Notes from Friday, October 25 court date

[The following are notes about the court date, October 25, 2019.]

Oral argument on motions before Judge Melissa Crane — NY State Supreme Court, New York County, October 25, 2019.

Attorneys:

  • WBAI: Arthur Schwartz {WBAI was the moving party/PNB answered}
  • PNB: lawyers from Foster-Garvey

Our question is: What is the function of the board and bylaws — and is Pacifica IED John Vernile violating the bylaws acting in abrogation of the bylaws.

Pacifica made a motion for Judge Crain to recuse herself — the basis for which was a claim that she had conflict of interest in hearing this case —

Discussion went back and forth. The judge did not recuse herself and the matter was left to rest.

Arthur Schwartz to judge: they are suggesting that this firing and takeover and autocratic rule of the local station, WBAI, is what Verniles job and function is –

Schwartz pointed out that “The bylaws rule this network.”

“Words matter”, Schwartz argued. Schwartz insisted to read the sections of the by-laws that deal with this question. The by-laws state that the board is a decision making body.

Q: Who has programmatic authority – who has content authority?

A: The local management and local board.

Two instances were cited where authority over content is written into the bylaws: the LSB and Station Manager have responsibility to make sure “content fulfills Pacifica mission” but nowhere does it say that Vernile’s job gives him power to determine content.

He (Vernile) is simply an IMPLEMENTER of the Board’s decisions. Nowhere does it say that the Pacifica National Board (PNB) has the power to determine content.

The question was raised, Where does Vernile think his authority to take over the station on October 7th comes from?

The Pacifica lawyers answered that it came from the PNB.

A motion was then made by the Pacifica lawyers (Vernile & co.) that the two board meetings voting to restore WBAI to local control were illegal based on LACK OF PROPER NOTIFICATION (8 DAYS NOTICE). They invoked the idea that phone-call notifications needed to be made in addition to email notifications.

Arthur Schwartz pointed out that the phone hasn’t been used in 20 years now — “custom and practice” has been emails and texts, etc.

Schwartz said that Vernile — in calling a board meeting before the October 7th action — also did not fulfill the 8-day notice requirement. Schwartz pointed out that if this criterion were used for all recent votes, then the October 12 vote by Board minority was also invalid. “You can’t have it both ways”.

Schwartz cited the relevant sections of the by-laws.

The major point that the opposition — Pacifica — attempted to get across was that John Vernile owns the Pacifica board — that the board follow him — BUT THE BYLAWS DO NOT SAY THIS.

Discussion of “CONFLICT OF INTEREST” argument, used to disqualify 3 WBAI PNB members from participating in votes to restore WBAI (October 13 and 20) and thus skew the vote to the minority faction. Schwartz: None of the people had a “conflict of interest” according to either the bylaws or California State Law. Both the by-laws and California State Law require issues of “financial compromise” for there to be a “conflict of interest”, and such “financial compromise” did not apply in the case of the 3 WBAI PNB members.

With regard to the idea of a WBAI STAFF MEMBER HAVING A CONFLICT OF INTEREST by reason of being a staff member, WBAI’s lawyer pointed out that the by-laws REQUIRE A STAFF MEMBER ON THE BOARD (proving there is no conflict of interest between being a staff member and a voting member of the Board)

The Pacifica lawyers used Mimi’s Labor Day PSA (in which she stated “we must stop Trump” in relation to immigration policy) to say the FCC was about to pull our license. After Vernile called WBAI Management and said “you can’t do that”, the promo was re-edited and not run again in its original form. But Mimi Rosenberg was suspended for a week anyway under claims that she “put the station’s license in jeopardy.”

Judge asked: Did the FCC get in touch with you? ANSWER – NO.

Judge said: IS THAT ALL? WHATS WRONG WITH THAT? WHERE WAS THE ELECTIONEERING? (and then finally) “ENOUGH OF THIS”.

The question was raised: WAS WBAI IN “AN EMERGENCY?

PNB attorneys noted that Pacifica Executive Director (ED) has the right to supersede the Board in an “emergency”.

Schwartz asked: Was there a crisis on October 7? There was no “WE CAN’T MAKE PAYROLL”, WBAI had the money and had paid the rent — there was $35,000 in the bank on October 7 — the fund drive had made enough for both payroll and rent. THERE WAS NO CRISIS, NO “EMERGENCY”.

With regard to WHAT THEY DID TO WBAI: They shut down the station, stopped the fund drive, shut down WBAI.org, the email program, told the landlord: “Find a new tenant”. Arthur Schwartz pointed out how this hampers the station’s functioning, causing loss of listeners, possible loss of staff (the judge commented: “The staff will go elsewhere”).

PNB Faction also claimed that their intention is “to reinstate local programming — referring to Vernile’s “letter for mediation”.

SCHWARTZ: The spirit of the bylaws cannot be perverted. The majority of the Board has repeatedly expressed “Put WBAI back on the air.”

Arthur Schwartz said this is an internecine battle between members of the PNB. We must return to bylaws to make determination.

Again — who has authority to do what they did on October 7?

He (Vernile) doesn’t get to make determinations — he gets to follow decisions by the board.

THIS IS A BATTLE BETWEEN STAKEHOLDERS.

ULTIMATE RELIEF IS TO RETURN TO STATUS QUO — JUDGE SAID “I’M NOT PREPARED TO DO THAT TODAY”. SHE SAID THE PART OF THE TRO [Temporary Restraining Order] ABOUT THE FIRING OF THE WORKERS SHE LEFT IN PLACE TILL WEDNESDAY COMING, THAT THEY WILL STILL BE ABLE TO GET THEIR PAID SALARY.

Pacifica lawyer then put forth, “THAT THE COURT HAD NO JURISDICTION, THAT CALIFORNIA LAW PREDOMINATES OVER NY LAW.”

JUDGE INDICATED THAT THE CASE IS BEFORE HER NOW — THAT JURISDICTION WAS GIVEN TO HER.

JUDGE SAID IF THIS IS AN INTERNAL CONFLICT, HOW CAN YOU TELL A LAWYER HE CANNOT SPEAK WITH MEMBERS OF THE PACIFICA NATIONAL BOARD? ESPECIALLY SINCE 8 MEMBERS OF THE NATIONAL BOARD HAVE ASKED TO BECOME PLAINTIFFS IN WBAI LAWSUIT. (EMERGENCY RELIEF — TRO) COMPLAINT — PETITION FOR FULL AND COMPREHENSIVE RELIEF.

PACIFICA IS DEFENDING AGAINST OUR LAWSUIT. WE ARE SAYING THERE WAS NO LICENSE FOR JOHN VERNILE TO TAKE OVER THE STATION. AND THAT THE FACTS THEY CLAIM CONSTITUTED AN EMERGENCY WERE NOT AN EMERGENCY. ON THE MORNING OF OCTOBER 7 THERE WAS NO EMERGENCY THAT WARRANTED THE TEARING DOWN OF THIS STATION.

WHERE WE STAND: THE STATUS QUO EXISTS — WE ARE WAITING FOR A DECISION FROM THE JUDGE. WE HAVE ASKED FOR FULL RELIEF — TO DENY THE AUTHORITY AND REPUDIATE THE ACTIONS OF OCTOBER 7 AND RETURN THE STATION TO LOCAL CONTROL.

PACIFICA IS ALLOWED TO FILE NEW MOTIONS.

ORDER TO CONTINUE TO KEEP ON THE PAID STAFF TILL WEDNESDAY.

THERE HAS ALSO BEEN ACKNOWLEDGEMENT BY JUDGE THAT ARTHUR COULD SPEAK WITH MEMBERS OF THE PACIFICA NATIONAL BOARD. NO PROHIBITION AS HANDED BY THE FEDERAL JUDGE WHO HAS NO JURISDICTION.

JUDGE DID INDICATE THAT SHE DOES HAVE CONCERNS ABOUT THE ECONOMIC VULNERABILITY OF THE STATION.

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