Correct. A number of people thought that the EC should have to affirmatively consent to removal of directors. ________________________________ Brett Schaefer Jay Kingham Senior Research Fellow in International Regulatory Affairs Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy The Heritage Foundation 214 Massachusetts Avenue, NE Washington, DC 20002 202-608-6097 heritage.org<http://heritage.org/> __________ On Apr 8, 2016, at 5:50 PM, Chartier, Mike S <mike.s.chartier@intel.com<mailto:mike.s.chartier@intel.com>> wrote: RE: Q6 “concerns have been expressed that there might be issues when the community tries to seat Board members and then the Board removes those board members instantly.” I’m not sure that captures the whole concern. Some expressed the desire that the EC consent be real and not perfunctory. From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Bernard Turcotte Sent: Friday, April 8, 2016 5:35 PM To: Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: [CCWG-ACCT] CCWG - Bylaws Drafting - Questions All, Please find attached 2 documents. The first is the compilation of the answers provided to lawyers on Thursday April 7th. The second is a list of remaining open questions. For some of these questions the CCWG co-chairs and rapporteurs have reviewed the original proposed replies or added some new replies - these are clearly indicated in the document. Co-chairs, rapporteurs and staff have tried to be dutiful in capturing the questions from the list but it is possible some were missed. If you have submitted a question or issue please verify it is included in this version of the document. Please remember that the deadline for submitting questions and issues is 23:59 UTC Saturday April 9 2016. We are looking forward to continuing the process of addressing these issues and questions at our Monday April 11th meeting at 19:00 UTC. Bernard Turcotte ICANN Staff Support for the CCWG Co-Chairs Thomas Rickert, Mathieu Weill, Leon Sanchez _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community

Hi, This implies that you(some) don't think board should be able to remove it's members. While I wonder why you have such view, I don't think that its a question/response we should be sending to the lawyers as it is a decision the CCWG has to made. In the past, we have pushed so much question to the lawyers without actually indicating what we want. It is my hope that we will avoid that at this stage; we should always indicate what we want so layers can advice on how we may go about it (if at all possible). That said, I think we need to recognise the implication of what you've said; it implies that a community process will need to be put in place to get the EC's approval and I wonder how long that would take. The other question from that is what the status of the menber would be during that process. I don't know of any organisation that makes its board so dependent in the manner you are proposing. Andrew raised a valid concern about possibility of board removing a member that was re-appointed (within the same term). While I believe such scenario would be so extreme and close to impossible, as I have earlier said a way to approach it could be to subject subsequent removal to actual approval of EC. However the Co-Chairs in their wisdom has thrown the question of "how to achieve what we want" to the lawyers which I believe is in order. I do think we should be setting processes that helps the board know the consequences of their actions and not the one that always prevents them from acting. Regards Sent from my LG G4 Kindly excuse brevity and typos On 8 Apr 2016 10:49 p.m., "Chartier, Mike S" <mike.s.chartier@intel.com> wrote:

RE: Q6

“concerns have been expressed that there might be issues when the community tries to seat Board members and then the Board removes those board members instantly.”

I’m not sure that captures the whole concern. Some expressed the desire that the EC consent be real and not perfunctory.

*From:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *On Behalf Of *Bernard Turcotte *Sent:* Friday, April 8, 2016 5:35 PM *To:* Accountability Cross Community < accountability-cross-community@icann.org> *Subject:* [CCWG-ACCT] CCWG - Bylaws Drafting - Questions

All,

Please find attached 2 documents.

The first is the compilation of the answers provided to lawyers on Thursday April 7th.

The second is a list of remaining open questions. For some of these questions the CCWG co-chairs and rapporteurs have reviewed the original proposed replies or added some new replies - these are clearly indicated in the document.

Co-chairs, rapporteurs and staff have tried to be dutiful in capturing the questions from the list but it is possible some were missed. If you have submitted a question or issue please verify it is included in this version of the document.

Please remember that the deadline for submitting questions and issues is 23:59 UTC Saturday April 9 2016.

We are looking forward to continuing the process of addressing these issues and questions at our Monday April 11th meeting at 19:00 UTC.

Bernard Turcotte

ICANN Staff Support for the CCWG Co-Chairs

Thomas Rickert, Mathieu Weill, Leon Sanchez

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

this is interesting but I am confused about whether it is really a practical concern. In fact, the Board has never removed a Director. NOR refused to embrace whomever we, the community put forward. I agree with Thomas that refusing to accept a Board member placed by the community by the rest of the Board would represent a 'rogue' Board and then the Community would undoubtedly fully protest. Let's look back at our history of placing Board members. And let's be frank with each other, and honest. We, the community have sent forward some Board members who have limited expertise in ICANN issues; we have sent forward some who were even ICANN critics; we have sent forward some who sleep through meetings. So far, the Board members have embraced each and every one and all have then tried to work on our behalf. If we, the community elect or the NomComm selects a Board member, I seriously doubt that the rest of the Board will work to reject them or him or her. So, I find this an extremely unlikely occurrence. From: thomas@rickert.net Date: Sat, 9 Apr 2016 09:23:34 +0200 To: seun.ojedeji@gmail.com CC: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] CCWG - Bylaws Drafting - Questions Hi Seun, all,in the document circulated by Bernie a while ago, we have offered a reworded answer to the EC consent question: *** The Board always had the power to remove directors. The CCWG recommends two community powers on removing individual directors and recalling the entire Board. However, the previously existing right of the Board to remove directors was neither removed nor altered by the CCWG recommendations. The CCWG asks the lawyers to ensure that this right for the Board will remain in tact and include required language in the Bylaws. However, concerns have been expressed that there might be issues when the community tries to seat Board members and then the Board removes those board members instantly. We kindly ask the lawyers to comment on ways, if any, to mitigate that risk without changing the substance of the recommendations. *** As we are working on the implementation of our recommendations and since our report did not include changes to the Board’s power to remove colleagues, still struggle with the notion of requiring active participation of the EC. Having said that, I understand the issue raised about immediate removal of those directors by the Board that the EC tries to place on the Board. However, I am not sure our response should be to change the Board process. If a rogue Board tries to prevent the EC from seating Board members of their liking by removing them straight away, we should remove the Board. I think that changing the Board process would not address the root cause of the issue, which would be a Board not playing by the rules. Best,Thomas Am 09.04.2016 um 06:23 schrieb Seun Ojedeji <seun.ojedeji@gmail.com>:Hi,This implies that you(some) don't think board should be able to remove it's members. While I wonder why you have such view, I don't think that its a question/response we should be sending to the lawyers as it is a decision the CCWG has to made.In the past, we have pushed so much question to the lawyers without actually indicating what we want. It is my hope that we will avoid that at this stage; we should always indicate what we want so layers can advice on how we may go about it (if at all possible).That said, I think we need to recognise the implication of what you've said; it implies that a community process will need to be put in place to get the EC's approval and I wonder how long that would take. The other question from that is what the status of the menber would be during that process. I don't know of any organisation that makes its board so dependent in the manner you are proposing. Andrew raised a valid concern about possibility of board removing a member that was re-appointed (within the same term). While I believe such scenario would be so extreme and close to impossible, as I have earlier said a way to approach it could be to subject subsequent removal to actual approval of EC. However the Co-Chairs in their wisdom has thrown the question of "how to achieve what we want" to the lawyers which I believe is in order. I do think we should be setting processes that helps the board know the consequences of their actions and not the one that always prevents them from acting.Regards Sent from my LG G4 Kindly excuse brevity and typos On 8 Apr 2016 10:49 p.m., "Chartier, Mike S" <mike.s.chartier@intel.com> wrote: RE: Q6“concerns have been expressed that there might be issues when the community tries to seat Board members and then the Board removes those board members instantly.”I’m not sure that captures the whole concern. Some expressed the desire that the EC consent be real and not perfunctory. From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Bernard Turcotte Sent: Friday, April 8, 2016 5:35 PM To: Accountability Cross Community <accountability-cross-community@icann.org> Subject: [CCWG-ACCT] CCWG - Bylaws Drafting - Questions All, Please find attached 2 documents. The first is the compilation of the answers provided to lawyers on Thursday April 7th. The second is a list of remaining open questions. For some of these questions the CCWG co-chairs and rapporteurs have reviewed the original proposed replies or added some new replies - these are clearly indicated in the document. Co-chairs, rapporteurs and staff have tried to be dutiful in capturing the questions from the list but it is possible some were missed. If you have submitted a question or issue please verify it is included in this version of the document. Please remember that the deadline for submitting questions and issues is 23:59 UTC Saturday April 9 2016. We are looking forward to continuing the process of addressing these issues and questions at our Monday April 11th meeting at 19:00 UTC. Bernard Turcotte ICANN Staff Support for the CCWG Co-Chairs Thomas Rickert, Mathieu Weill, Leon Sanchez _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

“This implies that you(some) don't think board should be able to remove it's members.” No, it wasn’t to imply that at all. No one (to my knowledge) objected to the board being able to remove members. But it is also true that no one (to my knowledge) objected to the EC being required to give consent. So the question is what form the consent should take. The current draft text is below: “Any Director designated by the EC may be removed without cause (A) by the EC pursuant to and in compliance with procedures in Section 3.1 or Section 3.2 of Annex D, as applicable, or (B) following notice to that Director, by a three-fourths (3/4) majority vote of all Directors; provided, however, that (A) each vote to remove a Director shall be a separate vote on the sole question of the removal of that particular Director; and (B) such removal pursuant to this Section 7.11(a)(i)(B) shall not be effective until the EC consents to such removal. The Board may remove any Director who has been declared of unsound mind by a final order of court, convicted of a felony, or been found by a final order or judgment of a court to have breached any duty under Sections 5230 through 5239 of the CCC, and in the case of such removal, the Secretary shall promptly notify the EC Chairs Council in writing, with a copy to the body that nominated such Director, and shall promptly post such notification to the Website. The vacancies created by such removal shall be filled in accordance with Section 7.12(a).” As I read it, the Board can dismiss immediately for cause (really bad stuff) without consent- could we ask the lawyers to confirm? So that should take care of concerns that the board not have its hands tied in emergencies. However for removal without cause (pursuant to Section 7.11(a)(i)(B)) the lawyers have suggested that the EC uses a process to consciously determine if it consents to the board’s action. I agree with that, because something other than a rubber-stamp seems more consistent with the concern the community expressed about director removal, and the care that should be taken in such a case (as demonstrated by our quite involved process). We could choose to set a high bar for the EC to object (like none have to support and 3 or more SO/ACs must object). But as Eberhard has said ¾ is a high threshold, and as Marilyn has pointed out it is (yet another) rare corner case. So it’s nothing to fall on a sword over, and I’m sure we’ll settle it on Monday. From: Seun Ojedeji [mailto:seun.ojedeji@gmail.com] Sent: Saturday, April 9, 2016 12:24 AM To: Chartier, Mike S <mike.s.chartier@intel.com> Cc: Bernard Turcotte (turcotte.bernard@gmail.com) <turcotte.bernard@gmail.com>; accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] CCWG - Bylaws Drafting - Questions Hi, This implies that you(some) don't think board should be able to remove it's members. While I wonder why you have such view, I don't think that its a question/response we should be sending to the lawyers as it is a decision the CCWG has to made. In the past, we have pushed so much question to the lawyers without actually indicating what we want. It is my hope that we will avoid that at this stage; we should always indicate what we want so layers can advice on how we may go about it (if at all possible). That said, I think we need to recognise the implication of what you've said; it implies that a community process will need to be put in place to get the EC's approval and I wonder how long that would take. The other question from that is what the status of the menber would be during that process. I don't know of any organisation that makes its board so dependent in the manner you are proposing. Andrew raised a valid concern about possibility of board removing a member that was re-appointed (within the same term). While I believe such scenario would be so extreme and close to impossible, as I have earlier said a way to approach it could be to subject subsequent removal to actual approval of EC. However the Co-Chairs in their wisdom has thrown the question of "how to achieve what we want" to the lawyers which I believe is in order. I do think we should be setting processes that helps the board know the consequences of their actions and not the one that always prevents them from acting. Regards Sent from my LG G4 Kindly excuse brevity and typos On 8 Apr 2016 10:49 p.m., "Chartier, Mike S" <mike.s.chartier@intel.com<mailto:mike.s.chartier@intel.com>> wrote: RE: Q6 “concerns have been expressed that there might be issues when the community tries to seat Board members and then the Board removes those board members instantly.” I’m not sure that captures the whole concern. Some expressed the desire that the EC consent be real and not perfunctory. From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of Bernard Turcotte Sent: Friday, April 8, 2016 5:35 PM To: Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: [CCWG-ACCT] CCWG - Bylaws Drafting - Questions All, Please find attached 2 documents. The first is the compilation of the answers provided to lawyers on Thursday April 7th. The second is a list of remaining open questions. For some of these questions the CCWG co-chairs and rapporteurs have reviewed the original proposed replies or added some new replies - these are clearly indicated in the document. Co-chairs, rapporteurs and staff have tried to be dutiful in capturing the questions from the list but it is possible some were missed. If you have submitted a question or issue please verify it is included in this version of the document. Please remember that the deadline for submitting questions and issues is 23:59 UTC Saturday April 9 2016. We are looking forward to continuing the process of addressing these issues and questions at our Monday April 11th meeting at 19:00 UTC. Bernard Turcotte ICANN Staff Support for the CCWG Co-Chairs Thomas Rickert, Mathieu Weill, Leon Sanchez _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community