Re: [ga] ICANN Ombudsman Frank Fowlie

[Andy Gardner <andy@xxxxxxxxxxxxxxx>]

I'm confused.

Your reply that you just sent appears on the GNSO archive...

http://gnso.icann.org/mailing-lists/archives/ga-200709/msg03654.html

Yet Mr Hasbrouck's original message does not.

Does anyone have an explanation for this?


On Mar 1, 2010, at 3:06 PM, Jeffrey A. Williams wrote:

> 
> 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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