June 14, 1999
Mary Frances Berry, Chair,
and Members of the Board of Directors Pacifica Foundation
1929 Martin Luther King Jr. Way Berkeley, CA 94704
Dear Chair Berry and Members of the Board of Directors:
Pursuant to §5710 of the California Corporations Code, I am writing to
initiate conversations with you to resolve the concerns discussed below. If the Board
of Directors wishes to engage in an effort to address these issues, please contact me
to begin the process no later that June 25, 1999. As you can imagine, my clients and
I, as strong supporters of Pacifica's purposes and heritage, are eager to resolve this
matter in an amicable fashion. Nonetheless, if we have not heard from you by that
date, we will have no choice but to immediately file a lawsuit to seek the court's
assistance in resolving these issues.
Please be advised that this firm currently represents the following members
of Pacifica's Local Advisory Boards in connection with this matter: David Adelson
(KPFK Los Angeles), Lauren Ayers (KPFA Berkeley), Lydia Brazon (KPFK Los
Angeles), Cecelia Caruso (WBAI New York), Anne Emerman (WBAI New York),
Sherry Gendelman (KPFA Berkeley), Terrence Guy (KPFK Los Angeles), Jim
Horwitz (KPFK Los Angeles), Kahlil Jacobs-Fantauzzi (KPFA Berkeley), Dawud
Khalil-Ullah (KPFK Los Angeles), Pele de Lappe (KPFA Berkeley), Steve Lustig
(KPFA Berkeley), Errol Maitland (WBAI New York), Andrew Norris (WBAI New
York), Lewis O. Sawyer Jr. (KPFA Berkeley), and Frieda Zames (WBAI New
York). We expect that additional Pacifica Local Advisory Board members will join
this effort in the days ahead. As these persons are represented by counsel in
connection with this matter, you should not contact them directly with respect to the
issues discussed in this letter. Instead, please address all such communications to me.
We hope that it is apparent to you that such a large number of long term and
committed Pacifica members would not be taking this action without legitimate and
serious concerns about recent actions of Pacifica's National Board of Directors.
As you doubtless know, at the heart of our concerns are actions taken by the
National Board of Directors to disenfranchise Local Advisory Board members from
their rights to nominate and vote to select members of the National Board. These
actions are fundamentally undemocratic and move an organization that has
historically been committed to democratic principles to one solely accountable to a
small, self-perpetuating group.
Proposals to eliminate or reduce the role of the Local Advisory Boards in the
selection of National Board members have been debated for at least two years. At the
September 1997 National Board Meeting, following strong protests from LAB
members and other Pacifica activists, the Board rejected a proposal to reduce by half
the number of National Board members selected by the Local Advisory Boards and
to add "signal area representatives" to the National Board. Instead, the National
Board adopted a proposal to (1) Continue the practice of having each Local Advisory
Board select two members of the National Board; and (2) Increase the number of at-
large representatives by four.
The National Board also agreed that a majority vote of the National Board
would be required to seat all Board members, no matter how nominated. The specific
language of the bylaw changes was not articulated at the September 1997 meeting;
rather, Pacifica's attorney was directed to draft appropriate language for final
approval by the Board at a later date. It is unclear when, if ever, the Board approved
the exact language that appears in the version of Pacifica's bylaws that states, "Most
recent revisions 9/28/97."
Many people believed and hoped that this issue had been finally resolved.
Nonetheless, on February 28, 1999, the National Board purported to adopt a bylaw
change to eliminate completely the role of the Local Advisory Boards in selecting
National Board members and to instead vest complete authority to select National
Board members in the (National) Board Development Committee. We view the
Board's actions as both illegal and completely contrary to the democratic principles
to which Pacifica aspires.
The Board's action was illegal in two respects. First, Pacifica did not give
proper notice of the vote on the proposed change in the bylaws. Second and more
importantly, Pacifica failed to allow members of the Local Advisory Boards to vote
on the proposed bylaw changes as required by law.
Section 5813 of the California Corporations Code states as follows:
An amendment must also be approved by the members
(Section 5034) of a class, whether or not such class is entitled
to vote thereon by the provisions of the articles or bylaws, if the
amendment would materially and adversely affect the rights of
that class as to voting or transfer in a manner different than such
actions affects another class. (emphasis added)
Here, there can be little doubt but that the members of Local Advisory
Boards constitute a class of members within the meaning of §5813, because the
bylaw change purportedly adopted by the National Board in February 1999 adversely
affects their rights, and only their rights, to select National Board representatives.
Prior to February 1999, Pacifica's bylaws required that there be two National Board
members chosen by each Local Advisory Board and approved by the National
Board. Even if the National Board rejected a Local Advisory Board choice, which to
our knowledge never occurred, the Local Advisory Board had the right to present
additional choices until one was approved.
Additional support for our position can be found in California Corporations
Code §5056. Section 5056 provides that a person who, pursuant to the articles or
bylaws of a nonprofit corporation, has the right to vote for directors of the
corporation, is a "member" of that corporation. Clearly, the disenfranchisement of
Local Advisory Board members was a matter that had to be submitted to the Local
Advisory Boards for approval.
Finally, I want to address the argument that the National Board's action was
required by the informal opinion of a Corporation for Public Broadcasting official
who stated that it was unlawful for a Local Advisory Board member to sit on the
National Board. Even assuming that this opinion was legally binding, it could easily
have been met by requiring that a Local Advisory Board member selected for the
National Board be required to resign from the local board.
I want to end by reiterating our sincere wish to resolve this matter short of
litigation. I must remind you that many nonprofit corporations and groups, ranging
from the American Civil Liberties Union to KQED television in San Francisco, elect
their directors by vote of their entire membership. Pacifica, when faced with the
question of changing its method of choosing its leadership, opted for the least
democratic option imaginable. It is time to revisit this issue, and it should be
unnecessary to require a court order to do so.
Very truly yours,
DAN SIEGEL
DS:pr