[Kzyxtalk] KZYX&Z Election Complaint

[Dennis OBrien]

"Public radio will never achieve its potentialso long as policies and procedures are in place that suppress publicparticipation while sanctioning improper influence."
I had hoped to resolve these issues locally.  But when the board ignores them and instead sanctions the misuse of station resources to influence an election, I am compelled to submit them to those who license and fund the organization.  Submitted today electronically, hard-copy will be mailed this week.

Denny

                                                                                                1201Parducci Road                                                                                                Ukiah,CA 95482Peter H DoyleChief, Audio Division                                                                   April15, 2015Media BureauFederal Communications CommissionWashington, D.C. 20554 The Honorable Patricia de Stacy HarrisonPresident and Chief Executive OfficerCorporation for PublicBroadcasting 401 Ninth Street, NW Washington, DC 20004-2129 Re:  Complaint Against Mendocino County PublicBroadcasting(KZYX90.7FM Philo, CA; KZYZ 91.5FM Willits & Ukiah, CA; 88.1FM Fort Bragg, CA) DearSir/Madam: My name is Dennis O'Brien.  I am amember of Mendocino County Public Broadcasting, aka KZYX&Z, a membership nonprofitcorporation that holds the three full-power FM radio licenses referencedabove.  I am also a losing candidate inthe recent election for its board of directors. This complaint concerns the conduct of that election and the improperuse of station resources by the general manager to campaign against me, all ofwhich was sanctioned by the sitting board of directors.  There is also an addendum concerning the failedrole of the Community Advisory Board. Conduct of the Election There are four areas of concern re the conduct of the election: themaintenance of membership rolls, the suppression of the voting membership,suppression of member communication, and the failure to provide ballots to alleligible memberships.  Maintenance of Membership Rolls I renewed my membership on November 30, 2014.  In January I received a letter dated January12, 2015, from Mr. John Coate, who uses the title "GeneralManager/Executive Director”, asking me to renew my membership.  For me to get this letter means that there isa failure to properly maintain the membership rolls.  Since the deadline for becoming a member andbeing eligible to vote in the election was December 31, 2014, the membershiprolls should have been fully updated. Failure to properly maintain the membership rolls invalidates anyelection that relies on them. Suppression of the Voting Membership Although the deadline of becoming a member is December 31 of each year, themembership list is not certified and sent to the vendor for mailing ballotsuntil February 28, a full two months later. There is no need to exclude from voting those people who became membersin January and February.  Yet this isprecisely when interest in the election is at its highest.  Candidates must submit their applications andstatements by January 31.  Members andthe general public become aware of who is running and what the issues are.  But it is too late to join or renew and beeligible to vote.  Conversely, prior toDecember 31, everyone is involved in holiday activities with family andfriends, with little or no attention paid to the election. MCPB/KZYX&Z should be required to stop suppressing participation in thevoting process by allowing anyone who joins/renews by the date of certificationof the rolls (i.e., the last day of February) to be eligible to vote in thatyear's election.  Any earlier date isarbitrary and capricious and serves only one purpose, to suppress participationand voting by the membership and the listening public. The timing of the direct mail renewal notice (mid-January) is furtherevidence of a deliberate intent to reduce the number of eligible voters.  As is concealing the simple-living membershiplevel of $25 per year.  An entire classof potential members is disenfranchised by management's refusal to put thisinformation in their outreach letter or on the website. Suppression of Member Communication The California Corporations Code requires a membership nonprofitcorporation to provide access to its membership mailing list to any member forpurposes related to the corporation, e.g., discussing candidates and issues inan upcoming election (California Corporations Code Section 6330).  The corporation is permitted provide areasonable alternative.  I and othersrequested such access.  However, the onlyalternative that we were provided was an expensive procedure involving a directmailing using their vendor, at a cost exceeding $1800. There is a far less expensive alternative available: the email list ofcurrent members.  We believe that such alist exists, as member emails have been solicited for years in direct mailings.  Also, anyone joining/renewing online mustprovide their email list as a mandatory field. Management has not used the list yet, but has spoken of doing so thissummer with an online e-newsletter. Although there are real concerns about letting any member use the list atany time, use of the list to alert members to alternative viewpoints during anelection is the best alternative available to the type of communicationrequired by state law. Failure to Provide Ballots to Eligible Members Even if members were sophisticated enough to join or renew by December 31,many did not receive ballots.  I did notreceive mine, and I heard from several others who had not received theirs.  The election coordinator allowed me to signan affidavit and receive a substitute ballot, but the procedure was cumbersomeand did not work for all.  In addition,there is no way to track who sent in their ballot, as there is not returnaddress on the return envelopes. Using a separate smaller envelope to hold theactual ballot inside the return envelope would allow such tracking and confirmproper voting, but management will not adopt that procedure.  At this time there is simply no way to trackwho has voted, or if someone has voted twice. By failing to maintain the membership rolls, suppressing of the votingmembership, suppressing member communications, and failing to provide ballotsto all eligible memberships, the current board and management have raiseddoubts about the legitimacy of the organization's elections.  These policies and procedures must be changedin order to restore the confidence of the members, the public, and those whoregulate public radio. Use of Station Resources by Management to InfluenceElection On January 14, 2015, I received an email from a current programmer at KZYX&Z.  The programmer forwarded an excerpt from anemail that the General Manager had recently sent to the in-house programmersemail list: "... or Dennis O'Brien who now wants to be on the KZYX Board whilebeing the treasurer of KMEC who has tried to badger us into paying KMEC foryears so we would run our studio there. I have given him plenty of reasons why we don't want to do this, all ofwhich are good enough reasons on their own, but nothing has deterred him fromdemonizing me for not getting with his suggestion that we help them pay theirrent to their landlord, John McCowen." The list was identified as [KZYX Prog]. I am told that the list reaches over 100 programmers and staff, or about20% of the total votes cast in the election. In response, I submitted a confidential personnel complaint about thegeneral manager's actions and asked the board to direct him to stop using thestation's resources to campaign for or against any candidate. In its response, the Board stated that the programmer list is not theproperty of KZYX but instead was a public forum.  The board chose to publicize its response(though not my original complaint) on the kzyx.org website.  The general manager even put it on the mainpage as part of his ongoing blog: "KZYX Board Policy on the GM Participating in Board ElectionsJohn CoatePosted by John Coate on Monday, 09 March 2015 in Station Business      In February the Board determined that as GM I have a right to express myopinion about MCPB Board elections. Follow this link to the page with the policy.  Or read it right here: February 27, 2015 In a posting to the programmer listserv made in January, John Coate made acomment about a candidate’s run for the Board. This led to a complaint thatJohn had demeaned the candidate, and had improperly used his position &station resources to influence an election. Because the complaint related to Board election issues, we followed ourpolicy for resolving complaints about Board elections, to arrive at the policystated below. The Election Coordinator, Stuart Campbell, spoke with all Board members andreceived their feedback. It is the Board's view that John has a First Amendmentright to speak on such issues.  Hiswritten job description that was attached to his 2008 Employment Agreement withMCPB requires him to “support the Board in its ongoing governance work,including recruitment, orientation, training, and evaluation activities.”   Regarding the overall concept of paid staffbeing involved in Board development and recruitment, it is common practice inboth other non-profits and public radio stations.  Our outreach to others in community radioconfirmed this.  Accordingly, includingthis duty in his job description was in line with accepted practice. John’s duty to help recruit Board members includes his right to express hisviews on which candidates will best serve the interests of KZYX.  As for the content of what John said on thelistserve regarding the particular candidate who filed the complaint, the Boardthinks it was well within the boundaries of normal political speech, whichenjoys broad First Amendment protection. Further, John’s commenting on the programmer listserv is not a misuse ofstation resources. Staff and programmers who are signed up for the programmerlistserv by virtue of their status as programmers have an absolute right toexpress their point of view in that forum; KZYX does  not screen or censor  the content. On the other hand, no employeeor Board member may use the website, air waves, or MCPB public meetings forcampaign purposes; John did not do that.  For all of these reasons, the Boarddecided that there would be no personnel action taken against John Coate forexpressing his views on Board candidates. At the Board meeting on February 2, 2015 in Ft. Bragg, Stuart Campbellreported the above.  It will be reflectedin the Minutes of the Board meeting.  Itwill also be posted on the KZYX website.” I respectfully disagree. "Recruitment, orientation, training, and evaluation activities"are at best confidential communications with the board, and cannot be an excusefor treetop propaganda.  Although Isupport everyone's free speech rights, a general manager's use of an in-houseemail system that is owned by the organization to campaign against a declaredcandidate for a board seat delegitimizes any election and reinforces the publicperception that the organization is run by a small group that is unresponsiveto the membership and the public.  If thegeneral manager wishes to express himself, there are plenty of truly publicforums to available, including a discussion list established by a former countysupervisor (see KZYXTalk athttp://lists.mcn.org/mailman/listinfo/kzyxtalk).    KZYX&Z's website and email systems are paid for from funds that includethe grant from the Corporation for Public Broadcasting.  It is improper to use such resources toinfluence an election for the board of directors.  And it is improper for the board of directorsto sanction such use, effectively taking sides in an ongoing campaign whileinstitutionalizing an unfair advantage for those who support the generalmanager.  All programmers hold theirpositions at the pleasure of the general manager, and several have beendismissed for disagreeing with him.  Forhim to use the station's resources to tell such a large block of voters how tovote is so serious a violation that delegitimizes any election and discouragesthe public's participation in public radio. I do not know the extent of the remedial powers available to the FederalCommunications Commission and the Corporation for Public Broadcasting.  But I request that you instruct MCPB/KZYX&Zto change its policies and procedures immediately so that 1) membership rollsare properly maintained; 2) all eligible members receive ballots, which can betracked; 3) voting is not suppressed by an arbitrary registration deadline thatis two months too early; 4) voting is not suppressed by concealing the "simple-living"membership option; and 5) board and staff are forbidden from using stationresources to influence a board election. Thank you very much for considering this complaint and request.  Public radio will never achieve its potentialso long as policies and procedures are in place that suppress publicparticipation while sanctioning improper influence. Sincerely, Dennis O'Brien Addendum to Complaint: MCPB/KZYX&Z has also failed to meet the minimumrequirements for a Community Advisory Board, a requirement for funding by the Corporationfor Public Broadcasting.  One of themembers of the current CAB has the same residence address as the current chairof the board of directors, thus failing to meet the requirements forindependence and geographical diversity. In addition, the CAB has had only one public “meeting” the past twoyears, a telephone conference call over a year ago.  Many people who registered for the call,including myself, were unable to participate. Those who were able to participate reported that the meeting consistedof presenting a report that the CAB had already prepared for the board ofdirectors.  That report was submitted tothe directors without any of the changes or additions requested by theparticipants. In spite of these limitations, the report acknowledged that there was apublic perception that the board and management/staff were disengaged from themembers and public, and recommended a monthly “News of the Station” program wherethe board and management/staff would be available to answer questions.  After just one show, even that proposal hasbeen ignored.  Without an effectiveCommunity Advisory Board, there is no public oversight of the improper activitydetailed in the main complaint.  
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