FJC gets award from Marc Hand, Pacifica’s fixer for the FJC deal (Mark Cohen; Erin Moran)
On 2Apr2018, Tom Livingston & Lorin Silverman signed the $3.7m loan contract between Pacifica (legally the Pacifica Foundation, Inc.) & the Foundation for the Jewish Community (legally FJC). Pacifica’s broker was Public Media Company (PMC), which had put Chief Executive Officer Marc Hand on the case.
A few months later, the July issue of FJC Quarterly showed what happens when business goes well. The joyous occasion was attended by Marc, of course, together with Mark C Cohen, FJC’s Chief Legal Officer (& Assistant Secretary), & Erin Moran, PMC’s Chief Financial Officer. There was talk of FJC, of course, & of PMC, & some gift-giving & -receiving – but no mention of Pacifica. Even so, a one-year anniversary deserves celebration, don’t you think? http://fjc.org/uploads/newsletters/0047-july-2018-newsletter.pdf
And business did go well. PMC earnt their origination fee. OK, only 1.5% you may say, but that is $55 500 (the loan agreement, Section 3.1(2); page 6). And that payment came from Pacifica listeners: Pacifica has agreed to pay all costs arising from the contract – “[to] pay legal and other loan related fees” (Recital B; p. 1), & “at Borrower’s cost and expense, each in form and content satisfactory to the Lender” (Sec. 3.1(1)-(11); pp. 6-7). https://mega.nz/#F!PloCiSqJ!9rLejSkttE7gCVCCq3q86g?b0IBlaiR
And FJC, just by sitting there, earnt its own consideration (benefit), but decided to forego its origination fee, instead plumbing for underwriting credits of 1% of the loan amount, so $37k (Sec. 3.1(2); pp. 6-7; & p. 25). So, rather than take money directly from the listeners, they chose to make Pacifica enter into an advertising contract. (That suited Pacifica financially, if not politically – please see link at the end.)
Pacifica’s advertising contract is to be with F.Y. Eye, Inc. (Exhibit B; pp. 25-7), an advertising broker in NYC. I wondered why FJC didn’t take cash from Pacifica, for the benefit of the FJC account holders funding the loan. Now I know why – and I’ll give the answer in the next poston these matters.
[AN ASIDE: Note that Pacifica’s interest rate falls by 0.25 percentage points, to 8.25% a year, from tomorrow, Th1Aug. The change was made today by a Federal Reserve cttee that decides a rate that prime & others are tied to. The saving is smaller than you think: $8 162.50 a year (1% is $32 650). But mustn’t grumble. https://www.jpmorganchase.com/corporate/About-JPMC/historical-prime-rate.htm ]
charities as capital, M-M´ . . . richer charities (non-profits, of course) making money out of poorer ones
The questions arise because of the secrecy culture that Pacifica is notorious for. Pacifica office-holders, since the end of last summer, have consistently chosen not to utter the word ‘FJC’, the Foundation for the Jewish Community which lent Pacifica $3.7m on M2Apr2018. At that time Pacifica proudly issued a press statement, & not only named FJC but devoted a paragraph to their activities. The websites of Pacifica stations proudly carried it, two of them to this very day. (The word ‘FJC’ also appears in two other publicly available documents, ones that Pacifica paid for – more precisely, have been invoiced for: the auditor’s reports for FY2016, dated 31May2018, & FY2017, dated 27June2019.)
Given this, it’s reasonable, & diligent, to ask whether FJC still own the loan.
The Marty & Dorothy Silverman Foundation (MDSF) was almost wholly responsible for creating in 1995 the Foundation for the Jewish Community (FJC). The president of FJC is Lorin Silverman, the son. FJC has a policy, declared in their auditor’s reports, of not going to court when a borrower defaults. No, no, nothing as unsavoury as that. Bad publicity too. Money-men pursuing charities. That wouldn’t do. No. Best keep things quiet, keep everything civil. Instead, FJC sells to MDSF, at no discount, the loans they assess as being only “potentially impaired”, the phrase used in their auditor’s reports; this is the latest one, year-end 31Mar2018, dated 22Aug2018: http://fjc.org/uploads/user-uploads/image/FJC%203-31-18%20FINAL.pdf (pages 10 & 11, pp. 12 & 13 of the PDF)
It was disclosed at the M15July Audit Cttee that, quite remarkably, Pacifica has nothing in writing from FJC (or whoever is now the lender) permitting Pacifica to be currently violating the loan conditions. Oh. That’s quite different from when the loan started on 2Apr2018: ED Tom Livingston said in an Apr2018 email, kindly sent to me by Grace Aaron, that “[t]he Board has been told it has a 6 month waiver of the loan covenants.” (Bear in mind, he didn’t say ‘has received a written waiver’ – only “told”.) So that ran out 1Oct2018. It is important to note that in no publicly available document or audiofile has there been mention of this topic – until the 15July meeting.
At this meeting was George Walter, a Senior Controller at NETA, the National Educational Telecommunications Association, which since Sep2018 has done Pacifica’s bookkeeping & accounting. Also present was Jorge Diaz, a Principal Auditor at Rogers & Co., which did the FY2017 audit & are currently doing the 2018. The George & Jorge Show. And they both take a nice pic, yes? https://www.netaonline.org/OurStaff (last Controller pic) & https://www.rogerspllc.com/about/leadership/jorge-diaz-cpa/
George, when asked by Marilyn Vogt-Downey (WBAI listener delegate) about the submission of Pacifica documents within 120 days to the lender of “the $3.2m loan”, replied, “we’re, we’re off, but they know, & they’re urgh, urgh, they’re, they’re content” (16:45, https://kpftx.org/archives/pnb/audit/190715/audit190715a.mp3). Not surprisingly he was pushed further – and, for recent Audit Cttee meetings, it was in a totally unexpected direction. Polina Vasiliev (KPFK staff delegate) asked about “our New York lender” being OK with the loan condition violations: “do we have that in writing?” (21:39). George was as decisive as ever: “[pause] um, [pause] no, urgh, that’s my, urgh knowledge” (22:04).
Then Audit Chair Eileen Rosin dived in, prompting the witness. Tut-tut. Auditor Jorge then tried to assist. Polina persisted, & George, to his great credit said, “[r]ight, & so, t-to my knowledge there’s no, no written waiver. Um, urgh-urgh, it’s very possible that we’ll, urgh, urgh, get one” (23:05). Which only raises the question, why hasn’t a request for a written waiver been made?!? Why has this situation been allowed to arise, & to persist?And was there a written waiver for 2Apr-1Oct2018?And a written waiver for 2Oct2018-1Apr2019?There’s something not quite right here. Something fishy . . . Oh. So, nothing in writing. Oh. And the annual default interest rate is the lesser of either 18% or the maximum legal rate (clause §1.1(10) of the FJC loan contract).
One could have done a separate post on the Eileen & George Double Act that followed, doing a spiel with such gems such as, “the lender is actually a non-profit lender, it’s not like any ordinary bank, I guess […] I’m guessing they would tend to be a bit more lenient than, you know – more willing to work with their clients” (Eileen, 24:14), & “it doesn’t help them to er, to er, to, to threaten default on the loan […] that would be, urgh, not in their interest” (George, 24:44). And FJC’s fiduciary duty towards the donors whose money (& other assets) it now manages? Get real. That’s why FJC’s dodgy & troublesome loans, when they’re simply “potentially impaired”, not even defaulting, are sold on to the Marty & Dorothy Silverman Foundation.
Lastly, Marilyn reminded everyone (25:11), that it had been said, mistakenly, that Pacifica had been promised orally by Empire State Realty Trust that they didn’t have to pay all the monthly rent for housing the WBAI transmitter (Marilyn could have been explicit, saying that the determination of this belief as false was by the court). But to return to the main matter: why won’t people be upfront, & speak of FJC’s business relationship with the Marty & Dorothy Silverman Foundation?
Recorded Pacifica public meetings – less so the very few published Pacifica documents – have been full of misdescriptions, being misleading, false, even what can only be deemed deliberate falsehoods, intended to reassure, placate, obscure, confuse, & mislead. From the naive to the wilful. This sorry state of affairs refers to both the $3.265m loan conditions & FJC.
Just in case one may think ‘a nod & a wink’ will suffice, just check the FJC contract. It’s explicit & unambiguous on the degree of legal force held by what is believed to be an oral understanding or agreement: none, in a word. The pertinent passage:
“[t]his Agreement and the other Loan Documents embody the entire agreement and understanding between Lender and Borrower and supersede all prior agreements and understandings between such parties relating to the subject matter hereof and thereof. Accordingly, the Loan Documents may not be contradicted by evidence of prior, contemporaneous, or subsequent oral agreements of the parties. There are no unwritten oral agreements between the parties” (Article 10 Miscellaneous, Section 10.21 Entire Agreement, my italics & bold; p. 18)
A final, crucial point which will be addressed later. Except when the loan was taken out, those in the know have consistently never said who owns the loan –FJC may have sold it on. It may have already been sold to the Marty & Dorothy Silverman Foundation. Indeed, that foundation may even have sold it on. We simply don’t know. Secrecy culture breeds suspicion. It corrodes trust. It undermines the organisation. It’s simply destructive.
Was the 2Apr-1Oct2018 waiver in writing? If not, why? Was there a written waiver for 2Oct2018-1Apr2019? If not, why? Why hasn’t there been a written waiver for 2Apr-1Oct2019? Why did NETA, Pacifica’s supposed competent accountant, not tell ED Maxie Jackson that one was needed? Why didn’t Jackson insist on one? Why didn’t the Pacifica directors do likewise?
The Pacifica National Board needs to disclose who owns the $3.265m loan. Is it still FJC?
Or, if names are not to be named, has Pacifica’s lender changed, & if so, how many times?