Who Cares About A Court Order?
On the west coast, Yeakey vs Pacifica was filed in Alameda Superior Court on April 6th. The lawsuit is filed against both the Pacifica Foundation and against majority board members Bethune (KPFT), Casenave (KPFT), Edwards-Tiekert (KPFA), Fuentes (KPFA), Norman (WPFW), Patel-Adams (KPFT), Roberts (WBAI) and purported affliate directors Gammon and Nwangaza individually. The plaintiffs are former KPFK local station board member Lamont Yeakey and former KPFA local station board member Chandra Hauptman. The lawsuit alleges the two affiliate directors (Gammon and Nwangaza) do not represent affiliate stations per the Pacifica Bylaws definiton and the elected 3-year delegate terms of 7 directors (Bethune,Casenave, Edwards-Tiekert, Fuentes, Norman, Patel-Adams and Roberts) expired in December of 2015 and their terms were extended illegitimately without the required vote of the Pacifica membership. The complaint requests the 9 directors be removed. 5 of the 9 (Casenave, Edwards-Tiekert, Fuentes, Norman and Roberts) voted in May of 2015 to extend their own three-year delegate terms. The complaint can be seen here. A procedural hearing was held on Friday April 9th in a Hayward courtroom and set the date for the injunction request to be heard on April 26th.
Pacifica National Board member and attorney Jan Goodman wrote in an April 7 memo to Pacifica's unofficial corporate counsel Dan Siegel:
We thought that you should be aware that we have tried very hard to avoid having a court settle the matters in which we have now been forced to seek judicial action. Resolutions were introduced and Points of Order raised by several PNB members in an effort to resolve these matters in a Parliamentary manner-- both with regard to 1. The matter of the illegality (per Corporations Code Section 5220 and the Pacifica Bylaws) of Directors/Delegates remaining beyond the term for which they were elected, (ie. the Director/Delegates elected in 2012 whose terms ended in December, 2015) and 2. The lack of written agreements between Pacifica and WMXP and UHURU RADIO the Stations which the erstwhile Affiliate Directors represent, as well as the lack of 30 Day notice of the meetings at which said directors were elected. All of those Resolutions, Motions and Points of Order were either ignored, overruled, or voted down by the PNB majority -- the majority of whose terms, by the way, ended in 2015. In addition I discussed these matters in great detail with Lydia Brazon, the Interim Executive Director and another lawyer member of the PNB in an effort to avoid litigation--again to no avail.
Siegel informed the Hayward court that he will be representing the Foundation in Yeakey vs Pacifica, but not the nine directors individually, who will have to secure their own legal representation (Bethune, Casenave, Edwards-Tiekert, Fuentes, Norman, Roberts, Gammon, Nwangaza, and Patel-Adams).
A timeline of the now two year old coup by the Siegel/Brazon faction can be seen here.
At the April 7th national board meeting, the board majority weirdly stated that they would be announcing the results of the WBAI "email election" they convened, although the election teller informed them in writing the election failed to meet a quorum, with only 11 votes received from the 24 member NY local board. The memo from the board's appointed election teller, Terry Goodman, stating the election failed due to lack of quorum can be seen here. Any seating action by the board would be with a motion to show cause pending in NY's Supreme Court.
In other news from the national board's April 7 meeting: Siegel's personal client Margy Wilkinson blocked KPFT rep Bill Crosier's motion to end Siegel's legal representation of Pacifica, saying she thought it was "inappropriate" and "complicated". Siegel's conflict of interest ridden history with Pacifica is discussed here. Board chair Tony Norman characterized Siegel as Pacifica's "interim corporate counsel". The board also voted down Crosier's motion to correct the March 3rd meeting minutes which stated a motion to strip WBAI directors from voting rights on the PNB and reappoint Lydia Brazon as executive director "passed without objection" (no vote occurred). Crosier, and LA reps Jan Goodman, Grace Aaron and Jon Alexander can all be heard objecting multiple times on the meeting audio, as many as 11 different times during the disrupted meeting. The board also set a bylaws amendment deadline of April 17, only 8 days from now, ensuring the general membership or the local station boards, which are allowed to submit bylaws amendments, would not have enough time to gather signatures before the deadline.
Finally the board engaged in a lengthy and futile discussion about the stalled 2014 financial audit. PNB treasurer Brian Edwards-Tiekert put forward a motion that the board allow a "not a going concern" note on Pacifica's 2014 audit, rather than spend as much as another month having CFO Sam Agarwal try to construct a turnaround plan to satisfy the auditor. Pacifica is in this predicament because the accounting standards will change in December 2016 from the previous protocol which applied going concern standards to the 12 month period following the year being audited (i.e from Oct 2014 to Oct 2015) to a new standard which applies to the 12 month period following the date the audited financial statements themselves are issued. ED Brazon strongly objected and stated she could produce a turnaround plan "over the weekend", causing KPFA listener rep Jose Luis Fuentes to ask angrily that if that were the case, why she had not produced such a turnaround plan in her 5 month tenure as interim executive director, much less turned anything around. CFO Agarwal stated he did not think such a hastily produced plan would be "worth the paper it was written on". The board voted down the Edwards-Tiekert motion unanimously, except for the Berkeley Save KPFA reps. Pacifica will miss the CPB AFR (audited financial statement) deadline for the third consecutive year, now totaling the forfeit of $2.75 million in public broadcasting grants.
A 24 minute highlights reel from the April 7 meeting can be heard here.
Pacifica's audit committee, after significant obstructionism from the Siegel/Brazon majority, finally met independently with auditor Grant Lam from Armanino on April 4. The meeting, which drags on for 45 minutes until Lam is allowed to speak, can be heard in its entirety here. In summary, Lam reports the following: 1. One of the primary problems remaining with the 2014 audit is securing a statement from Democracy Now that Pacifica does not owe another $658,000 for broadcasting the program in FY 2014. The contract expired on 9-30-2012, but Pacifica continued to accrue the expense for reasons that have never been clearly explained. From 2002 to 2013, Pacifica accrued over $6 million dollars in charges to broadcast its formerly owned program. 2) The other primary problem is ascertaining the amount of money owed to the Empire State Building on the 15 year NY tower lease that ends in 2020. 3) No engagement letter has been signed for the FY 2015 audit which indicates it will be impossible for Pacifica to file its audit timely to the State of California which requires it by June 30th.
Former Pacifica board treasurer Tracy Rosenberg compared Pacifica's 2011-2013 audit reports with Democracy Now's 2011-2014 990 tax returns. In a memo, she reported the tax returns indicate Pacifica's liability to their former program does not exceed $1.4 million dollars and no funds due beyond the expiration date on the contract on October 1, 2012 were accrued by Democracy Now. Pacifica appears to have been over-stating its debt by over half a million dollars. The memo can be seen here.
KPFK's bedraggled website came to the attention of local station board member Charles Frederick when he tried to order a KPFK t-shirt from the online order form and received a "this website is not secure" warning. In response to his inquiry, tech support from webhosting.net reported the SSL certificate had expired in the fall of 2015 and not been renewed. Website analytics for kpfk.orgreflect dramatic drops with a week in January of 2016 showing daily social media shares of website content at 6, 0, 0, 0, 6, 1, 0, 12, a large decrease from previous years. The website also features a badly blurred donation appeal, which you can see below. KPFK terminated its webmaster in September of 2015 and has experienced constant website functionality problems over the past six months.
According to KPFK staff, GM Radford reported that the station's planned quiet drive is "not getting the hoped-for returns". Management has proposed returning to lengthy on-air fund drives with a proposed schedule that leaves the station in 24 hour fund drive for over half of the 120 day period between May 5 and September 5. The proposed fund drive schedule is May 3 to May 20, June 17 to July 17 and then August 16 to September 5 again.
As "organizational darwinism" plays out in Pacifica, this publication, which prefers the simpler term "cannibalism" will leave you with a song that sums up the current Pacifica landscape: Grace Slick and Paul Kantner's Silver Spoon. Sharpen your teeth for the family feast.
However "organizational darwinism" works out, it is looking like one ugly process. To remind you to keep laughing and keep fighting for a Pacifica Radio that can not only heal itself but also help to heal the world, take 30 minutes to enjoy this Twit Wit radio satire from way back in March of 2014 when Pacifica's national office was occupied in an effort to keep the network from being dismantled.
This whole thing just seems surreal to me. Restraining orders, discrimination lawsuits, seating obviously unqualified members and on and on. I just can't reconcile the tactics with the fact that is a non-profit and a supposedly progressive one. I understand the licenses have value but the truth is they can't sell stations as things stand. There is little chance of gaining assets in a bankruptcy auction and the incompetent management actually is working against them if their goal is just to retain control at all costs. Its easy to take a stand when someone else is paying the bills but now that Cerene and company are being personally sued, I wonder if they will finally see the light.
ReplyDeleteMaybe the best outcome of all this is that Amy Goodman and Democracy Now ends up with the network, or at least a few of the stations. As a large, maybe the largest, creditor she should have a claim to Pacifica's assets in a bankruptcy.
ReplyDeleteSay what you will about Goodman but she is competent and could run a radio station.
At some point a creditor will file a claim for payment in some court. Then Pacifica will have to sell or hand over assets to make payment. The other option is bankruptcy, which gives them time to develop a plan to pay off all debts.
Liquidation with one or more stations going to Democracy Now might be the best possible outcome at this point.
John
Once again, people are forgetting that any radio frequency license changing hands will probably require FCC approval. Remember, you don't "own" a radio station license, you are entrusted (or whatever the word is) to use it. Hence, it's being called a license. As far as other assets, like buildings, radio equipment, transmitters, computers, etc, yes, those can go from one hand to another in lawsuits or other shenanigans, like theft.
ReplyDeleteRemember: the FCC isn't going to let you just have a license and go on the air. They must approve your having a license, even in Nowheresville, Idaho. It's lots of paperwork and money.
Anyone who thinks they are simply going to "capture" a radio station license, needs to go to a communications attorney and discuss the matter with said attorney, first.
SDL
Indeed.
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