Re: [ga] ICANN Ombudsman Frank Fowlie

["Jeffrey A. Williams" <jwkckid1@xxxxxxxxxxxxx>]

Ed and all,

  Thank you for chiming in on this and providing as a reminder
the improper actions regarding bylaw requirement and historical
information there unto regarding an Ombudsman.

 Clearly and for a number of years now many of us have seen
a lack of compliance by ICANN's own board and staff as well
as legal council in respect to ICANN's own bylaws.  This is yet
another example of same and a long and sorted historical 
list of said occurences accordingly.


-----Original Message-----
>From: Edward Hasbrouck <edward@xxxxxxxxxxxxx>
>Sent: Feb 28, 2010 3:56 PM
>To: ga@xxxxxxxxxxxxxx
>Cc: Rod Beckstrom <rod.beckstrom@xxxxxxxxx>, George Kirikos 
><gkirikos@xxxxxxxxx>
>Subject: Re: [ga] ICANN Ombudsman Frank Fowlie
>
>
>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
>
>

Regards,

Jeffrey A. Williams
Spokesman for INEGroup LLA. - (Over 294k members/stakeholders and growing, 
strong!)
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