[Kzyxtalk] Unfinished Business

Sat Apr 16 15:21:48 PDT 2016

Too soon?

[draft] Petition for Writ of Mandate
on Behalf of the Members of Mendocino County Public Broadcasting, aka KZYX&Z

1. Petitioners are, and at all times relevant to this petition were, members of Mendocino County Public Broadcasting.

2. Mendocino County Public Broadcasting ("MCPB") is a membership nonprofit corporation organized under the laws of the State of California.  It's principal place of business is Philo, Mendocino County, California.  It currently holds a broadcast license from the Federal Communications Commission for three frequencies: KZYX (89.7FM Philo), KZYZ (91.5FM Ukiah), and XX.XFM Fort Bragg.  All three frequencies simulcast the same broadcast.

I. DENIAL OF MEMBER VOTING RIGHTS

3. The directors of a membership nonprofit corporation are elected by the members. (Cite Code, Bylaws).  There is only one class of members at MCPB (cite Bylaw).  But under a bylaw amendment that was adopted only by the Board of Directors, not the Members, one of the directors is now elected solely by the Programmers.  This procedure denies the Members of MCPB the right to choose their own directors.  Any diminution of the rights of Members can only be approved by the Members themselves, not the Boardof Directors.  (Cite Code, Bylaws)

4. The recently elected Programmer-Director received 37 votes out of 61 cast.  The balloting for non-programmer Directors was approximately 10 times greater.  Since the Programmer-Director was not elected in accordance with California law, this Court must void the result and order that the seat remain vacant until filled by a vote of the Members at the next election.

II. SUPPRESSION OF MEMBER COMMUNICATION

5. The California Corporations Code requires a corporation to make member contact information available to Members or to provide a reasonable alternative for those who wish to communicate with each other about matters relevant to the corporation and its operations (cite Code).  For two years, Members have attempted to access the membership rolls to obtain this information.  MCPB has denied access to the rolls, and the only alternative it has offered (a direct mailing to the membership list costing over $2,000) is too expensive and thus unreasonable.

6. Other alternatives exist for facilitating member communication, including:
	- Activation of the membership email list;
	- Announcement of a Member-maintained interactive internet forum;
	- Adoption of procedures for placing Member-proposed bylaw amendments on ballot;
	- 

7. In accordance with the California Code, this Court must order MCPB either to release all membership contact information to the requesting Members or to institute the above reasonable alternatives to insure adequate communication among the Members.

III. REFUSAL TO APPOINT MEMBERS TO PROGRAM ADVISORY COMMITTEE

8. The Board of Directors is the ultimate decision-making authority for MCPB.  It can delegate authority, but no one, not even the president of the board, can ignore the decisions made by the board of directors under the authority granted to it under California law.  (Cite Code)

9. In 200x, after lengthy discussion and input from the Members and the community, the Board of Directors adopted a Programming Policy that included the creation of a Program Advisory Committee.  See Exhibit A, KZYX&Z Programming Policy.  Members of MCPB are to be appointed to the Committee by the Board President and Management of MCPB/KZYX.

10. The Board of Directors and the Management have refused to implement the Programming Policy and have refused to name any Members to to the Program Advisory Committee.

11. The Board of Directors could choose to rescind the Programming Policy, eliminate the Program Advisory Committee, and then face the judgment of the voting Members at their next election.  They have instead chosen to leave the Policy and committee in place, but to make them nonfunctional by refusing to implement them.  This Court must order the Board of Directors and Management of MCPB/KZYX to fully implement the existing Programming Policy, including the appointment of Members to the Program Advisory Committee.

IV. SUPPRESSION OF MEMBER AND PROGRAMMER FREE SPEECH

12. In December (?) 2015, just before her retirement, the former Program Director for KZYX&Z announced the elimintion of the "Safe Harbor" for free speech at the station.  "Safe Harbor" is a period from 10:00pm to 6:00am when language that might otherwise be considered profane can be used, in accordance with Federal Communications Commission regulations.  Programmers will now lose their positions if they either use such language themselves or allow any caller, be they Members or the general public, to use such language.

13. Freedom of speech is a right guaranteed by both the Constitution of United States and the Constitution of the State of California.  Although the federal guarantee only applies to "state actors", the California guarantee also applies to private entities (cite Pruneyard etc.).

14. This change has a chilling effect on both Programmers and Members.  Allegations that Programmers have allowed profanity on their shows has been used to remove programmers whose shows encouraged dialogue with the Members and the community.  The Personnel Committee of the Board of Directors has affirmed these arbitrary attacks on free speech by refusing to hear appeals of the terminations.

15. MCPB/KZYX is a steward of the airwaves, not a dictator.  Neither the organization nor its employees are permitted to make arbitrary decisions that exceed their authority.  Even the Board of Directors cannot make decisions that diminish the rights of it members.  (cite Code, Bylaws).  By eliminating the Safe Harbor, the Program Director has done precisely that.  This Court must order the Board and Management of MCPB/KZYX to reinstate the Safe Harbor immediately and to require any future such actions to be approved by the Members.  It must also require the Board of Directors to follow its appeal procedures when a Programmer claims that they have been terminated because of their efforts to foster free speech and communication among the Members and the public.

CONCLUSION

16. The California Corporations Code empowers groups of people to do great things, but it also keeps any one person or group from abusing that power.  In membership nonprofits, all Directors must be elected by the Members.  And no one but the Members can take any action that reduces the rights of the Members, to the extent permitted by law.

17. The Code mandates that the rights of the Members of a membership corporation must be protected.  To do so, this Court must void the recent selection of a Programmer-Director; order the release of member contact information or reasonable alternatives; require the implementation of the Programming Policy and Program Advisory Committee; and protect free speech by restoring the Safe Harbor hours and requiring a review of recent programmer terminations.  Many people have fought hard and sacrificed much to ensure these rights for the People.  They should not be frittered away by improper decisions that are either illegal or made without the advice and approval of the Members.

Date:

Signature:

Please note that this petition is not directed toward the new management.  The actions above must be taken by the Board of Directors, even if implemented by management.

Dennis O'Brien