Re: [ga] ICANN Ombudsman Frank Fowlie

[Hugh Dierker <hdierker2204@xxxxxxxxx>]

What could possibly be the reason for this now?  I thought they took away the 
censoring from Kent and gave it to Denise.

--- On Tue, 3/2/10, Joe Baptista <baptista@xxxxxxxxxxxxxx> wrote:


From: Joe Baptista <baptista@xxxxxxxxxxxxxx>
Subject: Re: [ga] ICANN Ombudsman Frank Fowlie
To: "Joop Teernstra" <terastra@xxxxxxxxxxxxxx>
Cc: "Andy Gardner" <andy@xxxxxxxxxxxxxxx>, ga@xxxxxxxxxxxxxx, "Edward 
Hasbrouck" <edward@xxxxxxxxxxxxx>, ssene@xxxxxxxxxxxx, "Rod Beckstrom" 
<rod.beckstrom@xxxxxxxxx>
Date: Tuesday, March 2, 2010, 7:51 AM


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

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depends upon whether B is less than L multiplied by
P: i.e., whether B is less than PL."
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Joe Baptista

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