Re: [wg-review] Clarifications requested from BoD, Staff, NC, TC,Chair prior to co-Chair elections

[Karl Auerbach <karl@CaveBear.com>]

On Tue, 9 Jan 2001, Kent Crispin wrote:

> ... of course we can modify the bylaws to our hearts
> content; we could dissolve the corp if we got bored with it, etc.  It's
> OUR corporation.

> But *exactly* the same legal structure applies to ICANN.

It is amazing how many utterly incorrect and naive legal notions float out
of some keyboards.

A corporation is not fully empowered to change itself.  An extreme example
will demonstrate:  The board may not simply terminate the corporation and
distribute the residual assets into their own pockets.

And non-profits are even less able to change both under law and under
restrictions that are built into the corporation's organic documents and
placed out of reach of the board's ability to change.  (ICANN is under
both types of limitations.)

A non-profit is strongly restricted in what it can do and how it can do
it.  And ICANN is more than merely a "corporation", it is a
"non-profit/public-benefit" corporation under California law and it is a
501(c)(3)  corporation (charitable/scientific/educational) under the US
tax laws.  ICANN must thread its way through these limitations - and these
are not trivial limitations, they are very intricate - ICANN not free to
simply change its spots at its will.

The fact that it has done so, that it has ignorred its obligations to its
"members" does not make those obligations any less.

Board members who simply "amend the bylaws" because they feel like it are
violating their legal obligations and are potential subject to personal
liability for violating those obligations.

Of course, the writer to whom I am responding didn't even respond to the
main point that ICANN is failing to abide by the bylaws as written.

As for interpreting the bylaws - that's one of my jobs as a Director.

		--karl--



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