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Perhaps Mitchel could tell us exactly what political appointments these two individuals hold so that we can judge for ourselves whether this is really an important issue or just more Pacifica self-destructiveness.

MB

On Sat, Jul 16, 2011 at 8:51 PM, Mitchel Cohen <[log in to unmask]> wrote:
After a 10-year break . . . back to court
 
by Carol Spooner

Yesterday my attorney-husband, Gregory Wonderwheel, filed on my behalf as a KPFA Member -- with a "beneficial interest" in Pacifica -- a Petition for Writ of Prohibition in the California Court of Appeals.  The case is titled Carol Spooner vs. Superior Court of Alameda County.  The main issue is that the Alameda Superior Court ordered two people -- Dan Siegel and Laura Prives -- to be "fortwith seated" on Pacifica's board of directors, before a final determination at trial that they had been duly elected in a valid election. 

The court misinterpreted Pacifica's bylaws prohibitions against people who accept "political appointments" serving as delegates and/or directors, and strictly narrowed it to include only people who hold "public office" and not political appontments to "advisory" positions.  Unfortunately, under the court's interpretation, that means that most political appointees to commissions, task forces, etc., as well as most executive staff appointments, would not be excluded from Pacifica's boards.  The purpose of the bylaws prohibition was to protect Pacifica from undue political influence from people holding such positions who have actual or potential divided loyalties and conflicts of interests.  You can read an introductory synopsis of the brief here.  

Pacifica has appealed the preliminary injunction, but didn't ask for a "stay" of enforcement pending the appeal.  So I have asked the court of appeal to grant a stay as well as to dissolve the preliminary injunction by issuance of a writ -- a faster remedy, but harder to get.  Fingers crossed!

Here is the crux of the argument, from the introduction to the brief:
 
"Pacifica's position in opposing the preliminary injunction was that Dan Siegel wrongfully voted as a delegate in the January 13th purported election after he had resigned his delegate position, and was ineligible to vote as a delegate, by acceptance of political appointments within the meaning of the following provision in Pacifica's bylaws, at Article Four, Section 2.A.:

"... no person who holds any elected or appointed public office at any level of government, federal, state, or local, or is a candidate for such office shall be eligible for election to the position of Delegate. A Delegate shall be deemed to have resigned the position of Delegate if s/he becomes a candidate for public office or accepts a political appointment during his or her term as a Delegate. This restriction shall not apply to civil service employment by government agencies." (Emphasis added.) (Bylaws, Exh. 30, pp. 153.)

"In addition, Siegel was ineligible for election as a director for the same reason under Article Five, Section 1.A., of Pacifica's bylaws. (Bylaws, Exh. 30, p. 157.)

"Prior to the January 13th purported election Siegel accepted political appointments by the Mayor of Oakland to her "Transition Advisory Committee" and as her "unpaid legal advisor." Siegel's vote was sufficient to change the outcome of the purported January 13th election. Therefore Pacifica was required under its interpretation of its bylaws to invalidate the election and to order a new election. 

"The respondent court lost jurisdiction to enforce its preliminary injunction while the issue of who is right and who is wrong is before the appellate court. Further trial court proceedings in contravention of the Code of Civil Procedure section 916 stay are an act in excess of the court's jurisdiction and thus subject to challenge by petition for extraordinary writ. (Prudential-Bache Securities, Inc. v. Superior Court (1988) 201 Cal.App.3d 924, 925-926; Elsea v. Saberi (1992) 4 Cal.App.4th 625, 629.)

WHY A WRIT SHOULD ISSUE

"What is at stake here is the fundamental interest of Pacifica and its membership in protecting Pacifica's journalist integrity from undue political influences. The court, by misconstruing Pacifica's bylaws, has done irreparable damage to Pacifica's ability to protect itself from such political influences from directors and delegates with divided loyalties and potential and actual conflicts of interest -- contrary to strong public policy favoring an independent and free press.

"Pacifica is a California nonprofit public benefit corporation that holds radio broadcast licenses in five major metropolitan areas across the United States[1], has more than 150 "affiliated" radio stations across the country, and assets in the tens of millions of dollars. Its directors have duties of loyalty and care. Since 1949 Pacifica has been radio broadcasting for purposes, among others, of:

"... promot[ing] the full distribution of public information; to obtain access to sources of news not commonly brought together in the same medium; and to employ such varied sources in the public presentation of accurate, objective, comprehensive news on all matters vitally affecting the community."

(Bylaws, Exh. 30, p. 148.)

"Unless the respondent court's misconstruction of Pacifica's bylaws is reached and corrected by prohibition now, the respondent court will almost certainly convert the "conclusions and rulings" of its preliminary injunction into the "law of the case" and continue down this path of error at trial -- before the pending appeal can decide the issue -- necessitating further appeals and petitions and causing even longer delays in conducting a valid election of directors to represent the KPFA membership's interests on Pacifica's board of directors.

"Under threat of being held in contempt, Pacifica has provisionally seated Siegel and Prives on its board and Burnstein, et al., have taken the July 1st contempt hearing off calendar. Nonetheless, a stay of enforcement is essential as the presence of these unelected provisional "directors" on Pacifica's board is creating ongoing irreparable injuries to Pacifica and to petitioner's beneficial interests, including but not limited to: loss of autonomy; loss of confidentiality of proprietary, sensitive and privileged information; and chaos, instability and uncertainty in the governance and management of its affairs where close questions may be decided by the votes of Siegel and/or Prives and actions taken based on those void or voidable votes that cannot later be undone.

"This appears to be a case of first impression whether the courts can summarily appoint corporate directors pendente lite, prior to final determination on the merits as to whether or not they have been duly elected. Petitioner's counsel has found no reported California cases where this has occurred before.

"Thus, a writ of prohibition should issue not only to stay contempt proceedings and enforcement of the preliminary injunction during the pendency of appeal, but also to reach the merits of the preliminary injunction and dissolve it now.


[1]KPFA in Berkeley, KPFK in Los Angeles, KPFT in Houston, Texas, WBAI in New York City, and WPFW in Washington, DC.

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A KPFA Transmitter in Downtown Santa Cruz?

All that stands in the way is money and organizing.
 

 The Federal Communications Commission ("FCC") has issued a permit to KPFA to install a transmitter in downtown Santa Cruz.

This would serve a population of about 10,000 people.  The permit is valid until September 2011.  The cost to KPFA to install the transmitter would be about $5,000-$10,000 and about $100/month to maintain it.  Andrew Phillips, KPFA's interim General Manager, has agreed to include the $100/month maintenance fee in next year's budget.

Chandra Hauptman, a listener activist and former KPFA LSB member and Pacifica National Board member, is coordinating a fundraising campaign to raise the money needed before the expiration of the FCC permit.

Anyone who is interested in donating to this project or has fundraising ideas for this project, please contact Chandra at [log in to unmask].

Also, you can mail a check to KPFA to support this project.  Write "Santa Cruz Antenna" on the memo line of your check and mail it to:
 
KPFA
1929 Martin Luther King Jr. Way
Berkeley, CA  94704.

Thanks!  I know we can do this.  - Carol Spooner

Question from Mitchel: Can something similar be done in NYC and surroundings, to set up a system of antenna transmission relays that would be powerful enough to void WBAI's very expensive antenna agreement with the Empire State Building? Does that make any sense at all?
 





http://www.MitchelCohen.com


Ring the bells that still can ring,  Forget your perfect offering.
There is a crack, a crack in everything, That's how the light gets in. 
~ Leonard Cohen









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Michael Balter
Contributing Correspondent, Science
Adjunct Professor of Journalism,
New York University

Email:  [log in to unmask]
Web:    michaelbalter.com
NYU:    journalism.nyu.edu/faculty/michael-balter/
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“Faced with the choice between changing one’s mind and proving that there is no need to do so, almost everyone gets busy on the proof."
                                                  --John Kenneth Galbraith