STATUS OF LITIGATION AGAINST THE GOVERNING BOARD OF THE PACIFICA
Prepared by Scott Fleming, National Lawyers' Guild, Jan. 11, 2001
There are currently three lawsuits pending, filed by local advisory board members, listeners appointed by the California attorney general to sue in the public interest, and dissident Directors, which seek to fundamentally restructure the Pacifica Foundation and remove from office some or all of the members of the Board of Directors of the Foundation. Pacifica is represented in all three of these actions by Epstein, Becker, and Green of Washington, DC, one of the most notorious union-busting law firms in the U.S, as well as Wendell Rosen Black & Green of Oakland, CA. Following are brief summaries of the three lawsuits, the parties involved, and the relief requested:
DAVID ADELSON, ET AL. V. PACIFICA FOUNDATION
Plaintiffs: Local Advisory Board members from four of Pacifica's five stations (not KPFT)
Court: Alameda County Superior Court, Oakland, California
Attorney: Dan Siegel, Siegel & Yee, Oakland, CA
Date Filed: June 26, 1999
Contact for more information: David Adelson at email@example.com
Adelson was initiated by Pacifica Local Advisory Board (LAB) members at the height of the KPFA crisis in 1999. The LAB plaintiffs are represented by attorneys Dan Siegel and Hunter Pyle of Oakland. As originally filed, the suit alleged that the Pacifica Foundation violated California law and its own bylaws when, in 1998 and 1999, it purported to amend its bylaws so as to disenfranchise the Local Advisory Boards. The bylaw amendments purported to allow Pacifica's Board of Directors to transform itself into a self-selecting, self-perpetuating body by eliminating the long-held right of the LABs to elect a majority of the members of the Pacifica Governing Board.
According to the complaint, the bylaw amendments were enacted in violation of California law because the Board of Directors did not submit them to the LAB members for their consideration and vote. In addition, the Pacifica Foundation failed to give proper notice to the members of the Board of Directors of the text of the amendments under consideration prior to the meetings at which they were voted upon, in violation of the Foundation's own bylaws. Finally, the original Adelson complaint alleged that Pacifica has breached its own bylaws by allowing certain Board members, including Frank Millspaugh and Ken Ford, to serve past the expiration of their terms as Directors. Adelson also alleges, based chiefly on the actions taken by the Pacifica Foundation during the 1999 KPFA lockout, that the Pacifica Foundation engaged in unfair business practices and false advertising by soliciting funds from its subscribers under false pretenses, in that the Foundation promised the subscribers that their monies would be used in a manner consistent with Pacifica's historical mission and the principles enunciated in its Articles of Incorporation. Instead, listener funds have been utilized to pay for armed guards, the censorship of journalists, the elimination of community-based programming, and the marketing of the Foundation's broadcast licenses. Adelson seeks both injunctive relief and monetary damages.
Most importantly, the suit seeks an injunction (1) ordering the removal of Board members who have committed gross abuses of their authority; (2) barring the Foundation from selling any of its assets, including broadcasting licenses; and (3) invalidating the illegal bylaw changes as well as any actions taken by the illegally-constituted Board of Directors. The Adelson lawsuit is currently in the discovery phase. Attorneys for the plaintiff LAB members are in the process of deposing Pacifica staff and Board members, including Mary Frances Berry former Executive Director Lynn Chadwick. Pacifica's attorneys are conducting depositions of the plaintiffs as well, including KPFA LAB member Sherry Gendelman.
THE PEOPLE OF THE STATE OF CALIFORNIA EX REL. CAROL SPOONER, ET AL. V. PACIFICA FOUNDATION
Plaintiffs: Listeners from each of Pacifica's listening areas on behalf of the Attorney General of California in his capacity as overseer of charitable trusts.
Court: Alameda County Superior Court, Oakland, California
Attorney: Daniel Robert Bartley, Novato, CA
Date Filed: September 15, 2000
Contact for more information: Carol Spooner at (707) 526-2867 or firstname.lastname@example.org
Web Page: Committee to Remove the Pacifica Board
Under California law, the Attorney General is responsible for the supervision of non-profit corporations incorporated under California state law. Pacifica is such a non-profit corporation. The law grants the Attorney General the authority to enforce this right of supervision by appointing private citizens as "relators." A relator is akin to a special prosecutor who is empowered to sue on behalf of the Attorney General and the people of the state.
On September 14, 2000, California Attorney General Bill Lockyer, after concluding that Carol Spooner and other listeners from Pacifica's five station areas had raised "substantial questions of law or fact regarding whether there is compliance with the purpose of the Pacifica Foundation charitable trust, whether its articles of incorporation are being adhered to, whether its assets are being properly protected, and whether it is being managed and directed in a manner that is consistent with the requirements of the California Corporations Code," appointed Spooner and her fellow listener-plaintiffs as relators, empowering them to file a lawsuit seeking, among other things, to remove the Pacifica Board of Directors, to revise the Pacifica bylaws and to invalidate many of the illegal actions they have taken over the past several years. The suit was filed the next day.
Spooner includes many of the allegations that were earlier raised in Adelson: that the Pacifica Board improperly amended its bylaws in order to disenfranchise the LABs; that certain Board members have been allowed to serve beyond the expiration of their terms; and that the firings and lockout at KPFA, and the expenditures related to them, violated the Foundation's Articles of Incorporation and amount to a gross abuse of authority.
The Spooner complaint contains a detailed recitation of the Pacifica Board's malfeasance; it is good history. The complaint methodically recites the repeated and wide-ranging misconduct in which the Pacifica Board has engaged in recent years. In addition to substantially recapitulating the allegations set forth in Adelson, Spooner alleges that the Board has been responsible for financial irregularities, including requiring WBAI staff to sign blank checks for unexplained reasons; that the Board's Finance Committee has improperly held all of its meetings in secret, including from other Directors, since 1995; that the Board is composed of more members than authorized by the bylaws; and that the Board has refused to honor the actions of several LABs which, consistent with their powers under the Foundation's bylaws prior to their illegal amendment, have elected several new Board members and have voted to recall several others.
Spooner seeks the most comprehensive relief of any of the three lawsuits. The suit asks the court to remove most of the Pacifica Board. It seeks removal of the Executive Committee, which has orchestrated most of the Board's malfeasance, for breach of charitable trust and gross abuse of authority and discretion, specifically much of the Board's misconduct over the past several years. Spooner further asks for the removal of Board members Ken Ford and David Acosta, whose terms have expired yet who remain on the Board, and all of the members of the Board elected illegally since the improper amendment of the bylaws in 1998 and 1999. The suit asks the court to appoint an accountant to conduct an independent audit of Pacifica's finances in order to determine, among other things, how much money Pacifica's Governing Board has spent on armed-guards, union-busting consultants, and so on.
Most importantly, Spooner seeks a court order "requiring a Bylaws amendment establishing a fair, reasonable, and democratic mechanism for the definition and selection of a body of voting members, consistent with a modicum of due process, and ensuring listener-sponsors a voice in the management of the Pacifica charitable trust."
Immediately after Spooner was filed in California state court, the defendant Pacifica Foundation removed it to federal court. Removal is a legal mechanism by which defendants sued in state court may transfer the case to federal court under certain limited circumstances, such as when a suit involves questions of federal law or when defendants are sued in the state courts of a state in which they do not reside. When Pacifica's attorneys removed Spooner to federal court, they simultaneously removed the suit filed by dissident Board members Rob Robinson and Aaron Kriegel (see discussion below). Attorneys for the plaintiffs in both suits are confident that Pacifica has no basis for removing the suits and have petitioned the federal court to remand the suits back to state court in Alameda County.
A hearing was held on Jan. 9 in San Francisco before U.S. District Judge Jenkins. KPFA supporters were encouraged by the hearing and are optimistic that Judge Jenkins will return the cases to state court. Until the removal issue is resolved, little or no action is likely to take place with either lawsuit; in essence, removing the suits bought Pacifica several months' worth of time and cost the plaintiffs a substantial amount of money in legal fees.
ROBERT ROBINSON AND RABBI AARON KRIEGEL V. PACIFICA FOUNDATION AND ITS EXECUTIVE COMMITTEE
Plaintiffs: Rob Robinson and Rabbi Aaron Kriegel, Pacifica Governing Board members
Court: Alameda County Superior Court, Oakland, California
Attorney: Kenneth N. Frucht, San Francisco, CA
Date Filed: September 19, 2000
Contact for More Information: Robert Robinson at email@example.com
The Robinson suit was filed by two dissident members of the Pacifica Governing Board, who allege that the Executive Committee of the Governing Board bears responsibility for the illegal actions taken by the Foundation: according to the complaint, "Pacifica has been subverted by a small group of individuals who have acted to destroy any semblance of democratic participation, lawful governance, accountability and fiduciary stewardship in order to consolidate and centralize their own hold on power within Pacifica's national governing body."
Robinson and Kriegel allege that the Executive Committee of the Governing Board has ignored their repeated requests to reinstate democratic procedures and to institute procedures to ensure Pacifica's accountability to the communities it serves. The Robinson lawsuit contains many of the allegations enunciated in Adelson and Spooner, namely that Pacifica improperly disenfranchised the LABs through illegal bylaw amendments and that Pacifica has contravened its founding principles and California law through the gag rule, the KPFA lockout, and the like. In addition, the suit alleges that the Pacifica Foundation has violated federal law, which requires all organizations that receive funding from the Corporation for Public Broadcasting hold meetings that are open to the public except for in certain limited circumstances. Robinson and Kriegel contend that most Executive Committee meetings since 1995 have been illegally closed to the public.
The Robinson and Kriegel suit sets itself apart from the Adelson and Spooner suits because it alleges that the Executive Committee, in addition to disenfranchising the LABs and the community, has illegally excluded the other members of the Governing Board from the Foundation's deliberations and decision-making processes. Robinson and Kriegel contend that the Executive Committee, in violation of California law and the Pacifica bylaws, has "frequently met, conducted business, and made decisions affecting the governance, structure, and direction of Pacifica without reporting to the Board or making minutes of the Executive Committee meetings available to the Board or the public."
Importantly, Robinson and Kriegel allege that the Executive Committee orchestrated the 1999 KPFA lockout without consulting and without the authorization of the other members of the Board. According to Robinson and Kriegel, their repeated requests to the Executive Committee for an accounting of the expenditures related to the lockout have been ignored, despite the fact that California law provides corporate directors the absolute right to inspect and copy all "books, records, and documents of any kind." The Robinson suit includes three causes of action, which allege that by the actions detailed above, the members of the Executive Committee have violated (1) the California Corporations Code; (2) the Pacifica bylaws; and (3) their fiduciary duties as Directors. The suit asks the court to remove the members of the Executive Committee from the Governing Board; invalidate the bylaw amendments that disenfranchised the LABs; and allow Robinson and Kriegel to examine all of Pacifica's books, records, and documents. Shortly after Robinson was filed, Pacifica's attorneys removed it to federal court via the process outlined above in the discussion of the Spooner lawsuit. Robinson and Kriegel's attorneys are seeking to have the case returned to state court.
Tax deductible contributions in any amount to support all three law suits
can be sent to:
Free Pacifica Legal Action/Vanguard Foundation c/o
The Vanguard Public Foundation
383 Rhode Island Street, Suite 301 San
Francisco, CA 94103
Report from the depostion trenches - November 21, 2000
From: Sherry Gendelman, Chair, KPFA LAB
Subject: Update on Depositions of Pacifica staff and GB members
in the LAB Lawsuit
Date: November 21, 2000
On November 21, 2000, the first part of the deposition of Lynn
Chadwick proceeded at the offices of Dan Siegel, attorney for the
LAB lawsuit filed in Alameda County Superior Court. Hunter Pyle
conducted the deposition of Lynn Chadwick. He is an associate in
the Law Office of Dan Siegel. Also in attendance were Liz Johnson,
paralegal for Siegel & Yee, a certified court stenographer, as well
as another an individual who taped (audio) the deposition on behalf
of Siegel & Yee, Lynn Chadwick, represented by attorney Dan
Rappaport, Sherry Gendelman, chair of the KPFA LAB and a
plaintiff in the LAB law suit, and Mary Berg, a former member of the KPFA
LAB, a plaintiff in the LAB lawsuit, and a long time programmer at KPFA.
The deposition went from approximately 10:30 am to 4:45 PM.
Hunter Pyle was quite simply superb. He was extremely familiar
with the material, focused, timely, and dogged in his pursuit of the
management decisions made prior to and during Lynn Chadwick's tenure,
focusing on the by-laws, and the changes thereto in 1997 and February of
1999. The deposition proved invaluable in gathering information in
support of the allegations of the lawsuit. It will resume on Wednesday,
November 22, 2000, at 9:30 am and continue thereafter till completed.
Sherry Gendelman was deposed on November 13 and 14, 2000,
and Mary Berg was deposed on November 17, 2000.
There will be an additional report after tomorrow's session. On this
Thanksgiving we have much to be thankful for. The LAB lawsuit is moving
forward and collecting invaluable information in support of our struggle
to keep the airwaves free and vibrant. I wish you all a very good holiday
and I hope to see many of you on Alcatraz early Thursday morning.
Note: The LAB suit (and all the lawsuits) is in dire need of funds to
help pay for deposition costs and other expenses. Send tax deductible
Free Pacifica Legal Action/Vanguard Foundation,
c/o The Vanguard Public Foundation
383 Rhode Island Street, Suite 301
San Francisco, CA 94103.
Deposition of Lynn Chadwick to begin Monday, Nov. 13, 2000
Depositions in the lawsuit brought by over 20 Pacifica Local Advisory Board members from four of the five Pacifica stations (WBAI-FM New York, KPFK-FM Los Angeles, KPFA-FM Berkeley, and WPFW-FM Washington DC) against the Pacifica Foundation and its national board leadership for illegal changes in by-laws, by-laws violations, and unfair business practices, will begin on Monday, November 13. By early February, the attorneys for the LAB members and for the Pacifica defendants will have completed over 35 depositions, including those of Mary Frances Berry, Lynn Chadwick, other past and present members of the National Board, and all of the LAB member plaintiffs.
The depositions will take place in Oakland, Los Angeles, New York City, Washington, D.C., and Houston. "The completion of these depositions will allow us to take this case to trial, and to win, or to make a favorable settlement with Pacifica," said Dan Siegel, chief counsel for the LAB plainiffs. "The depositions will provide us with a complete record of the Board's misconduct, including the unlawful amendments to Pacifica's bylaws, violations of the bylaws, and misuse of the Foundation's funds," he continued. According to plaintiff and KPFK Local Board chair David Adelson, "We seek to invalidate the illegally executed authority that the Pacifica Board of Directors gave itself to elect itself entirely. We must reverse the trend within Pacifica of increasing secrecy and unaccountability to subscribers and local communities. We seek to establish transparency and formal democratic accountability to subscribers so that Lew Hill's original vision of Pacifica as a medium for ethical communication in the service of peace and social justice can be promoted and protected."
The next court appearance in the lawsuit will occur in January 2001, when Siegel will ask the Alameda County Superior Court to set a spring trial date. The attorneys and plaintiffs in the LAB member lawsuit are actively cooperating with the attorneys and plaintiffs in the other two cases recently filed. Siegel and his associate Hunter Pyle have met with Daniel Bartley, attorney for the listeners lawsuit authorized by the California Attorney General, and Ken Frucht, attorney for national board members Rob Robinson and Aaron Kriegel. The attorneys regularly share information and strategize together.
Bartley and Frucht are now fighting Pacifica's efforts to remove their cases to federal court, an obvious strategic effort to drain their resources and to interfere with the consolidation of the three cases in Alameda County. Bartley and Frucht are confident that they will beat back Pacific's efforts and return the cases to Alameda County.
Funds are urgently needed to carry out the deposition process - we need your help. A joint legal fund has been established to fund all three suits, and contributions to the fund are shared between them. Upon receiving your contribution, the Vanguard Foundation will provide you with a tax exemption for the same amount. Please make your check payable (include your name and return address) as follows:
Free Pacifica Legal Action/Vanguard Foundation
c/o The Vanguard Public Foundation
383 Rhode Island Street, Suite 301
San Francisco, CA 94103