Dear PNB Board members: 

I am eternally grateful to the Pacifica Foundation for its long and important role in providing a voice for independent news and community voices from its five stations and for offering programs for the 180+ affiliates and the shared relationship between the affiliates and the Pacifica Foundation. All of this strengthens community voices throughout the country.

As a board member of the PNB, I am also thankful for the experience of learning more about the role and responsibilities of a board member whether with Pacifica or any other board. This is thanks to the instruction I received from Holman HR. But first, some background.

When I came to the Pacifica board I was alarmed at the significant number of lawsuits against the Foundation. As Executive Director at the time, Arlene Engelhardt, was needing to spend much of her time dealing with these lawsuits in court and at virtually every PNB meeting there was a discussion with attorneys with updates on various lawsuits. This was astounding to me and I wondered why so many lawsuits and began making inquiries of all sorts.

I began to realize that two of the critical factors here were (1) contracts that had not been properly created and also (2) there has not been enough human resource training for staff and board on employee relations and employment law.

Like most of you, I am sure, we likely think that in being a board member of an organization we have ultimate control and say over virtually everything, sometimes without  the need for consultation from outside sources. I have  assumed that to a large degree, but I have learned differently, particularly when spending time on the contract for Summer Reese. I realized how important it is to understand employment law in the state where the organization is licensed. Otherwise, the organization is likely vulnerable to significant financial consequences. This was one of the reasons in the Washington, DC PNB meeting in February 2014 that we recommended human resource training for Pacifica board members as a must. I am hoping this will happen in the future. For me, talking at length with Dawn Alexander at Holman HR was incredibly instructive regarding human resources overall but especially relative to California employment law.

Regarding the consequences of numerous lawsuits, Summer Reese, as IED, managed to obtain insurance coverage for the board, albeit it was a difficult task given the sizable number of lawsuits against the Foundation in the past. I was impressed with her earnest efforts on all of this. The insurance company we ultimately secured, however, required that we confer with a human resource firm on employment issues and in order to be compliant with that request of the insurance company, I did exactly that. I conferred with Holman HR for Summer’s contract.  Given the Foundation’s history of lawsuits, this demand was certainly reasonable and I remain grateful for this, in fact.

Probationary Period in Summer Reese’s Contract and Other Contract Issues

I won’t go into all the details here – I will spare you on that – but one of the things Brian Edwards-Tiekert said at the PNB meeting on Thursday, August 14, 2014 was that the contract created for Summer” effectively got rid of the probationary period”. This is simply not true. It is there. In fact, everything from the offer letter is included in the contract for Summer. We made sure of that.

The issue of probation is complex however. Holman HR consultants – both Dawn Alexander and employment attorney Michael Goldfarb – were surprised that the Pacifica Board wanted the probationary period for an employee who had already worked for the organization for close to 2 years as an “at-will” employee and without a contract. Summer Reese was essentially on probation during the 17-month period. I was talking with and/or sending drafts to Holman HR at every juncture.

Here is the note from Holman on this probation issue  (the “da” stands for Dawn Alexander).

__________________

TERM OF AGREEMENT

Reese shall serve as Executive Director for Pacifica for a period of three (3) years, until December 31, 2016. The three-year period includes a probationary[da1]  period of six (6) months, with a performance evaluation prior to the end of the six month period. If the Pacifica evaluation is positive or if the Pacifica National Board fails to perform the evaluation by the end of the probationary period, then the probationary period as per this agreement will be deemed to have been completed.

 [da1]With Summer having been the interim ED this would appear to be redundant. If it is to remain it should be referred to has something other than probation. 

__________________

But I told Holman there was no choice in the matter as the board approved having a probationary period so it would remain in the contract. We didn’t call it something else as mentioned by Holman  – it was called “probation” as requested by the PNB. It was, in fact, PNB member Margy Wilkinson who offered the motion  at the PNB meeting in Houston November 2013 to have a 6 month probationary period for Summer.

 It was also moved and approved that previous contracts be used as models for the offer letter for Summer. The offer letter and the previous contract for Arlene Englehardt was also used for Summer’s contract.

What I learned from Holman HR is that when you have a “contract”, even for the 6-month probationary period, there needs to be protection for the employee and the Foundation. I also started reading all kinds of material about probationary periods and at-will issues in California law in addition to talking with Holman about this. Here is the summary of some of the contract issues:

(1)  Arlene Englehardt’s contract that was used for the offer letter was incredibly flawed: She was under contract yet could be fired “at-will” during the probationary period. This “at-will” provision was not incorporated into Summer’s offer letter created in Houston so, alternatively, it was not included in her contract. Further, Summer had been working for Pacifica for 17 months without a contract and was an “at-will” employee during that period. There is generally considered a limit as to how long a person can be employed “at-will”. It is also important to note that she could have been fired any time during that 17-month period. Also, when you have a contract, Holman HR informed me, “at-will” employment is no longer applied but rather “for cause”. There were 3 “for-cause” provisions in Arlene’s contract so these were included in Summer’s contract as well that were also vetted by Holman HR.

 (2)  Probationary period: Holman HR informed me that, if fired when under contract, the standard for employee compensation is relative to the length of the contract. Summer has a 6 month probationary period which includes an evaluation of her work prior to the end of the 6 months – if fired she would be compensated for the remainder of the probationary period which could be anywhere from one to six months, depending on when the board fired her, plus accrued vacation time up to the stated cap and all this would be subject to Human Resources review. This provision protects the employee and the Foundation from a lawsuit or efforts to acquire more money. It is focused on the length of the probationary period only.

(3) Permanent employment: Again, as with probation, as a permanent employee Summer could be fired only for cause. And in the event she was fired, she would be compensated for one year’s salary plus accrued vacation time up to the stated cap. An arbitration clause is also included in the contract.  One year’s salary is the standard for executives if a contract is severed.  (Although, a contract severance pay could be for the entire 3 year term, say of $300,000, but we chose the one year severance pay which, as I said, is standard in California.)

(4)  Protection for Pacifica: Because Arlene Engelhardt’s contract was incredibly flawed, she was able to negotiate considerably more money when she was fired. This was applied to Lavarn Williams as well. Both could have likely demanded even more under the circumstances. Pacifica is protected here by applying the standard of “one year” compensation and assuring that its “contractual” employee can only be fired “for cause”. Arguments that this contract is financially encumbering to Pacifica are fallacious. In fact, if anything the contract is protecting the Foundation from additional lawsuits as it is following the HR standards for executive employee contracts.

PNB member Adriana Casenave mentioned at the PNB meeting on Thursday, August 14, 2014 about me not talking with the PNB attorney, Terry Gross, regarding Summer Reese’s contract. The fact is, Terry Gross is not an employment attorney, so I didn’t talk in detail with him about the contract but rather with Holman HR that is headed by an employment attorney, Michael Goldfarb, and who also reviewed sections of Summer’s contract.

But regarding attorney review, it is also important to note that at the PNB meeting in November 2013 Carolyn Birden moved that an attorney look at the offer letter and in a vote the board denied this request. I don’t know why this request was denied by the board but perhaps it was because the creators of the offer letter were 2 attorneys (Siegel and Norman) and one other creator (Cromshow) who was studying for the bar and perhaps some on the board thought they were appropriately covered regarding attorney review. These three were board members, however. To assume they wouldn’t or couldn’t have a conflict of interest here is rather bizarre given the splits on the board and/or we didn’t have their credentials on employment law. In my opinion, an employment attorney should have looked at the offer letter. This never happened.

Further, the PNB did not ask that the contract be brought back to the board.  In fact, in my inquiries I discovered this has never been done in recent history or maybe never for all I know. Arlene Engelhardt’s contract was not brought back to the board, nor was Lavarn William’s, nor Raul Salvador’s, nor contracts for recent IED’s . Had the board requested this it would absolutely have been before the board.

Transparency of Board Members is Lacking

As is well known, I was one of the supporters of Summer Reese being executive director of Pacifica and I still am. As Dan Siegel had told me in Houston, “I didn’t vote for Summer but she’s smart, young and energetic. She could be Pacifica’s executive director for the next 15 years.” I agree with that sentiment totally.

In fact, I think she’s the most talented candidate we have, presently, for the executive director position. I was impressed also that she has extensive knowledge of unions and union contracts. During her watch she did every conceivable thing to prevent lawsuits against the Foundation in addition to all of her other responsibilities. I remain impressed.

I know there are many motives of board members. I have heard that the Los Angeles folks want a predominantly Spanish speaking radio station. That KPFA board members want to break off from Pacifica and/or break up the Foundation altogether and would not be bothered if WBAI is sold. No one is being honest about anything it appears. I heard rumors about the members wanting to fire Summer prior to the 2014 Washington, DC meeting;  and that folks had talked with Raul Salvador prior to the DC meeting assuring him that he would get his job back, in spite of the PNB personnel committee’s extensive review of his work, leading to the previous board not retaining him as CFO. 

It would be helpful if board members were truthful about their real motives so we all knew what we are dealing with.

I had assumed also that Summer was doing too good a job and was not easily manipulated by certain board members. Instead of being split up, as now appears is happening, Summer was also a strong advocate that the Pacifica Foundation Radio network stay together and be strengthened and be more of an independent and non-corporate voice in the increasingly narrow media landscape,  I assumed, therefore, that these were perhaps the reasons why some board members did not want her as executive director. At the very least, it would be good for there to be some transparency and for board members to be honest. There was no review of her work or reason given for her firing. This is still astounding to me.

Here is some of My Transparency on This

All the stations are valuable of course, but I can’t help but think that the New York and Washington DC stations stand out as centrally important. They are at the heart of the US and the world’s financial, media and US government arenas.  But for me, being in the South, the Houston station is also critical. It has withstood the Klan to then maintain its principles. Amazing really! But I am also interested in Pacifica moving forward into the 21rst century with new technologies, platforms and reach, etc.  This is an interest of Summer’s as well. There is much that can and should be done. And finally, I am also of the opinion that Pacifica should abolish its allegiance to the “healthy station” model of paying producers and become real community/independent radio stations with volunteer producers. This would also help the entire Foundation financially and likely bring it into solvency.

Thanks all.

 Peace,