<html><body><div style="color:#000; background-color:#fff; font-family:verdana, helvetica, sans-serif;font-size:16px"><div id="yui_3_16_0_1_1435349564058_11681"><span id="yui_3_16_0_1_1435349564058_11964">Here is board president Campbell's response to the recent demand to inspect documents, along with the reply of those demanding inspection, in reverse order.</span></div><div id="yui_3_16_0_1_1435349564058_11789"><br><span></span></div><div dir="ltr" id="yui_3_16_0_1_1435349564058_11790"><span id="yui_3_16_0_1_1435349564058_11809">The proposals mentioned in the reply concern the use of the website to improve member communication and an increase in member participation in elections. They were recently posted to this list.</span></div><div id="yui_3_16_0_1_1435349564058_11963"><br><span id="yui_3_16_0_1_1435349564058_11809"></span></div><div id="yui_3_16_0_1_1435349564058_11962"><span id="yui_3_16_0_1_1435349564058_11809">We hope that the full board will consider our reply, acknowledge the right to inspect, and begin working on the underlying issues.</span></div><div id="yui_3_16_0_1_1435349564058_11941"><br><span id="yui_3_16_0_1_1435349564058_11809"></span></div><div id="yui_3_16_0_1_1435349564058_11940"><span id="yui_3_16_0_1_1435349564058_11809">Dennis O'Brien</span></div><div id="yui_3_16_0_1_1435349564058_11947"><span id="yui_3_16_0_1_1435349564058_11809"></span></div><br> <div id="yui_3_16_0_1_1435349564058_11685" style="font-family: verdana, helvetica, sans-serif; font-size: 16px;"> <div id="yui_3_16_0_1_1435349564058_11684" style="font-family: HelveticaNeue, Helvetica Neue, Helvetica, Arial, Lucida Grande, sans-serif; font-size: 16px;"> <div id="yui_3_16_0_1_1435349564058_11683" dir="ltr"> ----- Forwarded Message -----<br> <font id="yui_3_16_0_1_1435349564058_11682" face="Arial" size="2"> <b><span style="font-weight:bold;">From:</span></b> Dennis OBrien <dennisobrien@sharejerusalem.com><br> <b><span style="font-weight: bold;">To:</span></b> Stuart Campbell <thales1104@comcast.net>; MCPB Board <bod@kzyx.org>; "board@kzyx.org" <board@kzyx.org><b><span style="font-weight: bold;"></span></b><br> <b><span style="font-weight: bold;">Sent:</span></b> Friday, June 26, 2015 1:20 PM<br> <b><span style="font-weight: bold;">Subject:</span></b> Re: June 9, 2015 Demand for Inspection<br> </font> </div> <div id="yui_3_16_0_1_1435349564058_11686" class="y_msg_container"><br><div id="yiv4884082237"><div id="yui_3_16_0_1_1435349564058_11688"><div id="yui_3_16_0_1_1435349564058_11687" style="color:#000;background-color:#fff;font-family:verdana, helvetica, sans-serif;font-size:16px;"><div dir="ltr" id="yiv4884082237yui_3_16_0_1_1435349564058_8772"><span id="yiv4884082237yui_3_16_0_1_1435349564058_8845">Mr. Campbell:<br class="yiv4884082237" clear="none"><br class="yiv4884082237" clear="none">Thank you for your email of June 23, 2015, responding to our written demand of June 9 for the inspection of documents. We disagree with your analysis.<br class="yiv4884082237" clear="none"><br class="yiv4884082237" clear="none">1. The right of a member to inspect and copy records is not based solely on California Corporations Code Section 6330, which authorizes the inspection of membership records. There is also Section 6333, which states:<br class="yiv4884082237" clear="none"><br class="yiv4884082237" clear="none">"6333. The accounting books and records and minutes of proceedings of the members and the board and committees of the board shall be open to inspection upon the written demand on the corporation of any member at any reasonable time, for a purpose reasonably related to such person's interests as a member."<br class="yiv4884082237" clear="none"><br class="yiv4884082237" clear="none">In addition, the Bylaws of Mendocino County Public Broadcasting grant members the right to inspect any records that are not personnel records or otherwise protected by law:<br class="yiv4884082237" clear="none"><br class="yiv4884082237" clear="none">"Member Inspection Rights:<br class="yiv4884082237" clear="none">Members shall have the right at all reasonable times to inspect all of MCPB’s records which are or should be maintained at the principal office except personnel records and other items that would violate the privacy of a specific individual or are otherwise protected under Federal or California law."<br class="yiv4884082237" clear="none"><br class="yiv4884082237" clear="none">Thus the members' right to inspect does indeed extend to the categories of documents enumerated in the demand.<br class="yiv4884082237" clear="none"><br class="yiv4884082237" clear="none">Please note that the Board of Directors does not have the power to amend the Bylaws to diminish any rights granted to members. Only a vote of the membership can do that. If you wish to oppose the demand, Corporations Code Section 6331 requires you to file a petition in Mendocino County Superior Court. Under Section 6336, any director or officer who does not comply with the demand can be punished for contempt of court. Under Section 6337, the organization can be held liable for members' reasonable costs and expenses, including attorneys' fees, in connection with any related legal proceedings.<br class="yiv4884082237" clear="none"><br class="yiv4884082237" clear="none">2. Thank you for acknowledging a director's absolute right to inspect any document under Corporations Code Section 6334. Because the volume of documents may be too great for any one person to inspect, Mr. Sakowicz may be accompanied by an agent or attorney to assist him. Since any given record will be inspected by the director or his attorney/agent, he will be in compliance with Section 6311 regarding such assistance. Further, any non-disclosure agreement must be limited to records that cannot otherwise be inspected by members, i.e., "personnel records and other items that would violate the privacy of a specific individual or are otherwise protected under Federal or California law." The Code does not require anyone to sign a blanket non-disclosure agreement as a condition for inspecting records, nor will they.<br class="yiv4884082237" clear="none"><br class="yiv4884082237" clear="none">3. Your objection concerning a need to create records is misplaced. As stated in the Demand Letter:<br class="yiv4884082237" clear="none"><br class="yiv4884082237" clear="none">"Please also note that a failure to present any of the requested items does not relieve you of the duty to make any and all of the other requested items available for inspection and/or copying. We are not asking you to create any summaries. But we do want access to all of the documents that are related to the above list, including any existing summaries, as part of the inspection of all records from 2007 to the date of inspection."<br class="yiv4884082237" clear="none"><br class="yiv4884082237" clear="none">See also #6 below concerning your request for a delay.<br class="yiv4884082237" clear="none"><br class="yiv4884082237" clear="none">4. To the extent you have already produced specific documents to Mr. Sakowicz in response to a prior demand, you do not need to provide duplicates. This exception does not apply if any member has demanded the same information.<br class="yiv4884082237" clear="none"><br class="yiv4884082237" clear="none">5. The alternatives you have offered to Messrs. Collins and O'Brien concerning their prior demands to inspect the membership rolls are unreasonable and too expensive. They are based on an incorrect reading of a statute that bars releasing such information to third parties. Members are not third parties. In any event, prior efforts and negotiations are not a waiver of a member's right to inspect.<br class="yiv4884082237" clear="none"><br class="yiv4884082237" clear="none">The efforts of Messrs. Sakowicz, Collins, and O'Brien to try to resolve the current crisis at MCPB/KZYX through negotiation with the board and discussion with the membership are not signs of bad faith but rather an attempt to avoid litigation. Do not confuse patience and reason with weakness and ill-will.<br class="yiv4884082237" clear="none"><br class="yiv4884082237" clear="none">6. We see no need at this time to delay the inspection. As noted above, the failure to have all records available by July 11 does not relieve you of the duty to allow inspection of those records that are available at that time. If for any reason certain records are not available that the director or members believe are essential, then arrangements can be made to inspect them at a later time. Asking us to wait until four weeks after some unspecified date is too uncertain. However, we will consider a later date once the full board has met and considered this reply.<br class="yiv4884082237" clear="none"><br class="yiv4884082237" clear="none">7. As noted above, you do not need to produce the same documents to Mr. Sakowicz twice. But the Demand Letter is more comprehensive and includes demands for inspection by members, demands which stand alone. There is no "condition precedent" that must be met before MCPB complies with the current demand.<br class="yiv4884082237" clear="none"><br class="yiv4884082237" clear="none">8. Because Mr. Sakowicz has an absolute right of inspection as a director, his intentions are not an issue. The only time intent is an issue is if you believe that the members' demand for access to membership information under Sections 6330 is for reasons not related to their interests as members. If you believe so, then your remedy, as noted above, is to file a petition with the Superior Court to have that particular demand set aside. But the members do have a legitimate reason for their demand, as stated in the Demand Letter:<br class="yiv4884082237" clear="none"><br class="yiv4884082237" clear="none">"The purpose of the demand by the members is to review all financial transactions and data, and all membership and voting records and data, from the year prior to the employment of the current general manager, Mr. John Coate, up to and including the date of inspection, as there has been inadequate oversight by the board of directors concerning finances, memberships, and elections during his tenure. The membership has a legitimate interest in the financial affairs of the corporation and the integrity of the voting rolls and election process."<br class="yiv4884082237" clear="none"><br class="yiv4884082237" clear="none">9. Thank you for your willingness to consider the proposals set forth by Mr. O'Brien, one of the Demand Letter signers. If you adopt those specific proposals before July 10, he will drop his demand for inspection of the membership rolls, and will encourage the other signers to do likewise. However, this will have no effect on the demand to inspect and possibly copy all other records, including financial. Mr. O'Brien looks forward to working with the new Committee on Bylaws and Policies. MCPB policies authorize the Board of Directors to name volunteer members to board committees. The Board should consider naming some of the signers to certain committees - e.g., Mr. McKenty to the Finance Committee - as a way of engaging with the membership, promoting transparency of governance, and avoiding the need for future inspection demands.<br class="yiv4884082237" clear="none"><br class="yiv4884082237" clear="none">Thank you again for you detailed response. Please make sure that the full board has time to consider this reply before it meets next Monday. We hope that the full board will acknowledge our right of inspection and take positive steps to address the underlying concerns. If it does, we will consider a delay. If not, then we will be at the main office on July 11 to proceed with the inspection. Please do not remove any records or take any other action that might hinder the process.<br class="yiv4884082237" clear="none"><br class="yiv4884082237" clear="none">Sincerely,<br class="yiv4884082237" clear="none"><br class="yiv4884082237" clear="none">John Sakowicz<br class="yiv4884082237" clear="none">Doug McKenty<br class="yiv4884082237" clear="none">King Collins<br class="yiv4884082237" clear="none">Norm de Valle<br class="yiv4884082237" clear="none">Dennis O'Brien</span></div><br clear="none"> <div class="qtdSeparateBR"><br><br></div><div class="yiv4884082237yqt6671438315" id="yiv4884082237yqt22774"><div id="yiv4884082237yui_3_16_0_1_1435349564058_8727" style="font-family:verdana, helvetica, sans-serif;font-size:16px;"> <div id="yiv4884082237yui_3_16_0_1_1435349564058_8726" style="font-family:HelveticaNeue, Helvetica Neue, Helvetica, Arial, Lucida Grande, sans-serif;font-size:16px;"> <div dir="ltr" id="yiv4884082237yui_3_16_0_1_1435349564058_8725"> <hr id="yiv4884082237yui_3_16_0_1_1435349564058_8776" size="1"> <font id="yiv4884082237yui_3_16_0_1_1435349564058_8771" face="Arial" size="2"> <b><span style="font-weight:bold;">From:</span></b> Stuart Campbell <thales1104@comcast.net><br clear="none"> <b><span style="font-weight:bold;">To:</span></b> Sakowicz <sako4@comcast.net>; Doug McKenty <dougmck@gmail.com>; King Collins <king@greenmac.com>; Norman de Vall <ndevall@mcn.org>; Dennis OBrien <dennisobrien@sharejerusalem.com> <br clear="none"> <b><span style="font-weight:bold;">Sent:</span></b> Tuesday, June 23, 2015 6:05 PM<br clear="none"> <b id="yiv4884082237yui_3_16_0_1_1435349564058_8788"><span id="yiv4884082237yui_3_16_0_1_1435349564058_8787" style="font-weight:bold;">Subject:</span></b> June 9, 2015 Demand for Inspection<br clear="none"> </font> </div> <div class="yiv4884082237y_msg_container" id="yiv4884082237yui_3_16_0_1_1435349564058_8762"><br clear="none"><div id="yiv4884082237">
<div id="yiv4884082237yui_3_16_0_1_1435349564058_8764">
<div class="yiv4884082237MsoNormal" id="yiv4884082237yui_3_16_0_1_1435349564058_8763">June 23, 2015</div>
<div class="yiv4884082237MsoNormal" id="yiv4884082237yui_3_16_0_1_1435349564058_8765"> </div>
<div class="yiv4884082237MsoNormal" id="yiv4884082237yui_3_16_0_1_1435349564058_8766"> </div>
<div class="yiv4884082237MsoNormal" id="yiv4884082237yui_3_16_0_1_1435349564058_8767">John Sakowicz</div>
<div class="yiv4884082237MsoNormal" id="yiv4884082237yui_3_16_0_1_1435349564058_8768">Doug McKenty</div>
<div class="yiv4884082237MsoNormal" id="yiv4884082237yui_3_16_0_1_1435349564058_8769">King Collins</div>
<div class="yiv4884082237MsoNormal">Norman deVall</div>
<div class="yiv4884082237MsoNormal">Dennis O’Brien</div>
<div class="yiv4884082237MsoNormal"> </div>
<div class="yiv4884082237MsoNormal">Gentlemen:</div>
<div class="yiv4884082237MsoNormal"> </div>
<div class="yiv4884082237MsoNormal">We are in receipt of your letter of June 9,
demanding inspection
of various records and asking various questions.<span style=""> </span>We reply as follows:</div>
<div class="yiv4884082237MsoNormal"> </div>
<div id="yui_3_16_0_1_1435349564058_11774" class="yiv4884082237MsoNormal">1. <span style=""> </span>The
right of
a member to inspect and copy records is limited to a narrow set of
documents
under Section 6330 of the California Corporations Code.<span style=""> </span>Most of the 30 categories of
records listed
in the letter are not ones that the Corporations Code gives a
member the right
to copy and inspect.</div>
<div class="yiv4884082237MsoNormal"> </div>
<div class="yiv4884082237MsoNormal">2.<span style=""> </span><span style=""> </span>Under Section 6334 of the
Corporations
Code, the right of a Director to inspect and copy records extends
to all books,
records and documents of every kind.<span style="">
</span>Mr.
Sakowicz is a Director.<span style=""> </span>None
of the
other signatories to the letter is a Director.<span style="">
</span>Accordingly, Mr. Sakowicz, and only he, has the right to
demand
inspection of the documents in most of the listed categories.<span style=""> </span>We are aware that a Director
may make an
inspection personally, or he may send an agent or attorney to make
the
inspection and copy the documents if he chooses not to make the
inspection
himself. Corp. Code § 6311.<span style=""> </span>If
Mr. Sakowicz
chooses to send an agent or attorney in his stead, that agent or
attorney may
inspect and copy records instead of Mr. Sakowicz. We will require
the agent or
attorney to sign a non-disclosure agreement promising not to
reveal
confidential information except to a person who has also signed a
non-disclosure agreement.</div>
<div class="yiv4884082237MsoNormal"> </div>
<div class="yiv4884082237MsoNormal">3.<span style=""> </span><span style=""> </span>Nothing in the
Corporations Code requires
managers or Directors to create records that the corporation does
not
maintain.<span style=""> </span>The Corporations
Code provides
for inspection and copying of existing records. </div>
<div class="yiv4884082237MsoNormal"> </div>
<div class="yiv4884082237MsoNormal">4.<span style=""> </span><span style=""> </span>This is not the first
request from
Director Sakowicz to inspect and copy KZYX records.<span style=""> </span>In October 2014 Mr. Sakowicz
sent then Board
President Eliane Herring an e-mail requesting to inspect and copy
records that
pertained to nine separate questions.<span style=""> </span>In
response to that e-mail, KZYX spent considerable time and
resources to (1)
determine if it had documents responsive to Mr. Sakowicz’ s
questions; (2)
assemble the requested categories of documents; and (3) respond to
Mr. Sakowicz
outlining the documents in KZYX’s files that would be responsive
and offering
them up for copying and inspection.<span style="">
</span>Copies of that correspondence are attached.<span style=""> </span>Mr. Sakowicz
has not yet followed up on his demand and has not yet reviewed the
documents
gathered by KZYX.<span style=""> </span>This
leads KZYX to
question whether his request was made in good faith.</div>
<div class="yiv4884082237MsoNormal"> </div>
<div class="yiv4884082237MsoNormal">5.<span style=""> </span><span style=""> </span>This is also not the
first request from
Mr. Collins and Mr. O’Brien to KZYX based on alleged rights of
inspection
pursuant to the Corporations Code.<span style="">
</span>In
July 2013 Mr. Collins sent a request for access to the members
list.<span style=""> </span>KZYX responded to
that request with a
detailed letter on July 19, 2013, outlining a process by which
that access
could be obtained.<span style=""> </span>Formulating
a careful
response took KZYX considerable time and effort – time and effort
that it could
not spend on fundraising, attention to station infrastructure, or
recruiting
new programmers.<span style=""> </span>A copy of
that letter
is attached.<span style=""> </span>On January
19, 2015 Mr.
O’Brien made a request for access to the members list.<span style=""> </span>KZYX sent a response to that
request on
February 1, 2015 and distributed a copy of the response at the
Board meeting on
February 2, 2015.<span style=""> </span>A copy
of that
response is attached.<span style=""> </span>Because
of the
complex interplay between the Corporation for Public Broadcasting
rules and the
Corporations Code, it took KZYX considerable time and effort,
including
engaging an outside attorney, to formulate a legally correct
response to Mr.
O’Brien’s request.<span style=""> </span>Again,
that was time
KZYX could not spend on fundraising and other productive
activities.<span style=""> </span>Neither Mr.
Collins nor Mr. O’Brien has ever
followed up to take advantage of the process offered by KZYX.<span style=""> </span>This leads KZYX to question
whether these
requests were made in good faith.</div>
<div class="yiv4884082237MsoNormal"> </div>
<div class="yiv4884082237MsoNormal">6.<span style=""> </span><span style=""> </span>As you know, John Coate
has resigned his
position as Executive Director and General Manager effective July
1, 2015. <span style=""> </span>The station will
need to rely heavily on him
to assist in the transition before his last day.<span style=""> </span>Due to his impending
departure, and the fact
that he is the person with the best understanding of where and how
KZYX records
are maintained, it will be physically impossible for KZYX to deal
with the
extraordinary and burdensome demands in your June 9 letter in the
near
term.<span style=""> </span>We must recruit and
train a new
ED/GM and, at the same time, keep the station running.<span style=""> </span>As such, we are forced to put
your request
aside until we have hired a new ED/GM, and that person has had a
reasonable
amount of time on the job, at least 4 weeks, to get up to speed.<span style=""> </span>Then we will substantively
respond to your
requests, and provide access to records as appropriate. At such
time as we have
the resources to respond to this most recent request and its 30
categories of
documents/information, we anticipate that it will again take us
considerable
time and effort to make a proper response and to gather the
records.<span style=""> </span></div>
<div class="yiv4884082237MsoNormal"> </div>
<div class="yiv4884082237MsoNormal">7.<span style=""> </span><span style=""> </span>In the meantime, we stand
by the offer
made to Mr. Sakowicz on December 10, 2014 to inspect and copy
certain documents
responsive to his October 2014 request.<span style="">
</span>Once Mr. Sakowicz reviews the records he has already
requested and that
KZYX has already spent considerable time gathering, then he can
assess what
records, if any, he still wants to see.<span style="">
</span>In other words, the results of his first document request
may inform any
subsequent document requests.<span style=""> </span></div>
<div class="yiv4884082237MsoNormal"> </div>
<div class="yiv4884082237MsoNormal">8.<span style=""> </span>We
think it
not insignificant that Mr. Sakowicz has openly stated that his
goal is to bring
the station down.<span style=""> </span>He
openly undercuts
that station’s fundraising efforts (with his slogan “Starve the
Beast”), and he
has written numerous letters to local newspapers attacking the
station.<span style=""> </span>Based on Mr.
Sakowicz’ lack of follow-through
on his document request last fall, we have a strong concern that
the current
request may just be another exercise in harassment and
intimidation, intended
to distract and demoralize KZYX.<span style=""> </span>We
hope
that is not the case.</div>
<div class="yiv4884082237MsoNormal"> </div>
<div class="yiv4884082237MsoNormal">9. <span style=""> </span>Finally,
we
note that one of the signatories to the June 9th letter, Dennis
O’Brien, has
offered to drop his demand to inspect and copy if the
board/management adopts
certain proposals he has put forth.<span style="">
</span>While we cannot promise to adopt Mr. O’Brien’s proposals
immediately, we
are open to considering them as part of the Board’s Committee on
Bylaws and
Policies.<span style=""> </span>That Committee
will evaluate
them and potentially present them, as refined by the Committee, to
the full
Board for further consideration and possible adoption.<span style=""> </span>The Committee will
communicate directly with
Mr. O’Brien as part of its process.</div>
<div class="yiv4884082237MsoNormal"> </div>
<div class="yiv4884082237MsoNormal"><span style="">
</span>Very
truly yours,</div>
<div class="yiv4884082237MsoNormal"> </div>
<div class="yiv4884082237MsoNormal"> </div>
<div class="yiv4884082237MsoNormal"><span style="">
</span>Stuart
Campbell<span style=""> </span></div>
<div class="yiv4884082237MsoNormal"><span style=""> </span><span style=""> </span><span style=""> </span><span style=""> </span><span style=""> </span><span style=""> </span>President, MCPB
Board of Directors</div>
<div class="yiv4884082237MsoNormal"> </div>
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