[Kzyxtalk] Legal/Policy Analysis of KZYX

Sun Nov 9 10:13:39 PST 2014

 . . . 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
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