Important correction: a separate staff referendum is required by sections 5342(d) & 5033, California Corporations Code. Shockingly, Pacifica is a public benefit non-profit corp, not a mutual benefit one

. . . d’oh! . . .

Whoops, the wrong area of law was cited in July when explaining the need for this year’s separate staff referendum. The error was in a post to two Facebook groups, which was also re-posted here, https://pacificaradiowatch.home.blog/2021/07/20/breakers-you-lost-accept-reality-california-corporations-code-section-7813f/.

Why did this happen? 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, making it 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’ “Identity and Purpose” (Article 1), the auditor’s report, 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 first box).

There you go, says Lydia.

(Nevertheless, I should have spotted that public benefit law as a whole is invoked deep in the by-laws, in Article 5, Section 1(D) & Art. 7, Sec. 10(C). D’oh! Yes, one always needs to be alert whilst travelling in PacificaWorld.)

The correct sections of the Code: § 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.

Non-profits are Division 2; it starts with general statements (Part 1), with public benefits being §§ 5110-6910 (Part 2), & mutual benefits §§ 7110-8910 (Part 3).

And the relevant Pacifica by-law? Amending by-laws, so Art. 17, & in Sec. 1(B) one finds (3), both (v) & the final paragraph, & (4).

Importantly, these two sub-sub-sections refer to different aspects of membership class: (3) is particular, restricted to rights, of two kinds, voting & transfer; whereas (4) is general, speaking of “impact”, the impact of the proposed amendment upon the class.

The (3):

[…] (v) materially and adversely affect a Member’s rights as to voting or transfer. [new paragraph] In the event that a proposed amendment would do any one of the above-mentioned things, it shall not be adopted unless also approved by the Members; provided however, that such adoption, amendment or repeal also requires approval by the members of a class if such action would materially and adversely affect the rights of that class as to voting or transfer in a manner different than such action affects another class.

Art. 17, Sec. 1(B)(3), both (v) & final paragraph in full (bold added) – https://pacifica.org/indexed_bylaws/art17sec1.html

The (4):

[…] If the proposed amendment would impact one class of Members differently from another class, the Members shall vote in classes and the majority vote of the Members of each class shall be required to approve the amendment […]

Art. 17, Sec. 1(B)(4) (bold added) – same link

By force of these two citations, in both 2020 & 2021 the voting results, not just the ballots (the quora were different), had to be 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.

~~~

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