1 = Very Restricted - - - - - - to - - - - - - - 5 = Very Open/Accessible/Inclusive.

1 = Fail, 2 = Needs Improvement, 3 = Satisfactory, 4 = Good, 5 = Excellent.

8-12 = F, 13-20 = D, 21-28 = C, 29-36 = B, 37-40 = A.

An Analysis of Pacifica Foundation's Bylaws.

By Gregory Wonderwheel

[This is a work in progress as it stands on October 30, 1999.]

This is an analysis of Pacifica Foundation's Bylaws in the light of the stated goal of democratizing the organizational structure of Pacifica. There are a few basic premises which act as standards for evaluating the degree of democracy:

1) Democracy is government with the supreme power vested in the people and exercised by them directly or indirectly though a system of representation involving periodically held free elections;

2) It is a "fundamental principle of our representative democracy," that "the people should choose whom they please to govern them";

3) "A republic may be controverted into an aristocracy or oligarchy as well by limiting the number capable of being elected, as the number authorized to elect";

4) Montesquieu's thesis that checks and balances were the foundation of a structure of government that would protect liberty has influenced the fundamental structure of American democracy on the basis that the accumulation of all powers "in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny";

5) California law requires that procedures for electing directors must include, but are not limited to, a reasonable: (i) means of nominating persons for director; (ii) opportunity for a nominee to communicate to the members the nominee's qualifications and the reason for the nominee's candidacy; (iii) opportunity for a nominee to solicit votes; and (iv) opportunity for all members to choose among the nominees.

6) Corporations have no authority to create bylaws that are unreasonable in their practical application.

By applying these general and specific principles of democracy in the corporate context of Pacifica, one can judge the presence, or lack thereof, of actual democracy.

1) The first question is whether Pacifica Foundation shall have voting members? Members defines "the people" in whom "supreme power" resides, either directly, or indirectly though a system of representation, involving periodically held free elections. The fewer the number authorized to elect those who govern the corporation, the closer the corporation comes to "the very definition of tyranny."

Pacifica is a nonprofit public benefit corporation. Pacifica is not required by state law to have "members." However the law acknowledges that membership is common. It is axiomatic that a corporation which relies on the support of listeners identified as paying "sponsors" without giving those listeners membership rights to elect representative governors is by definition non-democratic. This conclusion is simply a corporate operation of the fundamental principle that condemns taxation without representation. To do otherwise relegates the listener-sponsor to the role of consumer in the commercial marketplace. This is appropriate in commercial radio, it is antithetical to non-commercial listener-sponsored radio.

Thus, where the Board of Directors is self-selecting, has no check and balance on its authority, and holds "in the same hands" all powers within the corporation, it meets the definition of tyranny.

The Pacifica Foundation did not originally include a broad based listener-membership, but it did include a class of members called "the Executive Membership." This class of members provided a modicum of checks and balances. Under this original scheme there were eleven Executive Members and five Directors. The Directors could vote on a resolution to propose an amendment "subject to the approving vote of a majority of the Executive Membership" which thereby adopted the resolution. In a 1961 complete revision of the bylaws the Executive Membership was swallowed up by the Board of Directors and ceased to exist as a separate check and balance on the power of the Directors. This was a move away from democracy toward tyranny.

The sole mechanism for accountability remaining as a check and balance on the power of the Board was the requirement and power of the Station Boards to "nominate and vote" on the Directors from the station areas. By an amendment purported to have been adopted on September 28, 1997, (the legality of this amendment is the subject of a current lawsuit) the Board changed Section 2 of Article Three of the bylaws to remove the power of the Station Boards to nominate and vote for Directors. The Board thereby removed the last check and balance of the organization and the last vestige of democratic accountability. This was a move away from democracy toward tyranny.

Even though the Station Boards themselves have never been democratically elected, their membership was traditionally drawn from listeners and unpaid and paid staff who were actually involved in the stations. As such the Directors who were elected to the Board of Directors by the Station Boards were accountable to a constituency based in the station milieu, since the law provides that those who elect a director may remove the director. This is a fundamental check and balance.

In addition, the ability to elect directors established the Station Board members as a statutory "class of members" under the law, which provides that whether or not they are classified as members in the bylaws any person who has a right to vote for a director under the bylaws is a "member." Removing the voting rights of members without requiring them to vote on that question is prohibited by law, and is an act whose tyrannical character cannot reasonably be denied.

Having classes of members in which the supreme power of the organization resides is therefore, a fundamental requirement for democracy in Pacifica. The greater the number who may elect the closer the organization comes to democracy. That Pacifica was founded on the theory of listener-sponsorship but did not include a direct membership status for those listener-sponsors has been the continuing anti-democratic defect in the structure of Pacifica. The recent changes by the Board of Directors that attempt to consolidate all power within in their own hands is the ultimate fruit of that defect.

2) Therefore, the second question is what kind of checks and balances should be used to protect democracy within Pacifica? By attempting to reduce Pacifica to a corporation without members and with one Board that holds within its hands all power, the Board of Directors has removed all checks and balances within the organizational system of governance that protects liberty within Pacifica. The original vision of Pacifica was an organization whose existence fundamentally relied upon a "creative tension between broadcaster and audience that constantly reaffirms their mutual relevance." This was the basic check and balance. The premise was that for listeners to have genuinely significant choices to hear, the broadcaster as creative thinker and artist must have the responsibility, integrity, and freedom of expression to provide what conventional radio normally denies. To accomplish this the broadcaster was to control the policy and to be responsible or what and why they broadcast.

To prevent a self-determining group of broadcasters from reverting to an "ivory tower" mentality, the listener was to be the source of sponsorship rather than commercial entities. "Listener-sponsorship makes possible this extremely productive balance of interests and initiatives." The voluntary nature of the subscription was of profound importance, requiring that the station be "supported by those who value it." The theory was that the listener would support the program on the basis of pure appreciation, not on the basis of responding to a special gift offer, a lottery, or an investment.

However, Hill's theory was politically naive and did not take into account the corporate necessity of a board of directors and the role that they would eventually play in upsetting the balance between broadcaster and listener-sponsor: on the one hand, taking away the control of policy from the broadcasters, and on the other, taking away the impact of the voluntary subscription as "a new shaping influence" on the values of radio broadcasting. Therefore no attention was paid to building into the institutional framework an actual corporate status of membership for the listener-sponsor. At first the Directors functioned as a benevolent oligarchy with the role of the Executive Membership providing some institutional checks and balances. These directors were close to the founding philosophy so they were able to maintain the self-restraint necessary to allow the creative tension to work.

One by one the Directors became more remote from the founding values and the culture of the stations; their personal restraint eroded. The result is that the directors have become a power of their own, with the institutional authority of the law but without an institutional accountability to a membership acting as an ultimate check and balance on that authority. This dynamic has worked, and in fact can only work, hand in hand with the shift away from the self-sustaining reliance on the theory of listener-sponsorship toward greater and greater reliance on the theory of corporate sponsorship and its resulting dependency eroding the original creative values.

The solution lies in an institutional role for listeners within the legally required corporate control structure that emulates the role of listener-sponsorship in the original design of the funding structure. In other words, where the creative tension between listener-sponsor and broadcaster acts as an alternative to corporate funding, there must also be a role for the listener-member in the nonprofit corporate structure to provide a creative-tension between listener and director as an alternative to commercial corporate culture.

Thus the question of checks and balances requires answering at least three interrelated related levels: a) What classes of membership can provide the supreme authority and act as the ultimate checks and balances? b) What kinds of boards or committees can provide checks and balances? and c) What kinds of elections shall be used by the membership to fill the boards? This is the regeneration of the Pacifica experiment that we must embark upon to revitalize and secure the original values and creative hopes for the Pacifica Foundation.

Classes of membership can come in many varieties, as do the types of boards and the elections and accountability of the boards. A comparison of the bylaws of four stations (KQED in San Francisco California, KBOO in Portland Oregon, KDHX in St. Louis Missouri, and WORT in Madison Wisconsin) provides an informative look at some of the variables.

3) Classes of Membership. Pacifica has no membership at all. Before 1997 the Station Boards had at least statutory membership through their voting rights to elect 2 directors from each station. But since those Station Board members were self-selected that was still a low level of democracy. After 1997 even that was taken away (again, leaving aside whether the change was legal or not).

KQED allows for several classes of memberships but since all classes of membership have the same voting or other rights the distinctions are minor. Members must have paid up annual dues. All members are entitled to one vote and only one vote. The members elect the Board of Directors (BoD). Proxy voting is allowed.

Comment: Proxy voting is concepually a good thing because it allows absent members to vote through the proxy. However in practice, the institutionalized powers have the greater ability to gather proxies and therefore are able to manipulate the proxy system to their advantage. Absentee voting is sufficient.

KBOO has one class of members consisting of paid-up members (annual dues), volunteers (not less than 24 hours within the previous 12 months), and staff (employees). All members have one vote and elect the BoD. An organization or business may be a paid-up member with one vote. No proxy voting is allowed.

KDHX has two classes of members: annual and associate members. Memberships are limited to natural persons. Each member has one vote. Annual members make a minimum "gift" of $15.00 or an equivalent of property or work performed within the prior 12 mos. Annual members may not make changes to the Articles, the bylaws, assets, or other certain significant issues. Associate members are self-selecting by nomination of 3 associate members and elected by majority of the associate members. The associate members act as the bicameral body providing the check and balance to the BoD and must also vote to approve or adopt any changes to the Articles or bylaws, assets, sales, mergers, or other certain significant issues. No proxy voting is allowed.

4) Boards and Committees. Pacifica has a BoD of undefined number. Before bylaws changes 2 directors were elected by each of the 5 Station Boards and at-large directors were elected by the BoD. After bylaws changes the BoD is totally self-elected. There is a BoD executive Committee and other BoD committees. Each station now has a Local Advisory Board (LAB) that is self-selected and there is a Council of Chairs of the LABs. LABs have been disolved when their advise has displeased the BoD.

KQED has a BoD of 27 members and a separate Community Advisory Panel (CAP) of up to 16 members appointed by the BoD. Each year one-third of the BoD is elected to 3-year terms. Additional advisory committees may be established by the BoD without any power other than to advise the board.

Comments: The KQED BoD maintains the tightest control possible on its committees by total control of appointments thus resulting in the least effective checks and balances.

KBOO has a BoD of 12 members with terms of 3 years and one-third elected annually. KBOO has two standing BoD committees, the Executive Committee and a Nominating Committee. The Nominating Committee is in fact an elections committee that advises the full BoD on all aspects of elections, vacancies, the attendance of BoD members and recommendations regarding inactive BoD members. KBOO has four standing advisory committees consisting of at least one Board member appointed by the BoD, one staff member, and any member who attends 3 consecutive meetings (and does not thereafter miss 3 consecutive meetings). The 4 committees are Program (evaluating programming and programmers), Finance (reviewing management of financial resources), Personnel (reviewing personnel policies and practices, evaluating staff, and hearing appeals of grievances from staff and volunteers), and Development (reviewing fundraising efforts and activities).

Comments: By allowing membership in these committees to be open to all members who attend 3 consecutive meetings, the committees are an open and direct means of democratic input. By making them advisory only, the BoD holds ultimate authority. The checks and balances arise from the political response to whether the BoD accepts or rejects the advise of the committee.

KDHX has a BoD of 14 members with terms of two years and half elected annually. KDHX has an Executive Committee. Other advisory committees may be established by the BoD.

5) Elections and Accountability. Pacifica BoD nominations are made by the Governance and Structure Committee (G&SC). Before bylaw changes the Station Boards could nominate and elect their 2 directors to the BoD. Now the bylaws no longer require that each "station" be represented on the BoD. There is only a committee "policy" that each "signal area" be represented, and there is no longer a numerical requirement. LABs have input to the BoD elections only through nomination recommendations to the G&SC.

At KQED directors are nominated by a nominating committee controlled by the BoD or by petition of 85 members. The nominating committee recommends not more than two persons for each vacancy. Ballots indicate which candidates are board nominated. All elections are by mail ballot. Each seat is elected by a majority vote. Any director may be removed without cause if the written ballot of every member is solicited and written ballots are received from the number of members who would constitute a quorum at a meeting of members (i.e., 5% of the membership) and a majority of ballots cast approve such removal.

Comments: By utilizing a ballot identified slate of BoD nominated candidates and a winner-take-all voting system for each seat, KQED maintains what is a virtual self-selecting board system in the guise of a democratically elected system.

The KBOO BoD is responsible for insuring that an adequate number of candidates representative of the diversity of the corporation's members are nominated. (The bylaws are unclear how nominations actually occur.) Elections occur at the annual meeting and count the ballots previously returned by mail with the ballots of the members present. The nominees receiving the most votes are elected. Directors may be removed with or without cause by a two-thirds vote of the members present at a special meeting for that purpose.

The KDHX BoD consists of members elected by the three bodies. Of the 7 members elected annually for 2 year terms, the annual members elect 2, the associate members elect 3, and the BoD elects 2. Nominations for annual and associate directors may be made by the BoD or by petition of the respective memberships. Elections occur at the annual meeting and count the ballots previously returned by mail with the ballots of the members present. The nominees receiving the most votes are elected. There is no provision for removal of directors by the membership. (State law usually provides for a method for members who elect a director to remove the director by recall election.)

WORT members must also register to vote to receive ballots. Directors are elected from a pool of candidates, but the bylaws are silent about how members get nominated to the pool. (It is implied that members nominate themselves.) Elections of the 5 participating members and 3 listener-candidates are by all members, but elections of the 1 staff member are by staff members only. Recall election of directors is required upon a petition signed by 20% of the members. No more than 3 directors may be recalled in one election. Recall is by majority vote.

6) Open Meetings and Records Accountability: The effectiveness of checks and balances is also dependent upon the degree of information available about the actions of the Boards to be held accountable. Where the substantial bulk of the organization's activities and decisions are made in closed meetings, there can be, as a practical matter, no real accountability and therefore no real democracy.

Pacifica does not have an open meetings provision in its bylaws. Committee meetings are frequently closed. Board meetings are usually closed except for an open session at the end. There is no records access provision, and there is no access to any records.

KQED does not have an open meetings provision for its BoD or committees. Certain annual reports are required, but there is no records access provision.

KBOO requires all BoD and committee meetings to be open "to the public," except for closed sessions to consider matters relating to individual employees, proprietary information, litigation or legal advise, commercial or financial information of a privileged or confidential nature, or purchase of property where premature exposure would compromise the business interests of the corporation and where the reason for the closure is stated in the minutes. All members may inspect designated records including names, business and home address of directors and membership lists.

KDHX does not have an open meetings provision. All members may inspect all books and records.

WORT does not have an open meetings provision for its BoD or committees. There is no record access provision.