[Chapter-delegates] Message from Internet Society Audit Committee Chair

[Richard Hill]

> -----Original Message-----
> From: Chapter-delegates [mailto:chapter-delegates-bounces at elists.isoc.org]
On
> Behalf Of 'Andrew Sullivan' via Chapter-delegates
> Sent: Sunday, 8 November, 2020 21:32
> To: chapter-delegates at elists.isoc.org
> Subject: Re: [Chapter-delegates] Message from Internet Society Audit
Committee
> Chair
> 
> On Sun, Nov 08, 2020 at 04:04:21PM +0100, Richard Hill wrote:
> >
> >I stress "THEIR OWN FINANCIAL INTERESTS".
> 
> It turns out that, if you have a fiduciary responsibility to an
organization,
> it extends the interests of the organization to you in some ways.  This is
one
> such way.

I think that may be getting to the crux of the issue. You (and perhaps those
who adopted the new policy) appear to assume that Chapter officers have the
same fiduciary responsibilities as ISOC Trustees. But such is not
necessarily the case. For example, the officers of Swiss non-profit
associations, such as ISOC-CH, typically don't have anywhere near the
powers, or responsibilities, of ISOC Trustees, because all important
decisions have to be made by the membership in a General Assembly. The
association's officers are "entitled and obliged as defined under the
articles of association to manage and represent the association." (Article
69 of the Swiss Civil Code, available in English at:

  https://www.admin.ch/opc/en/classified-compilation/19070042/index.html 

So maybe what is needed is a finer legal analysis, to determine whether the
officers of any particular ISOC Chapter have powers such that there would be
a "structural" conflict of interests.

> 
> >I presume that ISOC has obtained expert legal advice on why having
Chapter
> officers on the Board would violate US tax law. If that is the case, could
the
> legal advice be posted to this list?
> >
> 
> Since in this case the legal advice would have been given to the Board, I
can
> neither confirm nor deny that there was such advice in this case (you'd
have
> to make that request of the Board).  As a general matter, however, it is
not
> good practice to share legal advice one has with others, because it breaks
> privilege.  

Indeed if a client discloses legal advice, then that may waive
attorney-client privilege for other legal advice on the same matter.

But, in this case, I don't see the problem. What would ISOC lose by waiving
attorney-client privilege regarding the specific issue at hand?

>So if I were in a position to post the advice here, with regret I
> would have to decline to do so.
> 
> >I do not understand that. Some individuals have as much influence on a
> Chapter as members as they did when they were officers.
> >
> 
> But they are not officers, so they do not have the same kind of legal
duty, so
> it is not the same sort of conflict.  "Having influence within an
> organization" and "having a legal duty to an organization" are different
> things.

Agreed. And, as noted before, the power of officers of a Chapter depends on
the laws of their country, which may be very different from US law.

> 
> >But that is not necessarily a conflict of interest. It is a conflict of
> interest only if the Board, Chair of the Board, or Chapter Officer decides
> that there is a conflict of interest.
> >
> 
> This is true in a trivial sense, of course, but the point of having the
policy
> is to provide guidance about how those decisions ought to go.
> 
> >That is, there was no absolute prohibition on Chapter Officers being
> Trustees.
> 
> I believe I pointed out that it appeared to be implicit, not explicit.
> 
> >No, section IV provides that the Trustee could "Physically excuse himself
or
> herself from participation in any discussions regarding the transaction or
> activity, except as requested by the Chair."
> 
> But as a practical matter, since Chapters are so bound up with the
operations
> of the Internet Society, that would require that a Trustee be absent from
an
> awful lot of discussions and many of the most important ones.  Surely that
is
> a less-than-desirable outcome?

Perhaps. But, again, it is a topic that, in my view, should have been
discussed with the Chapters in a formal consultation.

> 
> >As I understand it, there will be (hopefully soon) a forum to discuss
> potential changes to ISOC's governance. Would a move outside the US be an
> acceptable topic to discuss? Or is that off-limits?
> >
> 
> You will have to take that up with the Chairs of that group; it is a
question
> on a governance matter and better directed at the Board.  I see Olga has
> posted, so perhaps you can ask her.

Olga: can you respond?

> 
> Best regards,
> 
> A
> 
> --
> Andrew Sullivan
> President & CEO, Internet Society
> sullivan at isoc.org
> +1 416 731 1261
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