[Kzyxtalk] KZYX Elections - Time to Join or Renew Membership?

[Dennis OBrien]

Help UsBring Needed Change to KZYX&Z! There are many of us inMendocino County and beyond who feel that Mendocino County Public Broadcastingand its radio station, KZYX&Z, has lost touch with the community.  The policies supported by the current Boardof Directors give all power to the General Manager while shielding him and therest of management/staff from KZYX members and the listening public.  Using those powers, the General Manager has eliminatedthe full-time News Director position and dropped the most popular NPRprogramming.  The Board and GeneralManager have refused written requests for copies of KZYX policies, even thoughsuch access is guaranteed by our bylaws and state law.  The Board even forbids individual directorsfrom doing their own investigation and oversight, which is each director’sduty.  And programmers who question thecurrent management and/or policies have been reprimanded or lost their shows. Although it is possibleto file a lawsuit to force action on some of these matters, such litigation drains funding and gives control of the outcome to a third party.  Instead, some of us who are working to bringtransparency and accountability back to our nonprofit community radio station are hoping to use the upcoming election for the Board of Directors.  Three seats are currently open, one each formembers in the Fifth and Second Supervisorial Districts, and one At-Large.  All members vote for all three seats, andeach director represents all members, regardless of where they live.  Theprocess for candidates begins January 1, 2015. But the deadline for becoming a member eligible for vote or run in the nextelection is December 31, 2014. Please consider becominga member before the deadline so that you can be part of this renewal.  Last election Doug McKenty challenged theincumbent for the At-Large seat and lost by only 12 votes even though two other challengers split the votes for change.  For just $25, you can signup for a Simple Living Membership that will give you full voting rights.  You can do this by mailing a check to KZYX,or using their online payment system. Information on both methods is available at http://kzyx.org/index.php/donate-or-join.  Election information is available at http://kzyx.org/index.php/about-us/volunteering-at-kzyx/102-station-business/236-the-mcpb-board-of-directors-2015-election.  If there is an influx of memberships inresponse to this request for support, we will seek to have those funds dedicatedfor a full-time, independent News Director position, which is now part-time and serves at the pleasure of theGeneral Manager. Our platform will bebased on a legal and policy analysis of the current situation atMCPB/KZYX, including specific proposals (see below). It does not make judgments about personalities, but rather looks atactions and their consequences.  It isnot necessary to defame anyone’s character in order to make decisions about howour community radio station moves forward. To the greatest extent possible, we will adhere to the principles ofnonviolent communication in order to foster lasting change. A membership nonprofitthat operates a community radio station with taxpayer money must be open andaccessible.  Otherwise, it defeats theefforts of generations who have sought to make the airwaves a resource for allthe people.  And it will fail.  Only by making essential changes canMCPB/KZYX achieve its best destiny, to be a shining city on the hill for acounty, and a nation, that so desperately need one. Will you please join us? Sincerely, Dennis O’Brien,Candidate for Fifth District Seat PS: You can be part ofthe conversation by joining the KZYXTalk email list.  Please go to http://lists.mcn.org/mailman/listinfo/kzyxtalkto join.  In addition, there isa facebook page, KZYX Members for Change, which will be updated with the mostrecent information during the campaign. Late News: KZYX will hold a “meet and conversewith the news team” at the Space Theatre, 508 W. Perkins Street, Ukiah, this Sunday, December 14, at 1:00pm.
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Thefollowing is a legal/policy analysis of the current situation at MendocinoCounty Public Broadcasting, aka KZYX&Z. In the spirit of nonviolent communication, it will focus on actions,policies, and the law rather than on judging individuals. Background InMarch 2006, the Board of Directors of MCPB/KZYX adopted a change to the BoardPolicies and Procedures Manual, transferring the authority to make all hiringand firing decisions to the General Manager. From then on, the Board of Directors would only hire/fire the General Manager. “Section11.3: The General Manager is responsible for the hiring, firing, and evaluationof all Staff positions.” In 2009,the current General Manager used that authority to fire the News Director.  Correction: as the General Manager explainedat the time, he did not fire the News Director; he eliminated the positionentirely for financial reasons.  He alsocut the most popular NPR shows from the Station’s programming, includingPrairie Home Companion, This American Life, Car Talk, Piano Jazz, and the BBC.  The Community was stunned, as all of these decisionshad been made unilaterally, without public discussion or consultation. Itappears that the General Manager exceeded his authority by making a policydecision to eliminate the full-time News Director position, a service valued bythe Community, rather than merely an administrator’s decision on hiring andfiring.  However, the Board of Directors,then and now, has endorsed the action, at the very least by not reversing it.  Indeed, the current Board has statedexplicitly that it supports this model of governance, and now forbids anyindividual Director from overseeing the work that is being done by the GeneralManager or any other Staff, even though such oversight is each director’sresponsibility. Thispolicy change means that the Program Director and the rest of the Staff are nowinsulated from any oversight by the Board of Directors, and are thereby onemore step removed from the Members and the Community.  Prior to the change, Members could go to Boardmeetings and discuss programming and other issues with the board.  Now, the Board still allows publicexpression, but no longer responds to questions and comments, and has declaredit will not intervene in Management/Staff decisions.  Even written requests for information from a Memberand a Director have been ignored or given incomplete response. Inresponse to public outcry at such lack of transparency and accountability, theBoard of Directors reconstituted the Community Advisory Board, which isrequired by the Corporation for Public Broadcasting, the largest funder of thestation.  However, the CAB has failed to holdany public meetings, opting instead for a telephone conference during their oneprivate meeting.  Many Members signed upbut could not participate due to technical limitations.  At that meeting, the CAB adopted a report,previously prepared without any public input, which stated the station wasdoing just fine and that no changes were needed beyond “News of the Station”reports.  The CAB relied on a survey thatwas distributed to some (but not all) Members during the latest electionballoting.  The methodology of the surveywas flawed, e.g., a respondent had to state that they thought something waswrong with the station before being allowed to prioritize what changes theywanted.  In spite of these limitations,local news received the plurality of votes for most-needed change, followed bystation operations and talk shows: 10% (Musicprogramming)20% (Talkshow programming)36% (Localnews)12% (Nationaland international news)22% (Stationoperations) Thefull report and survey are available at http://kzyx.org/index.php/about-us/station-business/community-advisory-board. Thediversity of the membership of the CAB itself, required by the CPB, has alsobeen questioned, as one of the members has the same address as one of thedirectors.  In spite of theseshortcomings, the CAB felt it was necessary to sound the following alarm: “TheCAB is very concerned about the perception, within the listening community, ofa lack of transparency into operations, internal decisions, and governance ofour station. This has generated a barrage of criticism, outright attacks, andnegative comparisons with other media.” Alas,its sole recommendation was to air short “News of the Station” segments.  Though such an effort would no doubt behelpful, it cannot replace the transparency and accountability required by law,regulations, and bylaws (below). [Note:Apparently a Programming Advisory Committee was developed at the Station tobroaden the decision-making process, but is now inactive.  Requests for the PAC Policy have beenignored, so no analysis is possible at this time.] Meanwhile,those programmers who have questioned the current policies have lost theirshows or have otherwise been reprimanded. The more that Members and Community leaders, including elected officials,plead with the Board of Directors for more openness, the more the Board digs inand asserts that its role is to support and protect the General Manager andManagement.  An impasse has arisen thathas led to sharply divided elections whose legitimacy is questioned, publicname-calling in the local media, and legal challenges to the station’s licenserenewal. ApplicableLaws, Regulations, and Bylaws MendocinoCounty Public Broadcasting is a nonprofit membership corporation charteredunder the laws of the State of California. It holds a license issued by the Federal Communications Commission tooperate on three different frequencies, allowing it to reach most of MendocinoCounty.  It also receives a large grantfrom the Corporation for Public Broadcasting. Thus it is subject to three sets of laws/regulations, along with its ownbylaws. TheCalifornia Corporations Code describes in detail the rights of Members, therights and responsibilities of Directors, and the responsibilities of theorganization to the Community.  MCPB/KZYX, its Directors, and its Staff mustfollow these laws or risk having its nonprofit corporate status, and itslicense to broadcast, revoked. “Section5210: Each corporation shall have a board of directors. Subject to theprovisions of this part and any limitations in the articles or bylaws relatingto action required to be approved by the Members (Section 5034), or by amajority of all Members (Section 5033), the activities and affairs of acorporation shall be conducted and all corporate powers shall be exercised byor under the direction of the board. The board may delegate the management ofthe activities of the corporation to any person or persons, management company,or committee however composed, provided that the activities and affairs of thecorporation shall be managed and all corporate powers shall be exercised underthe ultimate direction of the board.” It isproper under this section to delegate the management of activities to a generalmanager, but a board cannot abdicate its responsibility to set policy, maintainproper oversight, and interact with the organization’s members.  Even the largest corporations must do that;the holder of a single share can question Warren Buffet at the annual meetingof Berkshire Hathaway.  It is not impossibleor even impractical for the board of a nonprofit with significantly fewerstakeholders to answer questions about the policies and operations of thecorporation.  The current Board’s policyof not responding has added to the perception that there is no transparency oraccountability and has increased frustration and tension within the Membershipand listening Community. TheBoard and General Manager have also withheld information that has been properlyrequested by a Member and a Director. But the Corporations Code requires such transparency: “Section6333.  The accounting books and recordsand minutes of proceedings of the members and the board and committees of theboard shall be open to inspection upon the written demand on the corporation ofany member at any reasonable time, for a purpose reasonably related to suchperson's interests as a member.” “Section6334. Every director shall have the absolute right at any reasonable time toinspect and copy all books, records and documents of every kind and to inspectthe physical properties of the corporation of which such person is a director.” Theright of a Member to inspect records is further guaranteed by the Bylaws: “Section11.06 Member Inspection Rights: Members shall have the right at all reasonabletimes to inspect all of MCPB’s records which are or should be maintained at theprincipal office except personnel records and other items that would violatethe privacy of a specific individual or are otherwise protected under Federalor California law.” Theright of inspection also includes the right to copy. When awritten request was made by a Member for all of the policies of MCPB/KZYX, onlythe policies of the Board were released, not those of the Station, includingthe Station Manual which was specifically requested.  The refusal to release records when access isguaranteed by both the Code and the Bylaws is not just a violation of thelaw.  It defeats transparency andaccountability, destroys faith in the board and management, and threatens thevery existence of the organization and its license to operate a radio station. MCPB/KZYXis also a grantee of the Corporation for Public Broadcasting.  The CPB requires a Community Advisory Boardas a condition of funding.  Here are theminimum requirements: “A.Each station that is not owned by a State, a political or special purposesubdivision of a State, or a public agency must do the following -- 1.establish a community advisory board that is independent of the community    licensee's governing body;2.undertake good-faith efforts to assure that --    a.its advisory board meets at regular intervals;    b.the members of the board regularly attend the meetings of the advisory board;    c.the composition of the community advisory board is reasonably representative of        the diverse needs and interests of thecommunities served by the station. B. Inaddition, each licensee required to have a community advisory board must alsopermit the community advisory board to perform the following activities: 1.establish and follow its own schedule and agenda, within the scope of thecommunity    advisory board's statutory or delegatedauthority;2.review the programming goals established by station;3.review the community service provided by the stations;4.review the impact on the community of the significant policy decisions renderedby    the station; and5.advise the governing board of the station whether the programming and other    significant policies of the station aremeeting the specialized educational and cultural    needs of the communities served by thestation. The advisory board may make    recommendations to the governing board tomeet those specialized needs.” “Thestation may exercise a reasonable degree of discretion in selecting advisoryboard members. The board should be reasonably representative of the diverseneeds and interests of the communities served by the station. . . . Thecomposition of the community advisory board must reflect its independent role,and may not include members of the station staff or governing body in anythingother than an ex officio or administrative capacity.” Thefull regulations are available at http://www.cpb.org/stations/certification/cert3.html. For MCPB/KZYXto have a legitimate Community Advisory Board, it will need to add or replacemembers to ensure both independence from the board and representation of thediversity of the Community.  It shouldalso require the CAB to meet “at regular intervals” that are more than oneprivate meeting per year.  Otherwise itwill appear to be nothing more than a rubber stamp for the Board and Management. The CABitself needs to expand its outreach to make sure that it does, indeed, reflectthe Community it represents.  Properlynoticed public meetings are a minimum. These could be run as caucuses or general assemblies using the Occupymodel.  Although this may seemintimidating at first to those who have not experienced it, the model allowsthe maximum of public expression while still maintaining order.  During this process, the CAB must review theStation’s programming goals, community service, and the impact of significantpolicy decisions, as required by the CPB. It must then advise the Board of Directors if the Station is meeting theeducational and cultural needs of the local Community. As theholder of a broadcast license issued by the FCC, MCPB/KZYX is a steward of theairwaves and thus subject to regulation. If the station is large enough, with at least five full-time employees,then it must abide by the employment policies of the Equal EmploymentOpportunity Act, including adequate outreach when filling positions.  The recent complaint filed with the FCCalleges that the organization has failed on that point.  However, by eliminating the full-time NewsDirector position, the General Manager reduced the number of full-timeemployees to four and effectively removed all of the employment protectionsprovided by federal law.  This, again, isa policy decision that should have been made by the Board of Directors.  The effect of the decision has been toincrease the power of the General Manager to make personnel decisions withoutrestriction or oversight, which has increased the perception that the GeneralManager and Management are unresponsive to the Community. ProposedChanges (Board Actions, Possible Bylaw Amendments) A. MembershipRights 1.Allow any Member to inspect and copy any and all records of MCPB/KZYX, otherthan confidential personnel records. 2. Senda written notice of the annual Membership meeting to all Members (likely withballots in order to save postage while meeting time requirements). 3.Allow Members to put a Bylaw amendment on the annual ballot if they obtain thesignatures of at least five percent (5%) of the Membership on a petition insupport of the proposed amendment. 4.Respond to all Member questions at the Membership meeting and all Board ofDirectors meetings, as time allows. 5. Postonline any sound/video recordings of any Membership or Board meeting. B.Programmers Rights 1. NoProgrammer shall be disciplined for expressing an opinion concerning MCPB/KZYX,its policies, and/or its operations. 2.There shall be no restrictions on communications between and among theDirectors, the Management, and the Staff, except for confidential personnelmatters. 3. Anydisciplinary action taken by Management can be appealed to the Board ofDirectors. C. DirectorsRights and Responsibilities 1. Rescindthe recent policy change which restricts the oversight rights andresponsibilities of Directors, individually and collectively. 2.Guarantee every Director absolute and total access to all records of the organization. 3.Guarantee freedom of communication between Directors and Staff. D. CommunityAdvisory Board 1. Reconstitute/expandto guarantee independence and reflect the diversity of the community. 2. Holdregular public meetings. 3.Facilitate maximum public participation. 4. Usesurveys that measure the favorability of each specific proposal. E.Staffing 1.Return all hiring/firing authority to the Board of Directors. 2.Restore full-time News Director position. 3.Abide by applicable EEOC employment regulations. 4.Require General Manager, Program Director, News Director, and Station Engineerto attend Director/Member meetings and respond to questions as time allows. Theoretically,all of these changes can be made by the Board of Directors.  But some of them are so essential to theoperation of the organization that the Members may wish to make them part ofthe bylaws, which would control future boards. Conclusion “MCPBis a membership-based organization dedicated to serving the entire community ofMendocino County and contiguous counties. The primary purpose of MCPB is toengage in providing high-quality, independent, community and public radio andother media products and services.” This isthe Statement of Purpose and Governing Principles written in the originalBylaws some 25 years ago.  It stillapplies today, perhaps more than ever. If the Directors and Members of MCPB/KZYX hope to fulfill this mission,they must take a close look at their current policies and procedures.  Rather than being transparent andaccountable, as envisioned by both the founders and the law, the organizationhas become closed and reactionary, doing whatever is necessary to supportdecisions made by only a few, or by one, that are perceived in the community asbeing arbitrary and capricious. Amembership nonprofit that operates a community radio station with taxpayermoney must be open and accessible. Otherwise, it will defeat the efforts of generations that have sought tomake the airwaves a resource for the people. And it will fail.  Only by makingessential changes can MCPB/KZYX achieve its best destiny, to be a shining cityon the hill for a county, and a nation, that so desperately need one. DennisO’BrienNovember2014
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