Supplemental Statement Provided by Non-Commercial Users Constituency Concerning Inquiry on Challenge to Selection of GNSO Council Members
The following supplemental statement was provided by the Non-Commercial User's Constituency (NCUC) on 25 March 2003 to respond to Danny Younger's 21 March 2003 reply to the NCUC's 20 March 2003 Statement Concerning Inquiry on Challenge to Selection of GNSO Council Members.
[Concerning Mr. Younger's] Rebuttal of selected points in the NCUC response:
Several charges are (silently) dropped, we assume. We are glad Mr Younger accepts our explanations on most points without further ado. It is critical to add that nowhere in the response below does Younger show, or even attempt to show, that the election results would have been different. In other words, he does not even bother to assert any linkage between the deviations from the charter and the specific candidates that were elected to Adcom or to the Names Council. This fact alone is fatal to Younger's challenge.
[Copied from Mr. Younger's reply:] 1. The representatives of the Non-Commercial Constituency have argued that their Administrative Committee had only three choices, "all involving technical violation of the charter." They have failed to disclose that the Adcom had a fourth choice – abiding by the Charter of the Constituency.
We have explained why it was technically impossible for us to renew membership and conduct the elections on time. Younger has not disputed this factual assertion.
[Copied from Mr. Younger's reply:] To define the electorate, the Adcom needed only to have ICANN staff provide them with the relevant financial entries posted to the ICANN DNSO/GNSOGeneral Ledger (as the Constituency Charter makes it clear that membership is predicated on the payment of dues between the period of 1 January and 1 March during the Western calendar year).
Upon determining which organizations were in paid status, the Adcom could have prevailed upon the ICANN staff (as per past practice) to send invoices to those organizations that had not yet attended to their obligations;
Younger here ignores the most salient fact: namely that the invoicing process took 5 months. Possible avoidance of earlier problems might have reduced this time period to 3 months. Or, due to the dormancy of many members, the process could have taken longer. Thus, any attempt to "abide by the charter" as he suggests would have led to the expiration of the terms of the Adcom, and hence no one in a position of authority to administer the election.
Younger does not seem to grasp that ALL organizations were not in paid status. Unless we relied on 2002 membership, there was no electorate at all. Also we explained why invoicing through the services of ICANN staff seemed inappropriate based upon developments during the year 2002 (no more GNSO dues) and past experience with the way in which the invoicing was handled. Marc Schneiders had to send out several messages a year ago before he received the information needed to pay (see, e.g., http://www.icann-ncc.org/pipermail/discuss/2001-December/000999.html, http://www.icann-ncc.org/pipermail/discuss/2002-January/001268.html).
[Copied from Mr. Younger's reply:] they also could have directed the constituents to the instructions posted at http://www.icann.org/financials/ that explains how payments to ICANN (functioning as a trustee) may be submitted by wire transfer, credit card or bank check. [It should be noted that the Charter does provide fee exemptions for those with economic and administrative hardships.]
Next, election ballots could have been sent to organizations in paid status as well as to the organizations still in unpaid status (with the caveat that as per the Charter "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".) This would have afforded all unpaid members the final opportunity to get their dues in and cast a vote prior to the 1 March deadline.
Please note that no objection has been posted to the use of the 2002 list of members as the basis to define who was entitled to receive a ballot... the objection is in having the ballots of those organizations that are not in paid status being counted (as only paid membership defines the valid electorate). The Adcom does not have the authority to unilaterally flaunt the Charter and count the votes of unpaid members; any such changes require invoking the Charter amendment methodologies.
All were (and are) in unpaid status! Those who paid in 2002 were the electorate. Surely Mr. Younger cannot mean that there should have been an election without anyone voting?
[Copied from Mr. Younger's reply:] 2. With respect to the comment that "we can think of no legitimate reason to permit non NCUC members to invoke election challenges", I would remind the Constituency that the Charter stipulates "the votes shall be listed by organization on the NCDNHC website so that they can be inspected and counted by members and the public." As a member of the public, I am exercising the accorded right to inspection and the presumptive right to inform the ICANN General Counsel of concerns subsequent to such inspection – at issue is whether this constituent body has operated to the maximum extent feasible in an open and transparent manner and consistent with procedures designed to ensure fairness (adhering to the results of an illegitimate election in which the NCUC representatives have already conceded that one given candidate "was not eligible" does not, in my view, equate to fairness).
Having the right to inspect information does not automatically confer the right to lodge charges. Also we note that all information requested is now available. We explained in detail why this info was not available earlier. It was beyond our control. We did everything to unearth it and make it public ASAP.
[Copied from Mr. Younger's reply:] 3. While the Non-Commercial representatives are correct in stating that the Constituency Charter does not require notice of acceptance of nominations, the Charter does state that "the Administrative Committee will be responsible for handling the administrative issues of the Constituency". When Adcom member Harold Feld established the election procedures and posited the requirement that acceptances must be posted to the list, this was a legitimate administrative action of the Adcom. It is not frivolous to expect that posted rules are to be followed,
Younger was charging us with "charter violations." He now fortunately concedes that this was not a charter violation at all.
[Copied from Mr. Younger's reply:] nor is it frivolous to expect that the organizations that put forth candidates for election are actually members in good standing. The Charter states: "To run for the AdCom, a candidate must be affiliated with an organization that is a member of the NCDNHC"; if the organization is not dues-current, it is not a member.
4. With respect to the ballot denied to the Potter Yachters, the NCUC representatives have argued that since Mr. Crispin was formerly "the representative of Songbird in the Business Constituency" conflict of interest issues precluded his participation as a voting member. I would note that at the time of the election, neither Potter Yachters nor Songbird were listed on the Business constituency website as members. This may be confirmed by viewing http://www.bizconst.org/members.htm
The burden was and is on Mr Crispin to notify us of the fact that he resigned from the BC, if such is the case. He would then, naturally, have been able to apply to be reinstated as a voting member of the constituency. The NCUC and its Adcom cannot be expected to check the websites of other constituencies all the time to see if changes in their member lists have any bearing upon those of the NCUC. That is simply not our job.
[Copied from Mr. Younger's reply:] 5. In conclusion, a Charter is a covenant between parties to adhere to a given set of rules, definitions and procedures. The NCUC Adcom chose not to abide by the language mutually agreed-upon by constituent member organizations and instead charted a new course in technical violation of the Charter without the requisite authority to exercise such discretion. The result of this folly was an election in which votes of members not in paid status were counted, and in which an ineligible candidate was elected.
As we have proven repeatedly, without factual challenge, _all_ 2002 members were given the same right to vote, and no new members were added in 2003. Thus, our solution to the problem of defining the electorate was nondiscriminatory and fair, advantaging no candidate relative to another.
Younger seems to think that merely proving a deviation from a charter is sufficient to overturn an election. But Younger conveniently overlooks the fact that the solution he proposed – reinvoicing members – would have required Adcom to extend its terms for several months, possibly as long as 6 months. This would also be a charter violation, a far more serious one than simply not requiring past members to make new payments.
Technical deviations from bylaws and rules happen all the time, also in ICANN and the past DNSO. What matters is whether the result of the election was affected, whether some people were disenfranchised at the expense of another, or whether one candidate excluded another from winning. Younger has failed to even suggest that what was done affected the outcome. He has ignored, and therefore conceded, that no regional Adcom seat was contested, that the candidates selected for GNSO Council. His challenge must fail on those grounds alone.