[NCUC-DISCUSS] important information

Fri Aug 12 00:35:38 CEST 2016

Hi Farzaneh, thanks for the notes and detail. There are some very useful points in there. Appreciated. 
Please see the text in green below.

      From: farzaneh badii <farzaneh.badii at gmail.com>
 To: Zakir Syed <zakirbinrehman at yahoo.com> 
Cc: KASWESHA <kaswesha at gmail.com>; "ncuc-discuss at lists.ncuc.org" <ncuc-discuss at lists.ncuc.org>
 Sent: Thursday, August 11, 2016 9:36 PM
 Subject: Re: [NCUC-DISCUSS] important information

Hello Zakir,
Initially, we sent a private message to Peter to resign. Why? Because we did not want Peter to be under public scrutiny. We had to make our email public because unfortunately we did not receive a response from Peter challenging us or resigning but we found out that other people have been informed. We did not want some of our members to know about the issue while others didn't hence had to announce it. 
Sending a private message/notice. This does make a very good sense. Wondering if we have any time frame for a response in such a scenario.e.g 15 days, 10 days etc. Is it the EC that decides this or we have something on this in the bylaws? Also, could you please share why did the EC want some members to not know about this issues. Article XI may be.

We are the executive committee elected by the constituency  (not appointed) and we have to to make decisions. As to the procedural matters, first I have to say I stand up for the principles of procedural justice and have spent a long time working on them. But in this case, our members are voicing concerns about   procedural matters which are very important in many situations but in our situation, these procedural matters should be considered in light of the nature of our functioning and work. I have several remarks on this. 

Agree, EC does make decisions. (even if they are appointed, the do, i believe). And yes, I am witness (in the MEAC SWG for example) to your standing up for principles of procedural justice and I always appreciate this. 
I think the members' concern is not about EC making a decision, but more about if the decision made is right or not. Yes, Accountability. Would be great if we can hear from members who share any such concerns. 

We are not an adversarial body, we are an executive committee. While we have to observe the principles of procedural justice we can decide how we approach issues and make decisions and of course provide plausible rationales for those decisions. Not all procedural justice principles (I am adamant not to use due process, I think it's the wrong usage) apply to every situation. For example in the beginning, transparency would not have been in favor of Peter. But we had to make the matter public because Peter did not directly communicate with us. 

Agree. Serving a notice, however, is more of a due process thn a procedural justice, not?. But either way, 
EC has to make decisions. 

In the beginning, EC decided not to make the matter public(because of the reason I said above), communication took place between EC members (respected his privacy and maintained confidentiality), told Peter the basis of EC decision, one of the pillars of justice is to give reason for the decision , and requested him to resign from EC (which is pragmatic justice, clear instructions on what we wanted him to do).  Please note that nothing is final at this stage. 

Noted. 

You should also know that this issue was raised over a year ago when some of us were not on the Executive Committee and Peter was warned about this. We did not make a hasty decision. 

Can members warn EC members? This also implies that its an old issue and that some members knew about this already. 

What I have also been hearing is whether Peter had the chance to provide evidence or defend himself. The decision to ask Peter to resign from EC (note that he was asked to resign from EC not NCUC) has been made primarily based on one fact that cannot be challenged nor defended: Peter is a full-time employee of a registry. Based on our interpretation of the bylaws and considering other matters such as the integrity of our constituency we decided that Peter should resign from EC. 

If it is true that the decision to ask an EC member to resign from EC cannot be challenged not defended, this mean we have a serious weakness in the eligibility process. This will need some serious thought. Particularly, in the case of confirming someone's eligibility to becoming EC member.

Some may dispute our decision and  might disagree that the fact that Peter works for a registry and is in a leadership role at NCUC do not hamper our integrity. I think it is necessary for us to discuss things with our members and inform them of the decisions which I have tried to actively do and we need to listen to our members and members should be able to challenge us. However, in the end, EC has to make a decision. At the moment the mechanism to challenge and hold the EC accountable as Milton said is through elections. If the majority of members are concerned with the way EC makes decisions then they can vote against them. If it gets to the point that members do not see elections as a sufficient tool or optimal, some other measures maybe considered. 

Agreeing to disagree and disagreeing to agree. This is the beauty of the process. Just if elections really is the only mechanism to (i wouldn't call it "challenge") try to get to the details of a decision made and the process followed, in other words the Accountability thn I would say "some other measures" as you said can be discussed and debated so as to have a more empowered EC and satisfied members. 

EC should and we try our best to take fair decisions. 

Yes, and all members must support the fair decisions.

The next step for us (EC) is to have a meeting with Peter. This meeting will be transcribed and notes will be taken. 

This would be great.
Best,Zakir

Best 
Farzaneh 

On 11 August 2016 at 02:31, Zakir Syed <zakirbinrehman at yahoo.com> wrote:

Dear Farzaneh, Thanks for that info. 
Was wondering, why not to wait for a response from Peter first. 
Just if Peter resigns (he has not - as you said) the Article VII will do. But if, there is a response/explanation from Peter and no resignation, I don't think the Article VII will do. I could be wrong though. Also, what is going to be the tool for taking the "next steps". I mean, do we have anything for such a scenario in the bylaws? If not, what happens.

Best, 
Zakir

      From: farzaneh badii <farzaneh.badii at gmail.com>
 To: KASWESHA <kaswesha at gmail.com> 
Cc: "ncuc-discuss at lists.ncuc.org" <ncuc-discuss at lists.ncuc.org>
 Sent: Monday, August 8, 2016 3:52 PM
 Subject: Re: [NCUC-DISCUSS] important information

Dear Kaswesha,
Let me clarify that we have requested Peter to resign from NCUC EC but Peter has not resigned yet, so we are yet to take the next steps. 
NCUC Bylaws have predicted processes in case of a member leaves office (Article VII) .According to Article VII(section E), as we have less than 6 months to the EC elections, no early elections are needed and the chair may appoint a temporary replacement. 
Best
Farzaneh 
On 8 August 2016 at 12:05, KASWESHA <kaswesha at gmail.com> wrote:

Noted Rafik. Does this mean we have a by-election to replace Peter? Or How does work?

James Njoroge

Cell-Phone +254 722 212171 or +254 721 274273

Before printing this mail make sure it is completely necessary. THE ENVIRONMENT IS EVERY ONE'S BUSINESS.

On Mon, Aug 8, 2016 at 6:45 AM, Rafik Dammak <rafik.dammak at gmail.com> wrote:

Dear members:
I am sharing with you an important and extraordinary announcement. Last week the NCUC EC agreed to ask one of its members, Peter Green, to resign. It was not an easy act or one that we took lightly, and we had to think about it for some time. Our action was necessary because of an undeclared conflict of interest and a clash with our membership eligibility rules.
Peter is an employee of CONAC, a TLD registry associated with the government of China. As a CONAC employee, he is an active member of and participant in the Registry Stakeholder Group. It has been a longstanding principle of NCUC membership eligibility rules that people or organizations that are members of another SG or constituency in the GNSO cannot also be members of NCUC (bylaws III.3). This is done to prevent other interest groups from attempting to control or unduly shape our Constituency, which is devoted to noncommercial user interests.
Peter has been actively working on behalf of the Registry SG for some time, even as he has been serving on our Executive Committee. This is evident from articles such as thishttp://www.chinagov.cn/english /News/CONACNews/201509/t201509 24_281168.html and from records of the registry constituency working group such as this https://community.icann.org/di splay/S1SF/Drafting+Team We note with concern that Peter's Conflict of Interest statement when running for election to the NCUC EC failed to mention his employment at CONAC. 
I wanted you to be aware of this issue and to understand the basis for our actions.
Best Regards,
Rafik Dammak
---------- Forwarded message ----------

 Dear Peter (Zuan Zhang): For some time we (the undersigned representatives of the Executive Committee) have received complaints or expressions of concern about your eligibility for membership in the Noncommercial Stakeholders Group. The EC has investigated this matter and has come to the conclusion that you are ineligible for NCSG membership and thus must resign from the NCUC Executive Committee immediately. We want to make it clear that this is not caused by any misconduct on your part; it is purely a matter of applying our eligibility rules. Your contribution to our EC has been exemplary, but we cannot continue to contradict our membership rules. This would open the door to many other ineligible members and possible abuses. We hope you can accept this decision in a good spirit. Section 2.2.2 of the NCSG charter specifically excludes from membership "Organizations that are represented in ICANN through another Supporting Organization." Section 2.2.5 of the NCSG charter makes it clear that individuals are eligible only if they are "not represented in ICANN through membership in another Supporting Organization or GNSO Stakeholder Group."As an employee of CONAC, you are a member of the Registry stakeholder group and have played an active role representing CONAC in the Registry Stakeholder Group (RSG). CONAC is a domain name registry, which has its own Stakeholder Group, where your affiliation with CONAC as an employee is persistent and strong. We understand that before CONAC was a TLD registry, its employees were admitted into NCSG because there was no other place for them to be represented and there was less of a conflict of interest. But that time has passed; CONAC is now a full-fledged TLD registry operator and its policy interests are represented in the RSG.We thank you for your prior participation in our group and encourage you to stay involved in the GNSO via the Registry Stakeholder Group.Farzaneh Badii
Caribe Joao Carlos 
Rafik Dammak
Grace Githaiga 
Milton Mueller 

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