Three days after Pacifica security guards took over KPFA studios on July 13 of last year, amid histrionic protestations broadcast live over the airwaves, a quieter battle was pitched against the Pacifica Foundation in Alameda County Superior Court.
On July 16, lawyers for 18 local advisory board members filed a long-anticipated complaint against Pacifica alleging violations of the California Corporations Code.
A year later the tent cities and chanting protesters are gone.
But the lawsuit, Adelson et al. vs. Pacifica, lives on. Lawyers for both sides say the legal fight, which could go to trial in the next six months, is just heating up.
Meanwhile, a separate action brought by 12 KPFA listeners is awaiting word from the State Attorney General on whether the group has standing to proceed against Pacifica. That decision on could be made in a matter of weeks.
Both actions are seeking to redress in the courts what could not be achieved by KPFA supporters through political demonstrations last summer. Plaintiffs want the court to remove Pacifica’s current board and reinstate bylaws that allowed local advisory boards to elect representatives to Pacifica’s national governing body. The governing board sets Pacifica policy on issues such as fund-raising and programming at five Pacifica-owned radio stations located in Los Angeles, Houston, New York, Berkeley and Washington, D.C.
Plaintiffs in both cases charge the non-profit foundation with violating the word and spirit of its decades-old corporate charter.
“Pacifica management has deviated significantly from the express charitable purpose of the foundation,” said Dan Bartley, a lawyer representing the KPFA listener group. “The only way you can get back to that purpose is to ensure that the listener-sponsors have a voice and that means bringing a modicum of democracy to the process of selecting board members for Pacifica,” he said.
Pacifica counters that actions taken by the governing board leading up to last summer’s KPFA crisis did not violate the corporate charter. Specifically, the 54-year-old foundation maintains that local advisory boards never had a right to elect members to the national board.
“You can’t lose what you never had,” Pacifica attorneys asserted in legal papers filed last month. The advisory boards “have never had the right to vote on the election of directors of Pacifica or on amendments to Pacifica’s bylaws,” Pacifica Attorney Dan Rapaport of Oakland’s Wendel, Rosen, Black & Dean argued. Changes to Pacifica bylaws in February 1999, he told the court, did not take away any right held by the local advisory boards, “because they had no right to elect Board members to begin with.”
In a brief interview with the Daily Planet, Rapaport referred all questions about the case to Pacifica’s Washington, D.C. office.
Numerous calls placed to that office seeking comment were not returned.
So far, each side has won a round in the pretrial bout. Earlier this year the local board, represented by Dan Siegel of the Oakland law firm Siegel & Yee, defeated Pacifica’s motion to dismiss their lawsuit. But on June 23, Superior Court judge James Richman agreed with Pacifica that the plaintiffs’ request for a preliminary injunction seeking immediate action on their claims should be denied.
In papers opposing the injunction, Pacifica attorney Rapaport maintained that the board members’ lawsuit “is nothing more than a thinly-veiled attempt to gain control of a three hundred million dollar public interest enterprise.” Rapaport argued that the plaintiffs were attempting to “place their hand-picked allies on Pacifica’s Board of Directors,” a move he likened to “letting the fox into the chicken coop.”
In the separate action filed in November by KPFA listener-sponsors, Spooner vs. Pacifica, 12 would-be plaintiffs are waiting for California Attorney General Bill Lockyer’s office to decide if the group has standing to proceed in quid warranto, or on behalf of the public interest. Prior approval from the state is required before suing a non-profit corporation.
The group says it was encouraged by a report issued two weeks ago by a state legislative committee blasting Pacifica’s practices during last summer’s 17-day lockout.
“I don’t want to count our chickens but we are certainly optimistic,” said attorney Bartley about his clients’ chances of being granted standing to sue. “We plan to file and then move very quickly,” he added. Pacifica lawyers have opposed the KPFA listener group’s motion for leave to sue, arguing that the group should not be permitted to go forward.
Ardent feelings underlie the KPFA listener action.
“There are a lot of people like me who feel their lives were changed because of what they heard on KPFA,” said Carol Spooner, the lead plaintiff in the action, who says she has been a KPFA listener since 1961.
“I feel strongly that [KPFA’s] alternative voice needs to be preserved for future generations,” she said. “When KPFA is really fulfilling its mission it is saying unthinkable things, things that really expand the boundaries of the dialogue.” Pacifica has tried to stifle that dialogue at its radio stations, she says.
But the real issue remains election of members to the national board. In the past, two members from each of five Pacifica-owned radio stations sat on the governing board. But in February 1999, Pacifica changed its long-standing practice of permitting automatic election of members from the five local advisory boards.
“The national administration has consistently distanced itself from the communities of the five radio networks,” said Sherry Gendelman, chair of the KPFA local advisory board and one of the plaintiffs in the board member lawsuit. “They have attempted to remove the community from community radio.”
Pacifica strenuously disagrees. Attorney Rapaport contends in briefing papers that bylaw changes instituted in February of last year were necessary for the foundation to retain critical funding from the Corporation for Public Broadcasting. Pacifica says that funding was jeopardized by FCC regulations that required a strict division between the national governing board and the community advisory boards.
“The ultimate irony of this case,” Rapaport told the court, is that the governing board that passed the now disputed amendments was comprised mainly of people elected from the local advisory boards. “The actions taken by the Pacifica Board that plaintiffs complain of, were taken by a Board that was composed of precisely the ratio of (local to national) directors that plaintiffs now seek to impose,” he wrote.
But Gendelman views the matter otherwise.
“The national governing board people are not radio people and they are not political people,” she told the Daily Planet. “If we are to grow we should find a way to be true to our mission, not turn into a station like (Pacifica’s KPFT in) Houston which plays canned music 24-hours a day,” she said.
Adds attorney Bartley, “Pacifica management has essentially turned over the reins of the organization to the Corporation for Public Broadcasting. That is totally inconsistent with the principles of the founding fathers of Pacifica.”