February 26, 2004

 

Tom Spendiarian, President

The Foundation For Creative Broadcasting, Inc.

                                                                                                

Dear Tom:

 

As members of the Board of Directors of the Foundation for Creative Broadcasting, Inc. you paid  attorney Gary Wolf for a specific research project of investigating my background with our radio station KXCI.  I have attached to this personal letter to each of you the letter from Mr. Wolf you bought dated February 19, 2004 just in case you were not given a copy of his confidential letter.  Your fellow board member, Kathleen Williamson, has separately written to me and requested on behalf of the board of KXCI as well as herself as a licensed attorney that I respond to you as soon as possible to the matters that Gary Wolf brought to your attention concerning possible conflicts of interest.  She ccd each of you with her letter.  Bradley Miller has separately written that he is aware of the issues in Gary Wolfs letter.

 

Mr. Gary A. Wolf, who impressibly purports to be an attorney licensed in Arizona and Colorado, says he reviewed most of KXCI minutes, bylaws and resolutions and as a result of his examination it appeared that I, Bill Risner, sat as an active member of KXCI Board of Directors and Executive Committee from 1982 to 1990.  I have not confirmed those dates but I can confirm that I was a volunteer like each of you are and served on the initial board of directors and thereafter for many years.  I also helped produce a bilingual show called Visión Latina for several years, I was the first contributor to the 220 Club, I was an underwriter for many years and, indeed, my advance underwriting check started the KXCI checking account.  I personally guaranteed the purchase of equipment that enabled KXCI to go on the air.

 

Mr. Wolf, however, gives me much more credit than I deserve concerning my involvement with legal documents, by-laws and agreements and so forth, but since that puffing does me no harm, I will excuse him for those inaccuracies.

 

Mr. Wolf asserts that KXCI undoubtedly appreciated my pro-bono legal work during my tenure on the board.  If his yearly calculation is correct, eight years of unpaid volunteer work does indeed merit appreciation.  I seem to recall ten years but time flies when youre having fun.  Mr. Wolf further determined that mounting evidence suggests that I acted as KXCIs de facto counsel.  In order to confirm the validity of that mounting evidence Mr. Wolf reports that he solicited the opinion of several past and present KXCI members to see if their impression of my work supported the conclusion that he reached.  Furthermore, on several occasions he claims that I apparently represented to others and held myself out as counsel for KXCI.

 

I can confirm some of the facts unearthed by Mr. Wolf on your behalf.  I am, of course, a lawyer.  I did utilize my legal knowledge in carrying out my responsibilities as a board member.  My general posture, however, was that I was not the boards attorney but was simply a board member who was an attorney.  I obtained the services of Paul Saba who acted as KXCIs attorney for a number of years.  I did so because I wanted to be a board member and not KXCIs attorney.  On the other hand, there may have been occasions where I was in fact KXCIs lawyer.      

 

I recall only one instance in which I represented KXCI.  My initial recollection was that the case concerned a collection matter.  I did, however, recall that the opposing lawyer was Austin J. Horan, Jr.  I telephoned Mr. Horan, Wednesday, February 25, 2004, and he partially refreshed my recollection.  Mr. Horan said he recalled that his client was a former employee of the station who put up a tower and was then fired.  He apparently had an employment contract with an arbitration clause and Mr. Horan recalls a two-day arbitration.  His recollection seems correct but, after all, this was probably eighteen to twenty years ago.  I do recall that it took a lot of time and I did not charge KXCI any fees.

 

What is the significance of the fact that I may have once represented KXCI on a couple of matters?  For the answer you need to refer to the lawyers ethical rules cited by Mr. Wolf.

 

ER 1.6 says that I should not tell anyone outside of the KXCI board of directors about any confidential information I may have learned during the pendency of the employment arbitration, the details of which I cannot recall.  In that regard I avow to each of you that no one outside of this board will ever squeeze that information out of me.

 

ER 1.9 says that since I represented KXCI, I cannot thereafter represent another person in the same or substantially related matter.  That means I cannot look-up whoever had the claim against KXCI twenty (20) years ago and represent him or her on that same claim or a substantially related matter.  Again, I avow to you that you are safe.  That section does not mean I cannot sue KXCI but that I cannot sue you about those same or substantially related matters.  For an example on how those rules work, I have represented the Pima County Board of Supervisors in several matters and I have sued the Pima County Board of Supervisors and may do so again.  I am able to represent them and to sue them because those were separate matters and I did not use any confidential information against them.

 

Which brings me to the Democracy Initiative.  The members of the Foundation for Creative Broadcasting, Inc. have the ultimate power to set policy.  The by-laws, which are sort of a corporate constitution, provide that a petition signed by 10% of the members shall be scheduled for an election where a super majority can change the stations policies.  As a member of KXCI I have been participating in this right that I share with all other members.  It is quite analogous to our right as Arizona citizens to initiate statewide legislation.

 

The policy that I and hundreds of other members want to initiate is to reclaim membership control over the selection of the members of the board of directors.  As you know, presently, only six of you are elected and, pursuant to the by-laws, fourteen may be selected and not elected.  Thus the members can never control the board but instead, an inside group of cronies can always select like-minded replacements.  I understand that most, if not all of you, prefer the system that resulted in your own selection.  This disagreement between us, however, is one of principle and you may choose to vote as you see fit.

 

Your hired researcher, Mr. Gary A. Wolf, has correctly accused me of  calling for various KXCI policy changes through the so-called Democracy Initiative as if that activity was improper.  He has further accused me of cooperating with other members in this endeavor.  It is true.  I am cooperating with other members and will continue to do so.

 

And now we near the key issue he raises and the key question.  He alleges on your behalf, that I have inside knowledge and information that I allegedly learned as a former Director and Counsel of KXCI.  What could he possibly be talking about?  What possible inside information from 1990 could be utilized in an election concerning the proposed by-law changes?  What possible information from a decades old employment contract dispute could have any relationship to the election of board members?

 

The answer is obvious.  There is none.  There could be none.  And each and every one of you knows there could be none.

 

Your hireling researcher accuses me of harming KXCI because you unlawfully refused to provide me with a membership list as you were required to by an Arizona statute.  How did my lawful request harm KXCI?  Your unlawful response, of course, did harm KXCI to the tune of at least $5,000.00.  I might add that your lawyers at the courthouse did not even argue that you were correct.  The upshot was that KXCI spent thousands of dollars for an unlawful refusal your lawyers were embarrassed even to argue.  To accuse me of harming KXCI is to turn the history of your refusal upside down.

 

I would ask each of you to consider the changes in the board of directors and station management during your tenure.  I ask you to consider the board and management in 1990 and the changes since that date.  You may recall your own board discussion two months ago when no one knew which set of by-laws were current.  There is not a similar board secrecy rule like lawyers have.  If there were such thing, how could anyone relate process secrets back fourteen years?  Mr. Wolfs words contain letters but not content.

 

May I call your attention to Mr. Wolfs central claim against me that you can find at the bottom of page two and top of page three of his letter.

 

"You have undoubtedly used your inside knowledge of KXCI to your advantage as to how KXCI makes its decisions, settles cases, analyses conflicts, conducts meetings, reviews issues, prepares legal documents and records information.  Your inside information and knowledge has placed you and your present Democracy Initiative clients at an advantage and placed your present Democracy Initiative clients at an advantage and placed your former KXCI clients at a disadvantage."

 

This is sheer nonsense.  Quite frankly I have experienced considerable amusement penning sample responses to his letter that I wisely then threw in the trash can.

 

The amusement ceases, however, when I consider that the purpose of your hiring Mr. Wolf was to intimidate a member from exercising his membership rights.  You hired a lawyer to threaten me with ethical violations.  You hired a lawyer to lecture me about a directors responsibility.  Well, a turn-about in lecturing is fair play.  Each of you has responsibilities as members of the board of directors to preserve the rights of the members.  You have the responsibility to protect the treasury.  You have a responsibility to treat your members fairly and in good faith.  How much did you pay Gary A. Wolf to threaten me?  His advice to you is confidential but his bill is not.  What did it cost to find out that I was a hard-working former member who performed pro-bono work for KXCI that was undoubtedly appreciated?

 

I have asked you before and I ask you again to come to your senses.  The Democracy Initiative is a simple by-laws change.  If you are each unpaid volunteers, why the unlawful intimidation?  Why not meet the ideas of your members with your own ideas if you think they have merit?

 

Your repeated violations of your fiduciary duties have made it clear to me why an elected board is preferable to an appointed board.  Your unfair use of the corporate machinery to perpetuate yourselves in office speaks loudly and clearly of the end result of a daisy chain selection process.  I prefer a democratic process.