Message from Louis Touton (ICANN General Counsel) to Harold Feld and Marc Schneiders

Subject: Challenge to NCUC Selection of GNSO Council Members
Date: Mon, 17 Mar 2003 23:29:28 -0800
From: Louis Touton <touton@icann.org>
To: hfeld@mediaaccess.org, marc@schneiders.org
CC: DannyYounger@cs.com

To: Harold Feld
Marc Schneiders

Late on Wednesday, 12 March 2003, I received a message from Danny Younger challenging the process by which the Non-Commercial Users Constituency (NCUC) recently selected representatives to the GNSO Council. To address this challenge, I have asked for contact persons at the NCUC, and Milton Mueller has referred me to you.

Mr. Younger's message appears below. (The reference in the first paragraph is to Mary Hewitt, ICANN's Director of Communications.) I understand that earlier on 12 March 2003, Mr. Younger called Ms. Hewitt to voice his concerns, and Ms. Hewitt indicated that Mr. Younger should direct his concerns in writing to me.)

As discussed in the briefing of the GNSO Council on 14 March 2003, as General Counsel I am investigating Mr. Younger's challenge. My goal is to conduct a prompt and fair investigation of the circumstances, and to report as appropriate on the challenge.

As a first step in the process, I request that you provide, on behalf of the NCUC, a written response to the challenge. I would find it helpful if this included two elements:

1. A statement of the relevant circumstances. This should include all the factual circumstances that appear likely to be relevant to the challenge. This statement should state the circumstances objectively, and should be of such a neutral character that even the challenger could not reasonably dispute its content. Indeed, my intent is to give Mr. Younger an opportunity to object to omissions or inaccuracies in the statement. In preparing this statement, I would find it useful for you to cover particularly the following issues, as well as whatever other circumstances the NCUC believes are relevant to Mr. Younger's challenge:

a. Why was the selection process held (ordinary expiration of terms of representatives, resignation of representatives, etc.)?

b. What process was followed to define the electorate? What was the result of that process (i.e. what was the specific voter roll)?

c. What was the nature of the nominations process? What nominations were received?

d. How was the vote conducted and tabulated? What were the results (i.e. how did the particular voters cast their votes)? Please note that voting challenges are decided not only by analysis of whether there were irregularities, but also by analysis of whether any irregularities affected the results.

e. How and when was the vote announced?

f. Relevant dates and documents should be included.

g. What process (if any) does the NCUC have to address challenges to votes? Were these processes invoked?

2. A specific response to each of Mr. Younger's objections. This should relate the provisions of the NCUC charter cited by Mr. Younger, as well as any other provisions you believe to be relevant, to the circumstances.

If at all possible, I would appreciate receiving the NCUC's response by Thursday, 20 March 2003. If additional time is needed, please let me know ahead of time.

I appreciate your assistance on this matter. This message and the NCUC's response will be posted on the ICANN web site, except to the extent confidentiality is expressly requested.

Best regards,

Louis Touton

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Subject: NCUC election concerns
Date: Wed, 12 Mar 2003 21:08:04 EST
From: DannyYounger@cs.com
To: touton@icann.org
CC: hewitt@icann.org

Louis,

As per my discussion with Mary...

The Non-Commercial Constituency recently conducted an election and seated members on the Names Council. These members will soon be casting a vote to help select an ICANN Board director to fill seat #14. I am concerned that the election was illegitimate for the following reasons:

1. The Non-Commercial Charter states:

"Membership shall be annual. The membership year will coincide with the Western calendar year. For existing member organizations, membership fees will be payable from Jan 1 to March 1. [Note: the charter should also be amended to have Adcom elections the second week in March.] Organizations that have not renewed their membership fees by that date will be stricken from the membership list and not permitted to vote in the Adcom elections or other elections held during the calendar year. If any votes are held between Jan 1 and March 1, organizations that have not paid their membership fee will not be allowed to vote."

In spite of this very clear language, Adcom member Harold Feld announced:

"The pool for voting are all those who were eligible to vote in the last election (February '02) and any who have paid dues since then." http://www.icann-ncc.org/pipermail/discuss/2003-January/006441.html While I view this as a clear violation of the bylaws, I am willing to admit to the possibility that the Adcom might have the authority to make such a proclamation... but I would prefer to receive a ruling on this matter.

2. In the course of the election process Mr. Erick Ahon, the organizational representative of Revista Electronica de Derecho Informatico, nominated Gabriel Pineiro. Unfortunately Mr. Ahon's organization is not listed as an organizational member on the ncdnhc.org website, so he wasn't entitled to make this nomination. http://www.icann-ncc.org/pipermail/discuss/2003-January/006450.html

3. Mr. Pineiro's organization, Modelo por Internet de Naciones Unidas, similarly is not listed as a member of the Constituency on the website (so he should be ineligible to even be a candidate).

4. The nomination was seconded by Jefsey Morphin (not a constituency member), and seconded again by Milton Mueller. In spite of the requirement stated by Adcom member Harold Feld that "All acceptances must be posted to the list by 11:59 p.m. February 11, 2003",(http://www.icann-ncc.org/pipermail/discuss/2003-January/006429.html), Mr. Pineiro never posted an acceptance to the list even after the deadline. (The list is at http://www.icann-ncc.org/pipermail/discuss/2003-February/date.html). Mr. Pineiro was subsequently elected (receiving 2 votes).

5. Mr. Kent Crispin, the organizational representative of Potter Yachters (listed as a constituency member) never received a ballot: "I note that the Potter Yachters are on the list of members; I am still their representative; I did not receive a ballot; this election, as far as I am concerned, is completely invalid." http://www.icann-ncc.org/pipermail/discuss/2003-March/006593.html

6. Other members that thought that they were precluded from voting in the election (by dint of the fact that they hadn't paid their dues) received ballots and then (owing to the confusion over the Charter requirements) did not vote. See correspondence at http://www.icann-ncc.org/pipermail/discuss/2003-March/006590.html

7. The Non Commercial Charter requires that "After the period allowed for voting closes, the votes shall be listed by organization on the NCDNHC website so that they can be inspected and counted by members and the public." Results by organization still have not been posted (even after several requests by several members to the discussion list).

In view of the fact that Mr. Pineiro will be casting a vote to select director #14, I deem it appropriate that these facts be considered and evaluated lest the GNSO election be marred.

regards,
Danny Younger