NES Ruling in Response to ACE Mailer

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[NES Peters writes:]

The slate mailer sent to WBAI listener sponsors by the faction calling itself ACE (Alliance for Community Elections) has violated rules established by the Pacifica Foundations National Elections Supervisor. The same rules were followed by other organizations sending slate mailers.

Not only was the specific ban on fundraising ignored, the mailer actually marketed merchandise in a very unfortunate fashion, commercializing the use of the membership list of our noncommercial radio station and our nonprofit foundation. In addition, the mailer made improper and misleading statements, including an implication that the National Elections Supervisor had been partisan in enforcing the rules on using the mailing list. ACE's statement that the mailing was made possible by threatening court action wrongly suggests that the Justice and Unity Coalition that attempted to illegally block access to the mailing list. In fact, the ACE slate's threat of a lawsuit was against the Pacifica Foundation itself when the National Elections Supervisor attempted to make them follow the same rules that were in force for all slate mailers. Pacifica was forced to delay the mailing of ballots for more than a week while the ACE slate redesigned its mailer to conform with the rule against harvesting addresses belonging to the Pacifica Foundation. ACE was expressly prohibited from repeating the previous year slate mailer that featured an official-looking survey with the members names and addresses imprinted. The new mailer was allowed to have a return form giving the member the option of filling in their own name and address.

Due to case law precedent prohibiting inspection of private mailers to the membership under California non-profit law, Pacifica and its election supervisors were unaware of the violations contained in the ACE slate mailer until members received it and registered complaints.

One of the points of contention is a false statement that Amy Goodmans contract expires at the end of the year when a new five-year contract had been announced more than a month before the mailer was sent. The mailer suggests that the Justice and Unity coalition would not keep Democracy Now on the air when in reality, the JUC-affiliated Directors on the Pacifica National Board had supported the new contract with Amy Goodman to continue broadcasting DEMOCRACY NOW. This assertion may meet the two requirements of libel law (1) telling a known lie and (2) doing so with the intent of diminishing the standing of individuals in their business or community. Proof of libel is a matter for resolution in the judicial system. However, the infractions against the rules of mailing and of the Fair Campaign Provisions require action by the National Elections Supervisor.

Therefore, it is ordered that:

  1. On air announcements be broadcast on WBAI at least eight (8) times per day through November 16, and at different times of the day to reach the breadth and diversity of the listenership, refuting any association between WBAI and the mailer marketing flashlights;
  2. On air announcements be broadcast on WBAI at least eight (8) times per day through November 16, and at different times of the day to reach the breadth and diversity of the listenership, explaining the truth about the Amy Goodman contract; and
  3. All revenue from the ACE mailer must be turned over to WBAI.

Casey Peters
National Elections Supervisor
Pacifica Foundation

Comments

Here's what the ACE mailing

Here's what the ACE mailing said about Democracy Now:
"P.S. Will DEMOCRACY NOW! leave WBAI? Although it’s our most popular program (half our audience and 1/4 of our income), the JUC won’t let it be re-broadcast again in the evening after work, so more people can hear it. Evidently, they don’t feel Amy Goodman is “worth” the air time. A chilling thought, because Amy Goodman’s contract expires at the end of this year. Will it be negotiated by those who want her to stay – or by those who don’t care if she leaves? Remember, Amy Goodman and DEMOCRACY NOW! did leave WBAI during a management conflict in 2000–2001. ACE doesn’t want this to happen again, and the 11 candidates we endorse are pledged to do everything in their power to keep Amy Goodman and DEMOCRACY NOW! at WBAI. No similar pledge, to our knowledge, has been made by any JUC candidate. Remember that when you vote."

Here's the text of the cart being aired on WBAI:
"This is Dale Ratner, your local elections supervisor. A recent mailing accused one slate on the local station board of being against Democracy Now. This is not true. The Pacifica National Board unanimously renewed Amy Goodman's contract in September, well in advance of the misleading mailing. Members from all WBAI slate had already voted 'Yes' to renewing her contract. Ballots are due soon. Friday, November 16th is the ballot drop off date at WBAI from noon to midnight."

Wonderwheel and Spooner Counter

Wonderwheel & Spooner
Attorneys and Counselors at Law
111 Santa Rosa Avenue, Suite 406 Santa Rosa CA 95404

A. Gregory Wonderwheel
Carol Spooner

November 8, 2007

Via Email and First Class Mail

Casey Peters, National Elections Supervisor
Dan Siegel, Interim Executive Director
Pacifica Foundation
1925 Martin Luther King Jr. Way
Berkeley, California 94704

Re: Ruling of National Elections Supervisor in response to ACE Mailing

Dear Mr. Peters and Mr. Siegel:

My clients, ACE and Steve Brown, hereby demand that you retract the false, misleading, defamatory and malicious "Ruling in response to Ace Mailing" published by Mr. Peters this morning, and remove it from all Pacifica web pages.

If any carts are aired on WBAI in any way implying that the ACE mailing was illegal or prohibited by any law, or by any illegal "rules" promulgated by Pacifica, both Pacifica and Mr. Peters, individually, may be held liable for libel with malice.

  1. The ACE mailing does not "market merchandise", it offers a free flashlight as a gift for promising to vote (regardless of who people vote for) and it offers additional free flashlights if people contribute to help defray the cost of the mailing to solicit votes in a corporate election. ACE'S offering of “premiums” for donations is the same practice used by Pacifica to raise money. So, if the ACE mailing is “commercial”, then Pacifica's use of premiums to thank donors is also “commercial.” Thus, your statement that the mailing "marketed merchandise" is specious, false and defamatory, and maliciously intended to support JUC candidates for the WBAI delegate positions who will elect corporate directors, in violation of Corporations Code §5526 and Pacifica Bylaws.
  2. Any "rule" by Pacifica against fundraising to solicit votes in a corporate election is unlawful and unenforceable, and you were so advised by my email of October 14th. Soliciting funds to help pay the costs of soliciting votes in a corporate election is specifically permitted under California Corporations Code §6338(1)(a). Thus the implication that the ACE mailing violates a "rule against fundraising" is intentionally and maliciously misleading and false as it was Pacifica that attempted to violate the rights of its members by promulgating unlawful rules.
  3. Pacifica was NOT "forced to delay mailing the ballots by more than a week while the ACE slate redesigned its mailer to conform with the rule against harvesting addresses belonging to the Pacifica Foundation." Pacifica was forced to delay mailing the ballots for more than a week because (1) Pacifica did not have the WBAI mailing list ready in time to mail the ballots on October 15th, and (2) Pacifica had refused to supply the mailing list to ACE's New York mailing house, as requested in writing by Steve Brown on September 10th and 24th, and October 2nd, and had failed to notify Steve Brown of it's refusal and proposed alternative method of contacting the members within 10 days after his initial written request as required by California Corporations Code §6330. Instead Pacifica waited until October 14th, the day before the ballots were to be mailed, to notify Steve Brown that it would not supply the mailing list to the New York mailing house. In addition, no "rule" against using window envelopes was communicated to ACE prior to your October 14th email to Steve Brown. ACE was required to redesign its mailer at the last minute due to delays caused by Pacifica, and it is very questionable whether Pacifica has the right to prohibit using window envelopes in mailers.
  4. Pacifica has made no announcement of the renewal of the Democracy Now contract known to any member of ACE, nor any public announcement at all that ACE members can find. If it has made such an announcement, I defy anyone to find it on the Pacifica web pages. Furthermore, your statement about the "supportiveness" of JUC members on the PNB goes beyond your knowledge as National Elections Supervisor, and apparently divulges confidential information as all discussion of contract negotiations take place in Executive Session of the board. In addition, by making assertions about what JUC members do or do not support constitutes taking sides in the election debate, which Pacifica and the Elections Supervisors are prohibited from doing.

Thus your entire statement is false, misleading, defamatory and malicious, and obviously intended to support JUC candidates for the WBAI delegate positions who will elect corporate directors, in violation of Corporations Code §5526 and Pacifica's Bylaws. If it is not retracted my clients will be seeking legal remedies.

Very truly yours,

/signed/

Carol Spooner

Cc: Client