[Kzyxtalk] KZYX&Z Election Complaint

[sako4 at comcast.net]

Dennis, 

This complaint is so nicely done. I hope Doug is considering filing a FCC/CPB complaint, or lawsuit, of his own. 

I hope and pray that in the months ahead, we keep in mind that we are guerrillas. We are the Vietcong. The Vietcong never won a battle, but they won the war. Why? because their enemy -- first the French, then the U.S. -- was big, slow, and stupid, and fighting an illegal, immoral war. The Vietcong were fighting for their homeland. Their homes. They were fighting for the people. Their children. 

And we are in it for the long haul. We are patient, wise, strong. 

It's paradigm holds here at KZYX. We are public radio. Not management's private fiefdom. 

Management is destroying KZYX. We are fighting to save KZYX. 

Power to the People! 

John Sakowicz 
MCPB Board of Directors (2013-2016), Board Treasurer (2014) 
Host and producer, "All About Money" 


----- Original Message -----

From: "Dennis OBrien" <dennisobrien at sharejerusalem.com> 
To: "kzyxtalk" <kzyxtalk at lists.mcn.org> 
Cc: "Bruce Anderson" <ava at pacific.net>, "K.C. Meadows" <udjkcm at ukiahdj.com>, "Willits News" <editorial at willitsnews.com>, "Ft. Bragg Advocate-News" <advocatenews at mcn.org> 
Sent: Wednesday, April 15, 2015 2:21:07 PM 
Subject: KZYX&Z Election Complaint 

"Public radio will never achieve its potential so long as policies and procedures are in place that suppress public participation 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 



1201 Parducci Road 
Ukiah, CA 95482 
Peter H Doyle 
Chief, Audio Division April 15, 2015 
Media Bureau 
Federal Communications Commission 
Washington, D.C. 20554 
The Honorable Patricia de Stacy Harrison 
President and Chief Executive Officer 
Corporation for Public Broadcasting 
401 Ninth Street, NW 
Washington, DC 20004-2129 
Re: Complaint Against Mendocino County Public Broadcasting 
(KZYX 90.7FM Philo, CA; KZYZ 91.5FM Willits & Ukiah, CA; 88.1FM Fort Bragg, CA) 
Dear Sir/Madam: 
My name is Dennis O'Brien. I am a member of Mendocino County Public Broadcasting, aka KZYX&Z, a membership nonprofit corporation that holds the three full-power FM radio licenses referenced above. I am also a losing candidate in the recent election for its board of directors. This complaint concerns the conduct of that election and the improper use of station resources by the general manager to campaign against me, all of which was sanctioned by the sitting board of directors. There is also an addendum concerning the failed role of the Community Advisory Board. 
Conduct of the Election 
There are four areas of concern re the conduct of the election: the maintenance of membership rolls, the suppression of the voting membership, suppression of member communication, and the failure to provide ballots to all eligible memberships. 
Maintenance of Membership Rolls 
I renewed my membership on November 30, 2014. In January I received a letter dated January 12, 2015, from Mr. John Coate, who uses the title "General Manager/Executive Director”, asking me to renew my membership. For me to get this letter means that there is a failure to properly maintain the membership rolls. Since the deadline for becoming a member and being eligible to vote in the election was December 31, 2014, the membership rolls should have been fully updated. Failure to properly maintain the membership rolls invalidates any election that relies on them. 
Suppression of the Voting Membership 
Although the deadline of becoming a member is December 31 of each year, the membership list is not certified and sent to the vendor for mailing ballots until February 28, a full two months later. There is no need to exclude from voting those people who became members in January and February. Yet this is precisely when interest in the election is at its highest. Candidates must submit their applications and statements by January 31. Members and the general public become aware of who is running and what the issues are. But it is too late to join or renew and be eligible to vote. Conversely, prior to December 31, everyone is involved in holiday activities with family and friends, with little or no attention paid to the election. 
MCPB/KZYX&Z should be required to stop suppressing participation in the voting process by allowing anyone who joins/renews by the date of certification of the rolls (i.e., the last day of February) to be eligible to vote in that year's election. Any earlier date is arbitrary and capricious and serves only one purpose, to suppress participation and voting by the membership and the listening public. 
The timing of the direct mail renewal notice (mid-January) is further evidence of a deliberate intent to reduce the number of eligible voters. As is concealing the simple-living membership level of $25 per year. An entire class of potential members is disenfranchised by management's refusal to put this information in their outreach letter or on the website. 
Suppression of Member Communication 
The California Corporations Code requires a membership nonprofit corporation to provide access to its membership mailing list to any member for purposes related to the corporation, e.g., discussing candidates and issues in an upcoming election (California Corporations Code Section 6330). The corporation is permitted provide a reasonable alternative. I and others requested such access. However, the only alternative that we were provided was an expensive procedure involving a direct mailing using their vendor, at a cost exceeding $1800. 
There is a far less expensive alternative available: the email list of current members. We believe that such a list exists, as member emails have been solicited for years in direct mailings. Also, anyone joining/renewing online must provide their email list as a mandatory field. Management has not used the list yet, but has spoken of doing so this summer with an online e-newsletter. 
Although there are real concerns about letting any member use the list at any time, use of the list to alert members to alternative viewpoints during an election is the best alternative available to the type of communication required 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 not receive mine, and I heard from several others who had not received theirs. The election coordinator allowed me to sign an affidavit and receive a substitute ballot, but the procedure was cumbersome and did not work for all. In addition, there is no way to track who sent in their ballot, as there is not return address on the return envelopes. Using a separate smaller envelope to hold the actual ballot inside the return envelope would allow such tracking and confirm proper voting, but management will not adopt that procedure. At this time there is simply no way to track who has voted, or if someone has voted twice. 
By failing to maintain the membership rolls, suppressing of the voting membership, suppressing member communications, and failing to provide ballots to all eligible memberships, the current board and management have raised doubts about the legitimacy of the organization's elections. These policies and procedures must be changed in order to restore the confidence of the members, the public, and those who regulate public radio. 
Use of Station Resources by Management to Influence Election 
On January 14, 2015, I received an email from a current programmer at KZYX&Z. The programmer forwarded an excerpt from an email that the General Manager had recently sent to the in-house programmers email list: 
"... or Dennis O'Brien who now wants to be on the KZYX Board while being the treasurer of KMEC who has tried to badger us into paying KMEC for years so we would run our studio there. I have given him plenty of reasons why we don't want to do this, all of which are good enough reasons on their own, but nothing has deterred him from demonizing me for not getting with his suggestion that we help them pay their rent 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 about 20% of the total votes cast in the election. In response, I submitted a confidential personnel complaint about the general manager's actions and asked the board to direct him to stop using the station's resources to campaign for or against any candidate. 
In its response, the Board stated that the programmer list is not the property 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 main page as part of his ongoing blog: 
"KZYX Board Policy on the GM Participating in Board Elections 
John Coate 
Posted 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 my opinion 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 a comment about a candidate’s run for the Board. This led to a complaint that John 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 our policy for resolving complaints about Board elections, to arrive at the policy stated below. 
The Election Coordinator, Stuart Campbell, spoke with all Board members and received their feedback. It is the Board's view that John has a First Amendment right to speak on such issues. His written job description that was attached to his 2008 Employment Agreement with MCPB requires him to “support the Board in its ongoing governance work, including recruitment, orientation, training, and evaluation activities.” Regarding the overall concept of paid staff being involved in Board development and recruitment, it is common practice in both other non-profits and public radio stations. Our outreach to others in community radio confirmed this. Accordingly, including this duty in his job description was in line with accepted practice. 
John’s duty to help recruit Board members includes his right to express his views on which candidates will best serve the interests of KZYX. As for the content of what John said on the listserve regarding the particular candidate who filed the complaint, the Board thinks it was well within the boundaries of normal political speech, which enjoys broad First Amendment protection. 
Further, John’s commenting on the programmer listserv is not a misuse of station resources. Staff and programmers who are signed up for the programmer listserv by virtue of their status as programmers have an absolute right to express their point of view in that forum; KZYX does not screen or censor the content. On the other hand, no employee or Board member may use the website, air waves, or MCPB public meetings for campaign purposes; John did not do that. 
For all of these reasons, the Board decided that there would be no personnel action taken against John Coate for expressing his views on Board candidates. 
At the Board meeting on February 2, 2015 in Ft. Bragg, Stuart Campbell reported the above. It will be reflected in the Minutes of the Board meeting. It will 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 excuse for treetop propaganda. Although I support everyone's free speech rights, a general manager's use of an in-house email system that is owned by the organization to campaign against a declared candidate for a board seat delegitimizes any election and reinforces the public perception that the organization is run by a small group that is unresponsive to the membership and the public. If the general manager wishes to express himself, there are plenty of truly public forums to available, including a discussion list established by a former county supervisor (see KZYXTalk at 
http://lists.mcn.org/mailman/listinfo/kzyxtalk ). 
KZYX&Z's website and email systems are paid for from funds that include the grant from the Corporation for Public Broadcasting. It is improper to use such resources to influence an election for the board of directors. And it is improper for the board of directors to sanction such use, effectively taking sides in an ongoing campaign while institutionalizing an unfair advantage for those who support the general manager. All programmers hold their positions at the pleasure of the general manager, and several have been dismissed for disagreeing with him. For him to use the station's resources to tell such a large block of voters how to vote is so serious a violation that delegitimizes any election and discourages the public's participation in public radio. 
I do not know the extent of the remedial powers available to the Federal Communications Commission and the Corporation for Public Broadcasting. But I request that you instruct MCPB/KZYX&Z to change its policies and procedures immediately so that 1) membership rolls are properly maintained; 2) all eligible members receive ballots, which can be tracked; 3) voting is not suppressed by an arbitrary registration deadline that is 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 station resources to influence a board election. 
Thank you very much for considering this complaint and request. Public radio will never achieve its potential so long as policies and procedures are in place that suppress public participation while sanctioning improper influence. 
Sincerely, 
Dennis O'Brien 
Addendum to Complaint: MCPB/KZYX&Z has also failed to meet the minimum requirements for a Community Advisory Board, a requirement for funding by the Corporation for Public Broadcasting. One of the members of the current CAB has the same residence address as the current chair of the board of directors, thus failing to meet the requirements for independence and geographical diversity. In addition, the CAB has had only one public “meeting” the past two years, 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 consisted of presenting a report that the CAB had already prepared for the board of directors. That report was submitted to the directors without any of the changes or additions requested by the participants. 
In spite of these limitations, the report acknowledged that there was a public perception that the board and management/staff were disengaged from the members and public, and recommended a monthly “News of the Station” program where the board and management/staff would be available to answer questions. After just one show, even that proposal has been ignored. Without an effective Community Advisory Board, there is no public oversight of the improper activity detailed in the main complaint. 

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