Do the Bylaws apply to Dan Siegel?
In the not so-very-humble opinion of Dan Siegel, the Pacifica Foundation's bylaws do not apply to him. Below are memos from two attorneys who differ with him on that. One is from Carol Spooner who chaired the committee which wrote the foundation's bylaws, and another is from Richard Phelps. Also included below is Siegel's own memo. On February 9th, the Pacifica National Board (PNB) held a special session on this matter, and concluded in a vote of 10 to 7 that the bylaws do indeed apply, even to Dan Siegel. Siegel took this matter to court.
On February 23, Siegel asked the court for a restraining order to prevent the upcoming PNB meeting in Houston, Texas from being held until the board seated him. Had Siegel's request been granted, it would've been very disruptive to the Pacifica Foundation, and also cost it thousands of dollars it could ill afford. Attorney Richard Phelps defended Pacifica, doing it pro bono. The judge ruled that the PNB can meet this weekend as scheduled, but did issue a TRO stipulating that it can take no action on programming at KPFA. The next court hearing will be on March 18.
~~ D. B.
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Carol Spooner's Memo
TO: Pacifica National Board
FROM: Carol Spooner
Pacifica National Board Member January 2002-January 2005
Chair, Pacifica National Board Bylaws Committee 2002-2003
DATE: February 6, 2011
RE: Pacifica Bylaws Article Four, Section 2.A. "Eligibility and Nomination of Delegates"
Article Four. Delegates
Section 2. Eligibility; Nomination of Delegates
A. Eligibility
Any Listener-Sponsor Member in good standing, except radio station management personnel or Foundation management personnel or staff members, may be nominated for the position of Listener-Sponsor Delegate for the Foundation radio station with which s/he is affiliated by the signatures of fifteen (15) Listener-Sponsor Members in good standing who are also affiliated with that radio station, provided, however, that no person who holds any elected or appointed public office at any level of government, federal, state, or local, or is a candidate for such office shall be eligible for election to the position of Delegate. A Delegate shall be deemed to have resigned the position of Delegate if s/he becomes a candidate for public office or accepts a political appointment during his or her term as a Delegate. This restriction shall not apply to civil service employment by governmental agencies.
I served as Chair of the Interim Pacifica National Board (iPNB) Bylaws Committee for the 18 months in 2002-2003 during which the current bylaws were developed and rigorously debated in all five Pacifica station areas, and finally adopted by 2/3rds majority vote the iPNB and approved by the Court.
The debate on the eligibility of political appointees and persons holding or seeking political public office to serve on Pacifica boards was one area that was hotly debated. The former Mayor of Washington, D.C., Marion Barry, was a member of the iPNB and was strongly opposed to placing this restriction on eligibility. He forcefully argued that such persons with their political connections potentially could be especially helpful to Pacifica. The counter-argument was that Pacifica and its radio stations needed to be completely independent of political bodies at all levels of government and that Pacifica's Delegates (LSB members and PNB members) who concurrently served in elected or appointed political positions potentially could have conflicts of interest (either actual or perceived) that could interfere with Pacifica programming or policies.
One example that was expressly discussed by the board was the potential situation where a program was proposed or aired that was critical of the policies or actions of a political regime with which a board member was affiliated. In such a case subtle or not-so-subtle pressure might be brought or threatened from board members either not to air such views or to moderate or rebut them. In actual fact, Pacifica had had recent experience with just such a case -- Amy Goodman's Democracy Now! program was frequently critical of the Clinton Administration in the late 1990s. The Board Chair at that time, Mary Frances Berry (a Clinton Administration political appointee) objected and caused considerable pressure to be brought on Amy to tone it down. When Amy refused, considerable harassment was brought to bear on her which eventually resulted in Amy's leaving Pacifica claiming "constructive termination." (After the iPNB took office Amy agreed to return as an independent contractor, with full editorial control, but not as an employee.)
It was in this context that the iPNB conceived the terms "public office" and "political appointment" to include any elected or appointed position that was political in nature (as opposed to career civil service jobs that are independent of political regimes), that would involve loyalties to any political incumbent or administration -- such as political appointment to a commission, committee, advisory board, task force and the like. The intent was to insulate Pacifica from all political influences from people who simultaneously held positions that were political in nature.
After considerable discussion and debate, the iPNB, by a 2/3rds majority, approved the Bylaws including the language prohibiting political appointees as well as public officials (elected or appointed) from serving as Delegates on Pacifica's boards.
The Pacifica Bylaws not only prohibit such political appointees or office holders from being nominated for election as a radio station Delegate, but also provide that if they are elected as a Delegate and subsequently accept a political appointment or seek election to public office, then they are automatically deemed to have resigned their position as a Pacifica Delegate. In other words, their eligibility is not a matter for the local or national board to determine by a vote because -- upon their accepting a political appointment or seeking election -- they no longer meet the qualifications to serve as a Delegate. By accepting such an appointment or seeking such an elected position they effectively resigned as a Pacifica Delegate beyond the power of the Pacifica Board to reinstate them.
CAROL SPOONER
February 6, 2011
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Richard Phelps critiques Dan Siegel's memo
Here is [Dan Siegel's] argument for staying in Pacifica governance. The California Supreme Court case he cites is not on point and doesn't deal with the intent of our drafters in passing that bylaw. The courts allow great deference to a BOD in interpreting their bylaws.
Meeting with the Mayor multiple times gives one more "juice", as they say, than being on some commission that meets monthly or less and doesn't interact directly with the Mayor. If it is such a casual relationship why was it called an "appointment" and reported in the papers numerous times? Siegel, himself has called it an "appointment." I will be doing a rebuttal as usual.
Richard Phelps
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Dan Siegel's Memo
To: Pacifica National Board
From: Dan Siegel
CC: Ricardo de Anda, KPFA LSB, Save KPFA
Date: February 6, 2011
Re: Efforts to Remove me from KPFA LSB and the PNB
INTRODUCTION
I am writing this memorandum at the request of the Pacifica National Board to address efforts to remove me from my elected positions on the KPFA LSB and the PNB. In summary, (1) As a matter of clear, unambiguous California law, I do not hold "public office" within the meaning of Pacifica's bylaws; and (2) If the PNB wishes to discuss or vote upon this issue, that discussion and vote should include only all of the members elected to the 2011 PNB. The PNB does not have the authority to allow members of the 2010 PNB to hold over or to decide that some of its 2011 members should be excluded from this discussion.
BACKGROUND
I have known Jean Quan since late 1968. She and Floyd Huen were leaders of the Third World Strike at UC Berkeley. I was the elected Student Advocate and represented students charged with student conduct violations. We became friends, and Floyd and I ran successfully to become Vice President and President of the UC student government for the 1969-70 school year.
Beginning in 1979, Jean and I worked on many projects together, especially anti-racist organizing and my campaign for California Attorney General as the Peace and Freedom Party candidate in 1982. We both became involved in parent organizing efforts to improve the Oakland schools. This led eventually to my appointment as General Counsel for the school district in 1989. Jean was elected to the School Board in 1990. I was elected to the Board in 1998 and served through 2006. Jean was elected to the Oakland City Council in 2002 and as Mayor in 2010.
Besides serving on the School Board for eight years, I have served on Oakland's Housing Authority Commission and Community Policing Advisory Board. I have developed expertise in the areas of education, public safety, and low income housing.
MY ROLE WITH THE CITY OF OAKLAND
The issue to be resolved is the application of language within Article Four, Section 2 of the Pacifica Bylaws on the eligibility of persons to serve as delegates. This language states, "provided, however, that no person who holds any elected or appointed public office at any level of government, federal, state, or local, or is a candidate for such office shall be eligible for election to the position of Delegate." The precise issue is the meaning of the term, "public office." Decisions of the California Supreme Court as well as previous decisions in the context of Pacifica's elections make clear that I do not hold "public office."
Soon after she was elected, Mayor Quan appointed a transition team of 25 people, including me, to advise her on key issues facing the City - public safety, education, economic development, the City budget, etc. The transition team split into sub-groups, with each group focusing on a particular issue. I have worked on the group that is addressing the City budget. The transition team met three times. It probably will not meet again. The budget sub-group has met four times. It may meet again.
The transition team has no official power and is not listed among the City's boards and commissions. Its members were not subject to City Council confirmation, and its meetings are not subject to the Brown Act, California's public meeting law that applies to all governmental bodies.
I represented Jean Quan in two legal matters that arose during her campaign and have continued to work with Mayor Quan as an unpaid legal adviser. In that role I have provided her with confidential legal advice on various issues facing the City, including the role of the elected City Attorney, a proposed City ordinance on medical marijuana cultivation, and police matters. I also provide her with non-confidential advice on initiatives to improve public education and the City's budget.
My position as legal adviser to the mayor is not an official City position. It is not found anywhere in the roster of City of Oakland civil service or appointed positions. None of the last three mayors - Elihu Harris, Jerry Brown, or Ron Dellums - had a legal adviser as a member of his staff. I do not exercise any authority as legal adviser. I do not direct any City employees. I continue in my role as a partner in the law firm of Siegel & Yee. In practical, real world terms, the work I do as Mayor Quan's legal adviser is part of Siegel & Yee's pro bono activities.
The California Supreme Court has addressed the issue of what constitutes public office many times. The Court has said that there are at least two factors to consider in deciding whether a role in government is considered a "public office:" (1) Whether the position is established so that it exists apart from the person who currently holds it; and (2) whether the position wields government legislative, executive, or judicial power.
In its most recent decision on the issue, Dibb v. County of San Diego, 8 Cal.4th 1200, 1211-12 (1994), the Supreme Court reviewed its prior opinions. It stated, "[A] public office is ordinarily and generally defined to be the right, authority, and duty, created and conferred by law, the tenure of which is not transient, occasional, or incidental, by which for a given period an individual is invested with power to perform a public function for the benefit of the public. [Citation.] .... The most general characteristic of a public officer, which distinguishes him from a mere employee, is that a public duty is delegated and entrusted to him, as agent, the performance of which is an exercise of a part of the governmental functions of the particular political unit for which he, as agent, is acting..."
In making this pronouncement, the Supreme Court relied on a previous decision in a very old case, Coulter v. Pool, 187 Cal. 181 (1921), which it described as "the leading authority in this area." In the Dibb case, the Supreme Court also relied on another of its previous decisions, Spreckels v. Graham, 194 Cal. 516, 530 (1924), where, "we explained that 'two elements now seem to be almost universally regarded as essential' to a determination of whether one is a 'public officer': "First, a tenure of office 'which is not transient, occasional or incidental,' but is of such a nature that the office itself is an entity in which incumbents succeed one another ... , and, second, the delegation to the officer of some portion of the sovereign functions of government, either legislative, executive, or judicial.'"
Application of these two principles to my situation seems clear. First, my position was not "created and conferred by law." Instead, it is "transient, occasional or incidental." "The office itself is not an entity in which incumbents succeed one another. Rather, my position is impermanent, not an official position within the structure of city government, and involves no official title. Second, my role does not involve "the delegation to the officer of some portion of the sovereign functions of government, either legislative, executive, or judicial."
In light of the decisions of the California Supreme Court, which would be binding if my case goes to court, it is clear that I do not hold "public office" and I am not a "public officer."
Previous application of Pacifica's bylaw provision also supports my position. Pacifica's first elections supervisor, Terry Bouricious, published an interpretation consistent with California case law:
"INTERPRETATION of Article 4 Section 2 Disqualification for elected and appointed public office candidates and office holders.
"This is how this Bylaws provision will be interpreted for the purposes of inclusion or disqualification of candidates on the ballot, but please be aware that my interpretation is not binding on future legal challenges that could occur.
"Assuming the term 'elected public office' is reasonably clear, I will focus on the meaning of the term 'appointed public office' at the local, state and federal level.
"I believe this term applies to offices that are created by municipal charters, or state or federal statutes, that exercise some decision making authority with direct impact on the public, or administer public funds. I do not believe this term applies to advisory bodies, or positions or bodies created by resolution or executive action, that do not have the authority of law.
"For example, a 'Tax Abatement Commission' authorized by a municipal charter that had authority to grant tax abatements WOULD be an 'appointed public office,' while a Sister City Commission created by municipal resolution that advised a city council on policy options would NOT be an 'appointed public office.'"
Terry Bouricius
Pacifica National Elections Supervisor
(included in minutes at
http://www.pacificafoundation.org/pnb/content/view/117/54/)
Later, in the 2007 election, Phoebe Sorgen, at the time serving on the Berkeley Peace and Justice Commission, asked the then-serving local and national elections supervisors (Tracy Rosenberg and Les Radke) if that would disqualify her from running. They responded "no," using the same interpretation that Terry Bouricius had applied.
In the 2008 election, Les Radke disqualified Terry Doran from running, because he was at the time serving on Berkeley's Zoning Appeals Board - a position in which he actually voted on zoning decisions.
Clearly, Pacifica has distinguished between people who hold public office, and people who have purely advisory positions before. Its application of that interpretation has been consistent with the decisions of the California Supreme Court quoted above. The PNB's recent motion is a departure from Pacifica's established practice and is contrary to law.
CONCLUSION
I urge the PNB to put aside political differences and make a decision that is proper under the law. I am sure that Pacifica's attorney, when considering this issue, will advise you of the likely outcome if the discussion set out here is presented to the Alameda County Superior Court.
Finally, this issue must be decided by the 2011 PNB, not a group consisting of some 2010 PNB members and some 2011 PNB members and from which some of us elected to serve in 2011 are excluded. The Bylaws provide that the term of a PNB member is "one year." Article Five, Section 2. The PNB may not amend its bylaws to change the terms of its members or for any other purpose. Article Seventeen. The new 2011 PNB was to be seated in January. Article Five, Section 3 C. Accordingly, this issue must be decided by all of the members of the 2011 PNB.
Thank you for your consideration.
DAN SIEGEL
February 6, 2011
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Richard Phelps' reply to Dan Siegel's Memo dated 2-6-11
TO: Pacifica National Board, with public distribution.
From: Richard Phelps
Date: 2-7-11
Re: Automatic Removal of Dan Siegel from Pacifica Governance.
INTRODUCTION
At the January 25, 2008 meeting of the PNB there was an issue regarding an election and Dan Siegel, speaking as Foundation Counsel, took the position that the prior PNB members should hold over. His position to allow the PNB members to hold over was approved by the PNB and the vote wasn't close. Dan has had this voted on and won and now wants his previous position reversed for self-serving reasons. He didn't acknowledge his prior recommendation, which was adopted, and explain why he was wrong then and why it should be different now. There is no reason to change the decision made by the PNB back in 2008 and the current PNB's motion to hold over should stand. Breach of his duty to disclose seems to be standard operating procedure as we will demonstrate.
BACKGROUND
None of this information should play any role in the decision on the issue before the PNB. It is an attempt to introduce character evidence into a rules decision which is improper. Given that Dan has opened the door it is appropriate to point out that in 2007 when Dan was iED and Foundation Counsel he criticized a slate in the KPFA election that was running against his Concerned Listeners allies. It was a gross violation of our rules and spirit that management should not take sides in elections. His criticism was that candidate statements were little more than personal attacks. There was no example of a personal attack quoted in his "attack" on Pacifica's separation of management from elections. At the time and over the years I and others have asked him to point to just one "personal attack" and he has not been able to do so. They were nothing more than political criticisms of his allies.
Pertinent to the issue before us is the fact that Dan Siegel knew of his appointment before the January 13, 2011 Delegates' meeting to elect KPFA PNB representatives. If fact he probably knew as early as December and didn't bring it to the LSB or PNB. He ran for the PNB and during his nomination speech on January 13, 2011, he said NOTHING about his appointment by the Mayor. No one would deny that he has done good work in the battle between the progressive movement and the establishment. And from my observation no one can deny that his work in progressive organizations is marked by continuous, unprincipled power plays. Dan's message is pretty clear: the rules of transparency, accountability, good faith interactions and our bylaws that govern you folks don't apply to him and his allies.
HIS ROLE WITH THE CITY
It is long established law in California that the courts will not micro manage a BOD's interpretations of their bylaws unless they step way over the line. See Williams v. Inglewood Board of Realtors (1963) 219 Cal. App. 2nd 479, 487-488: "The foregoing authorities relate specifically to unincorporated voluntary associations, but the same rules of interpretation apply to nonprofit corporations and to corporations generally. (See 1 Ballantine & Sterling, California Corporation Laws, § 18, pp. 34-35.) The portion of the Corporations Code which governs nonprofit corporations such as the one at bar, provides in § 9402 that the by-laws of a nonprofit corporation may make provisions for: '(a) The admission, election, appointment, withdrawal, suspension, and expulsion of members. * * * .
Concerning the interpretation of by-laws generally, 18 C.J.S. Corporations § 183, page 595, says: 'The board of directors of a corporation may interpret an ambiguous by-law without formality, the interpretation arising from their conduct and methods of transacting business, and the general rule as to recognizing a practical construction by the parties applies, so that, in the case of ambiguity in a by-law, a court will not give it a positive construction opposed to any consistent practical construction which it has received from the corporation and its members, where such practical construction is not unreasonable, or contrary to the principles of justice or morality or to any rule of law or public policy. The courts, however, are not bound by the construction adopted by the corporation, its officers, or its members.
'In general, the by-laws of associations organized for social, charitable, moral, or religious purposes will not be scrutinized closely by the courts, nor will they be interfered with unless there has been an abuse of discretion and a clear, unreasonable and arbitrary invasion of private rights.' "
Pacifica's Bylaws in question come from a desire to have a solid firewall between our Foundation governance and our government at any level. This is consistent with our Mission. See the Memorandum from Carol Spooner, Chair of the PNB Bylaws Committee 2002-2003 where she points out that:
"It was in this context [Mary Frances Berry] that the iPNB conceived the terms "public office" and "political appointment" to include any elected or appointed position that was political in nature (as opposed to career civil service jobs that are independent of political regimes), that would involve loyalties to any political incumbent or administration -- such as political appointment to a commission, committee, advisory board, task force and the like. The intent was to insulate Pacifica from all political influences from people who simultaneously held positions that were political in nature.
After considerable discussion and debate, the iPNB, by a 2/3rds majority, approved the Bylaws including the language prohibiting political appointees as well as public officials (elected or appointed) from serving as Delegates on Pacifica's boards.
The Pacifica Bylaws not only prohibit such political appointees or office holders from being nominated for election as a radio station Delegate, but also provide that if they are elected as a Delegate and subsequently accept a political appointment or seek election to public office, then they are automatically deemed to have resigned their position as a Pacifica Delegate. In other words, their eligibility is not a matter for the local or national board to determine by a vote because -- upon their accepting a political appointment or seeking election -- they no longer meet the qualifications to serve as a Delegate. By accepting such an appointment or seeking such an elected position they effectively resigned as a Pacifica Delegate beyond the power of the Pacifica Board to reinstate them."
This is a very different perspective on what constitutes a position or appointment that disqualifies a person from Pacifica governance from the Dibb case that Dan cites which is about a county board having the power to issue subpoenas:
"We granted review to decide whether the County of San Diego may constitutionally amend its charter to provide for the creation of a citizens board to review public complaints about the county sheriff and probation departments, and vest that board with power to subpoena witnesses and documents." Dibb, page 1204.
Under the Williams v. Inglewood Board of Realtors case cited above and given the history and intent of the drafters, as laid out in the Spooner Memorandum, the PNB's decision to hold that Dan Siegel was automatically off the LSB when he took the appointment from Mayor Quan is rational and appropriate.
Previous decisions by election supervisors do not constitute precedent that binds the Foundation. In Pacifica only the PNB has the authority to interpret the Bylaws to set a precedent.
Other members have lost their positions in Pacifica governance by accepting positions with much less "juice", as they say, than one appointed to meet directly with the mayor to advise on budget and police matters. In the January 14th San Francisco Chronicle Dan is quoted as saying:
"That is why this is a serious decision for me" he said Thursday. "I'm going to take off my hat as an advocate and put on my hat as an administrator. Despite the fact that I'm outspoken and people say I'm radical, I have both the skills and experience to work inside government."
During other quotes and public posts on the LSB list Dan has never denied that quote after being confronted by it. He is admitting he is working "inside government" and he is not a civil service employee. This is clearly on the wrong side of the firewall between Pacifica governance and our government.
Dan Siegel tries to sell us that his position is transient and thus not subject to our Bylaws. Nowhere in his Memo or in any of the newspaper articles discussing his "appointment" does he or anyone mention an end date for his "appointment." And even if one was given, even a short term appointment to be an advisor to the Mayor during one's term in Pacifica governance would cross the line and break down the firewall that was intended by the drafters, given the influence of such a position.
CONCLUSION
The responsibility to define and interpret Pacifica Bylaws is up to the PNB. The ruling that Dan Siegel was automatically off the KPFA LSB prior to the election of PNB members on January 13, 2011 was a fair, just, accurate and rational interpretation of the Pacifica Bylaws given the intent of the drafters and the prior appointments that caused members to lose their seats in Pacifica governance. A new KPFA PNB election is thus necessary.
The PNB ruling on the PNB members hold over is consistent with past practice and was directly argued by Dan Siegel as Foundation Counsel in 2008. That ruling must stand. Richard Phelps, Attorney at Law, KPFA LSB member, Chair of the LSB in 2005-6.
RICHARD PHELPS
Attorney/Mediator
Member, California Academy of Distinguished Neutrals
405 14th Street, Suite 508
Oakland, CA 94612
(510) 268-9919, Fax (510) 268-0368
PhelpsMediation[ ]aol.com
PhelpsMediation.com
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Different stories for different places. Dan Siegel tells the KPFA board that he's not a government official. But Chip Johnson of the San Francisco Chronicle (1/14/2011) quotes Dan Siegel as saying:
"I'm going to take off my hat as an advocate and put on my hat as an administrator. Despite the fact that I'm outspoken and people say I'm radical, I have both the skills and experience to work inside government."
.
On February 23, Siegel asked the court for a restraining order to prevent the upcoming PNB meeting in Houston, Texas from being held until the board seated him. Had Siegel's request been granted, it would've been very disruptive to the Pacifica Foundation, and also cost it thousands of dollars it could ill afford. Attorney Richard Phelps defended Pacifica, doing it pro bono. The judge ruled that the PNB can meet this weekend as scheduled, but did issue a TRO stipulating that it can take no action on programming at KPFA. The next court hearing will be on March 18.
~~ D. B.
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Carol Spooner's Memo
TO: Pacifica National Board
FROM: Carol Spooner
Pacifica National Board Member January 2002-January 2005
Chair, Pacifica National Board Bylaws Committee 2002-2003
DATE: February 6, 2011
RE: Pacifica Bylaws Article Four, Section 2.A. "Eligibility and Nomination of Delegates"
Article Four. Delegates
Section 2. Eligibility; Nomination of Delegates
A. Eligibility
Any Listener-Sponsor Member in good standing, except radio station management personnel or Foundation management personnel or staff members, may be nominated for the position of Listener-Sponsor Delegate for the Foundation radio station with which s/he is affiliated by the signatures of fifteen (15) Listener-Sponsor Members in good standing who are also affiliated with that radio station, provided, however, that no person who holds any elected or appointed public office at any level of government, federal, state, or local, or is a candidate for such office shall be eligible for election to the position of Delegate. A Delegate shall be deemed to have resigned the position of Delegate if s/he becomes a candidate for public office or accepts a political appointment during his or her term as a Delegate. This restriction shall not apply to civil service employment by governmental agencies.
I served as Chair of the Interim Pacifica National Board (iPNB) Bylaws Committee for the 18 months in 2002-2003 during which the current bylaws were developed and rigorously debated in all five Pacifica station areas, and finally adopted by 2/3rds majority vote the iPNB and approved by the Court.
The debate on the eligibility of political appointees and persons holding or seeking political public office to serve on Pacifica boards was one area that was hotly debated. The former Mayor of Washington, D.C., Marion Barry, was a member of the iPNB and was strongly opposed to placing this restriction on eligibility. He forcefully argued that such persons with their political connections potentially could be especially helpful to Pacifica. The counter-argument was that Pacifica and its radio stations needed to be completely independent of political bodies at all levels of government and that Pacifica's Delegates (LSB members and PNB members) who concurrently served in elected or appointed political positions potentially could have conflicts of interest (either actual or perceived) that could interfere with Pacifica programming or policies.
One example that was expressly discussed by the board was the potential situation where a program was proposed or aired that was critical of the policies or actions of a political regime with which a board member was affiliated. In such a case subtle or not-so-subtle pressure might be brought or threatened from board members either not to air such views or to moderate or rebut them. In actual fact, Pacifica had had recent experience with just such a case -- Amy Goodman's Democracy Now! program was frequently critical of the Clinton Administration in the late 1990s. The Board Chair at that time, Mary Frances Berry (a Clinton Administration political appointee) objected and caused considerable pressure to be brought on Amy to tone it down. When Amy refused, considerable harassment was brought to bear on her which eventually resulted in Amy's leaving Pacifica claiming "constructive termination." (After the iPNB took office Amy agreed to return as an independent contractor, with full editorial control, but not as an employee.)
It was in this context that the iPNB conceived the terms "public office" and "political appointment" to include any elected or appointed position that was political in nature (as opposed to career civil service jobs that are independent of political regimes), that would involve loyalties to any political incumbent or administration -- such as political appointment to a commission, committee, advisory board, task force and the like. The intent was to insulate Pacifica from all political influences from people who simultaneously held positions that were political in nature.
After considerable discussion and debate, the iPNB, by a 2/3rds majority, approved the Bylaws including the language prohibiting political appointees as well as public officials (elected or appointed) from serving as Delegates on Pacifica's boards.
The Pacifica Bylaws not only prohibit such political appointees or office holders from being nominated for election as a radio station Delegate, but also provide that if they are elected as a Delegate and subsequently accept a political appointment or seek election to public office, then they are automatically deemed to have resigned their position as a Pacifica Delegate. In other words, their eligibility is not a matter for the local or national board to determine by a vote because -- upon their accepting a political appointment or seeking election -- they no longer meet the qualifications to serve as a Delegate. By accepting such an appointment or seeking such an elected position they effectively resigned as a Pacifica Delegate beyond the power of the Pacifica Board to reinstate them.
CAROL SPOONER
February 6, 2011
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Richard Phelps critiques Dan Siegel's memo
Here is [Dan Siegel's] argument for staying in Pacifica governance. The California Supreme Court case he cites is not on point and doesn't deal with the intent of our drafters in passing that bylaw. The courts allow great deference to a BOD in interpreting their bylaws.
Meeting with the Mayor multiple times gives one more "juice", as they say, than being on some commission that meets monthly or less and doesn't interact directly with the Mayor. If it is such a casual relationship why was it called an "appointment" and reported in the papers numerous times? Siegel, himself has called it an "appointment." I will be doing a rebuttal as usual.
Richard Phelps
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Dan Siegel's Memo
To: Pacifica National Board
From: Dan Siegel
CC: Ricardo de Anda, KPFA LSB, Save KPFA
Date: February 6, 2011
Re: Efforts to Remove me from KPFA LSB and the PNB
INTRODUCTION
I am writing this memorandum at the request of the Pacifica National Board to address efforts to remove me from my elected positions on the KPFA LSB and the PNB. In summary, (1) As a matter of clear, unambiguous California law, I do not hold "public office" within the meaning of Pacifica's bylaws; and (2) If the PNB wishes to discuss or vote upon this issue, that discussion and vote should include only all of the members elected to the 2011 PNB. The PNB does not have the authority to allow members of the 2010 PNB to hold over or to decide that some of its 2011 members should be excluded from this discussion.
BACKGROUND
I have known Jean Quan since late 1968. She and Floyd Huen were leaders of the Third World Strike at UC Berkeley. I was the elected Student Advocate and represented students charged with student conduct violations. We became friends, and Floyd and I ran successfully to become Vice President and President of the UC student government for the 1969-70 school year.
Beginning in 1979, Jean and I worked on many projects together, especially anti-racist organizing and my campaign for California Attorney General as the Peace and Freedom Party candidate in 1982. We both became involved in parent organizing efforts to improve the Oakland schools. This led eventually to my appointment as General Counsel for the school district in 1989. Jean was elected to the School Board in 1990. I was elected to the Board in 1998 and served through 2006. Jean was elected to the Oakland City Council in 2002 and as Mayor in 2010.
Besides serving on the School Board for eight years, I have served on Oakland's Housing Authority Commission and Community Policing Advisory Board. I have developed expertise in the areas of education, public safety, and low income housing.
MY ROLE WITH THE CITY OF OAKLAND
The issue to be resolved is the application of language within Article Four, Section 2 of the Pacifica Bylaws on the eligibility of persons to serve as delegates. This language states, "provided, however, that no person who holds any elected or appointed public office at any level of government, federal, state, or local, or is a candidate for such office shall be eligible for election to the position of Delegate." The precise issue is the meaning of the term, "public office." Decisions of the California Supreme Court as well as previous decisions in the context of Pacifica's elections make clear that I do not hold "public office."
Soon after she was elected, Mayor Quan appointed a transition team of 25 people, including me, to advise her on key issues facing the City - public safety, education, economic development, the City budget, etc. The transition team split into sub-groups, with each group focusing on a particular issue. I have worked on the group that is addressing the City budget. The transition team met three times. It probably will not meet again. The budget sub-group has met four times. It may meet again.
The transition team has no official power and is not listed among the City's boards and commissions. Its members were not subject to City Council confirmation, and its meetings are not subject to the Brown Act, California's public meeting law that applies to all governmental bodies.
I represented Jean Quan in two legal matters that arose during her campaign and have continued to work with Mayor Quan as an unpaid legal adviser. In that role I have provided her with confidential legal advice on various issues facing the City, including the role of the elected City Attorney, a proposed City ordinance on medical marijuana cultivation, and police matters. I also provide her with non-confidential advice on initiatives to improve public education and the City's budget.
My position as legal adviser to the mayor is not an official City position. It is not found anywhere in the roster of City of Oakland civil service or appointed positions. None of the last three mayors - Elihu Harris, Jerry Brown, or Ron Dellums - had a legal adviser as a member of his staff. I do not exercise any authority as legal adviser. I do not direct any City employees. I continue in my role as a partner in the law firm of Siegel & Yee. In practical, real world terms, the work I do as Mayor Quan's legal adviser is part of Siegel & Yee's pro bono activities.
The California Supreme Court has addressed the issue of what constitutes public office many times. The Court has said that there are at least two factors to consider in deciding whether a role in government is considered a "public office:" (1) Whether the position is established so that it exists apart from the person who currently holds it; and (2) whether the position wields government legislative, executive, or judicial power.
In its most recent decision on the issue, Dibb v. County of San Diego, 8 Cal.4th 1200, 1211-12 (1994), the Supreme Court reviewed its prior opinions. It stated, "[A] public office is ordinarily and generally defined to be the right, authority, and duty, created and conferred by law, the tenure of which is not transient, occasional, or incidental, by which for a given period an individual is invested with power to perform a public function for the benefit of the public. [Citation.] .... The most general characteristic of a public officer, which distinguishes him from a mere employee, is that a public duty is delegated and entrusted to him, as agent, the performance of which is an exercise of a part of the governmental functions of the particular political unit for which he, as agent, is acting..."
In making this pronouncement, the Supreme Court relied on a previous decision in a very old case, Coulter v. Pool, 187 Cal. 181 (1921), which it described as "the leading authority in this area." In the Dibb case, the Supreme Court also relied on another of its previous decisions, Spreckels v. Graham, 194 Cal. 516, 530 (1924), where, "we explained that 'two elements now seem to be almost universally regarded as essential' to a determination of whether one is a 'public officer': "First, a tenure of office 'which is not transient, occasional or incidental,' but is of such a nature that the office itself is an entity in which incumbents succeed one another ... , and, second, the delegation to the officer of some portion of the sovereign functions of government, either legislative, executive, or judicial.'"
Application of these two principles to my situation seems clear. First, my position was not "created and conferred by law." Instead, it is "transient, occasional or incidental." "The office itself is not an entity in which incumbents succeed one another. Rather, my position is impermanent, not an official position within the structure of city government, and involves no official title. Second, my role does not involve "the delegation to the officer of some portion of the sovereign functions of government, either legislative, executive, or judicial."
In light of the decisions of the California Supreme Court, which would be binding if my case goes to court, it is clear that I do not hold "public office" and I am not a "public officer."
Previous application of Pacifica's bylaw provision also supports my position. Pacifica's first elections supervisor, Terry Bouricious, published an interpretation consistent with California case law:
"INTERPRETATION of Article 4 Section 2 Disqualification for elected and appointed public office candidates and office holders.
"This is how this Bylaws provision will be interpreted for the purposes of inclusion or disqualification of candidates on the ballot, but please be aware that my interpretation is not binding on future legal challenges that could occur.
"Assuming the term 'elected public office' is reasonably clear, I will focus on the meaning of the term 'appointed public office' at the local, state and federal level.
"I believe this term applies to offices that are created by municipal charters, or state or federal statutes, that exercise some decision making authority with direct impact on the public, or administer public funds. I do not believe this term applies to advisory bodies, or positions or bodies created by resolution or executive action, that do not have the authority of law.
"For example, a 'Tax Abatement Commission' authorized by a municipal charter that had authority to grant tax abatements WOULD be an 'appointed public office,' while a Sister City Commission created by municipal resolution that advised a city council on policy options would NOT be an 'appointed public office.'"
Terry Bouricius
Pacifica National Elections Supervisor
(included in minutes at
http://www.pacificafoundation.org/pnb/content/view/117/54/)
Later, in the 2007 election, Phoebe Sorgen, at the time serving on the Berkeley Peace and Justice Commission, asked the then-serving local and national elections supervisors (Tracy Rosenberg and Les Radke) if that would disqualify her from running. They responded "no," using the same interpretation that Terry Bouricius had applied.
In the 2008 election, Les Radke disqualified Terry Doran from running, because he was at the time serving on Berkeley's Zoning Appeals Board - a position in which he actually voted on zoning decisions.
Clearly, Pacifica has distinguished between people who hold public office, and people who have purely advisory positions before. Its application of that interpretation has been consistent with the decisions of the California Supreme Court quoted above. The PNB's recent motion is a departure from Pacifica's established practice and is contrary to law.
CONCLUSION
I urge the PNB to put aside political differences and make a decision that is proper under the law. I am sure that Pacifica's attorney, when considering this issue, will advise you of the likely outcome if the discussion set out here is presented to the Alameda County Superior Court.
Finally, this issue must be decided by the 2011 PNB, not a group consisting of some 2010 PNB members and some 2011 PNB members and from which some of us elected to serve in 2011 are excluded. The Bylaws provide that the term of a PNB member is "one year." Article Five, Section 2. The PNB may not amend its bylaws to change the terms of its members or for any other purpose. Article Seventeen. The new 2011 PNB was to be seated in January. Article Five, Section 3 C. Accordingly, this issue must be decided by all of the members of the 2011 PNB.
Thank you for your consideration.
DAN SIEGEL
February 6, 2011
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Richard Phelps' reply to Dan Siegel's Memo dated 2-6-11
TO: Pacifica National Board, with public distribution.
From: Richard Phelps
Date: 2-7-11
Re: Automatic Removal of Dan Siegel from Pacifica Governance.
INTRODUCTION
At the January 25, 2008 meeting of the PNB there was an issue regarding an election and Dan Siegel, speaking as Foundation Counsel, took the position that the prior PNB members should hold over. His position to allow the PNB members to hold over was approved by the PNB and the vote wasn't close. Dan has had this voted on and won and now wants his previous position reversed for self-serving reasons. He didn't acknowledge his prior recommendation, which was adopted, and explain why he was wrong then and why it should be different now. There is no reason to change the decision made by the PNB back in 2008 and the current PNB's motion to hold over should stand. Breach of his duty to disclose seems to be standard operating procedure as we will demonstrate.
BACKGROUND
None of this information should play any role in the decision on the issue before the PNB. It is an attempt to introduce character evidence into a rules decision which is improper. Given that Dan has opened the door it is appropriate to point out that in 2007 when Dan was iED and Foundation Counsel he criticized a slate in the KPFA election that was running against his Concerned Listeners allies. It was a gross violation of our rules and spirit that management should not take sides in elections. His criticism was that candidate statements were little more than personal attacks. There was no example of a personal attack quoted in his "attack" on Pacifica's separation of management from elections. At the time and over the years I and others have asked him to point to just one "personal attack" and he has not been able to do so. They were nothing more than political criticisms of his allies.
Pertinent to the issue before us is the fact that Dan Siegel knew of his appointment before the January 13, 2011 Delegates' meeting to elect KPFA PNB representatives. If fact he probably knew as early as December and didn't bring it to the LSB or PNB. He ran for the PNB and during his nomination speech on January 13, 2011, he said NOTHING about his appointment by the Mayor. No one would deny that he has done good work in the battle between the progressive movement and the establishment. And from my observation no one can deny that his work in progressive organizations is marked by continuous, unprincipled power plays. Dan's message is pretty clear: the rules of transparency, accountability, good faith interactions and our bylaws that govern you folks don't apply to him and his allies.
HIS ROLE WITH THE CITY
It is long established law in California that the courts will not micro manage a BOD's interpretations of their bylaws unless they step way over the line. See Williams v. Inglewood Board of Realtors (1963) 219 Cal. App. 2nd 479, 487-488: "The foregoing authorities relate specifically to unincorporated voluntary associations, but the same rules of interpretation apply to nonprofit corporations and to corporations generally. (See 1 Ballantine & Sterling, California Corporation Laws, § 18, pp. 34-35.) The portion of the Corporations Code which governs nonprofit corporations such as the one at bar, provides in § 9402 that the by-laws of a nonprofit corporation may make provisions for: '(a) The admission, election, appointment, withdrawal, suspension, and expulsion of members. * * * .
Concerning the interpretation of by-laws generally, 18 C.J.S. Corporations § 183, page 595, says: 'The board of directors of a corporation may interpret an ambiguous by-law without formality, the interpretation arising from their conduct and methods of transacting business, and the general rule as to recognizing a practical construction by the parties applies, so that, in the case of ambiguity in a by-law, a court will not give it a positive construction opposed to any consistent practical construction which it has received from the corporation and its members, where such practical construction is not unreasonable, or contrary to the principles of justice or morality or to any rule of law or public policy. The courts, however, are not bound by the construction adopted by the corporation, its officers, or its members.
'In general, the by-laws of associations organized for social, charitable, moral, or religious purposes will not be scrutinized closely by the courts, nor will they be interfered with unless there has been an abuse of discretion and a clear, unreasonable and arbitrary invasion of private rights.' "
Pacifica's Bylaws in question come from a desire to have a solid firewall between our Foundation governance and our government at any level. This is consistent with our Mission. See the Memorandum from Carol Spooner, Chair of the PNB Bylaws Committee 2002-2003 where she points out that:
"It was in this context [Mary Frances Berry] that the iPNB conceived the terms "public office" and "political appointment" to include any elected or appointed position that was political in nature (as opposed to career civil service jobs that are independent of political regimes), that would involve loyalties to any political incumbent or administration -- such as political appointment to a commission, committee, advisory board, task force and the like. The intent was to insulate Pacifica from all political influences from people who simultaneously held positions that were political in nature.
After considerable discussion and debate, the iPNB, by a 2/3rds majority, approved the Bylaws including the language prohibiting political appointees as well as public officials (elected or appointed) from serving as Delegates on Pacifica's boards.
The Pacifica Bylaws not only prohibit such political appointees or office holders from being nominated for election as a radio station Delegate, but also provide that if they are elected as a Delegate and subsequently accept a political appointment or seek election to public office, then they are automatically deemed to have resigned their position as a Pacifica Delegate. In other words, their eligibility is not a matter for the local or national board to determine by a vote because -- upon their accepting a political appointment or seeking election -- they no longer meet the qualifications to serve as a Delegate. By accepting such an appointment or seeking such an elected position they effectively resigned as a Pacifica Delegate beyond the power of the Pacifica Board to reinstate them."
This is a very different perspective on what constitutes a position or appointment that disqualifies a person from Pacifica governance from the Dibb case that Dan cites which is about a county board having the power to issue subpoenas:
"We granted review to decide whether the County of San Diego may constitutionally amend its charter to provide for the creation of a citizens board to review public complaints about the county sheriff and probation departments, and vest that board with power to subpoena witnesses and documents." Dibb, page 1204.
Under the Williams v. Inglewood Board of Realtors case cited above and given the history and intent of the drafters, as laid out in the Spooner Memorandum, the PNB's decision to hold that Dan Siegel was automatically off the LSB when he took the appointment from Mayor Quan is rational and appropriate.
Previous decisions by election supervisors do not constitute precedent that binds the Foundation. In Pacifica only the PNB has the authority to interpret the Bylaws to set a precedent.
Other members have lost their positions in Pacifica governance by accepting positions with much less "juice", as they say, than one appointed to meet directly with the mayor to advise on budget and police matters. In the January 14th San Francisco Chronicle Dan is quoted as saying:
"That is why this is a serious decision for me" he said Thursday. "I'm going to take off my hat as an advocate and put on my hat as an administrator. Despite the fact that I'm outspoken and people say I'm radical, I have both the skills and experience to work inside government."
During other quotes and public posts on the LSB list Dan has never denied that quote after being confronted by it. He is admitting he is working "inside government" and he is not a civil service employee. This is clearly on the wrong side of the firewall between Pacifica governance and our government.
Dan Siegel tries to sell us that his position is transient and thus not subject to our Bylaws. Nowhere in his Memo or in any of the newspaper articles discussing his "appointment" does he or anyone mention an end date for his "appointment." And even if one was given, even a short term appointment to be an advisor to the Mayor during one's term in Pacifica governance would cross the line and break down the firewall that was intended by the drafters, given the influence of such a position.
CONCLUSION
The responsibility to define and interpret Pacifica Bylaws is up to the PNB. The ruling that Dan Siegel was automatically off the KPFA LSB prior to the election of PNB members on January 13, 2011 was a fair, just, accurate and rational interpretation of the Pacifica Bylaws given the intent of the drafters and the prior appointments that caused members to lose their seats in Pacifica governance. A new KPFA PNB election is thus necessary.
The PNB ruling on the PNB members hold over is consistent with past practice and was directly argued by Dan Siegel as Foundation Counsel in 2008. That ruling must stand. Richard Phelps, Attorney at Law, KPFA LSB member, Chair of the LSB in 2005-6.
RICHARD PHELPS
Attorney/Mediator
Member, California Academy of Distinguished Neutrals
405 14th Street, Suite 508
Oakland, CA 94612
(510) 268-9919, Fax (510) 268-0368
PhelpsMediation[ ]aol.com
PhelpsMediation.com
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Different stories for different places. Dan Siegel tells the KPFA board that he's not a government official. But Chip Johnson of the San Francisco Chronicle (1/14/2011) quotes Dan Siegel as saying:
"I'm going to take off my hat as an advocate and put on my hat as an administrator. Despite the fact that I'm outspoken and people say I'm radical, I have both the skills and experience to work inside government."
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Labels: Concerned Listeners, KPFA 94.1, Pacifica Radio, Save KPFA
