The following two letters have been sent to the Pacifica National Board and the WBAI Local Board.


WBAI/UE Local 404
September 18, 1996
All Pacifica National Board Members
&
All WBAI Local Board members

Dear Local Board member:

Attached you will find a letter from an attorney with whose name you may be familiar. It is about the very serious topic of actions which are endangering the entire Pacifica Foundation.

We believe that:

[] Pacifica National Board meetings must be open, as per law.

[] Minutes of all Pacifica National Board meetings must be made public.

[] The Pacifica National Board must stop its attacks on the Unions in the Pacifica stations.

We know you share our concern for the continued survival of the Pacifica Foundation and we know we can count on your good will in this issue.

Yours truly,

(signed)
R. Paul Martin
Chief Steward
WBAI/UE Local 404
cc: KPFA/UE, KPFK/UE, KPFT, WPFW

-----------------
Van Lierop, Burns & Schaap, LLP
Attorneys and Counsellors-at-Law
320 Convent Avenue
New York, NY 10031-6331


September 16, 1996

MEMORANDUM

From: William H. Schaap
To:
Re: CPB Guidelines and Pacifica Foundation Board Meeting

You have asked for our legal opinion regarding the plans of the Pacifica Foundation to hold a board meeting in the near future, for three and a half days of the four days of which they intend the meeting to be closed to the public. You have also asked how this might impact on CPB funding and what legal remedies, if any, might be available to concerned citizens.

The Law

The law is clear. Section 396(k)(4) of the Communications Act, quoted in the CPB guidelines as to Open Meeting Requirements, states, in pertinent part, that "Funds may not be distributed ... to the licensee or permittee of any public broadcast station, unless the governing body of any such organization ... holds open meetings preceded by reasonable notice to the public." [Emphasis added.]

The law makes the following exceptions: "... matters relating to individual employees, proprietary information, litigation and other matters requiring the confidential advice of counsel, commercial or financial information obtained from a person on a privileged or confidential basis, or the purchase of property or services whenever the premature exposure of such purchase would compromise the business interests of any such organization."

If portions of any meeting are closed pursuant to the exceptions, an explanation must be made public within a reasonable time after the meeting. Any such explanations must be made a part of the annual certification report to CPB, signed by two specified officials of the organization.

This Particular Case

It seems highly unlikely that the Pacifica Foundation board could be contemplating three and a half days of matters that fall within the exceptions. Certainly general policy discussions relating to unionization in general, general status of paid versus volunteer staff, and related matters would not seem to fall within the exceptions.

This being the case, it seems hard to understand why the Foundation has already made such an announcement, unless they believe that the regulations in question will not be asserted by anyone, or, conceivably, that the CPB will ignore any violations of the regulations.

Possible Remedies

The difficulty in considering your possible remedies is that, if nothing is done before the board meeting, you may be limited to drastic remedies only. That is to say, if improperly closed board meetings take place--assuming you can prove, perhaps through someone who was there--you would have a very strong case to prevent CPB from making any further grants to Pacifica Foundation. Putting aside the question of who would have standing to bring a suit against CPB, which may be complicated and which we have not researched, the appropriate party could sue to enjoin CPB from giving any money to Pacifica. In this, ironically, you would probably, almost immediately and whether you wanted to or not, find yourselves with willing allies from the right. The most reactionary forces in Congress, who share virtually none of your views, would also leap at the chance to cut off Pacifica's funding; you might find yourselves on the same side with amici curiae you never expected.

It is possible, although quite difficult, given the time constraints and the costs involved, to take some action before the meeting begins. You would have to commence a suit against both Pacifica and CPB by extraordinary means, such as an order to show cause, seeking to enjoin Pacifica from proceeding with a closed meeting on the ground that the board has a fiduciary obligation not to jeopardize its funding in such a gross and wanton manner. Indeed, it seems likely that the individual board members of the Foundation ought also to be named as individual defendants in such a case. I find it hard to believe that Pacifica would not capitulate to such an action, since opening the meetings to the public does not, to say the least, obligate the board to vote as a majority of the public in attendance might desire. On the other hand, if the board does not believe that you are serious, and will not budge until you actually file suit, this is the only way you could do so that gave them the option to keep the funding. Were you to bring suit after a closed board meeting, which might be much easier and less expensive for you, there would be no decision possible, if you win, than the cutoff of their funds. Whether you are willing to create such a situation is, of course, up to you.

I hope this memorandum gives you some guidance.

(signed)
***********************************************************************-

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