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Karl, I don't want this to appear condescending (even though it probably
will), but your legal analysis skills are a little rusty -- probably from
focusing on engineering, not law. As you can tell from the comments from
others, you appear to be the only one that is surprised that the words of
the bylaws mean what they say. I will say it one more time, just so there
is no possibility of confusion by folks who might think your analysis is
determinative: the bylaws in this respect have not changed one iota since
they were adopted, nor has their interpretation changed one iota. They
said the same thing then as they do now, and they meant the same thing then
as they do now. The fact that you were mistaken in your reading then or
now is unfortunate, but doesn't change either the language or its plain
meaning. And this really is my last word on this subject, which is now a
very dead horse.
(Embedded
image moved Karl Auerbach <[EMAIL PROTECTED]>
to file: 06/22/99 11:20 AM
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Extension:
To: IFWP Mailing List <[EMAIL PROTECTED]>, [EMAIL PROTECTED](null)
cc: (bcc: Joe Sims/JonesDay)
Subject: RE: [IFWP] Re: The Sims-Auerbach Correspondence
> I think that the Board can do all the things that Karl would like it to
be
> able to do, although there might be a lot of howls.
>
> But personally I find the scenario disturbing.
It apparently isn't a scenerio.
According to ICANNs counsel the board of ICANN, in order to meet its
fiduciary duties (to whom one might ask in the absence of a membership)
and provide a clear trail of responsibility must have full discretion to
determine what the corporation (ICANN) does or does not do.
That neccessitates that the board have the power to reject, modify, amend,
or replace any SO decision. And it also makes it necessary for the
board to have the power to bypass a SO.
In most basic terms it all comes down to this: In corporations, the
directors are ultimately responsible for the actions of the corporation.
Hence they must have the ability to control all actions of the
Corporation. In gross terms, this ensures that there are a clearly
enumerated set of people to bear legal liability for the mis-acts of the
corporation.
(Power can be delegated, but with that delegation there is also a transfer
of fiduciary responsibility, hence most corporate officers have
obligations and liabilities similar to that of board members.)
The ICANN structure, in particular sections VI.2(e) purported to remove
that power of control from the Board and transfer it to largely autonomous
bodies.
ICANN can't amend its way around this problem by saying that SO's are
advisory but, in practice, treating their "recommendations" as final --
the authority of the board must be true in actual practice as well as in
theory.
(Lot's of us mentioned that problem last summer and last fall, but did
anyone listen?)
Thus all this stuff about SO's being the focus of policy and that their
decisions can't be interfered with by the board -- all those provisions
are now fallen by the wayside and are just meaningless printer toner.
The useless provisions of VI.2(e) and VI.2.(f) should be removed from the
ICANN bylaws as they are clearly now meaningless and will simply confuse
people into believing that which is not the case.
This does not prejudice the use of the SO's as advisory committees. It
only means that the board has the freedom to not use them, and to ignore,
to modify, or to entirely rewrite what those SO's might happen to
recommend.
A lot of folks in the PSO, DNSO, and ASO are going to be surprised.
--karl--
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