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DC Court Rules in Dispute Over Open Technology Fund Board

FILE -- The U.S. Agency for Global Media logo at Voice of America, in Washington, D.C., Nov. 22, 2019. (VOA)

The Superior Court in Washington, D.C., has ruled that actions taken by the U.S. Agency for Global Media’s chief executive against the board of the Open Technology Fund are invalid.

The court ruling came in response to a July lawsuit regarding who controls the OTF. The suit was filed by the office of the District of Columbia's attorney general under the district's Nonprofit Corporations Act.

OTF, an independent, nonprofit grantee of USAGM, uses federal grants to promote internet freedom technologies. More than 2 billion people globally use tools it supports, such as the encrypted messaging app Signal and the anonymous browsing software Tor.

Congress granted the OTF nonprofit status last year.

In one of his first acts as chief executive of USAGM, the federal agency that oversees Voice of America and other networks and grantees, including OTF, Michael Pack fired the heads of the networks and OTF Chief Executive Libby Liu and replaced their boards. The director and deputy director of Voice of America resigned two days before Pack joined the agency.

The D.C. court ruling on Wednesday said Pack’s replacement of OTF’s board of directors was unauthorized and any actions taken by the new board were invalid. It stated that the original members were the valid board.

The USAGM did not respond to VOA’s request for comment.

A copy of the summary judgment said that under OTF’s bylaws, the board of directors has the power to elect or remove directors and to fill vacancies on the board. The judgment said the board “did not hold a vote to elect any of the new directors that Pack attempted to appoint.”

The office of the district's attorney general, Karl Racine, which handled the case, told VOA the ruling would provide clarity and allow OTF to move forward without further dispute or question as to whether its actions were valid.

“It's a strong ruling,” Catherine Jackson, head of the public integrity section of Racine's office and one of the lead attorneys on the case, told VOA. “I think it's a good ruling in terms of the law, again, that provides nonprofits with the ability to resolve these kinds of disputes. And it's very clear in providing that the OTF board is valid, and the actions and the alleged board established by USAGM are not. It provides a solid precedent for OTF moving forward.”

Pack’s actions involving OTF and USAGM networks are part of separate federal lawsuits, including one that alleges the agency breached contracts by withholding $18 million in Congress-approved funding. In a separate case, a Washington appellate court in July blocked the chief executive from installing appointees at the OTF.

“The public benefits when nonprofits, including the Open Technology Fund, have clear leadership and governance and can fulfill their charitable missions,” Racine said.

The attorney general is responsible for protecting charitable organizations under the district’s Nonprofit Corporations Act, which can include seeking court orders.

Chair's response

The OTF board chair, former Ambassador Karen Kornbluh, said the ruling confirmed Pack did not have authority to replace the board or leadership at OTF.

“Hopefully, this brings us one step closer to getting back the congressionally approved resources USAGM is withholding from OTF that are urgently needed — in Belarus, Hong Kong, Iran and elsewhere — to support freedom- and democracy-building efforts and to help dissidents and journalists communicate safely in nations ruled by oppressive regimes,” Kornbluh said in a statement shared with VOA.

The ruling was also welcomed by Senator Chris Murphy, a member of the Senate Foreign Relations Committee.

FILE - Sen. Chris Murphy, D-Conn., speaks during a Senate Foreign Relations Committee hearing on Capitol Hill in Washington, Sept. 24, 2020.
FILE - Sen. Chris Murphy, D-Conn., speaks during a Senate Foreign Relations Committee hearing on Capitol Hill in Washington, Sept. 24, 2020.

“From the start, Michael Pack has tried to turn USAGM into an arm of the White House by obliterating its independence and objectivity. I’m glad the court ruling invalidated his attempts to dissolve the Open Technology Fund board and supported the independence that USGAM and its predecessors have stood for,” Murphy, a Democrat from Connecticut, said.

“Protecting free speech and freedom of the press is essential in a democracy, and this week’s court ruling is a step in the right direction to reverse the damage done by Pack and other pro-Trump appointees,” Murphy said.

The senator on Friday released details of proposed legislation to increase protections for journalists from political interference.

In a release, his office said the proposal came in response to allegations that officials at USAGM had launched a politically motivated investigation into VOA’s White House bureau chief, Steven Herman.

In an Oct. 5 statement to VOA about the allegations of an investigation, USAGM said it would not comment because it involved the leak of privileged information. “This is an internal VOA management issue being handled by the VOA leadership,” USAGM said.

Changes proposed

The legislation proposes amending the U.S. International Broadcasting Act, which established the board that later became USAGM, to more explicitly protect journalists at the agency’s networks from influence by U.S. government officials, including investigations into private political views.

It would also require the chief executive to protect journalists from interference by government agencies or officials; ensure employees are judged on their professional standards and not political views made in private; and authorize the inspector general to investigate any potential infringements or attempts to pressure journalists.