[council] RE: Advice Please

["Joe Sims" <Joe_Sims@jonesday.com>]

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Dennis, I agree with everything Andrew has said.  And I would make the
additional point that, given the context, it is a complete waste of time
(and as a practical matter irrelevant) to debate legalities here.  This is
the election of one member of a 19 member Board to serve a one year term on
a non-profit Board where the Board member has a fiduciary duty to represent
the entire Internet community, not some particular interest, and especially
not some commercial interest; under these circumstances, who is even
conceivably going to be able to persuasively argue that, because the NC
dealt with this error this way instead of that way, he or she suffered
cognizable monetary damages from whatever decision the NC made?  The NC's
highest obligation here is to try to be fair and reasonable; this should
not be even discussed, much less decided, as if there was some clear set of
legal rules that were controlling.  This was a simple mistake, should be
recognized and dealt with as such, and move on.


                                                                  
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Extension:

To:   Dennis.Jennings@ucd.ie
cc:   "Joe Sims" <Joe_Sims@jonesday.com> (bcc: Joe Sims/JonesDay)
Subject:  RE: Advice Please




Dennis:

>What law are we operating under ?

This question is not really relevant.  The NC is empowered to act as the
Names Council, taking responsibility for its decisions.  There are some
general principles of corporate law that apply to the NC as an advisory
committee within the ICANN structure, but there is no real legal dimension
to your decision.  The NC needs to do what it thinks is fairest.

>
>What type of election are we running ?

You are performing a function under the ICANN Bylaws.  Beyond that, the
specific procedures used to meet that obligation are entirely up to the NC,
so long as consistent with the ICANN Bylaws.

>
>What authority has the Names Council to make decisions in the situation we
>now find ourselves ?

The NC has been recognized by the ICANN Board and is empowered to carry out
its prescribed functions under the Bylaws.


>
>What choices do we now have ?

The NC has whatever choices it chooses to make, so long as consistent with
the ICANN Bylaws.


>
>What protection do we have if we are sued ?

I'll let Joe have the final word on this.  The NC is not a separate and
distinct legal entity.  ICANN would be sued, if anyone.  The NC is an
advisory body.

>
>In relation to choices - we have, I think, three.
>
>1.  We can declare the third election void and re-run the third election
>from the start.
>
>2.  We can declare the first count a miscount - and redo the count for the
>first round, declare the result and move on to round 2.
>
>3.  We can let the votes as published stand on the basis that the
>erroneous
>vote was counted and that vote cannot now be changed.
>
>Questions:  Do we have the authority to make these decisions ?

Of course you do.

>What
>happens if/when the results of a ballot are different to the original
>ballot ?

That might look bad;  but it's up to the NC to figure out whether it wants
to take that risk.


>Do we (the NC) get sued by those who now claim to have lost as a
>result of the re-run / re-do / no change ?
>
>Up to now, I (and you Andrew) thought that choice 1 was the fairest and
>would lead to the least complaint - but now I am not so sure - especially
>if the result is significantly different from the first run !

I am agnostic as to whether 1 or 2 is better.  Either is consistent with my
advice, and it may well be most fair to simply count the first round votes
as intended and proceed from there.  It would certainly look strange if
round 1 were re-run, and the results were materially different.  Option 3
is
inconsistent with my advice, because I believe that the voter was not to
blame and the results should not be skewed as a result of a simple
miscount.

Bottom line:  don't look for definitite guidance from the law or elsewhere.
These are straightforward judgment calls that the NC has to take
responsibility for making.

--Andrew

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