On September 17, Alameda County Superior Court Judge Ioana Petrou made two more rulings in favor of the new leadership at Pacifica, the nonprofit that owns KPFA, following a series that began in May.
Petrou granted a demurrer against the lawsuit brought by Pacifica Directors for Good Governance (PDGG), a group of Pacifica National Board members who supported terminated executive Summer Reese‘s attempt to seize Pacifica’s national office by force. The ruling gave PDGG 10 days to fix the legal deficiencies in their lawsuit, or have it thrown out. The 10 days are now up, so their lawsuit is basically dead.
The board members behind the PDGG’s lawsuit were Janet Coleman (WBAI), Carolyn Birden (WBAI), Manijeh Saba (WBAI), Luzette King (WPFW), Richard Uzzell (KPFT), Kim Kaufman (KPFK), Janet Kobren (KPFA), Heather Gray (affiliate station) and Janis Lane-Ewert (affiliate station).
Along the way, court filings regarding a falling out that the PDGG had with their attorney, Amy Sommer-Anderson, indicated that they ran their lawsuit much the way they had run the Pacifica network when they were in charge of it — by running up large bills they had no plans to pay. Sommer-Anderson filed to have herself removed as counsel because PDGG owed her more than $20,000 in overdue costs and attorneys’ fees.
Judge Petrou also rejected a demurrer from Summer Reese in the action that Pacifica brought to get a court order forcing her to abandon the offices inside which she had barricaded herself. The court also rejected a motion from Reese, representing herself, to disqualify Judge Petrou from hearing the case — on unspecified charges of prejudice.
On May 12, Alameda County Superior Court Judge Ioana Petrou issued a wide-ranging 17-page decision that demolished each and every legal argument made by the supporters of former Pacifica executive Summer Reese. The judge issued a court order barring Reese from “entering, remaining, blocking ingress into or egress from, or the passage of persons into or out of” Pacifica’s National Office.
“This is a total victory for the new board majority, which has been conscientiously working to save Pacifica,” said Pacifica National Board (PNB) chair and SaveKPFA member Margy Wilkinson. “I hope that Reese and her supporters will leave quickly and peacefully so that Pacifica can put this chapter behind us.” | READdecision, LISTEN to Pacifica Evening News, READSan Jose Mercury article
The backstory: anti-democratic moves to retain control
On March 17, shortly after Pacifica’s board voted to discharge her, Reese used bolt cutters to break into her former offices and barricaded herself in the building with a handful of supporters, blocking Wilkinson and other board members from even entering the premises.
Reese’s supporters on the national board then filed a lawsuit, asking a court to overturn the board’s actions and even remove those who voted to fire Reese. The board members who sued were Janet Coleman (WBAI), Carolyn Birden (WBAI), Manijeh Saba (WBAI), Luzette King (WPFW), Richard Uzzell (KPFT), Kim Kaufman (KPFK), Janet Kobren (KPFA), Heather Gray (affiliate station) and Janis Lane-Ewert (affiliate station).
“Their lawsuit is an anti-democratic power play,” said Brian Edwards-Tiekert, a KPFA staff representative on the Pacifica National Board. “The nine board members who signed on as plaintiffs lost a vote, and wanted the court to overturn it. They lost their majority, and wanted the court to give it back by purging their enemies. And then they filibustered meetings to try to prevent the majority from hiring attorneys to represent Pacifica,” he added.
For nearly two months, Reese’s supporters paralyzed Pacifica. They blocked the board’s officers from access to financial records, and threatened Pacifica employees with legal actions if they worked with the new board majority and officers. They claimed Reese was Pacifica’s “legitimate” executive director, leading some vendors to refuse to work with Pacifica. In a bid to keep paychecks coming to Reese, they nearly sabotaged payroll for all employees of the entire 5-station national network.
In her decision, Judge Petrou found the situation at the Pacifica National Office “completely untenable” and ordered Reese to leave.
“I hope the plaintiffs will now drop their suit,” said Wilkinson. “Pacifica is a fragile institution that can ill afford the time and expense of litigation.” Over 800 listeners and staff have signed a petition demanding Reese go.
Secret contract revealed in court
Reese’s supporters had maintained that the board violated her employment contract by discharging her without cause. During a May 6 court hearing, a very different picture emerged: the Pacifica National Board had agreed on one contract, offered in November 2013, while Reese and three of her supporters on the board crafted an entirely different one in secret.
The agreement approved by Pacifica’s board in November 2013 required Reese to pass a background check and serve in a probationary status for six months.
But on January 30, 2014, it emerged, Reese signed a second contract whose existence the board did not even know about. Former Pacifica treasurer Tracy Rosenberg testified that she helped draft it, along with then-vice chair Heather Gray, a representative of Pacifica’s affiliate stations. It was ultimately signed by then-secretary Richard Uzzell, a representative from KPFT in Houston.
The secret contract eliminated the requirement that Reese pass a background check, functionally eliminated her probationary status, and built in a $105,000 golden parachute that applied even if Reese were fired for cause. In other words: they sought to make Reese unfireable by — and therefore unaccountable to — the elected board that was supposed to supervise her.
Judge Petrou ruled that “the board never authorized Gray or Uzell to enter the January agreement, the board never ratified that agreement, and in fact the majority of the board expressly rejected the January agreement.”
Other issues that came up during the hearing: Edwards-Tiekert testified that Reese had run large deficits at the Pacifica National Office, directed employees working under her to give her large payroll advances in violation of Pacifica policies, and directed employees to reimburse her for expenses without submitting receipts.
During the proceedings, Judge Petrou also threatened to throw former Pacifica treasurer Tracy Rosenberg out of court for mouthing answers to Richard Uzzell while he was testifying. Rosenberg had been a dominant behind-the-scenes player for several years at Pacifica, and is currently serving as Reese’s PR person. Rosenberg was the architect of the decision by then-executive Arlene Engelhardt to cancel KPFA’s Morning Show.
Pacifica Radio was very ably represented in court by Dan Siegel of Siegel & Yee, a SaveKPFA representative on the Pacifica National Board until he stepped down in January to run for Mayor of Oakland. | READ legal filings from both sides here.
The court decision leaves PNB-appointed interim executive director Bernard Duncan at the helm of the foundation, and facing serious challenges.
PNB chair Wilkinson reports that Pacifica is facing several large outstanding bills accrued during Reese’s tenure that the board was never informed of. Because of Reese’s blockade of the national office’s records, the board still doesn’t have a full accounting of how bad the situation is.
During the crisis, Free Speech Radio News filed a lawsuit against Pacifica for its failure to make payments under contracts Reese signed without board approval last summer. FSRN went off the air as a daily newscast last year.
Today, 9 members of the Pacifica National Board tried to convince an Alameda County Judge to overturn the actions of the democratically-elected majority sitting on that board. They lost.
The plaintiffs are Janet Coleman (WBAI), Carolyn Birden (WBAI), Manijeh Saba (WBAI), Luzette King (WPFW), Richard Uzzell (KPFT), Kim Kaufman (KPFK), Janet Kobren (KPFA), Heather Grey (Affiliates) and Janis Lane-Ewert (Affiliates). They were out-voted when the new Pacifica majority began making changes last month, such as renewing its programming and listener base, and terminating interim executive director Summer Reese, who reacted by breaking into Pacifica’s offices with bolt cutters and refusing to leave. Coverage appeared in the San Jose Mercury News and Reuters, among other places.
Those suing had gone to court without following basic due process requirements: they didn’t communicate their intent to file a lawsuit beforehand; they didn’t even serve notice on the board members they are suing.
They had so badly mangled the procedural part of filing the lawsuit, that Judge Ioana Petrou didn’t even get into the merits of their argument. She denied their motion for a Temporary Restraining Order, and scheduled the next phase of the lawsuit — a preliminary injunction hearing — for May 6.
At one point, the plaintiffs’ attorney, Amy Sommer Anderson, asked for more time. “On very short notice, you put this on my calendar” the judge chastised her.
Pacifica National Board chair Margy Wilkinson said, “I hope today’s decision will encourage the plaintiffs to express dissent with their voices and their votes, not litigation. Pacifica is in a fragile state, and can’t afford the time or expense of this lawsuit.”
Hundreds of Pacifica’s listeners apparently agree, as they are signing and commenting on a petition demanding Reese and her supporters respect the majority’s decision.