Re: [ga] ICANN Ombudsman Frank Fowlie

[Joe Baptista <baptista@xxxxxxxxxxxxxx>]

Rod:

Stop censoring this list.

regards
joe baptista

On Mon, Mar 1, 2010 at 8:36 PM, Joop Teernstra <terastra@xxxxxxxxxxxxxx>wrote:

>
> It's obvious, isn't it?
> Sloppy censorship.
>
> ----- Original Message ----- From: "Andy Gardner" <andy@xxxxxxxxxxxxxxx>
>
> To: <ga@xxxxxxxxxxxxxx>
> Cc: "Edward Hasbrouck" <edward@xxxxxxxxxxxxx>; <ssene@xxxxxxxxxxxx>; "Rod
> Beckstrom" <rod.beckstrom@xxxxxxxxx>
> Sent: Tuesday, March 02, 2010 11:06 AM
>
> Subject: Re: [ga] ICANN Ombudsman Frank Fowlie
>
>
>
>>
>> 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!)
>>> "Obedience of the law is the greatest freedom" -
>>>  Abraham Lincoln
>>>
>>> "Credit should go with the performance of duty and not with what is very
>>> often the accident of glory" - Theodore Roosevelt
>>>
>>> "If the probability be called P; the injury, L; and the burden, B;
>>> liability
>>> depends upon whether B is less than L multiplied by
>>> P: i.e., whether B is less than PL."
>>> United States v. Carroll Towing  (159 F.2d 169 [2d Cir. 1947]
>>> ===============================================================
>>> Updated 1/26/04
>>> CSO/DIR. Internet Network Eng. SR. Eng. Network data security IDNS. div.
>>> of
>>> Information Network Eng.  INEG. INC.
>>> ABA member in good standing member ID 01257402 E-Mail
>>> jwkckid1@xxxxxxxxxxxxx
>>> Phone: 214-244-4827
>>>
>>>
>>
>>
>>
>


-- 
Joe Baptista

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