This was sent out at 4:28 pm, but has not appeared yet - not sure why. cmbTo: NewPacifica@xxxxxxxxxxxxxxx, PacificaRadiowaves@xxxxxxxxxxxxxxx, fulcrumsofchange@xxxxxxxxxxxxxx
From: Carolyn Birden <cmcb007@xxxxxxxxxxxxx> Subject: Re: [NewPacifica] Directors Rights: Nalini's draft Cc: pacifica_now@xxxxxxxxxxxxxxx Bcc:Attachments: There are many policies enshrined in the law, and procedures as well. The word "reasonable" in the one restriction "at any reasonable time," for instance, covers most of the "procedures" Nalini tries to detail below. In other words, read the bylaws. And the California Code. And then read the citations in the opinion written in 2005 by Richard Phelps: most of those cases covered most of the issues. No need to write this out: directors have been well versed in their responsibilities and duties, and despite what Nalini thinks of them, are intelligent enough to know the difference between a procedure and harassment, between trying to get into a locked office at midnight, for instance, and asking to be shown file cabinets during regular work hours. It would not be "reasonable" to ask staff to produce reports or copy files; it is "reasonable" to ask for table or desk space and allow the staff to watch what is read and show you where the copier is so you can copy files yourself. Reading 101, parsed in the opinions given as a result of several suits brought on the issue, all of them upholding the basic principle of "absolute right."
Confidentiality is written into the laws, and covers directors as well as their designated agents. That is what "designated" means.
As in 2005, directors visiting WBAI in 2008 sent ahead forms designating agent(s) as well as notice of the inspection, although the latter is NOTNOTNOT required by the law, and in some cases would be contravened, as some management personnel and staff have been know to hide documents which directors had requested in advance. Since some of these people are still employed, the requirement for advance notice is tantamount to ensuring that directors will NOT find anything staff wishes to hide, shred, secrete, or refuse. This is direct interference with the right and duy of the directors to inspect Foundation records.
So Nalini should stop trying to make much of nothing, as some directors are doing: there is no need for restrictions disguised as guidance here, as there is no need for strictures by Foundation counsel or staff, as the law, should they read it, is very, very specific. And clear.
The restrictions Nalini proposes, and those proposed by the Coordinating Committee (with the exception of one principled member), are for the most part illegal.
Again, I urge you to read, and re-read, the attached file, the 2005 Phelps summary of the applicable law, and recognize how simple the concept is. Directors are responsible, legally and ethically, for the health of the Foundation. If they cannot see what the staff is doing, they cannot be held liable. But if they do not even try to see, as some directors and local station board members do not by looking the other way and pretending that everything is okay, then they can be sued by any member of the Foundation (Nalilni, for instance, or anyone who has paid his or her $25 for a current membership) for breach of fiduciary responsibility. This means that if they try to hide evidence of wrongdoing in their stations, or try to keep other directors from accessing information that may be evidence of a problem that should be addressed, they are in breach of their fiduciary responsibility. I would be interested to know why Nalilni is not in the process of considering just such a suit to require directors to bring to light any information pertinent to the many problems at each station.
I have proposed the following amendment to the (illegal) motion on the PNB agenda: while we are volunteers doing our jobs, we should not expect to be financially liable when management, counsel, and some board members work together to keep information hidden from us.
As part of this restriction on the absolute rights of directors, the Pacifica National Board agrees to indemnify directors for any suits brought against them for breach of fiduciary duty, and to assume all costs of any legal proceedings brought against them in such matters. The names and votes of each director voting on the original motion and any amendments to this motion shall be recorded in the public minutes of this meeting.
It is crucial that directors understand that they have responsibilities to the health of the entire foundation, and their/our job is to guard against incompetence and worse that would result in threats to the licenses, loss of foundation and other money, litigation, and destruction of the property. It is even more crucial that every member understand this, so they can elect directors who will do more than serve their narrow constituencies, directors who understand the mission of Pacifica, and know the potential for disaster that keeping their heads in the sand can cause.
Nalini is correct that too many directors do not understand the importance of their positions; unfortunately others do, but do not exercise their rights in ways that promote the Foundation. Or, in the present instance, try to thwart those who do.
What, as the question goes, are they trying to hide?And why are people attacking those of us trying to carry out their responsibilities?
Carolyn At 1:40 PM -0400 3/21/08, LasiewiczN@xxxxxxx wrote:
There is no, or should not be any controversy about the POLICY of inspections. It has been said over and over that the POLICY is that Directors have unfettered rights to inspect records. That is part of state law and our bylaws.Now.....let's talk about procedure. In other words, a little operational road map so that any Director who wanted to inspect records would have some recommended procedure to follow, and that staff would understand their role when approached.Here's my suggestion..... NL =================================== For the Directors Manual PROCEDURE FOR RECORDS INSPECTIONSIn accordance with state law and the Pacifica bylaws, Directors have full authority to inspect and copy corporate records. It is recommended the Director contact the ED and/or Board Chair to set up a site visit, at either the local station or the national office and the convinience of the requesting Director. It is also recommended that the inspection take place during regular office hours and is conducted in a way to avoid disruption to the broadcasting or fund drive duties of the staff. The ED or Board Chair will direct the GM or office manager to facilitate entry into the office(s) and provide access to the photocopier if. Prior to the visit, the requesting Director will provide, in writing, a complete list of the names of those attending the inspection including anyone designated as an Agent of the Director(s). Upon entry, all Agents will be expected to sign a confidentiality form that assures their conformance with Pacifica's code of ethics and stated policies as they relate to Directors. The visit will be scheduled as soon as feasible, generally no later than _______ * days after the initial request is made. Upon completion of the inspection, the ED and/or Board shall report to the full Board at the next meeting that an inspection has taken place and to allow for discussion of any concerns or findings that came out of the visit. Inspections will be noted in the Corporate Minutes by the Secretary.Draft by Nalini LasiewiczNote: The ED could recommend the appropriate number of days since this is an operational issue.
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Phelps_re_Directorsrights.doc
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