Statement Provided by Non-Commercial Users Constituency Concerning Inquiry on Challenge to Selection of GNSO Council Members
The following statement was provided by the Non-Commercial User's Constituency (NCUC) in response to the 17 March 2003 message from Louis Touton to Harold Feld and Marc Schneiders concerning the challenge made by Danny Younger to the NCUC's process for selecting GNSO Council members. Portions of the NCUC response that appear in italics have been copied from the inquiry:
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:
During the Fall of 2002 it was unclear whether the constituency would lose its voting rights in DNSO and cease to exist due to its inability to pay approx. $50,000 in current and back DNSO dues. Because of that uncertainty, the 2002 Adcom took no efforts to invoice members for membership renewals, feeling that it was inappropriate to ask organizations to donate money for membership when there appeared to be a strong likelihood that membership would yield no benefits (no representation on Names Council).
This feeling was re-enforced by the technical difficulties of invoicing. As described below, many members had difficulty receiving the invoice as an attached file and some had difficulty sending currency out of their home countries. In addition, while NCUC is small relative to those of other constituencies, it can represent a significant percentage of an organization's operating budget in poorer countries. Finally, the uncertainty engendered by ICANN restructuring and general tone of discouragement and lack of participation on the list made Adcom very reluctant to impose new demands on members.
Furthermore, NCUC Adcom and many members were discouraged with the results of ICANN's "Evolution and Reform" process and became inactive.
On October 6, 2002 ICANN Secretary Touton announced that the constituency's voting rights could not be taken away for nonpayment of dues (http://www.icann-ncc.org/pipermail/discuss/2002-October/002895.html). There was, however, still a great deal of uncertainty surrounding the new governance arrangements of ICANN and the role of the NCC in ICANN's structure. These uncertainties were not resolved until the Amsterdam meeting in mid-December.
a. Why was the selection process held (ordinary expiration of terms of representatives, resignation of representatives, etc.)?
Both ordinary expiration of the terms of the existing Names Council members, and an attempt by one leading Adcom member to resign. Adcom and Council members' terms expired on February 27, 2003. Council member Harold Feld announced in December his inability to continue actively serving on Council and Adcom, having received an ultimatum from his employer to stop devoting time to NCUC activity at the expense of funded work. Because Mr. Feld was the most active Council and Adcom member, his inactivity would incapacitate the constituency. Feld did agree to continue, however, until replaced in the annual election.
b1. What process was followed to define the electorate?
As soon as preparations for the 2003 election began to be discussed, the definition of the electorate was recognized as a problem.
There was extensive public discussion on our list of how to handle this problem. The most critical concern was that there was simply no time to re-invoice members if we were to hold our election on time to replace expiring and resigning Adcom members. The last invoicing process, which was performed for us by ICANN staff, took almost five months to finally resolve who constituted members and who did not. One reason for this was that NCUC lacked the centralized secretariat required to accurately keep track of who had paid and who had not. Another problem was that ICANN invoices consisted of large (3Mb) document scans that often exceeded capacity limits of members' mailboxes. Another reason was that many small members in developing countries experienced problems transferring money. (Malaysia, for example, places restrictions on outgoing funds.) Based on this experience, the Adcom rejected the option of using ICANN staff to re-invoice members.
Not having a bank account, the constituency lacked any other method for collecting money. Additionally, the relatively high membership fees (especially for large organizations) set in 2001 were designed to raise money for DNSO dues. Now that DNSO dues were no longer necessary, requiring such fees might eliminate otherwise active contributing members, for no good purpose.
This discussion began in late January. The deadline for a new election to start was February 20. Thus, the constituency did not have time to develop and get approval for a new method of invoicing members or to revise membership fees. Such an option would require a charter amendment.
Revising the charter is governed under section VI of our charter. This requires forming a charter revision committee, and submitting any changes to the membership for approval.
Formulating a new proposal, modifying it in response to member comments, and approving it by vote of the constituency would have taken at least three months, possibly more if the issues were controversial. Moreover, that option presumed that a defined electorate was in place. However, by the time such a charter amendment was placed before the constituency, all members' one-year membership terms would have expired anyway.
Thus, in January 2003 the constituency was faced with three options:
1. Adcom could arbitrarily extend its own term of office beyond its one-year period
2. Adcom could extend the term of NCUC members beyond its one-year period for the period of an interim election.
3. Adcom could ignore its charter and its membership altogether and permit a self-appointed group, with no accountability to a membership, to appoint officers and write a new charter.
Ultimately, the Adcom chose what was under the circumstances the only real option (#2). It made a decision to rely on the existing 2002 membership list to define its electorate. Recognizing the transitional circumstances, we deliberately made the new election an interim one, which would put in place a new Adcom that could revise the charter and fill positions on GNSO Council during the transitional period.
This decision was supported by all Adcom members and the preponderance of comments from active members. There were only two objections to this procedure from members. However, the objectors were unable to propose any feasible alternative, save for #3 above. This option seemed much less legitimate, and constituted a clear violation of the spirit as well as the letter of the constituency charter and the ICANN bylaws.
For constituency discussion of this issue see:
b2. What was the result of that process (i.e. what was the specific voter roll)?
Very simple: the 2002 list of current members, which was stored in our records in the form of an "announce" list. No modifications to this list were made.
c. What was the nature of the nominations process? What nominations were received?
We used the same nomination process we have always used. An announcement of the elections was made with a call for nominations. Only members could be nominated for Adcom seats, only members could nominate and second candidates. All nominations are made through the public discuss list.
Messages related to nominating, seconding and acceptance of candidate Mueller:
Messages related to nominating, seconding and acceptance of candidate Chun:
Messages related to nominating, seconding and acceptance of candidate Pineiro:
Messages related to nominating, seconding and acceptance of candidate Schneiders:
It should be apparent that due to the dormancy of the constituency in late 2002 there were few nominations. Only one person from each of four regions were nominated. There was no nomination for the African region during the allotted time slot, although Thierry Amoussogbo later announced his willingness to continue on Adcom in an email to other 2002 Adcom members (not sent to the public list). Thus, no regional Adcom slot was contested. The only issue to be determined by the constituency was which three of the four nominees would serve as our representatives on GNSO Council, and in this case it was a matter of eliminating only one of the four candidates.
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.
Normally the constituency has its own voting software and operates its own elections. In this case, however, the Adcom member who performs this function (Eung Hwi Chun) was also a candidate. Therefore the constituency secured the cooperation of the GNSO Secretariat to run the election. The GNSO Secretariat handled all voting procedures in a way that was completely opaque to the NCUC candidates and to Adcom. The NCUC was happy with the efficiency and responsiveness of the GNSO Secretariat and believe that its integrity and independence cannot be questioned.
Because the elections were basically uncontested, we cannot conceive of how any issues regarding the voting list or the voting process could have affected the results. The only candidate excluded in any way by the voting process was Marc Schneiders, the Adcom member from the European region who received no votes to be placed on the GNSO Council. Mr. Schneiders wishes to make it clear that he has no objections to the election procedure or the electorate list. No complaints about Schneider's absence from Council have been voiced by EU-based members.
e. How and when was the vote announced?
The results were conveyed to Adcom by the GNSO Secretariat March 3. Harold Feld announced the vote results with an email to the public list on the morning of March 4. A few days later, the vote totals were put on the constituency web site at this URL: http://www.ncdnhc.org/elections/2003-election.htm
Please note that due to the uncertainty surrounding the African representative and his willingness to participate, Thierry A. was not listed as an Adcom representative on the web site. Since that posting, Thierry has been included as an Adcom member as the only volunteer for that position from the African region. For the purposes of this investigation, we leave the web site as it is.
f. Relevant dates and documents should be included.
See URL links in this document.
g. What process (if any) does the NCUC have to address challenges to votes? Were these processes invoked?
In common with ICANN's bylaws, the NCUC charter contains no procedure to challenge the voting procedure of the constituency.
While nonmembers might have a legitimate reason to challenge our membership eligibility requirements, we can think of no legitimate reason to permit non NCUC members to invoke election challenges. Be it noted that Danny Younger is not a member of the NCUC.
[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.]
We address Mr. Younger's specific objections below:
- Annual Membership
This was explained at length above. The Adcom had three and only three choices, all involving technical violation of the charter:
1. It could extend its own term of office beyond its one-year period
2. It could extend the term of NCUC members beyond its one-year period
3. It could ignore its charter altogether and permit a self-appointed group, with no accountability to a membership, to appoint officers and write a new charter.
The course of action Adcom took (#2) was the least violative of the charter, the most respectful of the rights of its members, and most considerate of the need for accountability.
Extending Adcom's term of office for an indefinite term is completely illegitimate (and impractical, in light of Mr. Feld's resignation, which would have cost NCUC representation on the Names Council unless Mr. Feld were replaced with an election, thus triggering the same issues raised here). Allowing officers to ignore election terms and stay in power as long as they choose invites serious abuses. Allowing a self-appointed group to completely rewrite the charter is not only a complete violation of process, one would then have to ask: who would vote on this new charter? What members would ratify it? One still must have an electorate.
If this election challenge is upheld, we would like to know which of the other two options the Secretary would have had us choose. Any decision that does not face that question is unrealistic and unfair. Furthermore, if our election is invalidated, we would like to know on what basis a new election could beheld, because any new election would face the exact same problem regarding membership as the old one.
- Erick Iriarte Ahon's membership status of AdCom and NC
The fact that Erick Iriarte did not stand for re-election in itself is sufficient to answer this. Erick made it also very clear, that he wanted to resign from the AdCom and the Names Council. He did not write any letters of resignation, which wasn't necessary, since his term ended. He did indicate his intentions most clearly in several emails, which are fortunately archived and publicly accesible. See e.g.:
- Pineiro's membership status
We already described in detail, what choices were made to establish the list of members/voters. It is correct that the organization of Gabriel Pineiro is not on this list. So in a formal sense he was not eligible. The former Adcom should have checked his membership status in stead of assuming that he was still (according to the standards described above) a member. We apologize for this serious omission.
Pineiro's organization was a member in the past. The problems with the invoices mentioned earlier may be considered as a mitigating circumstance for this 'technical' problem. In any case, declaring Gabriel Pineiro's election invalid does not at all have repercussions for the whole election process. Most it could achieve, is his replacement on the Names Council by Marc Schneiders. The NCDNHC's charter has a very clear procedure for situations like the one before us.
- Pineiro's acceptance
This is a frivolous charge. The charter does not require notice of acceptance of nominations. See Charter section IV D. Pineiro indicated his acceptance privately to Erick Iriarte Ahon and other activists in the constituency. Frequently non-English speaking activists do not follow the technicalities of rules expressed in English on our web site.
- Kent Crispin's membership status
Crispin's organization (Potter Yachters) is a nonvoting member, and was formerly a voting member, which explains its presence on the unofficial list on the web site. However, Kent Crispin has been informed that he cannot be the voting contact for that organization. As a nonvoting member, his organization did not and should not receive a ballot.
Under the constituency charter the membership of Crispin's organization was challenged by several members when Crispin became both an ICANN Staff member and the representative of Songbird in the Business constituency, raising conflict of interest issues. In section V.A of the charter, membership eligibility is subject to an informal challenge process based on "disclosure" and communication via the public list. In the words of the charter, it is "important that those within the constituency have the opportunity to learn about a member, any possible conflicts the member might have, and the position and title of the person designated to represent the member." Other members may challenge an organization "for failure to meet the stated membership criteria of the constituency." Crispin's organization, the Potter Yachters, was not excluded from membership, but it was told to designate another representative other than Kent Crispin to participate in NCUC activities to avoid conflict of interest. The Potter Yachters failed to ever designate such a representative and their voting rights were suspended until it does.
We consider this, too, to be a frivolous charge, because these facts were explained to Younger in the course of his assault on our public list. He chose to ignore these explanations.
- Iliya's vote
This is another frivolous accusation. This is a case of an organization that received a ballot, as it should have, but failed to vote because it did not understand the eligibility criteria that were announced and discussed on the public list. While unfortunate, such misunderstandings or individual failures to monitor the process are not charter or bylaw violations. Moreover, even assuming this member, based on Europe, voted for the European candidate it would not have altered the result.
- Posting of results by organization
We agree that there is a problem here, however, it is a practical one outside the current Adcom's control. Because the GNSO Secretariat administered our vote, the NCUC Adcom has no control over the records. The new Adcom has made several requests of the GNSO Secretariat for the required information so that it can be posted on the NCUC web site. The first two times the GNSO Secretariat misunderstood the request and gave us the wrong information. An answer to the third request is still pending. We will make a fourth request soon. We do not see this as a serious issue. We had to choose between outsourcing the vote process, which diminished our capacity to execute charter item IV.E, and protecting the integrity of the process by ensuring that someone who was a candidate was not directly administering the vote.
To summarize, every aspect of this election was uncontested, save which one of the 4 regional seats would be sent to Names Council.
Finally, we would like to stress, that declaring the elections invalid as such, on the basis of the choices made and described above, will result in an impossible situation. For there will be no different basis for any new elections. Nor is there then a clearly defined membership, which could decide on a new, revised charter, made necessary by the ICANN reform process.
The path chosen by the former Adcom was the only one possible within the limits imposed by our charter. Any other course would have been illegitimate, a violation of the charter.
We are confident, that you, and others who have to judge upon the situation, will come to the conclusion, that the charges are mostly lacking any grounds whatsoever in the facts. And also that where they do, they are not sufficient to call for any action from ICANN.
We apologize for the length of this reply. We feel, however, that giving a detailed description of all the relevant details will result in a quick solution. We hope the above will make it possible for you to resolve any doubts. If any additional information or clarification is required, we are, of course, available.