: September 4, 2003
Respectfully submitted,

Carol Spooner
Member, Pacifica Foundation Interim Board of Directors

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DECLARATION OF CAROL SPOONER IN SUPPORT OF MOTION TO ENFORCE SETTLEMENT AGREEMENT, AND TO SET SCHEDULE FOR ELECTION OF DELEGATES AND DIRECTORS

Judge: Hon. Ronald M. Sabraw
Date: September 5, 2003
Time:
Dept: 22
1221 Oak Street
Oakland, California 94612

I, CAROL SPOONER, declare as follows:

1. I am a member of the Interim Board of Directors (iPNB) of the Pacifica Foundation, and I am the Foundation Secretary. In the underlying consolidated cases, I was the lead plaintiff/relator in the People ex rel Spooner, et al vs Pacifica Foundation, et al matter. I have personal knowledge of the facts stated herein, except as to those matters alleged on information and belief; and as to those matters, I believe them to be true. If sworn to testify, I could and would competently testify thereto.

2. At the September 2,2003 meeting of the iPNB called for the purpose of setting the time frame for nomination and election of Delegates (Local Station Board members) and Directors, as required by the bylaws, 6 of the 11 directors present voted not to set the time frame. A true copy of the "Corrected Draft" Minutes of this meeting is attached as "Exhibit A" and incorporated by this reference. Directors who voted "NO" stated that they did not believe that the vote to approve "Draft B" by the KPFK LAB on August 23rd was effective, as it came after what they believed was a "deadline" for approval of "Draft B" of July 23rd set by this Court's July 14th Findings and Order. Some directors complained of "surprise" that the KPFK LAB had taken a "revote" on "Draft B," or complained that it wasn't "fair" for the KPFK LAB vote to be the deciding vote after all the other LABs had voted, and that the other LABs might have wanted to "revote" too; or complained that they didn't think the KPFK LAB vote was procedurally proper; or complained that we had "spent a lot of money" on "facilitated discussions" of the bylaws in Chicago over the weekend of August 16-17, and that we were "making progress" and should "continue with the process." It was even suggested that those who "knew about" the scheduled KPFK LAB "revote" on August 23rd had no motive to "mediate in good faith" because we "knew" the KPFK LAB would approve "Draft B" if the Chicago discussions proved fruitless. It could just as well be suggested that those who "didn't know" about the scheduled KPFK LAB "revote" had no motive to "mediate in good faith" because they "knew" that "Draft B" was off the table, so they could drag things out and wear people down for many more weeks or even months to get what they wanted. However, most if not all iPNB and LAB members could not have been unaware of the scheduled KPFK LAB "revote." It was the topic of discussion on several Pacifica- related email lists, including the "Alliance" that at least 7 iPNB members (Teresa Allen, Janice K. Bryant, Leslie Cagan, Ray Laforest, Dave Fertig, Jabari Zakiya, and myself) subscribe to, along with many LAB members from around the country and members of "the public" who are interested in Pacifica matters. Of course none of us could "know" how the KPFK LAB "revote" would turn out -- we had been surprised before when the KPFK LAB voted "Draft B" down by one vote on July 23rd, and surprised again when the KPFK LAB Chair refused to allow a "renewed motion" to approve "Draft B" at a LAB meeting on August 4th. I listened to the August 4th and August 23rd KPFK LAB meetings live on the internet at kpftx.org, as well as a live "running commentary" of the July 23rd meeting from a reporter to kpftx.org on a cell phone -- and I'm certain many other people did as well, as these meetings were of major importance, and everyone knew the "future of Pacifica" was up to the KPFK LAB. These three meetings were videotaped for posterity, and I have copies for my library.

3. For me, the Chicago discussions were profoundly demoralizing. I left feeling that we had made no progress at all. The meeting was facilitated by psychologists whose interest was in our communicating our feelings to one another, instead of specialists in facilitating hard-nosed negotiations between parties with serious differences in their interests. So, the "pro-Draft B faction" got to be self- righteous in our indignation that the "diversity requirements factions" seemed almost pathological in their disregard or contempt for the legal and financial risks to Pacifica of race and ethnic percentage requirements in our bylaws; and the "anti-Draft B factions" got to be self-righteous in their indignation that the (so called) "anti-affirmative action faction" is blind to the "institutional racism" of our thinking. And so it went. When it came time to put some proposals on the table, finally, on Sunday afternoon, the "anti-Draft B factions" had nothing new -- either 50% requirements or requirements matching the signal area demographics, both of which had been rejected in previous drafts. Joe Wanzala of the "pro-Draft B faction" did put a new proposal on the table, but it was rejected as lacking the necessary percentage guarantees.

4. But, to tell the truth, I do not believe even the best mediators could have bridged the gap between the factions. There were differences of deeply held principle, and many were simply dug in to their positions, and a good number had nothing to lose and everything to gain by further delaying the election of their replacements.

5. At this point, I am thinking of the thousands of people across the country and on five continents who supported "the listeners' lawsuit" with their money and/or moral support -- more than 10,000 of them eventually signed and individually mailed in "declarations of support" between July 1999 and December 2001, when we settled the consolidated cases -- people of many races, creeds, colors and nations who believe in Pacifica's mission. I still hear from many of them. They want to vote. They want to be members of the Pacifica Foundation.

6. I am also thinking of the 19 or so hours we spent in settlement negotiations on the eve of trial, and of Tomas Moran, Sherry Gendelman, Dave Adelson, Miguel Maldonado, Barbara Lubin and Robbie Osman, who were there with me, along with Taylor Carey from the Attorney General's office. We knew that Pacifica must survive to preserve the First Amendment speech of "the Left," as Taylor Carey said, in this post-9/11 country. We knew that if this went on any longer Pacifica would be bankrupt, but we couldn't prove it. (In fact, Pacifica was functionally insolvent then (with almost $5 million more in current liabilities than current assets.) And we knew that the best and the brightest were leaving or had been driven from or fired or banned from Pacifica, and that it would be a long hard road to rebuild and renew. We knew that we needed a controlling majority on the board to change the direction of Pacifica, but that alliances would shift in the power vacuum left by the old board and management. We knew that we did not have much time, that the longer this interim board stayed in place, the more likely it would be that the old forces would regroup and struggle for control. We nearly set the level of required agreement on new bylaws impossibly high. We were forced to. We had to settle the lawsuits. But it was not quite impossible. It came down to one vote in the end, but a majority of three of the five LABs have approved the number and manner of election of local and national board members, and the terms of the hard-won Settlement Agreement have been met.

7. While it came down to one vote on the LABs, that is not true in the Pacifica community. My email is 90 to 1 in favor of these bylaws. They're not perfect, but they are serviceable. And I have great faith in Pacifica's listeners and staff members. Given the opportunity, they will elect good stewards for Pacifica. I do not believe that the racial issues at Pacifica are intractable. But I do believe that we need new boards to address them with a new spirit of good will and dedication to what Pacifica means to all of us, together.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, except as to those matters alleged on information and belief, and as to those matters I believe it to be true. Executed at Santa Rosa, California, on September 5, 2003.

CAROL SPOONER

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9-12-03 Court documents index



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