KXCI's capitulation began April 4, one week after longtime member Bill Risner took station management and board members before Judge Carmine Cornelio of Pima County Superior Court. Risner, a lawyer, was among those unwilling to allow KXCI's board and management to make what they viewed as arbitrary decisions regarding programmers, programs, hosts, and volunteers.
Protests galvanized when KXCI's general manager Tony Ford summarily dumped the popular and long running Celtic Crosscurrents hosted by John Murphy in early December.
Ford and his board must supply the list of members to Risner by April 21. Repeatedly rebuffed by Ford and KXCI lawyers in his efforts to obtain the list, Risner hired Edward Moomjian II to file a lawsuit to pry the list from KXCI and its parent, the Foundation for Creative Broadcasting, Inc.
Though Ford, by all accounts, was composed and held his own on the stand during the hearing that Judge Cornelio conducted March 28, other KXCI representatives stumbled, particularly on the questions of whether membership lists are secret under state law and under rules governing recipients of funds from the Corporation for Public Broadcasting.
With defeat certain, KXCI officials made a speedy effort to settle with Risner. In the settlement, Risner won access to the list "to solicit money or property to be used solely to solicit the votes of the members in an election to be held by the Foundation resulting from the use of their initiative power."
Risner and others shut out by KXCI will use the list in their electoral campaign to recall board members and to force the board to reverse the controversial bylaw changes that stacked the board of directors with 14 appointed members and just six directors who are elected by KXCI members.
The case pitted lawyers from two of Tucson's top-tier firms: Moomjian, from Chandler Tullar Udall & Redhair, and Lindsay Brew from Haralson Miller Pitt Feldman & McAnally. Brew, a longtime practitioner in Tucson, was forced to salvage a case damaged by previous off-the-mark work as well as KXCI's stubborn, and now costly, defiance.
Indeed Risner, a founding member of KXCI, simultaneously warned KXCI and lamented that costs of litigation would erode the station's limited resources. His attempts for a rapid solution in January were repeatedly met with resistance.
But now KXCI and, through extension, its members and donors will be paying not only Brew and his firm, but Risner's legal costs. Under the agreement, KXCI will pay $2,000 of the bill Risner has rung up with Moomjian plus $130 for the cost of filing the suit.
KXCI is clinging to one concession. Judge Cornelio, in a ruling filed last week and still subject to modification, noted that the Risner's use of the membership list must "disclose the funds are not being solicited by KXCI or the Foundation (for Creative Broadcasting) and that contributions may not be tax deductible."
Other contributions to KXCI are tax deductible because the Foundation for Creative Broadcasting is a nonprofit corporation. Ford and other KXCI officials have claimed that Risner's use of the list will antagonize or even alienate members.
In the settlement agreement filed in court, Brew said "failure to make the disclaimer (on tax status) could cause confusion and resentment among those solicited and jeopardize the efforts that (KXCI) has made over the years to establish its relationship with its donors."
Answering for Risner, Moomjian said that disclaimer is unnecessary because state law simply allows for membership lists from nonprofits for such solicitation.
KXCI's "tax exemption concerns are further red herrings," Moomjian wrote.
Risner is on vacation for three weeks and unavailable for comment. He and other longtime KXCI members were alarmed by the sudden cancellation of popular shows as well as station agreements that strip show hosts and other volunteers of all rights.
Ford and his majority bloc on the board, led by Tucson lawyer Rick Bacal, insulated themselves with the fundamental bylaw revision that permitted a wholesale change in the board's composition. That change diluted the voting power of KXCI's members. Previously, KXCI members elected a majority of board members while the minority was appointed.