[ga] Follow-up re: Approval of Ombudsman (Framework)

["Edward Hasbrouck" <edward@xxxxxxxxxxxxx>]

The person claiming to act as Ombudsman has posted comments on my previous 
message in his blog:

https://omblog.icann.org/?p=105

I posted a comment "Ombudsman blog", but it was deleted less than an hour 
later. So I'm re-posting it here (and at ICANNwatch.org): 

Mr. Fowlie: 

You say that, “The Ombuds Blog has the information concerning the Board of 
Directors meeting item correctly, while Mr. Hasbrouck does not.” I 
accurately quoted from the page on the ICANN web site to which I linked, 
as it read at the time of my post. That page was updated on 24 February 
2009, after my article was published, to change the agenda item from 
“Approval of Ombudsman” (as I had quoted) to “Approval of Ombudsman 
Framework”. As of today, the original lannguage I quoted, “Approval of 
Ombudsman”, remains on another page on the ICANN Web site at:

http://mex.icann.org/node/2689

I stand by my story. It was based, as it clearly stated, on what was 
posted on ICANN’s Web site, which I reported accurately. 

You say that, “The Ombudsman was appointed on November 1, 2004, with the 
appointment consistent with ICANN’s Bylaw V.” That is not correct. That 
Bylaw requires that, “The Ombudsman shall be appointed by the Board for an 
initial term of two years, subject to renewal by the Board.” No notice or 
minutes of any Board meeting on 1 November 2004 have been posted. So 
whatever happened on that day, it didn’t constitute appointment of an 
Ombudsman in accordance with the Bylaws. And any appointment would have 
been for 2 years, unless renewed by the Board, and would have expired 
unless renewed. There is no record of any such renewal by the Board. 

Your failure to notice that your appointment as Ombudsman would require 
Board action, both initially and for renewal after 2 years, reflects 
poorly on your fitness for the position. Obviously, that would be a factor 
to be considered were you now to be proposed for appointment as Ombudsman. 

The portion of the transcript that you reproduce makes explicit that you 
communicated with the Reconsideration Committee about a request I had made 
for reconsideration, and about what you describe as “MR. HASBROUCK’S 
APPLICATION FOR INDEPENDENT REVIEW THAT HAD NOT YET BEEN FILED, WHICH WAS 
BEING DISTRIBUTED AND WAS BASICALLY ON THE SAME GROUNDS”. (As I have 
written previously, I don’t know what is meant by the latter reference, 
since at no time before I filed it was my request for independent review 
“being distributed” to you or anyone else, to the best of my knowledge and 
belief.) 

Your communications with the Reconsideration Committee about my request 
for your assistance (on a separate matter than the subject of my request 
for reconsideration) were in violation of your obligation to me of 
confidentiality. This is your obligation under the Bylaws, under the 
Ombudsman Framework, and under the principles of professional ethics to 
which you claim to subscribe. I hereby request that you refer me to any 
professional ethics oversight bodies to which you subscribe, for 
investigation of this complaint that you have violated your obligation of 
confidentiality, and imposition of sanctions, or that you refer this 
matter directly to them, in accordance with their procedures for such 
complaints, with a request that they contact me. 

Whatever was contained in your communications with the Reconsideration 
Committee, they were not, are not, and cannot be (without further 
violations of confidentiality and the Bylaws) placed in the public record. 
By basing its decisions on those communications, the Reconsideration 
Committee violated its obligation under the Bylaws: “The Reconsideration 
Committee shall act on a Reconsideration Request on the basis of the 
public written record.” 

I do not know why you chose to breach the confidentiality of our 
communications, to intervene in the proceedings of the Reconsideration 
Committee, or to engage in communications with them which you knew, or 
reasonably should have known, could not be used as any part of the basis 
for their decision. 

These, too, would be factors to be considered were you now to be proposed 
for appointment as Ombudsman. 

Sincerely, 

Edward Hasbrouck
http://hasbrouck.org/icann


----------------
Edward Hasbrouck
<edward@xxxxxxxxxxxxx>
<http://hasbrouck.org>
+1-415-824-0214