JUC Banner

Open Letter to the WBAI and Pacifica Communities
on the Tainted WBAI Local Board Election

March 28, 2008

We are the 8 listener candidates for the WBAI Local Station Board from the Justice & Unity Campaign. We believe that owing to a devastating combination of outrageous violations of the fair-campaign rules by one group of candidates and serious mismanagement and errors by the Local and National Election Supervisors, the integrity of this election has been fatally compromised. The list of inappropriate actions is extremely long, and this letter can only mention the most egregious. As community activists who have actively spoken out against election irregularities and corruption in government elections, we find it even more unacceptable that such improprieties could occur in the elections of a community radio station that is supposed to be progressive.

For the vote count scheduled for this Monday, March 31, we insist that ALL ballots of eligible voters be counted -- contrary to the position of the plaintiffs who have sued Pacifica. Ultimately, however, the serious violations and tainting of the electoral process argue for reballoting to occur, at the expense of the group operating under the name ACE (Alliance for Community Elections), the candidate-endorsing organization whose adjudged misconduct in their private mailing to WBAI members led to the lion's share of the problems with the election.

1. Severe Violations by ACE of Fair Campaign Rules
2. Serious Errors in Ballot Handling and Processing
3. Voter Disenfranchisement Owing to Mismanaged Delivery of Ballots
4. Lawsuit Against Pacifica Is Based on Deception and Seeks Disenfranchisement
5. Urgently Needed Remedies

1. Severe Violations by ACE of Fair Campaign Rules

The single greatest corrupting force in the election was the expensive, multi-piece, merchandise-marketing and candidate-endorsing mailing sent by ACE to the entire WBAI membership list -- more than 15,000 voters. (By the accounts of several ACE-endorsed candidates, ACE is the creation of WBAI Local Station Board member and direct mail marketer Steve Brown, who also participated in a confidential court conference on the election lawsuit at the invitation of plaintiffs.)

Then-National Election Supervisor Casey Peters ruled on November 8, 2007 -- a week before the original election deadline and long after thousands of votes had been cast -- that "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 Foundation's National Elections Supervisor. The same rules were followed by other organizations sending slate mailers."
Specifically, Mr. Peters found the following violations:

o Referring to their marketing of the so-called "WBAI Truth Torch" (a flashlight) containing the station's logo, which was used without permission: "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." It should be added that ACE's flashlight marketing also directly competed with Pacifica's appeal for donations to defray the costs of the election, which was enclosed with ballots.

o Another finding was that ACE had made "a false statement that Amy Goodman's 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."

Mr. Peters ordered on-air announcements to be played correcting the falsehoods (including one "refuting any association between WBAI and the mailer marketing flashlights"), but those announcements were not recorded and aired until the final few days of the election, and they were not replayed during later election extensions. In addition, it appears that Mr. Peters's order that "all revenue from the ACE mailer must be turned over to WBAI" has been ignored by ACE.

However, Mr. Peters failed to rule on several other equally outrageous rules violations committed in the same ACE mailing:

o A false claim that the station was bankrupt;

o A libelous statement that the Program Director and members of Justice & Unity were responsible for a physical attack on the former Premiums Coordinator, when in fact the Program Director rescued the Premiums Coordinator from his alleged assailant, and no member of Justice & Unity has any connection whatsoever with the alleged assailant;

o A false allegation that Justice & Unity board members were "purging" programmers at the station -- including one who left to work on satellite radio -- when the local board does not have the power to add or remove radio hosts;

o The marketing of the flashlight (in return for casting a ballot) and the inclusion of an official-looking "WBAI programming survey," which were ploys by ACE to illegitimately obtain members' confidential names and addresses to build their mailing list for this and future elections and for other purposes. This was intended to circumvent the safeguards that WBAI properly places on its membership list: slates are only allowed to send out mailers through a mailing house, so as to ensure the confidentiality of the members' contact information. Mr. Peters noted in his ruling that "ACE was expressly prohibited from repeating the previous year slate mailer that featured an official-looking survey with the members' names and addresses imprinted," yet he failed to find that its 2007 materials simply promoted membership harvesting in a different way.

o Illegal staff endorsements of listener candidates by four Pacifica staff persons -- WBAI Public Affairs Director Kathy Davis, WBAI engineer Shawn Rhodes (both of whom are WBAI LSB members), KPFK/WPFW program host Gary Null, and KPFA paid staff member Robert Knight -- in violation of the rule forbidding such staff endorsements using Pacifica resources (defined specifically to include station mailing lists).

All of these violations irreparably tainted the fairness of the entire listener candidate election. It is inconceivable that the endorsed candidates were unaware of the content of the ACE mailing, since the materials included their photos and bios, together with quotations from them. In addition, a whistle-blowing, disillusioned would-be candidate released details on how Steve Brown, LSB member Jamie Ross, and KPFA listener Carol Spooner attempted to recruit her to run as an ACE-endorsed candidate and to obtain detailed information about her for packaging in the mailing. Yet Mr. Peters acted on only a fraction of the complaints against ACE, its staff endorsers, and its endorsed listener candidates, and the few penalties exacted for their extreme misconduct were grossly inadequate.

It should be noted that the use of unsubstantiated charges of misconduct against WBAI managers and staff - sometimes using racist stereotypes -- has been a consistent tactic of ACE and its endorsees for years. For example, in August 2007, ACE leader Steve Brown widely circulated accusations -- without any evidence whatsoever -- that Program Director Bernard White had three years earlier intercepted and stolen the membership check of a candidate who was planning to run on Mr. Brown's slate, and that Mr. White had likely caused hundreds of WBAI membership checks to go astray. These false accusations were also made in the service of attempting to take control of the WBAI membership, as Mr. Brown took the occasion to urge listeners to send their donations to his Upper West Side penthouse, instead of to the Post Office box that exists for the purpose of securing WBAI members' donations.

Most fundamentally, the fact that Pacifica's rules allow those with access to large sums of money -- just as in government elections -- to unduly influence elections through expensive mailings is shameful and must be changed. The fact that Justice & Unity, with far fewer resources than ACE, felt forced to do a much more modest, one-page mailing was merely a symptom of the grossly unlevel playing field in which we had to compete.

2. Serious Errors in Ballot Handling and Processing

Local Election Supervisor Dale Ratner made several serious errors in ballot handling and processes that further tainted the integrity of the election:

o On December 7, 2007, Mr. Ratner carried out an unwitnessed collection of ballots from the Post Office box that violated the established Pacifica protocol, which calls for pre-announcements of any ballot pickups with an opportunity for witnesses to be present (as was done for the court-ordered November 19 ballot pickup).

On March 15, several further lapses in proper ballot handling occurred:

o Mr. Ratner directed that all ballots received by November 19 (more than 2,500) be opened and separated from their envelopes -- despite his total failure to give candidates notice that this would occur (his notification email said only that he planned "to count for quorum and separate staff and listener sponsor ballots"). The result is that candidates were unfairly denied the right -- always provided in previous Pacifica elections -- to view the opening of envelopes containing ballots. In addition, plaintiffs in the current suit gained a key advantage by being able to view the trend in voter choices before the date of the final vote count, for use in their legal maneuvers.

o Mr. Ratner broke the chain of custody of more than 2,500 listener ballots by leaving those ballots unattended in the station's conference room while he spent more than 30 minutes at the photocopy machine, far away from the conference room. Instead of locking the door to assure that ballots remained secure, Mr. Ratner allowed the ballots to remain unsupervised, with anyone free to enter or leave the room.

o Mr. Ratner turned over to ACE-endorsed Pacifica National Board member Carolyn Birden several ACE "surveys" and flashlight orders containing WBAI members' names and addresses, whichvoters had sent to Pacifica along with their ballots. This was done despite the strong objections of PNB member Bob Lederer, who noted that these documents were part of a mailing that had been found to violate election rules, and that in any case, all documents sent by voters to the Pacifica Post Office box were the property of Pacifica, not to be given to anyone not officially representing WBAI or Pacifica.

o During the November 19 ballot pickup, witness Carolyn Birden stated in Mr. Ratner's presence that a large Express or Priority Mail envelope contained about 100 ballots and added, "I know who it's from," but did not reveal the sender's name. Despite Mr. Ratner's awareness of what should have been a cause for serious concern, during the March 15 ballot opening he allowed the unremarked integration of those ballots, minus their individual envelopes, into the pile of ballots that had been mailed individually. Thus those ballots mailed as a group, which may well have been sent originally to ACE along with flashlight orders, giving ACE the opportunity to forward only those ballots favorable to itself, are now untraceable. (Subsequent to the ACE mailing, ACE principal Steve Brown sent a broad public email reminding voters to return their ballots to the official voting Post Office box, not to ACE -- implicitly acknowledging that some voters likely had mistakenly returned their ballots to ACE.)

3. Voter Disenfranchisement Owing to Mismanaged Delivery of Ballots

For whatever reason, there were severe problems in delivering ballots to all properly enrolled voters. In many cases, even when voters requested replacement ballots -- sometimes 2, 3, and 4 times -- they did not receive them, or received them only just before the (oft-extended) deadlines. To exacerbate matters, there were only sporadic on-air and website announcements clearly explaining the procedures for obtaining and casting replacement ballots and notifying voters of new deadlines for voting. Some of the announcements made by station staff members were inaccurate or misleading.

Numerous would-be voters have told us that they became discouraged and stopped trying to obtain their ballots. We know of others who to this day have still not received their ballots, despite their diligent efforts. In addition, during the web-streamed conference call of the Pacifica National Board Elections Committee Working Group on Wednesday, March 12, Mr. Peters announced that 22 WBAI voters had just that day been sent replacement ballots (two days before the deadline for ballots to be RECEIVED). Thus, while we believe that much of this was owing to gross administrative inefficiency rather than deliberate action, it still had the same effect: disenfranchising legitimate voters.

4. Lawsuit Against Pacifica Is Based on Deception and Seeks Disenfranchisement

To be clear, our concerns should not be confused with the outrageous lawsuit filed by the largely ACE-supported plaintiffs, which seeks to disenfranchise entire sectors of legitimate voters. The plaintiffs want Pacifica to reject the ballots of enrolled voters that were returned after November 19, unless those voters were lucky enough to hear the sporadic announcements about how and when to request a replacement ballot -- and unless those voters made such requests by November 16.

The plaintiffs also have the audacity to argue for the disqualification of the fewer than 40 voters who qualified for hardship waivers. Under the bylaws, such waivers are available to people who cannot afford the $25 membership fee and are unable to perform three hours of volunteer work but are sincerely interested in becoming members of WBAI. Applications for waivers were authorized to be postmarked up to August 31, 2007, yet the plaintiffs argue that these voters should be disqualified because their applications, which were sent in a timely fashion, were processed after August 31, the record date in the bylaws for gaining voting rights.

In addition, in yet another bid to gain unauthorized access to the WBAI membership, the suit includes a demand that the judge order WBAI to give its membership list to one of the plaintiffs, ACE-endorsed candidate Jamie Ross.

One highly deceptive aspect of the plaintiffs' original presentation to the judge is that the day before they filed their suit on November 16 demanding an injunction against ballot counting by WBAI based in part on voters' not yet having received ballots, Mr. Ratner had notified all candidates (including Mr. Ross, one of the plaintiffs) that the election was being extended by 8 days to November 23. This fact was not mentioned in the papers arguing for the urgency of intervening to stop the election.

Furthermore, the suit relies on spurious allegations such as that "virtually all" of the voters who didn't receive ballots were their supporters, when in fact a large number of supporters of Justice & Unity also reported that they had not received ballots. The suit also maligns the hard-working administrative staff of WBAI -- without any evidence whatsoever -- by claiming that this falsely-claimed one-sided withholding of ballots was probably caused by staff who "changed the zip code or otherwise altered the addresses of qualified voters whom they knew to be their political opponents so that their ballots could not be delivered." Their court filing stated that they opposed extending the relief they sought (extra time to obtain and cast a ballot) to any voters who had the misfortune to be out of the station's very flawed information loop about replacement ballots before November 16.

We want to state unequivocally: We insist that the votes of ALL qualified voters cast by the final deadline (March 23) be counted. Extending the balloting deadline was absolutely crucial to at least attempting to remedy the chronic administrative problems in delivering ballots on time and in communicating clearly to the listenership when and how they could obtain and cast replacement ballots. We agree with the judge's January 24 ruling in this case: "The defendants [Pacifica election officials] shall not count the ballots of the WBAI Delegate election until all qualified voters who have not received ballots are given ballots and are provided with a reasonable opportunity to cast them." That means regardless of when they requested those ballots.

5. Urgently Needed Remedies

Justice & Unity has worked diligently and constructively within the structures of Pacifica to rectify many of the problems that have arisen with this election cycle -- including each and every issue documented in this letter. But we must report that while some of our efforts have succeeded, others have failed. This long list of acts of serious and mostly unaddressed campaign violations, tainted ballot handling, and administrative mismanagement leading to the disenfranchisement of legitimate voters has severely undermined the integrity of the entire election process.

Therefore we call for the following urgent steps:

1. Before ballots are counted, all PIN numbers must be cross-checked with names -- with special scrutiny of similar-appearing names and a comparison of listener and staff lists to ensure that no duplicate ballots are counted.

2. The National Election Supervisor must count ALL ballots of qualified WBAI voters cast by the final deadline of March 23.

3. Given that by far the greatest harm to the integrity of the elections process was caused by ACE's extreme rule violations, the fairest remedy for all of the manifold resulting problems would be reballoting -- which must be financed by ACE. Already, ACE appears to be in arrears with WBAI for failing to turn over -- as ordered by the National Election Supervisor -- the revenues it illegimately gained from its WBAI membership mailing. Now it needs to be held accountable for the damage it has caused the Pacifica Foundation's election process.

Looking to the future, Pacifica must embark on a thoroughgoing evaluation of the entire election process from top to bottom. In addition to solving the many administrative problems that have plagued the voter lists for years, there must be clear rules, enforcement standards, and processes, as well as transparency of decision-making. Most importantly, Pacifica must remove the corrupting influence of private financing from its board elections.

Without the involvement of the Pacifica community, these problems will persist. We call upon everyone to speak out and become involved to ensure that what happened in this election cycle never happens again.

From the Justice & Unity listener candidates,
Marian Borenstein
Tibby Brooks
Omowale Clay
Lisa Davis
Wellington Echegaray
Sara Flounders
Bok-Keem Nyerere
Marianela Tricoche

Note: For more information on many of these issues, visit http://www.justiceunity.org .