[Kzyxtalk] Help posting Legal/Policy Analysis of KZYX

[King Collins]

Hi Denny,

Sorry you are having problems posting to KZYXtalk.

The email address is below, and I think that will work only if your are signed up, but it sounds like you did that OK. Norm can check to see if you are a member. 

Post messages to
kzyxtalk at lists.mcn.org

also if that does not work email or call Norm at
Norman de Vall <ndevall at mcn.org>

You could also ask Norm to forward your message for you. 

Hope this helps,

--king

* * * *

On Nov 9, 2014, at 1:33 PM, Dennis OBrien wrote:

> I tried to post to KZYXtalk but it apparently didn't work.  What email address should I use?
> 
> Thanks for all your help.
> 
> From: King Collins <king at greenmac.com>
> To: Dennis OBrien <dennisobrien at sharejerusalem.com> 
> Sent: Sunday, November 9, 2014 12:45 PM
> Subject: Re: Legal/Policy Analysis of KZYX
> 
> Hi Denny, 
> Great job compiling and thinking this through. I'm so glad there is a place to discuss this, other than the quarterly board meeting when there is never time. This is so much better. To put your thoughts out and vetting them in public. As politics should be done.  
> 
> Did  you intend to post this to KZYXtalk? I got copies mailed to me and to Parents4Peace but do not see it yet on the KZYXtalk list. It should appear in the archives which are accessible from the sign-up page. 
> http://lists.mcn.org/mailman/listinfo/kzyxtalk
> 
> --king
> 
> 
> 
> 
> On Nov 9, 2014, at 10:13 AM, Dennis OBrien wrote:
> 
>>  . . . is attached and below.  Comments welcome.
>> 
>> 
>> The following is a legal/policy analysis of the current situation at Mendocino County 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
>>  
>> In March 2006, the Board of Directors of MCPB/KZYX adopted a change to the Board Policies and Procedures Manual, transferring the authority to make all hiring and firing decisions to the General Manager.  From then on, the Board of Directors would only hire/fire the General Manager.
>>  
>> “Section 11.3: The General Manager is responsible for the hiring, firing, and evaluation of all Staff positions.”
>>  
>> In 2009, the current General Manager used that authority to fire the News Director.  Correction: as the General Manager explained at the time, he did not fire the News Director; he eliminated the position entirely for financial reasons.  He also cut the most popular NPR shows from the Station’s programming, including Prairie Home Companion, This American Life, Car Talk, Piano Jazz, and the BBC.  The Community was stunned, as all of these decisions had been made unilaterally, without public discussion or consultation.
>>  
>> It appears that the General Manager exceeded his authority by making a policy decision to eliminate the full-time News Director position, a service valued by the Community, rather than merely an administrator’s decision on hiring and firing.  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 stated explicitly that it supports this model of governance, and now forbids any individual Director from overseeing the work that is being done by the General Manager or any other Staff, even though such oversight is each director’s responsibility.
>>  
>> This policy change means that the Program Director and the rest of the Staff are now insulated from any oversight by the Board of Directors, and are thereby one more step removed from the Members and the Community.  Prior to the change, Members could go to Board meetings and discuss programming and other issues with the board.  Now, the Board still allows public expression, but no longer responds to questions and comments, and has declared it will not intervene in Management/Staff decisions.  Even written requests for information from a Member and a Director have been ignored or given incomplete response.
>>  
>> In response to public outcry at such lack of transparency and accountability, the Board of Directors reconstituted the Community Advisory Board, which is required by the Corporation for Public Broadcasting, the largest funder of the station.  However, the CAB has failed to hold any public meetings, opting instead for a telephone conference during their one private meeting.  Many Members signed up but 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 was doing just fine and that no changes were needed beyond “News of the Station” reports.  The CAB relied on a survey that was distributed to some (but not all) Members during the latest election balloting.  The methodology of the survey was flawed, e.g., a respondent had to state that they thought something was wrong with the station before being allowed to prioritize what changes they wanted.  In spite of these limitations, local news received the plurality of votes for most-needed change, followed by station operations and talk shows:
>>  
>> 10% (Music programming)
>> 20% (Talk show programming)
>> 36% (Local news)
>> 12% (National and international news)
>> 22% (Station operations)
>>  
>> The full report and survey are available at http://kzyx.org/index.php/about-us/station-business/community-advisory-board.
>>  
>> The diversity of the membership of the CAB itself, required by the CPB, has also been questioned, as one of the members has the same address as one of the directors.  In spite of these shortcomings, the CAB felt it was necessary to sound the following alarm:
>>  
>> “The CAB is very concerned about the perception, within the listening community, of a lack of transparency into operations, internal decisions, and governance of our station. This has generated a barrage of criticism, outright attacks, and negative comparisons with other media.”
>>  
>> Alas, its sole recommendation was to air short “News of the Station” segments.  Though such an effort would no doubt be helpful, 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 to broaden the decision-making process, but is now inactive.  Requests for the PAC Policy have been ignored, so no analysis is possible at this time.]
>>  
>> Meanwhile, those programmers who have questioned the current policies have lost their shows 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 in and asserts that its role is to support and protect the General Manager and Management.  An impasse has arisen that has led to sharply divided elections whose legitimacy is questioned, public name-calling in the local media, and legal challenges to the station’s license renewal.
>>  
>> Applicable Laws, Regulations, and Bylaws
>>  
>> Mendocino County Public Broadcasting is a nonprofit membership corporation chartered under the laws of the State of California.  It holds a license issued by the Federal Communications Commission to operate on three different frequencies, allowing it to reach most of Mendocino County.  It also receives a large grant from the Corporation for Public Broadcasting.  Thus it is subject to three sets of laws/regulations, along with its own bylaws.
>>  
>> The California Corporations Code describes in detail the rights of Members, the rights and responsibilities of Directors, and the responsibilities of the organization to the Community.  MCPB/KZYX, its Directors, and its Staff must follow these laws or risk having its nonprofit corporate status, and its license to broadcast, revoked.
>>  
>> “Section 5210: Each corporation shall have a board of directors. Subject to the provisions of this part and any limitations in the articles or bylaws relating to action required to be approved by the Members (Section 5034), or by a majority of all Members (Section 5033), the activities and affairs of a corporation shall be conducted and all corporate powers shall be exercised by or under the direction of the board. The board may delegate the management of the activities of the corporation to any person or persons, management company, or committee however composed, provided that the activities and affairs of the corporation shall be managed and all corporate powers shall be exercised under the ultimate direction of the board.”
>>  
>> It is proper under this section to delegate the management of activities to a general manager, but a board cannot abdicate its responsibility to set policy, maintain proper 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 meeting of Berkshire Hathaway.  It is not impossible or even impractical for the board of a nonprofit with significantly fewer stakeholders to answer questions about the policies and operations of the corporation.  The current Board’s policy of not responding has added to the perception that there is no transparency or accountability and has increased frustration and tension within the Membership and listening Community.
>>  
>> The Board and General Manager have also withheld information that has been properly requested by a Member and a Director.  But the Corporations Code requires such transparency:
>>  
>> “Section 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.”
>>  
>> “Section 6334. Every director shall have the absolute right at any reasonable time to inspect and copy all books, records and documents of every kind and to inspect the physical properties of the corporation of which such person is a director.”
>>  
>> The right of a Member to inspect records is further guaranteed by the Bylaws:
>>  
>> “Section 11.06 Member Inspection Rights: 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.”
>>  
>> The right of inspection also includes the right to copy.
>>  
>> When a written request was made by a Member for all of the policies of MCPB/KZYX, only the policies of the Board were released, not those of the Station, including the Station Manual which was specifically requested.  The refusal to release records when access is guaranteed by both the Code and the Bylaws is not just a violation of the law.  It defeats transparency and accountability, destroys faith in the board and management, and threatens the very existence of the organization and its license to operate a radio station.
>>  
>> MCPB/KZYX is also a grantee of the Corporation for Public Broadcasting.  The CPB requires a Community Advisory Board as a condition of funding.  Here are the minimum requirements:
>>  
>> “A. Each station that is not owned by a State, a political or special purpose subdivision 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 the communities served by the station.
>>  
>> B. In addition, each licensee required to have a community advisory board must also permit the community advisory board to perform the following activities:
>>  
>> 1. establish and follow its own schedule and agenda, within the scope of the community
>>     advisory board's statutory or delegated authority;
>> 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 rendered by
>>     the station; and
>> 5. advise the governing board of the station whether the programming and other
>>     significant policies of the station are meeting the specialized educational and cultural
>>     needs of the communities served by the station. The advisory board may make
>>     recommendations to the governing board to meet those specialized needs.”
>>  
>> “The station may exercise a reasonable degree of discretion in selecting advisory board members. The board should be reasonably representative of the diverse needs and interests of the communities served by the station. . . . The composition of the community advisory board must reflect its independent role, and may not include members of the station staff or governing body in anything other than an ex officio or administrative capacity.”
>>  
>> The full regulations are available at http://www.cpb.org/stations/certification/cert3.html.
>>  
>> For MCPB/KZYX to have a legitimate Community Advisory Board, it will need to add or replace members to ensure both independence from the board and representation of the diversity of the Community.  It should also require the CAB to meet “at regular intervals” that are more than one private meeting per year.  Otherwise it will appear to be nothing more than a rubber stamp for the Board and Management.
>>  
>> The CAB itself needs to expand its outreach to make sure that it does, indeed, reflect the Community it represents.  Properly noticed public meetings are a minimum.  These could be run as caucuses or general assemblies using the Occupy model.  Although this may seem intimidating at first to those who have not experienced it, the model allows the maximum of public expression while still maintaining order.  During this process, the CAB must review the Station’s programming goals, community service, and the impact of significant policy decisions, as required by the CPB.  It must then advise the Board of Directors if the Station is meeting the educational and cultural needs of the local Community.
>>  
>> As the holder of a broadcast license issued by the FCC, MCPB/KZYX is a steward of the airwaves 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 Employment Opportunity Act, including adequate outreach when filling positions.  The recent complaint filed with the FCC alleges that the organization has failed on that point.  However, by eliminating the full-time News Director position, the General Manager reduced the number of full-time employees to four and effectively removed all of the employment protections provided by federal law.  This, again, is a policy decision that should have been made by the Board of Directors.  The effect of the decision has been to increase the power of the General Manager to make personnel decisions without restriction or oversight, which has increased the perception that the General Manager and Management are unresponsive to the Community.
>>  
>> Proposed Changes (Board Actions, Possible Bylaw Amendments)
>>  
>> A. Membership Rights
>>  
>> 1. Allow any Member to inspect and copy any and all records of MCPB/KZYX, other than confidential personnel records.
>>  
>> 2. Send a written notice of the annual Membership meeting to all Members (likely with ballots in order to save postage while meeting time requirements).
>>  
>> 3. Allow Members to put a Bylaw amendment on the annual ballot if they obtain the signatures of at least five percent (5%) of the Membership on a petition in support of the proposed amendment.
>>  
>> 4. Respond to all Member questions at the Membership meeting and all Board of Directors meetings, as time allows.
>>  
>> 5. Post online any sound/video recordings of any Membership or Board meeting.
>>  
>> B. Programmers Rights
>>  
>> 1. No Programmer 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 the Directors, the Management, and the Staff, except for confidential personnel matters.
>>  
>> 3. Any disciplinary action taken by Management can be appealed to the Board of Directors.
>>  
>> C. Directors Rights and Responsibilities
>>  
>> 1. Rescind the recent policy change which restricts the oversight rights and responsibilities 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. Community Advisory Board
>>  
>> 1. Reconstitute/expand to guarantee independence and reflect the diversity of the community.
>>  
>> 2. Hold regular public meetings.
>>  
>> 3. Facilitate maximum public participation.
>>  
>> 4. Use surveys 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 Engineer to 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 the operation of the organization that the Members may wish to make them part of the bylaws, which would control future boards.
>>  
>> Conclusion
>>  
>> “MCPB is a membership-based organization dedicated to serving the entire community of Mendocino County and contiguous counties. The primary purpose of MCPB is to engage in providing high-quality, independent, community and public radio and other media products and services.”
>>  
>> This is the Statement of Purpose and Governing Principles written in the original Bylaws some 25 years ago.  It still applies 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 and accountable, as envisioned by both the founders and the law, the organization has become closed and reactionary, doing whatever is necessary to support decisions made by only a few, or by one, that are perceived in the community as being arbitrary and capricious.
>>  
>> A membership nonprofit that operates a community radio station with taxpayer money must be open and accessible.  Otherwise, it will defeat the efforts of generations that have sought to make the airwaves a resource for the people.  And it will fail.  Only by making essential changes can MCPB/KZYX achieve its best destiny, to be a shining city on the hill for a county, and a nation, that so desperately need one.
>>  
>> Dennis O’Brien
>> November 2014
>> 
>> <Legal-Policy Analysis.doc>
> 
> 
> 

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