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

["Chris McElroy" <watch-dog@inreach.com>]

Chris McElroy aka NameCritic


----- Original Message -----
From: "Kent Crispin" <kent@songbird.com>
To: <wg-review@dnso.org>
Sent: Tuesday, January 09, 2001 6:52 AM
Subject: Re: [wg-review] Clarifications requested from BoD, Staff, NC,
TC,Chair prior to co-Chair elections


> On Tue, Jan 09, 2001 at 02:35:06AM -0400, Peter de Blanc wrote:
> > It is clear in sections:
> >
> > "Under Article VI Section 2(c) of the ICANN bylaws, the ICANN board is
> > obligated to refer to the Domain Name Supporting Organization those
> > proposals 'not received from a Supporting Organization' and which
pertain to
> > the domain name system."
> >
> > While this accurately states the general tenor of Section 2(c), it fails
to
> > note the effect of Article VI, Section 2(g):
> >
> > "Nothing in this Section 2 is intended to limit the powers of the Board
or
> > the Corporation to act on matters not within the scope of primary
> > responsibility of a Supporting  Organization or to take actions that the
> > Board finds are necessary or appropriate to further the purposes of the
> > Corporation."
> >
> > that ICANN (staff and board) can do ANYTHING it wants WITHOUT DNSO
> > involvement.
> >
> > Unless and until that (section) is changed, well, status quo...
>
> Peter, that section has very little to do with it.  The ICANN board can
> effectively do anything they want regardless.  This is because of a very
> fundamental point that many people's minds seem to actively reject.
>
> A corporation is not a government; bylaws are not a constitution.  A
> corporation is fundamentally intended to support the interests of
> the owners of the corporation, and in a corporation without members,
> the owners are effectively the BoD.
>
> For example, you and I and a couple of friends could form a non-profit
> corp to foster the production of music at ICANN meetings.  We would be
> the BoD and the officers in our corp.  For a corporation like that,
> nobody has a problem understanding that the corporation would exist for
> OUR purposes -- 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.
>
> The BoD of the corp can amend the bylaws at any time; this is not a bug,
> it is an intended and well-established characteristic of a corporation.
> It is a bit more difficult to amend the articles, since the articles are
> filed with the state, but the board can do it by transferring the assets
> and structure of the corporation to a new corporation with new articles
> -- an afternoon's legal work, perfectly doable.

Not perfectly doable since that would also invalidate any existing contract
they currently have. Every agreement including the ones with the US
Government and the governments of other countries would have to be
renegotiated and you can't just simply transfer the assets as you outline
here. Maybe you should meet our Attorney General in California. As a matter
of fact, I'll email him asking him that very question for you. I'm sure
he'll back your "Learned" opinion on how nonprofits can manipulate the law
any way they choose. The option you present is totally ridiculous and has
nothing to do with reality.

>
> It's understandable that a layperson could make this mistake, because
> bylaws do superficially look like a constitution of some sort.  It is
> utterly amazing that someone with any legal training could make such a
> mistake.  But the fact is, Karl's theories about this are pure legal
> fanatasy.  Article VI, Section 2(g) only expresses a pre-existing fact,
> and it is there just to be absolutely sure that people understand it:
> The board can do anything it deems necessary, regardless of what the
> DNSO decides.
>
> Karl's theories about members of ICANN are fantasies, as well.  If you
> and I decided we needed another board member for our corp, we, as board
> members, could decide to let our friends pick one of themselves to be a
> board member, and we could decide to accept that choice.  The important
> thing is that we, the board, are controlling that process -- just to be
> *very* sure that the state doesn't get the wrong idea we could put an
> explicit clause in our bylaws making it clear that our friends making
> that choice are not members of our corporation.
>
> In the case of ICANN, only a lunatic would imagine that the Board was
> suddenly going to turn the assets of the corporation over to a
> completely unknown membership.  It would be utterly irresponsible on the
> part of the Board to do so.

They've already turned them over to a bunch of self-elected self-interest
groups. Therefore you seem to think this will last. I can definitely assure
you it will not. Special interest groups can be fought. You will see it
happen right before your eyes while the whole time declaring it isn't
possible.

>
> --
> Kent Crispin                               "Be good, and you will be
> kent@songbird.com                           lonesome." -- Mark Twain
> --
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