6.
At all times material hereto, Corp. C. 5142 was in full force and
effect, and was
binding upon Defendants, and each of them. Such section permits legal
action to enjoin, correct,
obtain damages for, or otherwise remedy a breach of a charitable trust.
Section 5142 grants
standing to: (a) the corporation, or a member in the name of the corporation
pursuant to § 5710;
(b) an officer of the corporation; (c) A director of the corporation;
(d) A person with a rever-
sionary,
contractual, or property interest in the assets subject to such charitable
trust; and (e) The
Attorney General, or any person granted relator status by the Attorney
General.
7.
Each of the Relators, at times pertinent hereto, is, and has been,
a listener-sponsor of
PACIFICA FOUNDATION. Relators bring this action on behalf of the State
of California, as
guarantor of the rights of the public and especially those members of
the public who are listener-
sponsors
of PACIFICA FOUNDATION and have a clear and direct interest in the charitable
purpose of PACIFICA. On information and belief, PACIFICA FOUNDATION
has tens of
thousands of listener-sponsors, roughly 40% of whom reside in the State
of California. By virtue
of their status as both sponsors and listeners, Relators and all other
PACIFICA FOUNDATION
listener-sponsors have cognizable special, beneficial, proprietary and
contractual interests in the
charitable trust run by PACIFICA FOUNDATION's directors. The listener-sponsors
of
PACIFICA FOUNDATION are the intended beneficiaries of the PACIFICA FOUNDATION
charitable trust. The listener-sponsors have a direct and defined interest
in the PACIFICA
charitable trust, distinct from that of the general public, in the enforcement
of the charitable
obligations at issue. Relators constitute listener-sponsors from each
of the five areas of the
Country where PACIFICA owns and operates listener-sponsored radio stations.
Each of Relators
is, and at all times relevant hereto, has been, a listener-sponsor of
PACIFICA FOUNDATION in
such Relator's particular listener area, donating funds for the support
of PACIFICA FOUNDA-
TION.
Each Relator is, and has been, the beneficiary of free-speech broadcasting
by PACIFICA
FOUNDATION stations. Relators are members of the class that the charitable
trust is designed
to benefit.
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RELATORS
8.Lead
Relator CAROL SPOONER is a citizen and resident of Santa Rosa, California,
and is a listener-sponsor of radio station KPFA, Berkeley, California.
Relator JOHN D. BIELLO
is an adult citizen and resident of New York, New York, and is a listener-sponsor
of radio station
WBAI. Relator CAROLYN M. BIRDEN is an adult citizen and resident of
New York, New
York, and is a listener-sponsor of radio station WBAI, New York, New
York. Relator KURT
GUERDRUM is an adult citizen and resident of Spring, Texas, and is a
listener-sponsor of radio
station KPFT, Houston, Texas. Relator ARTURO GRIFFITHS is an adult citizen
and resident of
Washington, D.C., and a listener-sponsor of radio station WPFW, Washington,
D.C. Relator
AMBURN R. HAGUE is an adult citizen and resident of San Francisco, California,
and is a
listener-sponsor of radio station KPFA, Berkeley, California. Relator
LEIGH HAUTER is an
adult citizen and resident of The Plains, Virginia, and is a listener-sponsor
of radio station
WPFW, Washington, D.C. Relator PATRICIA HEFFLEY is an adult citizen
and resident of
New York, New York, and is a listener-sponsor of radio station WBAI,
New York. Relator
BARBARA MacQUIDDY is an adult citizen and resident of Nevada City, California,
and is a
listener-sponsor of radio station KPFA, Berkeley, California. Relator
RICK POTHOFF is an
adult citizen and resident of Houston, Texas, and is a listener-sponsor
of radio station KPFT,
Houston, Texas. Relator CHARLES P. H. SCURICH is an adult citizen and
resident of both
Oakland, California, and San Clemente, California, and is a listener-sponsor
of radio station
KPFA, Berkeley, California, and KPFK, Los Angeles, California. Relator
RONALD SWART is
an adult citizen and resident of Long Beach, California, and is a listener-sponsor
of radio station
KPFK, Los Angeles, California.
DEFENDANTS
9.
At all times herein mentioned, Defendant PACIFICA FOUNDATION ("PACI-
FICA")
was a nonprofit public benefit corporation and charitable trust, organized
and existing
under the laws of the State of California, with offices and operations
located in the City of
Berkeley, Alameda County, California. At all times mentioned herein
until some time in
January, 2000, the Pacifica national headquarters offices were located
at 1929 Martin Luther
King Jr. Way, Berkeley, Alameda County, California.
10.
Defendants DAVID ACOSTA, MARY FRANCES BERRY, ROBERT FARRELL,
KEN FORD, JUNE MAKELA, FRANK MILLSPAUGH, and MICHEAL PALMER, collec-
tively
referred to herein as "EXECUTIVE COMMITTEE", were directors of the Pacifica
Foundation during the spring and summer of 1999, when they secretly
conspired together to
carry out the extraordinary abuses of authority and discretion alleged
herein, leading up to and
including the shutdown of radio station KPFA. All of such directors
continue to serve on the
board of directors and on the EXECUTIVE COMMITTEE of the Board except
defendant JUNE
MAKELA who resigned in February 2000.
11.
Defendants PETE BRAMSON (KPFA), ANDREA CISCO (WBAI), AARON
KRIEGEL (KPFK), and ROB ROBINSON (WPFW) at all times mentioned herein
were and are
directors of the Pacifica Foundation, elected by the local station advisory
boards of the respective
stations they represent.
12.
Defendants WENDELL JOHNS, TOMAS MORAN and KAROLYN van PUTTEN
were purportedly elected as "at large" directors by the board of directors
in October 1999, and
each of them continues to serve as directors of Pacifica Foundation.
13.
Defendants LESLIE CAGAN, VALRIE CHAMBERS, BERTRAM LEE, BETH
LYONS, and JOHN MURDOCK were purportedly elected as "at large" directors
by the board of
directors in February 2000 and each of them continues to serve as directors
of Pacifica Foundation.
14.
Defendant LYNN CHADWICK served as Executive Director of Pacifica Founda-
tion
from 1997 until she resigned in February 2000.
15.
Relators are unaware of the true names and capacities of the Defendants
sued as
Does 1 to 100. Relators will amend their complaint when the true names
and capacities have
been ascertained. Relators are informed and believe, and on that basis
allege, that each Doe
Defendant is responsible in some actionable manner for the events, occurrences,
injuries and
damages alleged herein.
16.
All managerial employees of the Defendants, in doing the acts and
things described
in this complaint, were acting within the course and scope of their
agency and employment with
the Defendants, and each of them, with the knowledge and consent of
the EXECUTIVE COM-
MITTEE
Defendants, and each of them.
17.
Relators are informed and believe, and on that basis allege, that
at all relevant times
each EXECUTIVE COMMITTEE Defendant and defendant Executive Director,
LYNN
CHADWICK, agreed and conspired together to do the acts complained of
herein, and that each
co-conspirator committed the acts alleged herein in furtherance of their
conspiracy.
FACTS
18. The Pacifica Foundation Articles of Incorporation, have, since amendments Filed
August 20, 1949, stated the purposes of Pacifica, at Article II, as follows:
Based
upon this threat of immediate withholding the second half CPB funding
for 1999, the
Pacifica
board of directors was stampeded into voting unanimously to adopt the
proposed change
to Article
Three, Section 2, of the bylaws at its February 28, 1999 meeting. Again,
this bylaws
change,
eliminating the LABs' right to nominate directors, was never presented
to the LABs for
their
vote of approval.
25.
Relators are informed and believe, and on that basis allege, that,
with the LABs
now completely toothless, Executive Director Lynn Chadwick acted swiftly
to begin carrying out
the secret plans of the Board Executive Committee to stage a crisis,
"shut down and reprogram"
KPFA, and remove the national headquarters from Berkeley to Washington,
D.C. On March 31,
1999, KPFA General Manager Nicole Sawaya, who had been asking inconvenient
questions
about Pacifica money and budgets, as well as programming and the direction
of Pacifica, was
informed that her contract due to expire April 1st would not be renewed.
When horrified KPFA
staff mentioned Ms. Sawaya's termination on the air, they were summarily
fired. Members of the
local listening community began peacefully demonstrating outside the
national offices in
Berkeley, and Ms. Chadwick conducted numerous citizens' arrests. When
a delegation of
community members, including a Berkeley City Councilwoman and a local
Catholic priest,
attempted to speak with Executive Director Chadwick about the growing
crisis, Ms. Chadwick
claimed she had been cornered in her office by a "mob" that threatened
her staff with racist
epithets. Armed security guards from IPSA International, Inc., were
hired. IPSA International,
Inc., advertises on its Internet web page that it specializes in "corporate
downsizing" and
"intelligence gathering" and that all of its personnel have "state and
federal law enforcement
backgrounds." Personnel from other Pacifica stations were brought in
to enable KPFA to
broadcast without its staff, including the General Manager of Pacifica's
Houston radio station,
tapes from the Pacifica archives were secretly shipped from Los Angeles
to KPFA, and special
equipment was ordered to enable KPFA to broadcast using alternative
sources of programming,
without the KPFA staff.
26.
On July 12, 1999, Executive Committee Member MICHEAL PALMER leaked
a
memo that Pacifica planned to "shut down and reprogram" KPFA, and was
considering the sale
of KPFA in Berkeley and/or WBAI in New York. The recipients of the leaked
memo, Media
Alliance of San Francisco, held a press conference on July 13, 1999,
and the story was widely
reported in the press. KPFA news and public affairs journalist, Dennis
Bernstein, broadcast
taped portions of the press conference on his 5:00 o'clock "Flashpoints"
program on July 13th.
27.
Plaintiffs are informed, and believe and on that basis allege, that
at the termination
of the Flashpoints program, Garland Ganter and IPSA agents pursued Mr.
Bernstein through the
KPFA studios to the newsroom in order to eject him from the station
for allegedly breaking the
"gag rule." The live 6 o'clock news program was interrupted with the
sounds of Mr. Bernstein
and his struggle with the guards and Mr. Ganter. Mr. Ganter "pulled
the plug"and took KPFA
live broadcasts off the air. Many community members, hearing the struggle
live on the radio,
rushed to the station to defend it, and were arrested - along with staff
members - for trespassing.
28.
The KPFA employees and volunteers were locked out of the KPFA studios
from
July 13, 1999, through August 1, 1999. The Pacifica Executive Committee
used threats,
coercion, private armed guards, arrests, and force to carry out the
lockout and their attempt to
"shut down and reprogram" KPFA. During the lockout thousands of community
members
gathered in front of the station in protest, and on July 31, 1999, approximately
10,000 people
marched in the streets of Berkeley demanding re-opening of the station.
29.
Relators are informed and believe, and on that basis allege, that
the IPSA agents
occupied the KPFA premises 24 hours a day during the shutdown, and that
these agents rifled
files, photographed and photocopied documents, videotaped, dusted for
fingerprints, and
otherwise had access to and breached the priceless security and confidentiality
of investigative
journalists' news sources and files during this period. Relators are
informed and believe, and on
that basis allege, that Pacifica spent more than $500,000 on expenses
related to the KPFA
shutdown, including expenses for the guards, public relations firms,
and equipment installation.
Relators
are informed and believe, and on that basis allege, that the Executive
Committee failed
to take proper care to safeguard the KPFA station equipment during the
shutdown and to insure
that qualified engineers familiar with the equipment were on hand to
properly operate the
equipment during the shutdown, resulting in more than $50,000 in damages
to KPFA equipment.
Relators
are informed and believe, and on that basis allege, that former KPFA
Station Manager,
Nicole Sawaya, and fired KPFA programmer, Larry Bensky, filed suit and/or
union
administrative proceedings for breach of contract, wrongful termination,
and other causes of
action, and that Pacifica has incurred attorneys' fees in defense of
these actions and settlement
damages in an amount to be determined.
30.
Relators are informed and believe, and on that basis allege, that
sixteen
(16),
or approximately one quarter of the Pacifica affiliate stations staged
a one-day "Day
Without Pacifica" in October 1999 to protest the above-described actions
by defendants, and that
several affiliate stations have cancelled their contracts with Pacifica,
withheld payments to
Pacifica, or otherwise registered their dismay at the conduct of defendants.
\\\
31.
The original 1946 Pacifica Foundation Articles of Incorporation specify,
at Article
VI, that the number of directors shall be five (5), and that special
authority is delegated to the
members of the corporation to change the number of directors
by adoption of a bylaw to that
effect. This provision of the Articles has never been amended.
32.
A bylaw was adopted on 9/30/61, at Article Three, Section 1, MEMBERSHIP
ON
THE BOARD OF DIRECTORS, C., which reads as follows:
Except
for changing "Board of Directors" to "Governing Board", this bylaw has
remained
unchanged since 1961.
33.
Relators are informed and believe, and on that basis allege, that
Pacifica Foundation
has repeatedly
permitted directors to continue serving past the expiration of their
terms.
Currently, Ken Ford, whose term expired in June 2000, and David Acosta,
whose term expired in
March 1999, are serving as directors and members of the Executive Committee.
34.
Relators are informed and believe, and on that basis allege, that
in January 2000,
without prior notice to staff or the listener community, the Pacifica
national headquarters office
was moved in the dead of night from its historic home in Berkeley to
some undisclosed location
in Washington, D.C. The Pacifica Foundation web page reads as of the
date of filing of this
Complaint: "To contact the Pacifica Foundation National Office, mail
or telephone: Pacifica
Foundation c/o Haley, Bader & Potts, P.O. Box 3825, Arlington, VA
22203-9998, (703)
243-6844." Haley, Bader & Potts is a law firm.
35.
At its meeting in October 1999, the board purported to elect three
new "at large"
directors - TOMAS MORAN, KAROLYN van PUTTEN, and WENDELL JOHNS. These
directors were elected as a group, up or down, and were not elected
individually by a 2/3rds
majority voting by secret ballot as required prior to the unlawful September
1997 bylaws
amendments.
36.
At its meeting in February 2000, the board purported to elect five
additional new
"at large" directors, JOHN MURDOCK, LESLIE CAGAN, BERTRAM LEE, VALRIE
CHAMBERS, AND BETH LYONS. This brings the total number of "at large"
directors to nine,
including the Chair and the three "at large" directors elected in October
of 1999, or four more "at
large" directors than the traditional maximum number of 5 "at large"
directors permitted under
Pacifica policies and procedure since 1984. Again, these directors were
elected as a group, up or
down, and were not elected individually by a 2/3rds majority voting
by secret ballot as required
prior to the unlawful September 1997 bylaws amendments. As a result
of this election, there are
currently 18 directors, three more than the traditional number of 15
allowed under Pacifica
policies and procedures since 1984, and thirteen more than the five
directors specified in the
Articles of Incorporation.
37.
Relators are informed and believe, and on that basis allege, that
at the meeting of
the KPFK LAB in May 2000, pursuant to their rights under California
Corporations Code §
5222, the KPFK LAB members voted to remove director Robert Farrell who
had been originally
elected to the Pacifica Board by them for a three-year term commencing
February 1999. Mr.
Farrell continues to act as a director of the Pacifica Foundation.
38.
Relators are informed and believe, and on that basis allege, that
at the meeting of
the WBAI LAB in May 2000, pursuant to their rights under California
Corporations Code §
5222, the WBAI LAB voted to remove directors Andrea Cisco, who had originally
been
elected
by them for a three-year term commencing in March of 1998, and Frank
Millspaugh, who had
originally been elected by them for a three-year term commencing in
October 1994 and
re-elected by them for a three-year term commencing in March 1998. Ms.
Cisco and Mr.
Millspaugh continue to act as directors of the Pacifica Foundation.
39.
Relators are informed and believe, and on that basis allege, that
at the May 2000
meeting of the KPFK LAB, the members of that LAB nominated and elected
by majority vote
Dawud Kahlil-Ullah as a director of the Pacifica Foundation representing
KPFK. The defendants
have refused to seat him as a director.
40.
Relators are informed and believe, and on that basis allege, that
at the May 2000
meeting of the KPFA LAB, the members of that LAB nominated and elected
by majority vote
\\\
Jay
Imani as a director of the Pacifica Foundation representing KPFA. The
defendants have
refused to seat him as a director.
41.
Relators are informed and believe, and on that basis allege, that
since 1994 there
have been irregularities in Pacifica accounts, including without limit,
unexplained payments for
space not built in the construction of studios for station WPFW and
requiring personnel at WBAI
to sign blank checks.
42.
Relators are informed and believe, and on that basis allege that since
June 1995
defendants have held all board finance committee meetings in secret
and have refused to inform
the public, or even other directors, of the finances of Pacifica.
43.
Defendants' practices relative to the Pacifica Board of Directors
are defective,
because such were made without a modicum of due process. Defendants
have in place no
democratic mechanism giving listener-sponsors a fair and reasonable
opportunity to serve as
voting members. As a consequence, listener-sponsors - the intended beneficiaries
of the
PACIFICA charitable trust - are thereby denied an effective voice in
the process for selection of
PACIFICA
FOUNDATION directors. This denial of an effective role to listener-sponsors
is
inconsistent with the purpose of the PACIFICA charitable trust.
FIRST CAUSE OF ACTION:
BREACH OF CHARITABLE
TRUST
(Against Defendants MARY
FRANCES BERRY, DAVID ACOSTA, ROBERT FARRELL,
KEN FORD, JUNE MAKELA
FRANK MILLSPAUGH, MICHEAL PALMER, LYNN
CHADWICK, and DOES 1-100)
44.. The allegations of the above paragraphs
1 through 43 are incorporated herein by
this reference.
45. At all times material hereto, Corp.
C. § 5142 and Govt. C. § 12591, were in full
force and effect, and were binding upon
Defendants, and each of them. Corp. C. § 5142 permits
legal action to enjoin, correct, obtain
damages for, or otherwise remedy, a breach of a charitable
trust. Govt. C. § 12591 require the Attorney
General to supervise the activities of trustees
administering trusts of a charitable
nature, to protect the interests of beneficiaries of a charitable
trust, and to institute suit when the
Attorney General has concluded after investigation that there
has been a breach of a charitable trust
or a departure from the general purposes of which the
corporation was formed. Nonprofit public
benefit corporations are deemed under California law
to be impressed with a charitable trust
to carry out the purposes stated in their Articles of
Incorporation.
46. By virtue of their conduct set forth
above, the EXECUTIVE COMMITTEE
Defendants, MARY FRANCES BERRY, DAVID
ACOSTA, ROBERT FARRELL, KEN
FORD, JUNE MAKELA FRANK MILLSPAUGH, and
MICHEAL PALMER, together with
Defendant LYNN CHADWICK, Executive Director,
have conspired together in bad faith to
engage in, and continue to engage in,
extraordinary violations of the express purposes of the
Pacifica Foundation and the charitable
trust managed by Pacifica Foundation. By virtue of their
conduct set forth above, the EXECUTIVE
COMMITTEE Defendants and LYNN CHADWICK
have acted in a manner contrary to the
best interests of the corporation and lacking such care,
including reasonable inquiry, as an ordinary
prudent person in a like position would use under
similar circumstances. These actions
have perverted, and continue to pervert, the founding
purposes of Pacifica and the charitable
intent of the founders and of the listener-sponsors over the
past 50 years. Further, these actions
threaten the continued long-term viability of the Pacifica
Foundation and the trust. The EXECUTIVE
COMMITTEE defendants and LYNN CHADWICK
have committed a breach of charitable
trust.
47. The breach of charitable trust by
the EXECUTIVE COMMITTEE Defendants and
LYNN CHADWICK, and each of them, has
caused, and continues to cause, significant
irreparable injury to the business and
reputation of PACIFICA FOUNDATION and monetary
damages to the PACIFICA charitable trust
in excess of $500,000, according to proof.
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SECOND CAUSE
OF ACTION
REMOVAL OF DIRECTORS
- GROSS ABUSE OF AUTHORITY AND DISCRETION
(Against Defendants
MARY FRANCES BERRY, DAVID ACOSTA,
ROBERT FARRELL, KEN
FORD, FRANK MILLSPAUGH, and MICHEAL PALMER)
48. The allegations of the above paragraphs
1 through 43 are incorporated herein by
this reference.
49. At all times material hereto, Corp.
C. § 5223 was in full force and effect, and was
binding upon Defendants, and each of
them. Such statute permits the Attorney General to
prosecute an action to remove from office
any director in case of gross abuse of authority or
discretion with reference to the corporation,
and to bar from reelection any director so removed
for a period prescribed by the court.
50. By virtue of their above-described
conduct, the EXECUTIVE COMMITTEE
Defendants - MARY FRANCES BERRY, DAVID
ACOSTA, ROBERT FARRELL, KEN
FORD, FRANK MILLSPAUGH, and MICHEAL PALMER
- committed gross abuse of their
authority and discretion. Relators are
informed and believe, and thereon allege, that the
EXECUTIVE COMMITTEE defendants' conduct
will continue if they are allowed to remain
members of the board of directors.
51. The EXECUTIVE COMMITTEE Defendants'
gross abuse of authority and
discretion has caused, and continues
to cause, significant irreparable damage and injury to the
PACIFICA charitable trust and to its
intended beneficiaries, those members of the public who are
listener-sponsors.
THIRD CAUSE OF
ACTION:
REMOVAL OF DIRECTORS
- USURPATION OF OFFICE - REFUSING
TO VACATE OFFICE
AFTER EXPIRATION OF TERM
(Against Defendants
KEN FORD and DAVID ACOSTA)
52. The allegations of the above paragraphs
1 through 43 are incorporated herein by
this reference.
53. At all times material hereto, Corp.
C. § 5520 and Code Civ. P. § 803 were in full
force and effect, and were binding upon
Defendants, and each of them. Consistent with Corp. C.
§ 5520, director positions in California
public benefit corporations are supposed to be filled via
"reasonable nomination and election procedures"
available to the members, given the nature,
size, and operation of the corporation.
Consistent with Code Civ. P. § 803, an action must be
brought by the Attorney General, in the
name of the People, upon his own information, or upon a
complaint of a private party, against
any person who usurps, intrudes into, or unlawfully holds or
exercises any public office, civil or
military, or any franchise, or against any corporation, either
de jure or de facto, which usurps, intrudes
into, or unlawfully holds or exercises any franchise
within this state.
54. By virtue of their above-described
conduct, Defendants KEN FORD and DAVID
ACOSTA each usurped, intruded into, and
unlawfully held and exercised his respective Director
office, and continues to do so, by exercising
the power of a director past the date of expiration of
his term Relators are informed and believe,
and thereon allege, that these Defendants' conduct
will continue if they are allowed to
remain members of the board of directors.
55. Defendants' usurpation of office
has caused, and continues to cause, significant and
irreparable damage and injury to the
PACIFICA charitable trust and to its intended beneficiaries,
those members of the public who are listener-sponsors.
FOURTH CAUSE
OF ACTION
REMOVAL OF DIRECTORS
- USURPATION OF OFFICE - UNLAWFUL ELECTION
OF DIRECTORS IN EXCESS
OF THE NUMBER SPECIFIED IN THE ARTICLES OF
INCORPORATION AND IN
VIOLATION OF THE BYLAWS AND POLICIES AND
PROCEDURES OF PACIFICA
FOUNDATION.
(Against Defendants MORAN,
van PUTTEN, JOHNS, CAGAN,
CHAMBERS, LEE, LYONS, and
MURDOCK)
56. The allegations of the above paragraphs
1 through 43 are incorporated herein by
this reference.
57. At all times material hereto, Corp.
C. §§ 5151, 5520 and 5527 and Code Civ. P. §
803 were in full force and effect, and
were binding upon Defendants, and each of them. Consis-
tent with Corp. C. § 5520, director positions
in California public benefit corporations are sup-
posed to be filled via "reasonable nomination
and election procedures" available to the members,
given the nature, size, and operation
of the corporation. Corp C. § 5151 requires that bylaws shall
set forth (unless such provision is contained
in the articles) the number of directors of the
corporation; or that the number shall
not be less than a stated minimum nor more than a stated
maximum. Consistent with Code Civ. Proc.
§ 803, an action must be brought by the Attorney
General, in the name of the People, upon
his own information, or upon a complaint of a private
party, against any person who usurps,
intrudes into, or unlawfully holds or exercises any public
office, civil or military, or any franchise,
or against any corporation, either de jure or de facto,
which usurps, intrudes into, or unlawfully
holds or exercises any franchise within this state.
58. By virtue of their above-described
conduct, Defendants TOMAS MORAN,
KAROLYN VAN PUTTEN, WENDELL JOHNS, LESLIE
CAGAN, VALRIE CHAMBERS,
BERTRAM LEE, BETH LYONS, and JOHN MURDOCK
usurped, intruded into, and unlaw-
fully held and exercised his or her respective
office of Director, and continue to do so, by
purportedly being elected in October
1999 or February 2000 as directors when the election was in
violation of the requirement of the Articles
of Incorporation requiring that there shall be five (5)
directors.
59. By virtue of their above-described
conduct, each of the Defendants CAGAN,
CHAMBERS, LEE, LYONS, and MURDOCK usurped,
intruded into, and unlawfully held and
exercised his or her respective office
of Director, and continues to do so, by purportedly being
elected in February 2000 as director
when the election was in violation of bylaws requirements
for election of "at large" directors
by secret ballot, and in violation of Pacifica policies and
procedures limiting the number of directors
to a maximum of fifteen (15) and limiting the
number of "at large" directors to a maximum
of five (5).
60. The purported election of such directors
was in violation of Corp. C. §5520 by
being an election conducted without "reasonable
nomination and election procedures" available
to the members, given the nature, size,
and operation of the corporation; and of Corp C. §5151
being elected for the purpose of packing
the board without a set number of Directors or a stated
minimum and maximum. Relators are informed
and believe and thereon allege that the
Defendants' conduct will continue if
they are allowed to remain members of the board of
directors.
61. Defendants' usurpation of office
has caused, and continues to cause, significant and
irreparable damage and injury to the
PACIFICA charitable trust and to its intended beneficiaries,
those members of the public who are listener-sponsors.
FIFTH CAUSE OF
ACTION
REMOVAL OF DIRECTORS
- USURPATION OF OFFICE -
REFUSAL TO VACATE OFFICE
(Against Defendants
ROBERT FARRELL, ANDREA CISCO, and FRANK MILLSPAUGH)
62. The allegations of the above paragraphs
1 through 43 are incorporated herein by
this reference.
63. At all times material hereto, Corp.
C. §§ 5222 and Code Civ. P. § 803 were in full
force and effect, and were binding upon
Defendants, and each of them. Corp C. § 5222
authorizes removal of directors without
cause by majority vote of the class or geographical
grouping of members that elected the
director. Consistent with Code Civ. P. § 803, an action
must be brought by the Attorney General,
in the name of the People, upon his own information,
or upon a complaint of a private party,
against any person who usurps, intrudes into, or
unlawfully holds or exercises any public
office, civil or military, or any franchise, or against any
corporation, either de jure or de facto,
which usurps, intrudes into, or unlawfully holds or
exercises any franchise within this state.
64. By virtue of their above-described
conduct, Defendants ROBERT FARRELL,
ANDREA CISCO, and FRANK MILLSPAUGH usurped,
intruded into, and unlawfully held and
exercised his or her respective Director
office, and continue to do so, by refusing to vacate the
office of director after having been
removed without cause in May 2000 pursuant to Corp C.
§5222 by the local advisory boards that
elected them.. Relators are informed and believe and
thereon allege that the Defendants' conduct
will continue if they are allowed to remain members
of the board of directors.
65. Defendants' usurpation of office has
caused, and continues to cause, significant and
irreparable damage and injury to the
PACIFICA charitable trust and to its intended beneficiaries,
those members of the public who are listener-sponsors.
SIXTH CAUSE OF
ACTION
ACCOUNTING
66. The allegations of the above paragraphs
1 through 43 are incorporated herein by
this reference.
67. At all times material hereto, Corp.
C. § 6320(a)(1) was in full force and effect, and
was binding upon Defendants, and each
of them. Such section requires Defendants to keep
adequate and correct books and records
of account.
68. At all times material hereto, Corp
C. § 6336 was in full force and effect, and was
binding upon Defendants, and each of
them. Such section requires Defendants to permit lawful
demands of any member to inspect the
corporation's membership lists, books, records, or
minutes, and permits the Court to appoint
one or more competent inspectors or independent
accounts to audit the corporations's
financial statements, properties, funds, and affairs and to
report on them in the manner the Court
directs. Defendants clearly have applied hundreds of
thousands of dollars in PACIFICA FOUNDATION
funds toward purposes inconsistent with
supporting the free-speech purpose that
is the very purpose of existence of PACIFICA
FOUNDATION. Moreover, Defendants, at
all times pertinent hereto, have concealed from
directors as well as listener-sponsors
specifics about the expenditure of the millions of dollars in
funding provided by the listener-sponsors.
69. As a proximate result of such conduct
by Defendants, and each of them, the People
of the State of California, and the PACIFICA
charitable trust's listener-sponsors in particular,
have sustained, and continue to sustain,
serious and irreparable injury and damage. Declaratory
relief is justified, in the nature of
compelling Defendants to submit to a full accounting of their
use and disposition of funds from January
1, 1994, to present, or such other period as the Court
finds is reasonable, and to compel Defendants
to henceforth promptly make available their books
and records to reasonable requests therefor
by directors, members and listener-sponsors.
SEVENTH CAUSE
OF ACTION
DECLARATORY RELIEF COMPELLING
ADOPTION OF
BYLAWS IN CONFORMITY
WITH LAW AND IMPLEMENTATION
OF A FAIR, REASONABLE,
AND CONSISTENT MECHANISM FOR
DEFINING AND DEMOCRATICALLY
SELECTING VOTING MEMBERS
70. The allegations of the above paragraphs
1 through 43 are incorporated herein by
this reference.
71. At all times material hereto, Corp.
C. §§ 5036, 5132 and 5520 were in full force and
effect, and were binding upon Defendants,
and each of them. Consistent with Corp. C. § 5520,
director positions in California public
benefit corporations are supposed to be filled via
"reasonable nomination and election procedures"
available to the members, given the nature,
size, and operation of the corporation.
Consistent with Corp C. §5036 "member" means any
person who pursuant to a specific provision
of a corporation's articles or bylaws, has the right to
vote for the election of a director or
directors, and "member" also means any person who is
designated in the articles or bylaws
as a member and, pursuant to a specific provision of a
corporation's articles or bylaws, has
the right to vote on changes to the articles or bylaws.
Consistent with Corp. C. § 5132, the
articles of incorporation may set forth classes of
membership or any other provision not
in conflict with law including any provision which is
required or permitted to be stated in
the bylaws. The duly adopted 1984 bylaws of PACIFICA
FOUNDATION gave to the local advisory
boards the specific right to vote for directors thereby
making the local advisory board members
statutory members of the corporation pursuant to Corp
C. § 5036. In addition, the Articles
of Incorporation in Article VI establish a specific provision
\\\
that delegates to the "members" of the
corporation the right to vote on changes to the number of
"directors" of the corporation thus establishing
a class of members separate from the directors..
72. By virtue of their above-described
actions, Defendants have failed, and fail, to
establish or maintain a fair, reasonable,
and consistent mechanism for defining the members of
the corporation, as distinct form the
directors of the corporation, and for democratically selecting
voting members, with a modicum of due
process.
73. PACIFICA FOUNDATION's current membership
selection procedures for the
statutory members (consisting of the
local advisory board members) are fundamentally unfair,
because they give listener-sponsors no
voice in the selection of such members or the nomination
or election of directors, considering
the significant nature, size and operations of the corporation.
74. The absence of a fair, reasonable,
and consistent mechanism for the defining and
selecting voting members who have the
right to elect directors and to change the number of
directors has constituted, and continues
to constitute, a violation of Corp. C. § 5036, 5132,.and
5520..
75. As a proximate result of such conduct
by Defendants, and each of them, the People
of the State of California, and the PACIFICA
charitable trust's listener-sponsors in particular,
have sustained, and continue to sustain,
serious and irreparable injury and damage. Declaratory
relief is justified, in the nature of
compelling Defendants to adopt a fair, reasonable, and
consistent mechanism for defining and
democratically selecting voting members of the
PACIFICA. FOUNDATION.
EIGHTH CAUSE
OF ACTION
DECLARATORY RELIEF COMPELLING
ADOPTION OF BYLAWS IN
CONFORMITY WITH LAW
AND IMPLEMENTATION OF A FAIR, REASONABLE,
AND CONSISTENT MECHANISM
FOR SETTING FORTH THE NUMBER
OF
DIRECTORS OF THE CORPORATION,
OR THAT THE NUMBER OF DIRECTORS
SHALL BE NOT LESS THAN
A STATED MINIMUM NOR MORE
THAN A STATED MAXIMUM.
76. The allegations of the above paragraphs
1 through 43 are incorporated herein by
this reference.
77. At all times material hereto, Corp.
C. § 5151(a) was in full force and effect, and was
binding upon Defendants, and each of
them. Consistent with such statute, the Bylaws of a
California public benefit corporation
are supposed to set forth the number of directors of the
corporation (unless such provision is
contained in the articles, in which case it may only be
changed by an amendment of the articles),
or that the number of directors shall not be less than a
stated minimum nor more than a stated
maximum. Article VI of the Articles of Incorporation
state, in relevant part, "That the number
of directors of this corporation . . . shall be five (5) . . .
That special authority is hereby delegated
to the members of this corporation to change the
number of directors thereof at any time
by the adoption of a By-law to that effect." Additionally,