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Message from Danny Younger to Louis Touton Concerning Inquiry on Challenge to Selection of GNSO Council Members

Subject: NCUC election
Date: Fri, 21 Mar 2003 02:43:44 EST

Rebuttal of selected points in the NCUC response:

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.

To define the electorate, the Adcom needed only to have ICANN staff provide them with the relevant financial entries posted to the ICANN DNSO/GNSO General 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; they also could have directed the constituents to the instructions posted at 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.

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).

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, 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

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.

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