Re: [ga] Time to bring back the vote

[Hugh Dierker <hdierker2204@xxxxxxxxx>]

Karl,
   
  That was the reason. Certainly ICANN BoD is so entrenched now that conferring members rights would really not hurt it. It would seem that the defensive position now would serve them well as Senate debates rage and the international community is up in arms. 
  One has to believe the BoD can "uncircle" the wagons and embrace at least token membership. The related laws governing membership in a non-profit allow for pretty near tokenism in membership.
  Also i believe that the status of members would be mostly sheepish in electing already established folks and the descent would mean about what yours did which we all know did not result in different outcomes. You were awesome but at the end of the day only one small vote, and you were bound by ethics which others were not bound by. 
  They should give out about three BoD seats just for appeasement.
   
  e

Karl Auerbach <karl@xxxxxxxxxxxx> wrote:
  Danny Younger wrote:

> While we can debate the specifics of a voting process, I see no
> ongoing value in continuing to have an organization with "no
> members". As we move forward into the ICANN periodic organizational
> review mode, we should question whether the issue of membership
> should be revisited.

ICANN has made it clear that it has no "members". Why? Because the
word "members", under California law, vests several legal rights in
those members.

See this from my year 2000 platform when I ran for the board:
http://www.cavebear.com/icann-board/platform.htm#full-members

I've copied it below.

--karl--

===========

Under California law, "members" of a non-profit/public-benefit
corporation, such as ICANN obtain several rights.

ICANN's staff prepared the following list of these rights. (The numbers
in parenthesis are the relevant section of the California Corporations
Code.)

*

A meeting of members must be held in each year in which directors
are to be elected. (5510). Members may apply to the Attorney General to
order such meeting if not timely held. (5510)
*

Special meetings of members may be called by 5% of the members. 
(5510)
*

Members are entitled to written notice of member meetings. (5511)
*

Members may act by written ballot except to cumulatively vote for
directors. (5513)
*

Proxies are allowed unless withdrawn by bylaws or articles.
Proxies may be limited by articles or bylaws. Proxies are revocable. (5613)
*

Members may bring derivative actions, subject to the usual
conditions. (5710) No bond shall be required if enough members bring
the action. (5710)
*

Most amendments to articles must be approved by Board and members
(and any other persons specified in articles). (e.g. SOs). (5812)
*

Board must send annual report (as defined in 6321) to members
within 120 days after the end of the fiscal year. (6321)
*

Membership lists and accounting books and records and minutes must
be made available to members for proper purposes. (6330, 6333 and 6338)
*

Members may amend the bylaws; however, the bylaws may provide that
the amendment may occur only with the approval of a specified person
other than the Board. (e.g. SOs). (5150) Note, however, that the Board
may amend the bylaws without the approval of members unless the action
would materially and adversely affect the right of members as to voting
or transfer.
*

Directors elected by members may be removed by members. (5222)
*

The bylaws must specify a quorum requirement. (5512)
*

Members can bring legal actions to determine the validity of
elections. (5617)

Section 5056 of the California Corporations Code normally defines who is
a "member" of ICANN: [emphasis added]

5056. (a) "Member" means any person who, pursuant to a specific
provision of a corporation's articles or bylaws, has the right to vote
for the election of a director or directors or on a disposition of all
or substantially all of the assets of a corporation or on a merger or on
a dissolution unless the provision granting such right to vote is only
effective as a result of paragraph (2) of subdivision (a) of Section
7132. "Member" also means any person who is designated in the articles
or bylaws as a member and, pursuant to a specific provision of a
corporation's articles or bylaws, has the right to vote on changes to
the articles or bylaws.

(b) The articles or bylaws may confer some or all of the rights of a
member, set forth in this part and in Parts 2 through 5 of this
division, upon any person or persons who do not have any of the voting
rights referred to in subdivision (a).

(c) Where a member of a corporation is not a natural person, such
member may authorize in writing one or more natural persons to vote on
its behalf on any or all matters which may require a vote of the members.

(d) A person is not a member by virtue of any of the following: (1)
Any rights such person has as a delegate. (2) Any rights such person has
to designate or select a director or directors. (3) Any rights such
person has as a director.

This makes it pretty clear that the California legislature, with the
consent of the governor, have determined that it is a good idea for
people who vote for board positions to also have rights to make sure
that the corporation is properly run.

However, ICANN has attempted to avoid the clear meaning of this statute.

They do this through a two part bit of legerdemain:

First, they simply declare that members are not "members"!: [emphasis added]

ARTICLE II: MEMBERSHIP

Section 1. GENERAL

The Corporation shall not have members as defined in the California
Nonprofit Public Benefit Corporation Law ("CNPBCL"), notwithstanding the
use of the term "Member" in these bylaws, in a selection plan adopted by
Board resolution, or in any other action of the Board. Instead, the
Corporation shall allow individuals (described in these bylaws as
"Members") to participate in the activities of the Corporation as
described in this Article II and in a selection plan adopted by Board
resolution, and only to the extent set forth in this Article II and in a
selection plan adopted by Board resolution.

Second they focus on the italicized words of 5056(a): "pursuant to a
specific provision of a corporation's articles or bylaws" and "right to
vote":

ARTICLE II: MEMBERSHIP

...

Section 2. Plan for Selection of Five "At Large" Directors in the
Year 2000

Five persons shall be nominated and selected by no later than
November 1, 2000, to become "At Large" Directors according to a
selection plan adopted by the Board. They shall be seated at the
conclusion of the Annual Meeting of the Corporation in 2000.

This so-called "selection plan adopted by Board resolution" is nothing
less than the election in which we are all participating right now.

By avoiding even the use of the word "election" (and using "selection"
instead) the ICANN side-show artists are attempting to claim that there
isn't even any voting going on - and you will note that the California
statute depends on people having a "right to vote".

One has to be pretty silly, or stupid, not to recognize that there is,
in fact, an election going on. But ICANN is depending on blind
acceptance of their artifice.

By placing the definition of the selection/election process into a "plan
adopted by Board resolution" ICANN is trying to claim that the
selection/election is not made "pursuant to a specific provision of a
corporation's articles or bylaws".

This is a legal shell game that has no purpose except to evade the clear
intent of the California law and to eviscerate the rights accorded to
people who are in all senses of the word, "members" of ICANN.

It is a shell game that should be stopped.

There are those who say that if ICANN has members that ICANN will be
subject to derivative lawsuits. I agree. I believe that ICANN should
be subject to derivative lawsuits - that is simply part of the cost of
being accountable. ICANN can avoid being liable to such lawsuits simply
by acting properly and conforming its actions to the dictates of law.

One might also want to remember that the bulk of ICANN's expenses have
been to pay legal bills - and these costs have been incurred to create
precisely the kind of prejudicial rule that we've been talking about
here. And since we, the Internet users, will ultimately bear ICANN's
costs, we will ending up paying for the costs of our own disenfranchisement.




 		
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