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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