Re: [ga] Karl soldiers on

[Jeff Williams <jwkckid1@ix.netcom.com>]

Joop and all assembly members,

  But than again there is this: http://www.politechbot.com/p-02874.html

Joop Teernstra wrote:

> [Forwarded from Dave Farber's IP list; I invite ICANN representatives to
> reply. Background on Karl's relationship with ICANN (and campaign for a
> board seat last year:
> http://www.politechbot.com/cgi-bin/politech.cgi?name=Auerbach --Declan]
>
> >Date: Mon, 3 Dec 2001 13:52:32 -0800 (PST)
> >From: Karl Auerbach <karl@cavebear.com>
> >To: David Farber <dave@farber.net>
> >
> >Here's more on my now year-long quest to inspect ICANN's records:
> >
> >A Director of virtually any corporation in the US has several rights and
> >obligations.
> >
> >The obligation side of the equation is very strong - it's called a
> >"fiduciary" duty, which is one of most stringent obligations that our
> >legal system can impose on a person.  As part of that duty, a Director is
> >compelled to exercise his or her *independent* judgement.  The ability of
> >a Director to elect to rely upon the judgement of others is very tightly
> >circumscribed.
> >
> >As a Director I could be personally liable for corporate misdeeds.  There
> >are laws that protect some directors, but they are largely really not much
> >more than rice-paper walls that may easily be pierced.
> >
> >In other words, there are big Swords of Damocleas that hang above
> >Directors.
> >
> >The legal system recognizes that it is useless to impose responsibility on
> >Directors without also giving them, each of them individually, the powers
> >to become informed so that they may make informed judgements. To that end
> >the law gives Directors strong powers to inquire into every aspect of a
> >corporation's operations.
> >
> >Under the California corporations code that governs
> >non-profit/public-benefit corporations (such as ICANN) those rights are
> >"absolute":
> >
> >         6334.  Every director shall have the absolute right at any
> >         reasonable time to inspect and copy all books, records and documents
> >         of every kind and to inspect the physical properties of the
> >         corporation of which such person is a director.
> >
> >It's not often that a legislature underscores that a right is "absolute".
> >;-)
> >
> >This right to inspect and copy not a collective power that may be
> >exercised only by the board acting in concert.  Rather it is a distinct
> >power that exists in each and every Director - it may be exercised upon
> >the independent discretion of each Director.
> >
> >And a Director is not required to indicate to corporate management the
> >purpose of his or her inspection or what he or she is looking for.
> >
> >I have asked to inspect ICANN's financial records along with several other
> >documents (such as the employee handbook and proprietary rights
> >agreements, if any, that govern employee conduct).  I have also asked to
> >review the billing statements and conflict waiver requests from those who
> >render professional services to ICANN - that's a natural part of my role
> >on ICANN's "conflicts" committee, but it is a request that I could make
> >even were I not on the conflicts committee.
> >
> >In my experience as a Director of various corporations, inspection of the
> >corporate financial records is a good way to inquire as to the efficiency
> >and behavior of corporate management.  In most corporations, requests such
> >as mine are quickly and fully answered by management without stonewalling,
> >without demands for restrictive covenants that would force a Director to
> >surrender his or her rights of independent judgement, and without
> >statements from management that more than implicitly assert that the
> >Director has some nefarious purpose.
> >
> >One must remember that those fiduciary obligations that I mentioned impose
> >upon a Director an obligation of loyalty to the corporation.  That
> >obligation generally requires that a Director keep confidential that
> >corporate information that is, in-fact, confidential.  However, the
> >Director is not compelled to blindly and unthinkingly accept any
> >self-serving labels of confidentiality that corporate management may chose
> >to apply.
> >
> >I made my initial request to inspect the financial records - in particular
> >the general ledger - more than a year ago.  Despite repeated efforts and
> >requests, I still have not been allowed to see those records.
> >
> >Oh, ICANN's management will say that they have afforded an opportunity;
> >that I merely need to sign away my duty of independent judgement, that I
> >merely need to allow corporate management to bind me in advance in how I
> >may review the activities of that very same management; that I allow
> >management to set conditions on the inspection that are so limiting that
> >they would render any such inspection marginal and superficial.
> >
> >To sign these agreements would be to abandon my Director's obligations of
> >independent judgement - I would be agreeing to allow my decisions to be
> >controled by ICANN's management - by exactly the same people whose actions
> >I am obligated to review.
> >
> >To add insult to injury the "agreements" that ICANN has demanded that I
> >sign are cast in the most condescending of language and contain unfounded
> >assertions against my personal integrity.
> >
> >All of this has occurred for the most part outside of the public eye.
> >And even if I do gain access to corporate records the information that I
> >review will almost certainly remain inaccessible to the public - My
> >obligation of loyalty to the corporation demands that I use the
> >information only to improve the corporation and it is unlikely that
> >disclosure would further that obligation.  But one can not agree in
> >advance, as ICANN's management is demanding, that disclosure may never
> >occur.  For example: In the unlikely event that I were to discover
> >information that must be disclosed - such as evidence of criminal activity
> >- then, of course, my duties would be affected accordingly.
> >
> >ICANN's management has demonstrated over the course of the last year that
> >it has an institutional hostility and an intent to preventing me from
> >carrying out my duties as a Director of the Corporation.
> >
> >My recourse is to either abandon my obligations as a Director or to
> >initiate such steps outside of the corporate boundaries as are consistent
> >with my obligation of loyalty to the corporation.
> >
> >Such steps cost money, potentially lots of money.
> >
> >                 --karl--
>
> --Joop
>
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Regards,
--
Jeffrey A. Williams
Spokesman for INEGroup - (Over 121k members/stakeholdes strong!)
CEO/DIR. Internet Network Eng/SR. Java/CORBA Development Eng.
Information Network Eng. Group. INEG. INC.
E-Mail jwkckid1@ix.netcom.com
Contact Number:  972-244-3801 or 214-244-4827
Address: 5 East Kirkwood Blvd. Grapevine Texas 75208


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