Re: [ga] Complaint by J. Morfin to the Names Council

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

Dave and all assembly members and/or BoD/staff members listed,

  Dave your issues and the questions outlining them have been ask
a number of times recently and in the past when the constituency model
was being discussed, (See archives of this forum).  However it seem
now appropriate yet again that they should be revisited given recent
events and occurrences.

  (See some of our thoughts as answers to your questions below)

DPF wrote:

> On Fri, 19 Oct 2001 18:05:46 +0200, "BC secretariat"
> <secretariat@bizconst.org> wrote:
>
> >Complaint by J. Morfin to the Names Council
> >
> >Further to the communication from J. Morfin addressed to
> >the Names Council, the Business Constituency and copied
> >widely, we would like to let the Council and others know
> >that the issue will be referred to the membership of the
> >Business Constituency. We regret taking the time of the
> >Council over this.
>
> For the first time ever I am cc'ing a GA post to the NC Chair and the
> ICANN President because I believe there is a vital issue of public
> policy involved here and I think it would be worthwhile to receive a
> considered opinion on this.
>
> First can I make clear I do not wish to address the specific complaint
> raised regarding the Business Constituency.
>
> The question of importance though is what role does ICANN and/or the
> Names Council have with regard to complaints about operation of
> constituencies.
>
> I can not accept that all issues about an operation of a constituency
> are internal to that constituency.  If that is the case does that mean
> when we finally get an individuals registrants constituency that if
> say I was to be elected President, and Jon Weinberg as Secretary and
> Kent Crispin as the Treasurer we could do absolutely whatever we
> wanted with the constituency?

  Good question and observation here.  The answer to you question would
seem to be no.  However the ICANN BoD recognizes these constituencies
as "ICANN Constituencies" per se.  As such, the ICANN BoD should field
any and all complaints as to their operation or practices and if a
complaint
has been made, the ICANN BoD is responsible for the oversight as indicated

clearly in the White Paper.

>
>
> Could we decline membership applications of people we don't like?

  In some constituencies it would seem the answer here is yes.

>
> Could we ignore election rules?

  Again given recent events, the answer here would also seem to be yes.
A better question is "Should constituencies set membership policies that
unduly or without merit restrict membership for organizations or
individuals
that do necessarily fit into that constituency?

> Could we change the charter without a
> vote merely by amending the website?

  Again the answer here given recent events, would seem also to be yes.

> Can a constituency change its
> basic charter without recourse to anyone external to the constituency?

  The right answer here should be no.  But again given recent events
with some constituencies, the answer seems to be yes.

>
>
> I think most people would agree that there does have to be some
> recourse against a constituency which goes "rogue" (not implying any
> have to date necessarily).
>
> So there seem to be three issues which should be clarified.  The first
> is to whom should complaints be legitimately directed?

  The ICANN BoD as they have oversight.

> Is it the
> Names Council?  Is it the ICANN General Counsel?  Is it the ICANN
> Board which recognises constituencies in the first place so hence has
> implicit power to un-recognise them.
>
> The second is whether we specify what sort of issues are appropriate
> to take to this higher authority.  One doesn't want every minor
> dispute over how a vote was conducted relitigated like it is the US
> Supreme Court.  But serious accusations of charter breaches are a
> different matter.  Where do we draw the line?

  Breaches of and existing and ICANN BoD approved charter should be
a problem that the ICANN BoD should address with all due haste.
Voting processes are a matter that should be handled by the constituency
itself with the approval of the members of the constituency and the ICANN
BoD approval before a change in those procedures is implemented as again,
the ICANN BoD has oversight in accordance with the White Paper and the
MoU.  Failure to do so in an proper and expedient manner is a breach
of contract that the ICANN BoD and staff have with the DOC/NTIA.

>
>
> The third issue is what remedies if any exist?  Is the only remedy the
> nuclear option of threatened non recognition of a constituency?  Can a
> constituency be instructed to do a particular action?

  The constituency can be instructed to do a particular action or face
immediate removal as a constituency and loose its voting rights on the
NC, amongst other potential penalties.

>
>
> I would welcome consideration and thoughts on the matters raised here.
>
> Ta
>
> DPF
> --
> david@farrar.com
> ICQ 29964527
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Regards,
--
Jeffrey A. Williams
Spokesman for INEGroup - (Over 118k members strong!)
CEO/DIR. Internet Network Eng/SR. Java/CORBA Development Eng.
Information Network Eng. Group. INEG. INC.
E-Mail jwkckid1@ix.netcom.com
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