On Friday, October 24, 2008 Rice County District Court Judge Bernard Borene was scheduled to hear SaveWCAL's Petition to Redress Breach of Trust.
Just prior to 3 p.m., the attorneys for St. Olaf College, Minnesota Public Radio (MPR) and the Minnesota Attorney General's office arrived at the courtroom en masse. There were four attorneys present for St. Olaf and MPR — most astonishingly, Tom Kigin, in his capacity as MPR's Executive Vice President and General Counsel!
There should no longer be any doubt that SaveWCAL efforts are indeed being taken very seriously by St. Olaf and MPR — despite their denials in the press.
St. Olaf and MPR have assembled high-powered legal teams to oppose the SaveWCAL Petition. (See the postings introducing St. Olaf's attorneys and MPR's attorneys.) And Tom Kigin himself traveled down to Northfield on a Friday afternoon to be present at this "insignificant hearing".
The hearing began at approximately 3:05 p.m.
SaveWCAL attorney Michael McNabb spoke first and laid out the basic premise of the SaveWCAL Petition for the judge. McNabb was prepared to go forward with the hearing. And it seemed that the judge began to understand that this is a complex case as the hearing continued.
However, as we pointed out in our October 24, 2008 posting, it seemed clear that neither St. Olaf and MPR had been prepared to have a hearing.
Lead St. Olaf attorney Michael Cunningham of Gray Plant Mooty spoke for St. Olaf. It was clear to a number of those in the courtroom that Cunningham was angry. Saying that the College "objects to and opposes the Petition", Cunningham proceeded to announce his plans to roll out a series of objections that he then enumerated — leaving himself plenty of wiggle room by adding that the College might find even more reasons to object later. In other words, St. Olaf College did not have anything ready to submit to the court.
At his turn, lead MPR attorney Salo Ale of Faegre & Benson spoke for MPR. He, too, announced that MPR plans to submit a laundry list of objections, leaving room — like St. Olaf — for MPR to object on other grounds. And — like St. Olaf — MPR did not have anything ready to submit to the court.
Cunningham also made a number of statements about SaveWCAL and our Petition, some of which we see as deliberate mischaracterizations to the Court of our position and efforts.
For example, Cunningham said in his opening statements that the court should not
…undo something done four years ago that will impact lives
We wonder if Cunningham was aware of the irony of that statement. Four year ago, St. Olaf College and MPR did something that impacted lives. More than 20 WCAL employees and approximately the same number of St. Olaf students lost their jobs. Tens of thousands of listeners and donors lives were impacted. Relationships and institutional reputations were seriously damaged.
Cunningham claimed that
[SaveWCAL] wants to take control of the trust
SaveWCAL has not said one single word to the court about our organization "taking control" of the WCAL trust, nor does our petition make that suggestion. We have, however, asked the court to remove the current trustee (St. Olaf College) for malfeasance and breach of trust.
Cunningham accused SaveWCAL of making
"inflammatory and outrageous accusations"
The inflammatory and outrageous accusations to which Curnningham refers are that SaveWCAL claims that WCAL is a charitable trust and that there has been a breach of the WCAL trust by the trustee, St. Olaf College. (See the Wikipedia article on Fiduciary Duty.)
Let's review who else has made the "inflammatory and outrageous accusation" that WCAL is a charitable trust:
- St. Olaf College itself in its Original Petition to the Rice County District Court
- The Minnesota Attorney General in June 20, 2007 Memorandum to the court
- The Rice County District Court Special Master in the report of his investigation
- Rice County District Court Judge Gerald Wolf who wrote in his June 2007 Order, made after an extensive investigation by the Special Master:
"St. Olaf continues to assert that the donated restricted funds it holds are endowments. However, under the applicable law, these donated restricted funds are actually a trust and St. Olaf is the trustee of the trust. Therefore, St. Olaf will need to comply with the legal requirements to which it is held as the trustee of the funds gifted to it for use by WCAL, regardless of the fact that St. Olaf no longer owns WCAL."
Let's review who else has made the "inflammatory and outrageous accusation" that there has been a breach of the WCAL trust:
- The Minnesota Attorney General in June 20, 2007 Memorandum said that said:
"In its April memorandum, St. Olaf attempts to circumvent charitable trust requirements for lifting restrictions on its assets by characterizing certain of its assets as not "literally" being charitable trusts and thus not subject to charitable trust principles. St. Olaf's assets, however, are undoubtedly either charitable trusts or held in charitable trusts and thus subject to charitable trust principles. Interestingly, St. Olaf's charitable trust arguments in its April memorandum are directly at odds with the charitable trust principles it sets forth in its Original Petition for Release On and Instructions Regarding Administration of Certain Gifts (dated October 6, 2006 [and filed on December 28, 2007]) ("Original Petition")."
- Rice County District Court Judge Gerald Wolf in his June 2007 Order determined that there had been an unapproved sale of WCAL trust assets.
"Now, the Court is faced with a plethora of issues to unravel in the aftermath of St. Olaf's unapproved sale of WCAL and the Minnesota Attorney General's Office's breach of its duties in this case."
Does Cunningham seriously mean to imply that a determination by a judge of WCAL's status as a charitable trust and a breach by the trustee is an "inflammatory and outrageous accusation"??
Cunningham also claimed that SaveWCAL
has separated itself from the college by suing St. Olaf
SaveWCAL is not suing St. Olaf College. We are petitioning the Court to redress a breach of trust by a trustee. It's a proceeding regarding the administration of a trust. Period.
Furthermore, SaveWCAL and our supporters have never separated ourselves from the College. Since 2004, we have continued to try to engage the College in constructive dialogue. It is the College who has clearly separated itself from its own community through its betrayal of the WCAL charitable trust.
Cunningham also defended St. Olaf College's right to block access to the College archives, which he claims are
St. Olaf's private property
If St. Olaf is confident that it acted lawfully in the selling of a National Public Radio station (i.e, including meeting the Corporation for Public Broadcasting requirements) and in its handling of the WCAL trust and related assets, why is the College continuing to block SaveWCAL's (and, therefore, the court's!) access to those records?
Unfortunately, Judge Borene did not believe that he had the authority to compel St. Olaf College to follow its own public policy. SaveWCAL will continue in its efforts to present all relevant information to the court.
And the Minnesota Attorney General?
Assistant Attorney General Ann Bloodhart did little but stand to introduce herself as representing the AG. She said nothing for the rest of the hearing, except on the one occasion when she was directly addressed by the judge and she then responded that the AG would simply wait and observe what will happen at the next hearing.
Supporting memorandum and documents for St. Olaf's and MPR's Motion(s) to Dismiss are due in to the Rice County District Court on November 20th (28 days before the scheduled hearing on Thursday, December 18th. SaveWCAL's response to St. Olaf and MPR must be filed by December 9th (nine days prior to the hearing).
The hearing will continue on Thursday, December 18 at 9:00 a.m. at the Rice County District Courthouse in Faribault, Minnesota. The public is allowed to attend the hearing.
{ 14 comments… read them below or add one }
The initial hearing for the SaveWCAL petition has two stong parallels to the Paul Newman film "The Verdict:" Cadillac lawyers powered with 8 cylinder engines and lots of chrome but with little in their briefs (possibly a pun intended) and a team of volunteers with a single counsel with the real goods.
SaveWCAL supporters need to donate now to keep this initiative fueled for a difficult journey through the courts.
On the note of "Cadillac lawyers…" previously mentioned, listening to MPR late today an announcer reported: "As of 5 PM Friday, our current membership campaign has tallied 13,787 new and renewing members; we want to thank our loyal listeners for continuing their fine support of MPR…" And, earlier today, an announcer said substantially the same thing with "…more than 10,000 new and renewing members and contributions pledged totaling over one million and seven hundred fifty thousand dollars…" (if I heard it all accurately). In any event, this infers there is substantial support for public radio in MN and a renewal of WCAL to the airwaves could readily build on the stalwart WCAL membership of the past – starting anew with all those fine folks who signed the petition to thwart the illegal sale. Thus, contributions to SaveWCAL – NOW – present an investment opportunity like no other: Potential recovery of the WCAL Trust to its intended purposes bringing back a current value in the MILLIONS and a future, continued growth value potentially like no other – for the new, currently contributed $$$ to Redress The Breach Of Trust! "If 13,787 persons can shell out $1.75 million to 'keep MPR on the air' – what can our "SaveWCAL ; ALL 'our Loyal Friends'…" do?" Let's show'em!!!
This is so sad; our own AG won't uphold MN law . . .
I am thankful for our Frontline and will continue with cards & money for
my lost family (WCAL) member.
Everyone really, really needs to appreciate the significance of MPR's General Counsel being there. They think this is a very big threat. The General Counsel of a giant media company has time to focus on only the biggest cases. They'd send any number of qualified lieutenants if they didn't take this so seriously.
It is absolutely delightful that SaveWCAL now has the rapt attention of MPR, too, in this Breach Of Trust Hearing; what can the friends of SaveWCAL do in a practical and objective way to bring this entire matter within the gaze of the general public now as well? And, beyond that, where is the public disclosure – where can we all get "educated" on the sources and applications of funds within organizations like MPR who continuously appeal for public "joining and giving of $$$"; what truly is the size and scope of MPR?
SaveWCAL responds:
We refer you to the Minnesota Attorney General's web site on Minnesota charities [http://www.ag.state.mn.us/charities]. Simply click on the "charities search" in the left sidebar, then type in "Minnesota Public Radio" in the search window, then click on the
The financial information for MPR the fiscal year ending June 30, 2007 shows total revenues of almost $80 million and net assets of $106 million.
Readers might also want to consult the public records of the Saint Paul Housing & Redevelopment Authority (HRA). Those records show that MPR has used the HRA as its private bank for years to issue tax exempt bonds. These are bonds that are supposed to be used, of course, for housing and redevelopment. Instead, MPR has used for numerous purposes such as the acquisition of the WLOL commercial spectrum broadcast license (KSJN 99.5 FM) and the construction of MPR's palatial headquarters in downtown Saint Paul.
I wonder how many people are aware that MPR is opposing the new light rail corridor in Saint Paul.
MinnPost did an article about it and it raised an interesting question:
"Given Kling's trepidation about vibrations' impact on the lifeblood of his core product — radio — why would MPR invest in a $53 million headquarters expansion on a street that for more than a decade had been the chosen route for a light rail line?"
I have also heard that MPR has now hired a PR person dedicated to the sole purpose of "spinning" a lawsuit that MPR has or will file against a light rail project that they've known about for YEARS.
I wonder if that lawsuit will use listener donations? If so, is that appropriate use of those donations? And is MPR holding off announcing the lawsuit until after the current or next membership drive.
MPR was told that light rail would be built on that site BEFORE they even built their studios. Tough! They need to live with it.
St. Olaf (and MPR) should throw in the towel…but given their history over the course of the last four years, they haven't got a clue how to do it. Maybe someone should just "tell" them, they simply can't win. The LAW is the LAW.
What a (delightful) shock to discover that SaveWCAL is still active! THANK YOU!!!
Dear old friend @ 8. Do you know that we are now paying our super-successful attorney who was formerly working pro-bono? It's easy to donate by clicking above. Why not pitch in a couple of hours?
I was asking someone yesterday about the millions MPR got for the new building. One, when Marshall Field now Macy's got a deal like that from the city, they had to agree to stay the length of the lease, or have to pay back the forgivable loan that they received. That was for the renovation under the Kelly administration. Does MPR have the same type of caveat?
If not, why not? If the light rail has been in the works for 15 or so years, it's a little late for Kling to be playing the dumb blond, with the vibrations and all. Would he not have thought about that when they designed the building? Any musician knows you check out the hall BEFORE the performance not after. Sorry, this guy is really starting to look bad.
To Commenter #5:
In the AG's charity search form:
http://www.ag.state.mn.us/charities/CharitySearch.asp
enter "public radio" and you will see a much broader view.
All but one (Rochester Public Radio) seem readily identifiable as having either a past or present relationship to APMG and/or MPR. I wish I knew the real story of if and how these are related. Maybe someone else knows.
AMERICAN PUBLIC RADIO LLC
MINNESOTA PUBLIC RADIO, INC.
OAKLEAF ENDOWMENT TRUST FOR MINNESOTA PUBLIC RADIO
PUBLIC RADIO INTERNATIONAL, INC
SOUTHERN CALIFORNIA PUBLIC RADIO
THE OAKLEAF ENDOWMENT TRUST FOR PUBLIC RADIO INTERNATIONAL
Am I the only person who has wondered why this situation seems to continue to drag itself out? Why the obvious never seems to be addressed? Who would benefit from a long drawn out legal battle?
I ask myself. Maybe the lawyers? Maybe MPR and fundraising for their new station? St. Olaf? Maybe those that wish we (SAVEWCAL) supporters would just dry up and vanish?Certainly the bad press is not helping any of the forementioned parties. So why?
It is so obvious that if order to sell a charitable trust in MN you must have the involvement of the AG's office, and St. Olaf didn't, that "something" is just not right here. Most companies don't want or need this type of exposure. Avoid it at all cost.
Is it me? What, I ask, are they trying to hide?
There are 10 comments showing here, but the top of the comment bar indicates 12 comments on the posting. Why is that?
In response to comment #11:
http://minnesota.publicradio.org/about/mpr/structure.shtml gives us some idea of the far reaching arms of American Public Media Group, the parent organization of the empire. Bill Kling is also one of the owner of gather.com, a for-profit comapny outside the structure of APMG. Don't give your money away, watch out for those links directly to gather.com and http://minnesota.publicradio.org/support/shop/ from the MPR web site.
SaveWCAL responds:
Readers may be interested to know that SaveWCAL — as a matter of ethics — blocks all direct Google ads from a number of domains associated with various parties involved in the WCAL story. For more information, see the post titled "Why are there ads on the SaveWCAL site?"
[http://savewcal.net/2008/09/20/ads-savewcal-site/]