Who Cares About A Court Order?

Berkeley-Pacifica filed a postponement request one day before a scheduled hearing on a request for a temporary restraining order (TRO) to restore voting rights for WBAI's PNB delegation and seat elected staff delegate Kathryn Davis. The complaint can be seen here. Pacifica asked for time to secure legal representation in the State of New York and the hearing date was rescheduled to April 29th. According to the plaintiff's attorney Gary Carlton, a temporary restraining order staying any Pacifica meetings barring voting rights for elected WBAI delegates is in effect until Pacifica appears in court or files an objection and both the meeting notice for an April 13th WBAI local station board meeting and last night's Pacifica National Board meeting can be characterized as ignoring a court order by the Siegel/Brazon board majority. 

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.

Degeneration

AS THE PROGRAMMING GOES, 

SO DO THE LISTENERS...

For whom the phones ring...

The PNB Audit Committee held another phone-based meeting this evening. The purpose was to hear from Grant Lamb, the auditor from Armanino. As usual, there was much time wasted on the discussion of an agenda, but even more time was devoted to speculation as to how much Armanino would charge Pacifica for this call. As the clowns discussed and argued, the air was filled with "points of order", which nourished the disorder. You can hear it all on the unedited stream. Best that way, for these meetings are beyond adequate description. There was no Mozart tonight, nor a chorus of beeps, but Mr. Lamb was finally connected, much to the discomfort of the bozos, especially Margy Wilkerson, who obviously would be happier if the public, including listener sponsors, were simply kept in the dark. This lady and the concept of free speech do not get along.

When the Empire State Building contract was mentioned, Madame Wilkerson had one of several smelling salt moments, so an "Executive Session" was ordered and the rest of us were unceremoniously cut off.

Our good friend and astute observer, Indigopirate, has given us permission to share his notes, made on the fly, as it were: 

INDIGIPIRATE'S NOTES:

A Hasty Pudding of Notes re Grant Lamb’s Audit Progress Report and Pacifica’s Eternal Coverup, or: ‘Openness’, Pacifica Style, or: Rats Scurry to Corners, Clutching Information, Periodically Snapping at One Another’s Tails (a singularly sorry spectacle, indeed).

Grant Lamb, from Armanino

85-90% Complete

Working with Lydia

Democracy Now! Contract: Ended 2012, Pacifica has continued to air, Pacifica has not accrued costs for the period since, and situation is unclear. DN seems not to have itself accrued amounts for 2014, so they may not be owed/pursued – need confirmation.

ESB: Can’t discuss in public session.

Brief interviews with station managers planned.

Armanino owed ~$75,000 open balance, est to complete ~$100,000, which total is less thatn 2013 audit.

No engagement letter for 2015 audit.

Biggest overrun is the organization not having support in place at time of audit’s commencement, which then became piecemeal. An organization Pacifica’s size should not require more than two weeks.

Going Concern issue… Margie wants to squelch. Period is one year from the date of issuance of the report… through April 2017.

Ramifications: Going Concern Opinion would likely affect ability to seek loans or donors.

Improvements Needed (pointed out in previous audits): Pending

Fraud: Was pointed out in 2013 audit report that controls as to possible fraud were needed to be improved.

~ ‘indigopirate’, Dishonorable Hasty Pudding Secretary, Pro Tem, Ad Nauseum, Sic Transit Pacifica

Null revises his commentary

Gary Null has issued an amended version of the commentary he made on his WBAI show March 31st. Since the original has already been made public by Mr. Null, myself and others, I have chosen to post the new (April 1) version as an addendum rather than a direct replacement. You can hear it here and decide for yourself what motivated the modification.

Let's have your thoughts on this.

Pacifica Radio in Exile newsletter: April 3, 2016

Two Lawsuits and a Judgement

Berkeley-It was a busy week for the Pacifica Foundation in the New York court system as two new lawsuits were filed against the radio network, a judgment was entered and a complaint was temporarily withdrawn. On April 7th, a request for a temporary restraining order (TRO)  will be heard In New York City to restore voting rights for WBAI's PNB delegation and seat elected staff delegate Kathryn Davis. The complaint can be seen here.

The Associated Press also filed suit against Pacifica. The legal complaint filed by AP is not yet available, but a record of the filing can be seen here. Members of the Pacifica National Board indicated they had not been apprised of Associated Press vs Pacifica by interim executive director Lydia Brazon.

The judgment entered against Pacifica is yet another legal bill connected to the failed Bernard White litigation. White, WBAI's program director for most of the 2000's, sued Pacifica for racial discrimination after his employment was terminated in 2009. White also sued then WBAI local station board member Steve Brown asserting that Brown "caused him to be fired" and that Brown "owned WBAI". Chartis Insurance, wary after forcing attorney Dan Siegel off the Eva Georgia sexual harassment case after Siegel tried to represent both Pacifica and Georgia individually, insisted Brown and Pacifica must have different attorneys. Brown attempted to get himself dismissed from the case early on, but unfortunately was held in the case all the way through discovery (Brown faults Pacifica for this), and the legal fees in the case practically doubled as a result. The judgement included legal fees in excess of $150,000, payable by Chartis Insurance to the attorney, and attorney costs to Brown for taking the action to collect the money. The practical implications of the judgement for Pacifica is that it will have to pay the long overdue deductible amount on the White case which as of the last legal fees spreadsheet Pacifica produced (in the fall of 2013) totaled $91,000. The judge's scathing dismissal of White's claim of being fired due to racial discrimination can be seen here.

The final NY-area legal action was the temporary withdrawal of the piracy and premiums fraud case filed by broadcaster Gary Null in January of 2016. Null emphasized the withdrawal was temporary and the request was filed "without prejudice", which is a legal term for a withdrawal that allows refiling of the identical complaint against the identical defendants at another time. Null discussed his case on WBAI. That audio is available here. His final words: "Is there a systemic culture now at Pacifica that is incapable of functioning at the level necessary to run a foundation and five radio stations? I found that was true."

The Siegel/Brazon majority has been busying itself with a full court press effort to prevent auditor Armanino from meeting with the board's audit committee. A clue as to why can be gathered from an email sent by the audit lead at Armanino, which asks what the June 30th deadline for audit completion is related to. This indicates the audit firm does not know about the Corporation for Public Broadcasting (CPB) deadline for audited financial statements (AFRs) by June 30th. Pacifica missed audit deadlines in 2014 and 2015 and was declared ineligible for CPB funding. Another $750,000 may go down the drain in June of 2016. The email points to communication problems between the auditor and Pacifica management and the need for the audit committee to get up to speed on the scope and timing of the audit. With Pacifica under investigation by the CA Attorney General, the wisdom of complying with California's Nonprofit Integrity Act, which also requires the submission of audited financial statements by 9 months after the close of the fiscal year, is clear. Pacifica has been out of compliance with the NPA for the last 21 months. Pacifica's status with the California Attorney General's Registry of Charitable Trusts shows as delinquent again, most likely a reflection of the missing financial audit.

A timeline of the now two year old coup by the Siegel/Brazon faction can be seen here. 

PNB secretary Janet Kobren took the lead in attempting to block the audit committee from meeting with the auditor stating "While the PNB Audit Committee has a right to meet with the auditor, this is a limited right". (The auditor has not met with the audit committee for a year). Kobren indicated she was afraid of incurring costs, but the price of a two-hour meeting pales in comparison to the doubling of the audit fee from the quoted $70K to the $150K+ the incomplete 2014 audit will now cost. 

The role of a nonprofit's audit committee as defined by the National Council on Nonprofits includes:

1. Being responsible for the appointment, compensation, and oversight of the independent auditors' work.
2. Asking questions of the independent auditors to evaluate the audit process.
3. Receiving reports directly from the auditors (not management) in connection with the audit’s findings.

Kobren's financial concerns also appeared to be somewhat limited. While working hard to save the $600 fee that a two hour meeting between the audit committee and the auditor might cost, Kobren pushed a lengthy motion through the board's coordinating committee to pay herself for taking the board's minutes requesting $720 for back minutes, $1,000 for the upcoming in-person board meeting and $60 per teleconference going forward. CFO Sam Agarwal tried, fruitlessly, to convince the committee that there wasn't enough money for the board to have an in-person meeting. Here's a clip from that meeting.

The Siegel/Brazon faction's first attempt at setting up a secret nonprofit was dissolved after 8 years in existence. 5 years before Margy Wilkinson and Dan Siegel set up the KPFA Foundation to acquire Pacifica's licenses in the event of insolvency or dissolution, Save KPFA associate Sherry Gendelman secretly set up The Friends of the Pacifica Archives as a CA nonprofit with herself as the agent for service. Gendelman was serving as Pacifica's Interim Executive Director and chair of the board of directors in 2008.  Friends of the Pacifica Archives was dissolved by Gendelman in February of 2016. 

Berkeley's KPFA alarmed its listeners last week with an online statement that it had "lost its main antenna" and needed money right away. The main antenna had not been lost and remained atop the tower, but required a repair. Due to a $242,000 shortfall in expected revenue to date and an operating deficit described in the March 29th finance committee meeting, KPFA  was unable to utilize the $84,000 annual maintenance allocation from the budget-in-limbo to pay the $10,000 bill for a crew to climb the tower and install the replacement parts on the main antenna. The station had been broadcasting from the 100 foot lower auxiliary antenna causing a degraded signal in some higher terrain areas. The impromptu fundraising appeal came a month after the last on-air fund drive ended and 6 weeks before the next one begins. Finance committee chair Brian Edwards-Tiekert had earlier decided to avoid expensing equipment depreciation in KPFA's budget document (which, like all the budgetary plans, remains unapproved 6 months into the fiscal year), in practice allocating $0 dollars to the replacement of equipment when it breaks.

KPFA's budget took another hit when it was quietly announced the Summer Crafts Fair, which premiered in June of 2015, would be opened up for free admission due to an inadequate number of booth rentals by artists and craftpersons. The announcement can be seen here. The crafts fairs, which used to be operated as a traditional nonprofit benefit by KPFA, morphed in 2015 when former employee Jan Etre started running them through her event management business Jan Etre Presents, with booth rental fees going to her company and KPFA keeping only the $10 admission fees.  By charging no admission fees, the event no longer benefits a nonprofit financially (whatever the intangible benefits of email harvesting as referred to in the announcement) and probably couldn't be advertised on-air without running afoul of FCC regulations that prevent calls to action (i.e. attend the crafts fair!) for an event whose revenue flows to an individual's private business. The Summer Crafts Fair had been previously anticipated to produce $20-$25K in income for KPFA per the budget-in-limbo.

In a finance committee call on March 29th dedicated to KPFA's financial condition, business manager Maria Negret reported that KPFA was running a six figure operating deficit for the year to date, with a $242,000 revenue shortfall, primarily due to lack of bequests from the wills of deceased donors. Negret also announced that a look back at fulfillment rates from 2012-2015 revealed that KPFA's fulfillment rate was 86%, not the 90%+ she had insisted was the case for the last four annual budget cycles. (Negret describes the 2016 budgetary rate as 89%. It was 90%). GM Quincy McCoy announced that KPFA would be asking for significant concessions from the CWA union in negotiations that began on Friday and if unable to secure them, would proceed with some layoffs. You can listen to the meeting highlights here.  

KPFK general manager Leslie Radford sent the LA station's staff a social media guide. The 14 page document is a listing of the names of various platforms for content sharing and instant messaging with descriptions cut and pasted straight from Wikipedia (with the footnotes missing). It contains no instructions, no samples of how content might be shared, and no social media planning. Seemingly prepared by a new volunteer, the so-called guide would be useless to anyone without social media skills and insignificant to anyone with them. The document illustrates how far some of Pacifica's executives are from a professional understanding of social media and how unable they are to convey *what* the network's social media approach and plan is. 

In the aftermath of the disastrous March 19th special program that went awry with a 20 minute meltdown which saw the biggest radio signal west of the Mississippi River loudly blare a Michael Jackson song over a government meeting, then run a fundraising cart right over the presentation and then simultaneously play an Alternative Radio program with Dave Zirin and the meeting broadcasting at the same time in cacophany, the engineer at the remote location explained "the board operator at KPFK didn't know how to monitor the audio feed, so he didn't hear the conference speakers". GM Radford continued to inexplicably blame "wires", instead of management leaving inexperienced and unsupervised personnel at the station's controls. You can hear part of what was broadcast here.

KPFK Volunteer coordinator Adam Rice, who was banned from the  April local station board meeting after calling the board "motherfuckers" twice at the last meeting, posted a picture of himself on Facebook on a road trip to Arizona announcing that he was "bumping bootlegs" from the Zulu Collective program on the overnight Safe Harbor block. The Safe Harbor programs have been axed from the station's archived programs due to the hosts not filling out Soundexchange logs for the payment of streaming royalties. Rice's slang didn't indicate if his bootlegs were for personal use only or if he was giving away or selling his bootleg copies. 

KPFA listener rep Jose Luis Fuentes, who worked for Dan Siegel's law firm Siegel and Yee for a dozen years and replaced his boss on Pacifica's board of directors in 2014 brought his loose cannon approach to another Bay Area nonprofit, People United For A Better Oakland (PUEBLO). PUEBLO's executive director penned a letter detailing what he described as harassment by Fuentes. John Yuasa, a veteran nonprofit manager who led the Tiburcio Vasquez Health Center and the East Bay Asian Local Development Corporation, among other accomplishments, described Fuentes' actions as a board member as "antics" and called his behavior "at a minimum, condescending, rude, impolite, threatening and hostile". Yuasa described the nonprofit's staff as "in apprehension and fearful for their safety" after he resigned his ED position and then revoked that resignation after cooling off. What Yuasa details has similarities to Fuentes' behavior in 2014 when he moved to terminate Summer Reese as ED 10 days after joining the national board,. Both Pacifica's corporate counsel Terry Gross and DC-based labor lawyer Cathy Harris complained about disrespect from Fuentes to their professional advice. Gross resigned from his position as Pacifica's corporate counsel on March 25, 2014 rather then continue to represent the board majority. Pacifica has not had an official corporate counsel since.

The national board has been quiet about the CFO's ultimatum for major restructuring including the sale, liquidation and/or lease of one or both of the East Coast stations by May 15th, but further developments are expected fairly soon. There has been no report back from NY-area meetings with the Empire State Building, the leaseholder for WBAI's $650,000+ annual transmitter lease atop the skyscraper. 

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'sSilver 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.