Re: [ga] ICANN Ombudsman Frank Fowlie

["Edward Hasbrouck" <edward@xxxxxxxxxxxxx>]

On 28 Feb 2010 at 7:41, "George Kirikos" <George Kirikos 
<gkirikos@xxxxxxxxx>> wrote:

> > Or, he can do the right thing, break from the past, and
> > make an example of Frank Fowlie, a clear message to other
> > ICANN staffers that they need to start doing better or
> > expect to no longer work for ICANN.

There *should* be an opportunity to consider this. If and when the Board 
considers appointing an Ombudsman, and if Dr. Fowlie were to be proposed 
for appointment to that office, there would be an opportunity for public 
comment on his actions to date, and suitability for that office. 

However, ICANN has *never* properly appointed an Ombudsman in accordance 
with the Bylaws. ICANN refers to Dr. Fowlie as ICANN's Ombudsman, and he 
describes himself as ICANN's Ombudsman, but that is incorrect. 

I have pointed out repeatedly that the Bylaws specifically require that 
the Ombudsman must be appointed by the Board, and that an initial 
appointment of an Ombudsman is only for 2 years, after which it it is 
subject to renewal, again by the Board and only the Board.

There is no record of any Board resolution to appoint or renew the 
appointment of an Ombudsman.

ICANN issued a press release stating that an Ombudsman had been appointed 
on a date when there was no publicly-disclosed Board meeting.  There is no 
record of a Board meeting on that date, a Board resolution to appoint an 
Ombudsman, or a Board resolution to delegate authority to appoint an 
Ombudsman. (Such delegation would be, I believe, in violation of the 
Bylaws, but the issue is moot because the Board has never publicly voted 
to make such a delegation.)  More than two years have passed, but there is 
no record of any Board vote to renew the appointment of an Ombudsman.

The requirement that the Ombudsman must be appointed by the Board (and not 
merely "by ICANN', leaving it open to e.g. a decision of the CEO or other 
staff), was included in the Bylaws for good reason, and cannot be ignored. 

No competent, diligent lawyer who has reviewed ICANN's actions against the 
requirements of the Bylaws could conclude or advise in good faith that 
ICANN has complied with those requirements for appointment of an Ombudsman 
by the Board (and in accordance with the other procedural rules for Board 
decision-making, including the maximum feasible transparency).

No competent, diligent, member of the Board who has reviewed ICANN's 
actions against the requirements of the Bylaws could conclude that ICANN 
has complied with those requirement for appointment of an Ombudsman.

The failure of the Board to properly appoint an Ombudsman is further 
evidence of the lack of competence, due diligence, and/or good faith of 
ICANN's legal counsel, and of the Board.  In particular, it is evidence of 
the unjustified reliance of the Board on bad advice from staff and 
counsel, and the failure of Board members to carry out their own due 
diligence and exercise independent judgment.

And, of course, the failure to properly appoint an Ombudsman goes along 
with the failure of the reconsideration Committee to act in accordance 
with the Bylaws, and the failure to properly develop and approve an 
independent review provider and policies for independent review.  As with 
the Ombudsman, ICANN claims to have such a provider and such policies, 
which were used with ICM Registry, but they were not developed or approved 
in accordance with the requirements of the Bylaws for policy development.

The arbitrators (not a proper independent review in accordance with the 
Bylaws, but nonetheless an outside arbitration) concluded that ICANN had 
not acted in accordance with ICANN's Bylaws.  ICANN needs to do several 
things to acknowledge and act on that finding.  One of those things is to 
implement its accountability and transparency Bylaws, including by (1) 
properly appointing an Ombudsman, (2) directing the reconsideration 
Committee to act in accordance with the Bylaws, and reconsidering those 
reconsideration requests that were decided on grounds  forbidden by the 
Bylaws, and (3) conducting a proper policy development process  to select 
an independent review provider and adopt procedures for independent 
review.

As one of those (along with Karl Auerbach and others) whose requests for 
independent review have been pending for years without any action on them 
by ICANN, I reiterate my availability and eagerness to hear from ICANN 
about this, and to work with ICANN and the Internet community to help 
bring ICANN into compliance with its Bylaws. I am disappointed that this 
issue is not on the (preliminary) agenda for the Nairobi meeting.
Sincerely,

Edward Hasbrouck
http://hasbrouck.org/icann


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