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Regarding Tomlinson
The remedies: Reform ideas from all sides

Originally published in Current, Nov. 21, 2005
By Steve Behrens

What could Congress, CPB or anyone do to prevent the conflicts, failed decisions and other embarrassments bubbling out of the Tomlinson affair?

Perhaps the central problem is that the Public Broadcasting Act tells CPB, run by well-connected political appointees, to protect public broadcasting from political influence while also fostering objectivity and balance on the air.

While CPB’s inspector general and many others criticize former CPB Chairman Kenneth Tomlinson for violating the first mandate, he and his supporters at the Wall Street Journal still say he was only doing his duty under the other.

Though APTS proposes several reforms at CPB, eliminating this central conflict of interest is not one of them.

“It’s a fragile compromise that goes back 40 years,” says APTS President John Lawson. “We want to attract bipartisan support” with the reform proposals, he explains. “Opening up that language would be opening a can of worms.”

The mandates addressing political balance, and other matters important to Congress, provide accountability, which politicians insist upon.

Since IG Kenneth Konz filed his report last week, revealing more about Tomlinson’s secretive crusade, insiders (including Konz and the board itself) and outsiders alike are proposing reforms in response. A trio of activist groups — Free Press, Jeff Chester’s Center for Digital Democracy and Common Cause jointly made recommendations.

APTS announced reform proposals [PDF] just before Konz’s report came out. (To get the nuances right: the proposals came from APTS Action Inc., an alter ego of APTS that operates under fewer federal lobbying restrictions. The board resolution went to APTS member stations for official endorsement.)

Some of the ideas:

Board membership changes. APTS proposed a significant structural change at CPB—its second recent suggestion for changing the board appointment process or criteria. In 2004, APTS tried in vain to get Congress to double the number of White House-appointed board members—from two to four—who represent TV or radio stations.

Now APTS proposes expanding the board from nine to 13 members, and five ex officio but voting members who are major figures in federal cultural agencies—the heads of the Library of Congress, the Smithsonian Institution, the National Science Foundation and the chairs of the arts and humanities endowments. The objective is to “enhance the professionalism of the board,” the APTS resolution said Oct. 29.

In addition to adding the five cultural officials to the board, the board would have eight White House appointees instead of the current nine and no more than four could hail from the same party (the maximum now is five). Also, at least four of the eight would represent stations — two TV and two radio (up from the current total of two), nominated after the White House consults with pubcasters.

Separation of politics from programming. The three activist groups take a shot at the conflicting mandates to CPB. They would have professional programmers, not political appointees, make all CPB program decisions, including those about balance.

The board itself once believed in that separation. It decreed a formal separation of function in the organization’s structure in the 1980s. The director of the CPB Television Program Fund made program decisions and the board stayed out of them.

Open CPB Board meetings. Konz said the board should ensure that “deliberations leading to board actions are always held in public meetings” so that the public can follow decision-making.

APTS and the activist trio spoke up for open CPB Board meetings. Until conflicts over the Tomlinson affair split the board, it typically discussed and arranged all or nearly all of its decisions privately, the day before its public board meetings. “Although current law requires open CPB Board meetings, the statutory exceptions to the law apparently have been interpreted by CPB to allow closed meetings not requiring confidentiality in the normal sense of the word,” the APTS resolution remarked. The activist trio adds the idea of televising the meetings.

Bipartisan leadership. APTS and the media watchdog groups propose requiring the CPB Board to elect its chair and vice chair from different parties, a common informal practice in the past. Both are now Republicans. [Republican majority board members stuck to their own party Sept. 26 when they elected Cheryl Halpern and Gay Hart Gaines as chair and vice chair.]

Consultation with stations. APTS seeks more specific rules requiring CPB to consult public TV and radio stations when it formulates policies.

No political consultants. Unhappy with Tomlinson’s secret hiring of consultants for his campaign to change the balance of PBS programming, the activist trio would prohibit CPB from hiring outside political lobbyists and consultants.

Other procedural reforms. Konz’s report recommended reforms [text of chapter] including more than two dozen changes including procedural safeguards. The board should take steps to “change the culture of CPB,” emphasizing the importance of enforcing internal controls and behaving ethically, he said. It must also adopt practices to prevent political tests in personnel decisions.

The CPB Board picked up on several reform proposals the day the report came out, Nov. 15.

“We must correct the errors that allowed any violations of governance policy to occur,” Chairman Cheryl Halpern said. She said CPB suffers “longstanding systemic weaknesses” in its policies and practices.

The board assigned a new Corporate Governance Committee, headed by former Vice Chairman Frank Cruz, a Democrat, to consider clearer definitions of management and board roles, as Konz recommended, and measures to increase transparency of its decision-making.

The board also created an Executive Compensation Committee, as recommended by Konz. “We will regularize the process of hiring senior staff, as well as the process of setting appropriate compensation,” the board said in a statement.

Back in July, a coalition of 10 mostly liberal groups urged that no CPB contract be awarded by a board member without approval of the full board and immediate public notice.

Konz said CPB needs processes for the board to investigate and discipline its members for violations of the bylaws and CPB’s code of ethics. He recommended that it develop an ongoing risk management procedure like those required in corporations by the Sarbanes-Oxley Act.

Officials would have to justify sole-source consulting contracts, documenting their expertise and costs and reporting regularly to the board’s Audit and Finance Committee, Konz suggests. When officials okay payment of a bill, they must sign them rather than letting a staff member approve it with “Signature on File” stamp.

 

CPB Inspector General's recommendations

Excerpted from full 67-page report (PDF), Nov. 15, 2005.

We recommend that the Board of Directors take the following actions to improve CPB’s governance processes.

1) Revise CPB’s By-Laws to:

2) Revise the Code of Ethics for Directors to include provisions for the Board of Directors to discipline members who violate the Code of Ethics provisions.

3) Establish a policy that sets the tone about the importance of internal controls and ethical behavior to begin to change the culture of CPB. Adopt a formalized risk management program, incorporating concepts from the Sarbanes-Oxley Act of 2002, into CPB corporate governance processes that require CPB management to:

4) Establish formal policies and procedures for conducting regular reviews of national programming for objectivity and balance. This policy should be developed in conjunction with all significant stakeholders in the public broadcasting community to ensure transparency and agreement on the criteria to be used to evaluate objectivity and balance.

5) Provide policy guidance to CPB management for designing personnel practices and procedures to prevent personnel decisions from being made based on “political
tests,” e.g., fully documenting how employees are recruited and the basis for the hiring decision.

6) Evaluate executive employment contracts and other executive compensation packages for reasonableness and the prudent use of CPB funds.

7) Review practices for determining what items are put on the Board’s agenda for public meetings, executive sessions, and private informational or project status update meetings, to ensure that deliberations leading to Board actions are always held in public meetings. This will ensure that Board decision-making is transparent and affords the public the opportunity to be heard about important matters of the
corporation.

8) Establish a policy to require corporate officers to inform the full Board of all new policy initiatives, significant deviations from accepted operating practices, and any
inappropriate actions or behaviors by any CPB official (Board members, executives, directors, and employees) involving the commitment or expenditure of CPB funds.
We recommend that CPB management take the following actions to improve CPB’s operating policies and procedures.

9) Centralize the procurement and contracting for consultant services within OBA to ensure that all consultant services are procured in accordance with established policies and procedures.

10) Ensure that all consultant services are procured in accordance with established policies, including procurements initiated by the Board and CPB’s front office.
Consider requiring that all procurements that do not follow established procurement practices be immediately reported to the Board’s Audit and Finance Committee.

11) Revise CPB Contract Policy, Section 1.4.3, Procurement to include addressing the qualifications and expertise of consultants, including verification of uniquely qualified consultants.

12) Revise CPB Corporate Funds, Custody, Obligation and Disbursement Policy, Section 2.6.1 (ii), Consulting to clarify that all sole source consulting procurement decisions, including procurements of less than $50,000, must be documented with a written justification for the decision. The documentation should identify the consultants considered, their availability, qualifications, expertise, and costs.

13) Consider reporting regularly to the Board’s Audit and Finance Committee all sole source procurement decisions, including justifications supporting the decision.

14) Enforce existing requirements that invoice approvals include sign-offs by appropriate officials that deliverables have been received and were accepted by CPB. Discontinue the practice of stamping the approval form with the “Signature on File” stamp.

15) Reinforce CPB Contracts Policy, Section 2.4, When Work May Begin for consulting contracts to ensure contracting departments understand that only in emergency
situations should contractors begin work before a contract is executed and consider reporting to the Board’s Audit and Finance Committee all instances where work begins before a contract is signed with an explanation of the urgency in starting the work.

16) Establish personnel policies to address executive recruitment, employment contracts, signing bonuses, and buyouts provided employees when operations are
not being downsized or reorganized to ensure consistency and transparency of operations.

17) Incorporate into corporate officers’ job performance expectations (job elements) responsibilities to ensure policies and procedures (procurement and personnel) are
followed and to report deviations from established practices to the General Counsel, who will report such deviations to the Board of Directors.

Web page posted Nov. 22, 2005
Copyright 2005 by Current Publishing Committee

Aspects of
the affair


What the IG found: meddling, weak CPB governance

A second PBS show boosted by the chairman goes dark

How to fix what ails CPB?

Are CPB's ombudsmen on balance duty or not?

Another IG, in State Dept., probes Tomlinson

Two CPB Board vacancies: Dem ex-senator pushed for one

New Konz assignment goes after stations' political action

EARLIER ARTICLE

How reform can minimize politics in presidential appointments. A Current analysis of methods used in other government-funded organizations.

REFORM ACTIONS &
RECOMMENDATIONS

CPB inspector general's recommendations for open meetings and procedural reforms. Also online: Full report (PDF).

CPB Board reacts to IG report, creating three committees to deal with issues raised. Resolutions and chair's speech.

APTS Action Inc. proposals for CPB reform, Oct. 31, 2005 (PDF)

Recommendations of citizen groups Free Press, Center for Digital Democracy and Common Cause.

LINKS

Citizen groups demand CPB release of additional information, invoking Freedom of Information Act.

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