Important correction: two of the Oct2021 proposed by-laws amendments only trigger a members’ referendum if either of them is approved by both the PNB & three or more LSB’s. Erroneous public comment, Su17Oct2021 KPFK LSB

[Two sections: the error, & a possible explanation; & the actual comments made at the LSB. Another post will provide, & discuss, the four proposed by-laws amendments.]

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I made an important misinterpretation of a by-law in my public comment at the Su17Oct KPFK LSB. I’d first spotted the four proposed by-laws amendments on the Pacifica homepage on Tu12Oct, & started writing about them straight away. One of them would extend the term of office of a director; another would erode the voting rights of the members. Given this, would each require a membership vote, that is, a referendum – yet another one? On checking the by-laws – Article 17, Section 1 – I formed the firm view, quite quickly, that not only was this so but, crucially, that merely proposing them triggered a referendum: it didn’t need approval by the Pacifica National Board & a minimum of three local station boards. The proposers had, perhaps unwittingly, opened a Pandora’s box.

https://pacifica.org/indexed_bylaws/art17sec1.html

D’oh! I was wrong. Badly wrong.

Yes, two of the proposals are each pointed for a referendum trajectory – but for lift-off the proposal needs the support of at least three LSB’s & the PNB, with the by-law not stipulating (contra Pacificese folklore) the order of voting.

Oh.

I made my false claim three times, in each of the 10min tranches of public comment at the Su17Oct KPFK LSB (1:14:34, 1:48:57, 3:31:49). It was only after Lawrence Reyes (listener-delegate, & director) tied himself up in knots (again), that someone corrected me, LSB Chair Michael Novick making this contrary assertion:

I have a response. I believe that Jara’s incorrect: if they’re defeated, there was [sic] no reason for a membership vote

3:33:58 – https://kpftx.org/archives/pnb/kpfk/211017/kpfk211017a.mp3

He was adamant that a referendum requires the prior support of boards. He was unequivocal. I checked Art. 17, Sec. 1(B), & it was only after the meeting closed that I realised he was perfectly correct.

Double oh.

As I say, it was a considered view, firmly held. What threw me, I think, was Sec. 1(B)(2)(iv) saying “[i]f any proposed amendment is not approved by the Board and Delegates, then it shall be submitted to the Members for approval and shall be adopted if approved by the Members” (emphases added). “Shall”, not ‘may’: necessity.

But this requirement is not unconditional: it pertains not generally but to a special situation. As this sub-sub-sub-sub-sub-sub-sub-section (iv) starts off by saying, “in the case of amendment(s) proposed by Member petition”. To repeat: “by Member petition” – not by a group of directors.

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I was probably also influenced by Sec. 1(B)(3) saying “[i]n 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” (emphases added) – not pausing to wonder why the also is there. But the killer is at the very start of this sub-sub-section:

[t]he Members shall vote on any proposed amendment approved by the Board and the Delegates

(emphasis added), Art. 17, Sec. 1(B)(3) – https://pacifica.org/indexed_bylaws/art17sec1.html

And yes, at next month’s KPFK LSB I’ll correct my error in a public comment. (Note, it’s not on the usual Sunday, but a Wednesday, 17Nov, at 1800 PST: the new station manager, Miquel Calรงada, had asked at the Su17Oct LSB, in his audiofile report, that there be no weekend meets (28:03 – https://kpftx.org/archives/pnb/kpfk/211017/kpfk211017a.mp3). The text he read, with some additional words, mainly for emphasis, is at https://www.kpfk.org/support-kpfk/lsb-cab-and-pnb/.)

This webpage, usefully, also carries the monthly reports to the LSB from the directors who bother to write them; no other LSB provides this service to Joe & Joanna Public. But then scriptophobia (& empty archives) is endemic within Pacifica: Executive Director Lydia Brazon has published nothing, absolutely nothing, in her time since 5Dec2019, hasn’t committed herself to print in almost two years – ‘the prosecution’s work, y’ Honour, has been severely hampered by the lack of documentary evidence, which, m’ Lud, warrants being treated as evidence of evasion, of an attempt to obstruct the course of justice, &, ultimately, evidence of culpability concerning the charges before you, & so, ladies & gentlemen of the jury, this is yet another reason why you must deliver a guilty verdict in this case’.

As an aside, make sure to keep an eye on crafty director Ali Lexa Al-Hilali, who has never been known to lift a pen, so, if the Chair asks him to report, he says “I’d rather give it after Beth”, von Gunten, knowing hers is always detailed, in part coz she has the self-discipline, decency, & courtesy to spend the time beforehand, systematising her thoughts as an array of pixels. Ali one step back – simpler than One Step Forward, Two Steps Back’ Lexa: these are the lengths some peeps go to so they’re the right side of a PNB closed session. And yes, Ali’s a staff-delegate, from the most threatened Pacifica station.

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The three public comments, Su17Oct KPFK LSB

Where needed, correcting interjections are italicised & enclosed by the usual square brackets.

#1: Re the four of the proposed by-law amendments posted at pacifica.org on either October 11th or 12th, i would like to make two points. (1) None has the names of the six (or more) directors who proposed them. And (2), those for extending the director term of office, & the frequency of member petition amendments, each requires a referendum [no, not true]. Are Pacifica members aware of this?

#2: Two points. (1) It’s an excellent practice to have a tranche of public comment not only immediately after the directors’ reports, but to also allow the directors to respond to those comments. Congrats to the author of the proposed agenda, Chair Novick, & the body for agreeing to this. (2) Lawrence Reyes just said he was one of six directors – but proposing what? So five questions to Lawrence, in the spirit of transparency facilitating accountability: (a) did you sign all four proposed by-laws amendments?; (b) who signed the two that each requires a referendum because they adversely & materially affect all members’ voting rights [the 1st mentioned is also coz it’s an extension]: the proposed extension of a director’s term, & proposing to reduce the frequency of amendments springing from a members’ petition?; (c) when you submitted them, were you aware that each required a referendum? [no, false]; (d) are you aware, & i emphasise, this is a Pandora’s box, & now released, even if rejected by the PNB & the five LSB’s, there has to be a membership referendum for each? [false]; & lastly, (e) why did you choose just now to be opaque, & choose not to name the signers?

#3: Just for the record, director Lawrence Reyes chose not to answer four of the five questions i put to him. The questions again: (a) did you sign all four proposed by-laws amendments?; also, skipping a question, (c), when you submitted them were you aware that each required a referendum? [false]; (d) are you aware that this is a Pandora’s box, & now released, even if rejected by the PNB & the five LSB’s, there has to be a membership referendum for each? [false]; & lastly, (e) why did you choose in your own director’s report to be opaque, & choose not to name the signers? Given Lawrence & others decrying the $50k or so expense [in 2020] of a [stand-alone] referendum, & especially given the current financial crisis at Pacifica, why on earth have they released two proposed by-laws amendments that each require [false] a referendum of the whole membership? How is this possible?

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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: ยง 5342(d), & ยง 5033.

ยง5342(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).

ยง 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, ยง 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 ยงยง 5110-6910 (Part 2), & mutual benefits ยงยง 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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