Breakers, you lost, accept reality: California Corporations Code Section 7813(f)

[WHOOPS, a crucial correction: the wrong section was cited. Like most of us immersed in PacificaWorld – seeing it all too often run as a private club, not a public charity – it seems to operate for mutual benefit, legally a non-profit mutual benefit corporation . . . but no: it’s a public benefit one. Who knew? It’s not mentioned in the Articles of Incorporation, the by-laws, nor on any Pacifica website; but it is by the California Registry of Charitable Trusts: “Entity Type: Public Benefit” – https://rct.doj.ca.gov/Verification/Web/Search.aspx?facility=Y (quickest way to search is 011303, Pacifica’s state charity registration #).

[The correct sections: § 5342(d), & § 5033. §5342(d), re “termination” of a membership class: “[t]he articles or bylaws may impose additional requirements regarding termination of all memberships or any class of memberships” (bold added). § 5033, re what counts as approval by the members: “approval shall include the affirmative vote of a majority of the outstanding memberships of each class, unit, or grouping of members entitled, by any provision of the articles or bylaws […] to vote as a class, unit, or grouping of members on the subject matter being voted upon” (bold added). There is another section, § 5151(e), concerning “corporate actions”, but presumably, in context, that doesn’t include the action that is a whole membership vote. These sections are easy to access from the hypertexted contents of Title 1, Corporations, of the CA Corporations Code: https://leginfo.legislature.ca.gov/faces/codes_displayexpandedbranch.xhtml?tocCode=CORP&division=&title=1.&part=&chapter=&article=&nodetreepath=2.

[And the relevant Pacifica by-law? Amending by-laws, so Article 17, & in Section 1(B) one finds (3), both (v) & the final paragraph, & (4) https://pacifica.org/indexed_bylaws/art17sec1.html. (Their significance is shown in the separate blogpost giving this correction – https://pacificaradiowatch.home.blog/2021/09/14/important-correction-a-separate-staff-referendum-is-required-by-sections-5342d-and-5033-california-corporations-code-shockingly-pacifica-is-a-public-benefit-non-profit-corp-not-a-mutual-benefit-one/.) Because of these two citations, in both 2020 & 2021 the voting results, not just the ballots (the quora were different), were separated, between listener-members & staff-members. If for no other reason, in each year there was a proposed amendment that, to be as succinct as possible, had a differential class adverse material effect re voting rights.

[How? In 2021 this effect was caused by what was involved in the Opus Deists’ New Dayists’ proposal to differentially change the class voting rights of staff-members, of how they would vote to get a member of their class onto the Pacifica National Board. New Day devised an amendment to terminate the staff membership class (& not the listener class) – replacing it with two new classes (paid staff, unpaid staff). One effect re class voting rights would be to discriminate against the class of staff-members: unlike the class of listener-members, they would lose the class right to be involved, to vote, in electing into position a station-specific staff director on the PNB, so five in total; at present that class voting right is exercised by 30 individual staff-members, the six staff-delegates on each local station board. Putting it the other way, under the proposed amendment, listener-members from each station would still vote into position a listener director specific to their own signal area, whereas staff-members (now in two classes) would lose that class voting right because their new class voting right would have a different spatial quality, trans-Pacifica, not station-specific, their ballots being aggregated nationally (in the two new classes).

[Yes, this proposed amendment has a differential class adverse material effect re voting rights; one reason why in 2021 there were referenda (one for listeners, one for staff), not a referendum – so two results.

[It remains to be seen whether the breakers can get around this by-laws obstacle & still achieve their aims.].

~~~

This was posted Tu20July to the two main Pacifica Facebook groups, Pacifica Radio Supporters, & Friends and Fans of Pacifica Foundation (the name since 2020 of Pacifica Radiowaves).

The FB post has another part, & it’s the next blogpost. It’s addressed to the other protagonist, the anti-breakers: the listener-member referendum result demonstrates the political bankruptcy of the anti-breaker prominents, namely, of both their style & their messaging, expressed in & thru an alienated & alienating relationship with the members, reducing them to exhorting from on high.

~

New Day are being disingenuous, as it’s implausible to imagine they’re ignorant: a separate staff-member referendum was required by California law coz the new Pacifica constitution proposed by New Day created a new class of membership (two in fact: a paid staff class, & an unpaid staff class). Here’s the relevant mandatory clause of the law, in full, the CA Corporations Code Section 7813(f):

[a]n amendment must also be approved by the members (Section 5034) of a class, whether or not such class is entitled to vote thereon by the provisions of the articles or bylaws, if the amendment would […] (f) Authorize a new class of memberships [sic]

emphases added – https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CORP&sectionNum=7813

No ifs, no buts. Nothing to discuss.

New Day have to do three things, including being gracious, being Pacifican:

• stop their undermining of the referenda results;

• withdraw their request for arbitration; & crucially,

• & courteously, congratulate the anti-breakers on their referenda victory.

~

Fat chance.

~

(New Day going to arbitration? “New Day yesterday [M12July, the day NES Renée Asteria Peñaloza announced the referenda results] requested arbitration as per our December 4 agreement with Pacifica to use arbitration to resolve election issues to ‘avoid litigation and expense to the Pacifica Foundation.'” – https://newdaypacifica.org/members-vote-yes-to-save-pacifica-but-pacifica-wrongly-declares-bylaws-lost/. The disingenuity.)

~~~

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