To flesh this proposal out a bit further: The "Community" could overturn a board decision on a limited number of key issues via an ombudsman mediated process in which a decision could be rendered via the "Community". Each individual component of the Community (for example, GAC, GNSO, AT-Large, CCNSO, etc.) would have a proportional weight in the over-all decision of the Community. Currently, each of these individual components already has internal mechanisms in place to make decisions (take policy positions, elections, etc.) through which the decision of the Community is actually rendered. This way, we don't need to create a new super-structure to be "Representational". We can do away with that additional layer entirely - creating the "super board" because decisions can be made in the individual component's internal mechanisms. This would be a much more bottom-up method of reaching a "Decision of the Community" regarding a particular board decision. The ombudsman could act as the facilitator of this process: put the issue to vote, collect and tally the votes of the individual components to render the "Decision of the Community". The board would then be required to adopt this Decision of the Community unless it voted (unanimous or super-majority) to not adopt the Decision of the Community, which could be stipulated to in bylaws. The board would retain ultimate decisional authority as required by Cal Corp law, but it would be very difficult for it to ignore the bottom-up Decision of the Community. Coupled with a mechanism to recall recalcitrant board members, this overall model could solve many of our problems and remake ICANN in a more bottom-up fashion without too much structural redesign. Thoughts?

On Jan 21, 2015, at 5:14 AM, David Post wrote:

With the caveat that I know next-to-nothing specifically about CA non-profit corporation law, it certainly looks to me like Robin's idea fits quite comfortably within the statute. The Board delegates a decision-making function to some other body, as it is allowed to do; it agrees to abide by the decision of that other body, subject to its "ultimate authority" to change its mind and decide NOT to abide by a decision of that other body; but it can only do that by a supermajority, or even a unanimous, vote at the time. It seems to me that gives the Board (as a whole) the "ultimate direction" of corporation - it does get the "final say" - but it also gives the body to which the Board has delegated decision-making power real "teeth" (because the supermajority or unanimity required to overturn its decision will be very difficult to achieve) -

David

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David G Post - Senior Fellow, Open Technology Institute/New America Foundation
blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post
book (Jefferson's Moose) http://tinyurl.com/c327w2n
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At 10:45 AM 1/20/2015, Robin Gross wrote:
CALIFORNIA CORPORATIONS CODE SECTION

Nonprofit Public Benefit Corp:
5210.  Each corporation shall have a board of directors.
Subject to
the provisions of this part and any limitations in the articles or
bylaws relating to action required to be approved by the members
(Section 5034), or by a majority of all members (Section 5033), the
activities and affairs of a corporation shall be conducted and all
corporate powers shall be exercised by or under the direction of the
board. The board may delegate the management of the activities of the
corporation to any person or persons, management company, or
committee however composed, provided that the activities and affairs
of the corporation shall be managed and all corporate powers shall be
exercised under the ultimate direction of the
board.
2 part solution proposal:

1. So the board may be able to delegate some of these management activities to "the community" - and reserves its ultimate direction to be able to over-turn such a decision by full negative consensus. {i.e. every board member is against it). The board would have to put this restriction on itself in bylaws: the requirement for all board members to vote against a community decision in order to over turn it.

2. If we then added the ability to remove board members, this mechanism might be able to provide the kind of oversight and control the community is looking for without creating super-boards, membership orgs, and still complies with California Corporation law about board retaining ultimate control.

Thanks,
Robin

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