[Kzyxtalk] Legal/Policy Analysis of KZYX

[Joel Waldman]

I think you are repeatedly hitting the nail on the head; sorry getting  
too dark to continue rt now.

I got thug life pix of Gaza and Campo Muslim to share w/chat.

Later,

J


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
>
> _______________________________________________
> Kzyxtalk mailing list
> Kzyxtalk at lists.mcn.org
> http://lists.mcn.org/mailman/listinfo/kzyxtalk

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