Re: [CCWG-ACCT] [WP1] Agenda - WP1 mtg - 9 Oct 2015 at 1730-1930 UTC
Not sure I can make the call tomorrow, so I'll state my position against restrictions to individual director recall rights now. Considering the only public comment calling for limitations on the community's right to recall the individual board members was from the board itself, and the consensus has consistently been for NOT restricting recall rights, but for providing rationales for recalls, I don't understand why we are forced to continue to beat this dead horse. If two public comment periods have not been enough to create anything close to consensus to restrict the community's board recall rights, let's put this issue to bed and focus on the issues where the community is far more divided. Thanks, Robin On Oct 8, 2015, at 1:57 PM, Jordan Carter wrote:
Hi all
Here is the proposed agenda for our next call: Friday 9 October at 17h30 UTC for up to two hours.
Could all those proposing documents for this meeting please circulate them ASAP, with an email subject line that identifies what your document is?
1. Review of Agenda
2. Second review of comments analysis:
a) Budget power b) Affirmation of Commitments c) Community Forum d) Community Mechanism as Sole Member / The Model e) Recall of ICANN Board
3. Approach to documenting our work for 12-Oct deadline
4. Any Other Business
Please advise any further / other agenda items...
thanks, Jordan
-- Jordan Carter
Chief Executive InternetNZ
+64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan@internetnz.net.nz Skype: jordancarter Web: www.internetnz.nz
A better world through a better Internet
_______________________________________________ WP1 mailing list WP1@icann.org https://mm.icann.org/mailman/listinfo/wp1
Hi Robin, What’s your position on whether it should be the electing SO/AC that can recall or a wider group? Cheers, Chris
On 9 Oct 2015, at 10:39 , Robin Gross <robin@ipjustice.org> wrote:
Not sure I can make the call tomorrow, so I'll state my position against restrictions to individual director recall rights now.
Considering the only public comment calling for limitations on the community's right to recall the individual board members was from the board itself, and the consensus has consistently been for NOT restricting recall rights, but for providing rationales for recalls, I don't understand why we are forced to continue to beat this dead horse. If two public comment periods have not been enough to create anything close to consensus to restrict the community's board recall rights, let's put this issue to bed and focus on the issues where the community is far more divided.
Thanks, Robin
On Oct 8, 2015, at 1:57 PM, Jordan Carter wrote:
Hi all
Here is the proposed agenda for our next call: Friday 9 October at 17h30 UTC for up to two hours.
Could all those proposing documents for this meeting please circulate them ASAP, with an email subject line that identifies what your document is?
1. Review of Agenda
2. Second review of comments analysis:
a) Budget power b) Affirmation of Commitments c) Community Forum d) Community Mechanism as Sole Member / The Model e) Recall of ICANN Board
3. Approach to documenting our work for 12-Oct deadline
4. Any Other Business
Please advise any further / other agenda items...
thanks, Jordan
-- Jordan Carter
Chief Executive InternetNZ
+64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz> Skype: jordancarter Web: www.internetnz.nz <http://www.internetnz.nz/>
A better world through a better Internet
_______________________________________________ WP1 mailing list WP1@icann.org <mailto:WP1@icann.org> https://mm.icann.org/mailman/listinfo/wp1
_______________________________________________ WP1 mailing list WP1@icann.org https://mm.icann.org/mailman/listinfo/wp1
+1 Robin, I agree, no restrictions on recall rights whatsoever, as long as the person requesting the recall is actively participating with ICANN in any of the forms of participation for at least 90 days, with continuous participation that can be submitted with the recall request. Ron
Hi Chris, I'm not Robin, and I don't know her position, but mine mirrors the California Corporations Code provision for the removal of Board members selected by specific subgroups, specifically §5222(b) which states: (2) If by the provisions of the articles or bylaws the members of any class, voting as a class, are entitled to elect one or more directors, any director so elected may be removed only by the applicable vote of the members of that class. (3) If by the provisions of the articles or bylaws the members within a chapter or other organizational unit, or region or other geographic grouping, voting as such, are entitled to elect one or more directors, any director so elected may be removed only by the applicable vote of the members within the organizational unit or geographic grouping. There are those on the Board who have argued that the fiduciary duty of directors towards the corporation as a whole augers for removal of individual directors buy the whole rather than by the appointing body. The fiduciary responsibility for ICANN directors is actually a creature of statute, a creation of the same California Corporations Code that is favourably disposed, as above, towards removal of individual directors by the selecting body. I'm a strong believer that the security and stability of the DNS is best assured by tried, true and proven corporate structures. I believe that the uniqueness of ICANN is somewhat overstated. ICANN is a California PBC. PBC's have two basic structures under California law: one that is board centric (designator) and one that is member centric (membership). Selection of the model determines who is, to paraphrase a former American president, the final decider. Nothing more. Regardless of our choice as to model, I see no reason to deviate from the route suggested by California statute for the removal of directors or on any other issue of structural detail. The California PBC statute is tried, true and tested. There is case law to buttress the statutes. The statute is not risky and untried, as are our other options. It is made as a uniform whole, with deference to potential conflicts. Stability is my principle concern and, as such, I prefer all choices we make to mirror the statute unless there are strong, special reasons unique to ICANN to deviate from the proven, stable structure of the typical California nonprofit corporation. On this particular issue I see none. Best, Ed ---------------------------------------- From: "Chris Disspain" <ceo@auda.org.au> Sent: Friday, October 9, 2015 12:43 AM To: "Robin Gross" <robin@ipjustice.org> Cc: wp1@icann.org, "CCWG Accountability" <accountability-cross-community@icann.org> Subject: Re: [WP1] Agenda - WP1 mtg - 9 Oct 2015 at 1730-1930 UTC Hi Robin, What's your position on whether it should be the electing SO/AC that can recall or a wider group? Cheers, Chris On 9 Oct 2015, at 10:39 , Robin Gross <robin@ipjustice.org> wrote: Not sure I can make the call tomorrow, so I'll state my position against restrictions to individual director recall rights now. Considering the only public comment calling for limitations on the community's right to recall the individual board members was from the board itself, and the consensus has consistently been for NOT restricting recall rights, but for providing rationales for recalls, I don't understand why we are forced to continue to beat this dead horse. If two public comment periods have not been enough to create anything close to consensus to restrict the community's board recall rights, let's put this issue to bed and focus on the issues where the community is far more divided. Thanks, Robin On Oct 8, 2015, at 1:57 PM, Jordan Carter wrote: Hi all Here is the proposed agenda for our next call: Friday 9 October at 17h30 UTC for up to two hours. Could all those proposing documents for this meeting please circulate them ASAP, with an email subject line that identifies what your document is? 1. Review of Agenda 2. Second review of comments analysis: a) Budget power b) Affirmation of Commitments c) Community Forum d) Community Mechanism as Sole Member / The Model e) Recall of ICANN Board 3. Approach to documenting our work for 12-Oct deadline 4. Any Other Business Please advise any further / other agenda items... thanks, Jordan -- Jordan Carter Chief Executive InternetNZ +64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan@internetnz.net.nz Skype: jordancarter Web: www.internetnz.nz A better world through a better Internet _______________________________________________ WP1 mailing list WP1@icann.org https://mm.icann.org/mailman/listinfo/wp1 _______________________________________________ WP1 mailing list WP1@icann.org https://mm.icann.org/mailman/listinfo/wp1
I'll yield to the lawyers, but I think the intent and letter is to prevent removal without consent. It may be the case that a requirement for the whole community, including the relevant SO/AC, to consent to removal would still be in compliance. On Oct 8, 2015, at 8:27 PM, Edward Morris <egmorris1@toast.net<mailto:egmorris1@toast.net>> wrote: Hi Chris, I'm not Robin, and I don't know her position, but mine mirrors the California Corporations Code provision for the removal of Board members selected by specific subgroups, specifically §5222(b) which states: (2) If by the provisions of the articles or bylaws the members of any class, voting as a class, are entitled to elect one or more directors, any director so elected may be removed only by the applicable vote of the members of that class. (3) If by the provisions of the articles or bylaws the members within a chapter or other organizational unit, or region or other geographic grouping, voting as such, are entitled to elect one or more directors, any director so elected may be removed only by the applicable vote of the members within the organizational unit or geographic grouping. There are those on the Board who have argued that the fiduciary duty of directors towards the corporation as a whole augers for removal of individual directors buy the whole rather than by the appointing body. The fiduciary responsibility for ICANN directors is actually a creature of statute, a creation of the same California Corporations Code that is favourably disposed, as above, towards removal of individual directors by the selecting body. I'm a strong believer that the security and stability of the DNS is best assured by tried, true and proven corporate structures. I believe that the uniqueness of ICANN is somewhat overstated. ICANN is a California PBC. PBC's have two basic structures under California law: one that is board centric (designator) and one that is member centric (membership). Selection of the model determines who is, to paraphrase a former American president, the final decider. Nothing more. Regardless of our choice as to model, I see no reason to deviate from the route suggested by California statute for the removal of directors or on any other issue of structural detail. The California PBC statute is tried, true and tested. There is case law to buttress the statutes. The statute is not risky and untried, as are our other options. It is made as a uniform whole, with deference to potential conflicts. Stability is my principle concern and, as such, I prefer all choices we make to mirror the statute unless there are strong, special reasons unique to ICANN to deviate from the proven, stable structure of the typical California nonprofit corporation. On this particular issue I see none. Best, Ed ________________________________ From: "Chris Disspain" <ceo@auda.org.au<mailto:ceo@auda.org.au>> Sent: Friday, October 9, 2015 12:43 AM To: "Robin Gross" <robin@ipjustice.org<mailto:robin@ipjustice.org>> Cc: wp1@icann.org<mailto:wp1@icann.org>, "CCWG Accountability" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [WP1] Agenda - WP1 mtg - 9 Oct 2015 at 1730-1930 UTC Hi Robin, What’s your position on whether it should be the electing SO/AC that can recall or a wider group? Cheers, Chris On 9 Oct 2015, at 10:39 , Robin Gross <robin@ipjustice.org<mailto:robin@ipjustice.org>> wrote: Not sure I can make the call tomorrow, so I'll state my position against restrictions to individual director recall rights now. Considering the only public comment calling for limitations on the community's right to recall the individual board members was from the board itself, and the consensus has consistently been for NOT restricting recall rights, but for providing rationales for recalls, I don't understand why we are forced to continue to beat this dead horse. If two public comment periods have not been enough to create anything close to consensus to restrict the community's board recall rights, let's put this issue to bed and focus on the issues where the community is far more divided. Thanks, Robin On Oct 8, 2015, at 1:57 PM, Jordan Carter wrote: Hi all Here is the proposed agenda for our next call: Friday 9 October at 17h30 UTC for up to two hours. Could all those proposing documents for this meeting please circulate them ASAP, with an email subject line that identifies what your document is? 1. Review of Agenda 2. Second review of comments analysis: a) Budget power b) Affirmation of Commitments c) Community Forum d) Community Mechanism as Sole Member / The Model e) Recall of ICANN Board 3. Approach to documenting our work for 12-Oct deadline 4. Any Other Business Please advise any further / other agenda items... thanks, Jordan -- Jordan Carter Chief Executive InternetNZ +64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz> Skype: jordancarter Web: www.internetnz.nz<http://www.internetnz.nz/> A better world through a better Internet _______________________________________________ WP1 mailing list WP1@icann.org<mailto:WP1@icann.org> https://mm.icann.org/mailman/listinfo/wp1 _______________________________________________ WP1 mailing list WP1@icann.org<mailto:WP1@icann.org> https://mm.icann.org/mailman/listinfo/wp1 _______________________________________________ WP1 mailing list WP1@icann.org<mailto:WP1@icann.org> https://mm.icann.org/mailman/listinfo/wp1
Cal Corp Code 5222(b) says nothing about any role in removing a group-elected director for any party other than that group. Quite the opposite. Clauses 2 and 3 both say such a director can be removed "only by" that group. Any bylaw that gave a role to other groups would be inconsistent with 5222(b). Greg [Lawyer, but not admitted in CA. This does not constitute legal advice such that an attorney-client relationship is created thereby] On Friday, October 9, 2015, Chartier, Mike S <mike.s.chartier@intel.com> wrote:
I'll yield to the lawyers, but I think the intent and letter is to prevent removal without consent. It may be the case that a requirement for the whole community, including the relevant SO/AC, to consent to removal would still be in compliance.
On Oct 8, 2015, at 8:27 PM, Edward Morris <egmorris1@toast.net <javascript:;><mailto:egmorris1@toast.net <javascript:;>>> wrote:
Hi Chris,
I'm not Robin, and I don't know her position, but mine mirrors the California Corporations Code provision for the removal of Board members selected by specific subgroups, specifically §5222(b) which states:
(2) If by the provisions of the articles or bylaws the members of any class, voting as a class, are entitled to elect one or more directors, any director so elected may be removed only by the applicable vote of the members of that class.
(3) If by the provisions of the articles or bylaws the members within a chapter or other organizational unit, or region or other geographic grouping, voting as such, are entitled to elect one or more directors, any director so elected may be removed only by the applicable vote of the members within the organizational unit or geographic grouping.
There are those on the Board who have argued that the fiduciary duty of directors towards the corporation as a whole augers for removal of individual directors buy the whole rather than by the appointing body. The fiduciary responsibility for ICANN directors is actually a creature of statute, a creation of the same California Corporations Code that is favourably disposed, as above, towards removal of individual directors by the selecting body.
I'm a strong believer that the security and stability of the DNS is best assured by tried, true and proven corporate structures. I believe that the uniqueness of ICANN is somewhat overstated. ICANN is a California PBC. PBC's have two basic structures under California law: one that is board centric (designator) and one that is member centric (membership). Selection of the model determines who is, to paraphrase a former American president, the final decider. Nothing more.
Regardless of our choice as to model, I see no reason to deviate from the route suggested by California statute for the removal of directors or on any other issue of structural detail. The California PBC statute is tried, true and tested. There is case law to buttress the statutes. The statute is not risky and untried, as are our other options. It is made as a uniform whole, with deference to potential conflicts. Stability is my principle concern and, as such, I prefer all choices we make to mirror the statute unless there are strong, special reasons unique to ICANN to deviate from the proven, stable structure of the typical California nonprofit corporation. On this particular issue I see none.
Best,
Ed
________________________________ From: "Chris Disspain" <ceo@auda.org.au <javascript:;><mailto: ceo@auda.org.au <javascript:;>>> Sent: Friday, October 9, 2015 12:43 AM To: "Robin Gross" <robin@ipjustice.org <javascript:;><mailto: robin@ipjustice.org <javascript:;>>> Cc: wp1@icann.org <javascript:;><mailto:wp1@icann.org <javascript:;>>, "CCWG Accountability" <accountability-cross-community@icann.org <javascript:;><mailto:accountability-cross-community@icann.org <javascript:;>>> Subject: Re: [WP1] Agenda - WP1 mtg - 9 Oct 2015 at 1730-1930 UTC
Hi Robin,
What’s your position on whether it should be the electing SO/AC that can recall or a wider group?
Cheers,
Chris
On 9 Oct 2015, at 10:39 , Robin Gross <robin@ipjustice.org <javascript:;> <mailto:robin@ipjustice.org <javascript:;>>> wrote:
Not sure I can make the call tomorrow, so I'll state my position against restrictions to individual director recall rights now.
Considering the only public comment calling for limitations on the community's right to recall the individual board members was from the board itself, and the consensus has consistently been for NOT restricting recall rights, but for providing rationales for recalls, I don't understand why we are forced to continue to beat this dead horse. If two public comment periods have not been enough to create anything close to consensus to restrict the community's board recall rights, let's put this issue to bed and focus on the issues where the community is far more divided.
Thanks, Robin
On Oct 8, 2015, at 1:57 PM, Jordan Carter wrote:
Hi all
Here is the proposed agenda for our next call: Friday 9 October at 17h30 UTC for up to two hours.
Could all those proposing documents for this meeting please circulate them ASAP, with an email subject line that identifies what your document is?
1. Review of Agenda
2. Second review of comments analysis:
a) Budget power b) Affirmation of Commitments c) Community Forum d) Community Mechanism as Sole Member / The Model e) Recall of ICANN Board
3. Approach to documenting our work for 12-Oct deadline
4. Any Other Business
Please advise any further / other agenda items...
thanks, Jordan
-- Jordan Carter
Chief Executive InternetNZ
+64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan@internetnz.net.nz <javascript:;><mailto: jordan@internetnz.net.nz <javascript:;>> Skype: jordancarter Web: www.internetnz.nz<http://www.internetnz.nz/>
A better world through a better Internet _______________________________________________ WP1 mailing list WP1@icann.org <javascript:;><mailto:WP1@icann.org <javascript:;>> https://mm.icann.org/mailman/listinfo/wp1 _______________________________________________ WP1 mailing list WP1@icann.org <javascript:;><mailto:WP1@icann.org <javascript:;>> https://mm.icann.org/mailman/listinfo/wp1 _______________________________________________ WP1 mailing list WP1@icann.org <javascript:;><mailto:WP1@icann.org <javascript:;>> https://mm.icann.org/mailman/listinfo/wp1 _______________________________________________ WP1 mailing list WP1@icann.org <javascript:;> https://mm.icann.org/mailman/listinfo/wp1
Yes, I hear what you’re saying (and don’t have any problem with it, indeed we support the CCWG proposal). I just wonder if it’s an absolute prohibition against any involvement by the rest of the membership. Mike [Non-Lawyer, not admitted in any bars, casinos, or Golden Corrals] From: Greg Shatan [mailto:gregshatanipc@gmail.com] Sent: Friday, October 9, 2015 8:33 AM To: Chartier, Mike S Cc: <egmorris1@toast.net>; wp1@icann.org; CCWG Accountability Subject: Re: [WP1] Agenda - WP1 mtg - 9 Oct 2015 at 1730-1930 UTC Cal Corp Code 5222(b) says nothing about any role in removing a group-elected director for any party other than that group. Quite the opposite. Clauses 2 and 3 both say such a director can be removed "only by" that group. Any bylaw that gave a role to other groups would be inconsistent with 5222(b). Greg [Lawyer, but not admitted in CA. This does not constitute legal advice such that an attorney-client relationship is created thereby] On Friday, October 9, 2015, Chartier, Mike S <mike.s.chartier@intel.com<mailto:mike.s.chartier@intel.com>> wrote: I'll yield to the lawyers, but I think the intent and letter is to prevent removal without consent. It may be the case that a requirement for the whole community, including the relevant SO/AC, to consent to removal would still be in compliance. On Oct 8, 2015, at 8:27 PM, Edward Morris <egmorris1@toast.net<javascript:;><mailto:egmorris1@toast.net<javascript:;>>> wrote: Hi Chris, I'm not Robin, and I don't know her position, but mine mirrors the California Corporations Code provision for the removal of Board members selected by specific subgroups, specifically §5222(b) which states: (2) If by the provisions of the articles or bylaws the members of any class, voting as a class, are entitled to elect one or more directors, any director so elected may be removed only by the applicable vote of the members of that class. (3) If by the provisions of the articles or bylaws the members within a chapter or other organizational unit, or region or other geographic grouping, voting as such, are entitled to elect one or more directors, any director so elected may be removed only by the applicable vote of the members within the organizational unit or geographic grouping. There are those on the Board who have argued that the fiduciary duty of directors towards the corporation as a whole augers for removal of individual directors buy the whole rather than by the appointing body. The fiduciary responsibility for ICANN directors is actually a creature of statute, a creation of the same California Corporations Code that is favourably disposed, as above, towards removal of individual directors by the selecting body. I'm a strong believer that the security and stability of the DNS is best assured by tried, true and proven corporate structures. I believe that the uniqueness of ICANN is somewhat overstated. ICANN is a California PBC. PBC's have two basic structures under California law: one that is board centric (designator) and one that is member centric (membership). Selection of the model determines who is, to paraphrase a former American president, the final decider. Nothing more. Regardless of our choice as to model, I see no reason to deviate from the route suggested by California statute for the removal of directors or on any other issue of structural detail. The California PBC statute is tried, true and tested. There is case law to buttress the statutes. The statute is not risky and untried, as are our other options. It is made as a uniform whole, with deference to potential conflicts. Stability is my principle concern and, as such, I prefer all choices we make to mirror the statute unless there are strong, special reasons unique to ICANN to deviate from the proven, stable structure of the typical California nonprofit corporation. On this particular issue I see none. Best, Ed ________________________________ From: "Chris Disspain" <ceo@auda.org.au<javascript:;><mailto:ceo@auda.org.au<javascript:;>>> Sent: Friday, October 9, 2015 12:43 AM To: "Robin Gross" <robin@ipjustice.org<javascript:;><mailto:robin@ipjustice.org<javascript:;>>> Cc: wp1@icann.org<javascript:;><mailto:wp1@icann.org<javascript:;>>, "CCWG Accountability" <accountability-cross-community@icann.org<javascript:;><mailto:accountability-cross-community@icann.org<javascript:;>>> Subject: Re: [WP1] Agenda - WP1 mtg - 9 Oct 2015 at 1730-1930 UTC Hi Robin, What’s your position on whether it should be the electing SO/AC that can recall or a wider group? Cheers, Chris On 9 Oct 2015, at 10:39 , Robin Gross <robin@ipjustice.org<javascript:;><mailto:robin@ipjustice.org<javascript:;>>> wrote: Not sure I can make the call tomorrow, so I'll state my position against restrictions to individual director recall rights now. Considering the only public comment calling for limitations on the community's right to recall the individual board members was from the board itself, and the consensus has consistently been for NOT restricting recall rights, but for providing rationales for recalls, I don't understand why we are forced to continue to beat this dead horse. If two public comment periods have not been enough to create anything close to consensus to restrict the community's board recall rights, let's put this issue to bed and focus on the issues where the community is far more divided. Thanks, Robin On Oct 8, 2015, at 1:57 PM, Jordan Carter wrote: Hi all Here is the proposed agenda for our next call: Friday 9 October at 17h30 UTC for up to two hours. Could all those proposing documents for this meeting please circulate them ASAP, with an email subject line that identifies what your document is? 1. Review of Agenda 2. Second review of comments analysis: a) Budget power b) Affirmation of Commitments c) Community Forum d) Community Mechanism as Sole Member / The Model e) Recall of ICANN Board 3. Approach to documenting our work for 12-Oct deadline 4. Any Other Business Please advise any further / other agenda items... thanks, Jordan -- Jordan Carter Chief Executive InternetNZ +64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan@internetnz.net.nz<javascript:;><mailto:jordan@internetnz.net.nz<javascript:;>> Skype: jordancarter Web: www.internetnz.nz<http://www.internetnz.nz><http://www.internetnz.nz/> A better world through a better Internet _______________________________________________ WP1 mailing list WP1@icann.org<javascript:;><mailto:WP1@icann.org<javascript:;>> https://mm.icann.org/mailman/listinfo/wp1 _______________________________________________ WP1 mailing list WP1@icann.org<javascript:;><mailto:WP1@icann.org<javascript:;>> https://mm.icann.org/mailman/listinfo/wp1 _______________________________________________ WP1 mailing list WP1@icann.org<javascript:;><mailto:WP1@icann.org<javascript:;>> https://mm.icann.org/mailman/listinfo/wp1 _______________________________________________ WP1 mailing list WP1@icann.org<javascript:;> https://mm.icann.org/mailman/listinfo/wp1
We are not bound to that code This is a global community environment not necessarily limited to specific local law Tks Cheers Kavouss Sent from my iPhone
On 9 Oct 2015, at 15:59, Chartier, Mike S <mike.s.chartier@intel.com> wrote:
Yes, I hear what you’re saying (and don’t have any problem with it, indeed we support the CCWG proposal). I just wonder if it’s an absolute prohibition against any involvement by the rest of the membership.
Mike [Non-Lawyer, not admitted in any bars, casinos, or Golden Corrals]
From: Greg Shatan [mailto:gregshatanipc@gmail.com] Sent: Friday, October 9, 2015 8:33 AM To: Chartier, Mike S Cc: <egmorris1@toast.net>; wp1@icann.org; CCWG Accountability Subject: Re: [WP1] Agenda - WP1 mtg - 9 Oct 2015 at 1730-1930 UTC
Cal Corp Code 5222(b) says nothing about any role in removing a group-elected director for any party other than that group. Quite the opposite. Clauses 2 and 3 both say such a director can be removed "only by" that group.
Any bylaw that gave a role to other groups would be inconsistent with 5222(b).
Greg [Lawyer, but not admitted in CA. This does not constitute legal advice such that an attorney-client relationship is created thereby]
On Friday, October 9, 2015, Chartier, Mike S <mike.s.chartier@intel.com> wrote: I'll yield to the lawyers, but I think the intent and letter is to prevent removal without consent. It may be the case that a requirement for the whole community, including the relevant SO/AC, to consent to removal would still be in compliance.
On Oct 8, 2015, at 8:27 PM, Edward Morris <egmorris1@toast.net<mailto:egmorris1@toast.net>> wrote:
Hi Chris,
I'm not Robin, and I don't know her position, but mine mirrors the California Corporations Code provision for the removal of Board members selected by specific subgroups, specifically §5222(b) which states:
(2) If by the provisions of the articles or bylaws the members of any class, voting as a class, are entitled to elect one or more directors, any director so elected may be removed only by the applicable vote of the members of that class.
(3) If by the provisions of the articles or bylaws the members within a chapter or other organizational unit, or region or other geographic grouping, voting as such, are entitled to elect one or more directors, any director so elected may be removed only by the applicable vote of the members within the organizational unit or geographic grouping.
There are those on the Board who have argued that the fiduciary duty of directors towards the corporation as a whole augers for removal of individual directors buy the whole rather than by the appointing body. The fiduciary responsibility for ICANN directors is actually a creature of statute, a creation of the same California Corporations Code that is favourably disposed, as above, towards removal of individual directors by the selecting body.
I'm a strong believer that the security and stability of the DNS is best assured by tried, true and proven corporate structures. I believe that the uniqueness of ICANN is somewhat overstated. ICANN is a California PBC. PBC's have two basic structures under California law: one that is board centric (designator) and one that is member centric (membership). Selection of the model determines who is, to paraphrase a former American president, the final decider. Nothing more.
Regardless of our choice as to model, I see no reason to deviate from the route suggested by California statute for the removal of directors or on any other issue of structural detail. The California PBC statute is tried, true and tested. There is case law to buttress the statutes. The statute is not risky and untried, as are our other options. It is made as a uniform whole, with deference to potential conflicts. Stability is my principle concern and, as such, I prefer all choices we make to mirror the statute unless there are strong, special reasons unique to ICANN to deviate from the proven, stable structure of the typical California nonprofit corporation. On this particular issue I see none.
Best,
Ed
________________________________ From: "Chris Disspain" <ceo@auda.org.au<mailto:ceo@auda.org.au>> Sent: Friday, October 9, 2015 12:43 AM To: "Robin Gross" <robin@ipjustice.org<mailto:robin@ipjustice.org>> Cc: wp1@icann.org<mailto:wp1@icann.org>, "CCWG Accountability" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [WP1] Agenda - WP1 mtg - 9 Oct 2015 at 1730-1930 UTC
Hi Robin,
What’s your position on whether it should be the electing SO/AC that can recall or a wider group?
Cheers,
Chris
On 9 Oct 2015, at 10:39 , Robin Gross <robin@ipjustice.org<mailto:robin@ipjustice.org>> wrote:
Not sure I can make the call tomorrow, so I'll state my position against restrictions to individual director recall rights now.
Considering the only public comment calling for limitations on the community's right to recall the individual board members was from the board itself, and the consensus has consistently been for NOT restricting recall rights, but for providing rationales for recalls, I don't understand why we are forced to continue to beat this dead horse. If two public comment periods have not been enough to create anything close to consensus to restrict the community's board recall rights, let's put this issue to bed and focus on the issues where the community is far more divided.
Thanks, Robin
On Oct 8, 2015, at 1:57 PM, Jordan Carter wrote:
Hi all
Here is the proposed agenda for our next call: Friday 9 October at 17h30 UTC for up to two hours.
Could all those proposing documents for this meeting please circulate them ASAP, with an email subject line that identifies what your document is?
1. Review of Agenda
2. Second review of comments analysis:
a) Budget power b) Affirmation of Commitments c) Community Forum d) Community Mechanism as Sole Member / The Model e) Recall of ICANN Board
3. Approach to documenting our work for 12-Oct deadline
4. Any Other Business
Please advise any further / other agenda items...
thanks, Jordan
-- Jordan Carter
Chief Executive InternetNZ
+64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz> Skype: jordancarter Web: www.internetnz.nz<http://www.internetnz.nz/>
A better world through a better Internet _______________________________________________ WP1 mailing list WP1@icann.org<mailto:WP1@icann.org> https://mm.icann.org/mailman/listinfo/wp1 _______________________________________________ WP1 mailing list WP1@icann.org<mailto:WP1@icann.org> https://mm.icann.org/mailman/listinfo/wp1 _______________________________________________ WP1 mailing list WP1@icann.org<mailto:WP1@icann.org> https://mm.icann.org/mailman/listinfo/wp1 _______________________________________________ WP1 mailing list WP1@icann.org https://mm.icann.org/mailman/listinfo/wp1 _______________________________________________ WP1 mailing list WP1@icann.org https://mm.icann.org/mailman/listinfo/wp1
Kavouss we are most certainly bound to california law for WS1, as long as ICANN is a cal corporation we are bound to abide by these statutes. ICANN is not yet an international organisation formed by treaty no matter how some wish it was =) Regards, James From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Kavouss Arasteh Date: Friday 9 October 2015 at 3:48 p.m. To: "Chartier, Mike S" Cc: "wp1@icann.org<mailto:wp1@icann.org>", CCWG Accountability Subject: Re: [CCWG-ACCT] [WP1] Agenda - WP1 mtg - 9 Oct 2015 at 1730-1930 UTC We are not bound to that code This is a global community environment not necessarily limited to specific local law Tks Cheers Kavouss Sent from my iPhone On 9 Oct 2015, at 15:59, Chartier, Mike S <mike.s.chartier@intel.com<mailto:mike.s.chartier@intel.com>> wrote: Yes, I hear what you’re saying (and don’t have any problem with it, indeed we support the CCWG proposal). I just wonder if it’s an absolute prohibition against any involvement by the rest of the membership. Mike [Non-Lawyer, not admitted in any bars, casinos, or Golden Corrals] From: Greg Shatan [mailto:gregshatanipc@gmail.com] Sent: Friday, October 9, 2015 8:33 AM To: Chartier, Mike S Cc: <egmorris1@toast.net<mailto:egmorris1@toast.net>>; wp1@icann.org<mailto:wp1@icann.org>; CCWG Accountability Subject: Re: [WP1] Agenda - WP1 mtg - 9 Oct 2015 at 1730-1930 UTC Cal Corp Code 5222(b) says nothing about any role in removing a group-elected director for any party other than that group. Quite the opposite. Clauses 2 and 3 both say such a director can be removed "only by" that group. Any bylaw that gave a role to other groups would be inconsistent with 5222(b). Greg [Lawyer, but not admitted in CA. This does not constitute legal advice such that an attorney-client relationship is created thereby] On Friday, October 9, 2015, Chartier, Mike S <mike.s.chartier@intel.com<mailto:mike.s.chartier@intel.com>> wrote: I'll yield to the lawyers, but I think the intent and letter is to prevent removal without consent. It may be the case that a requirement for the whole community, including the relevant SO/AC, to consent to removal would still be in compliance. On Oct 8, 2015, at 8:27 PM, Edward Morris <egmorris1@toast.net<javascript:;><mailto:egmorris1@toast.net<javascript:;>>> wrote: Hi Chris, I'm not Robin, and I don't know her position, but mine mirrors the California Corporations Code provision for the removal of Board members selected by specific subgroups, specifically §5222(b) which states: (2) If by the provisions of the articles or bylaws the members of any class, voting as a class, are entitled to elect one or more directors, any director so elected may be removed only by the applicable vote of the members of that class. (3) If by the provisions of the articles or bylaws the members within a chapter or other organizational unit, or region or other geographic grouping, voting as such, are entitled to elect one or more directors, any director so elected may be removed only by the applicable vote of the members within the organizational unit or geographic grouping. There are those on the Board who have argued that the fiduciary duty of directors towards the corporation as a whole augers for removal of individual directors buy the whole rather than by the appointing body. The fiduciary responsibility for ICANN directors is actually a creature of statute, a creation of the same California Corporations Code that is favourably disposed, as above, towards removal of individual directors by the selecting body. I'm a strong believer that the security and stability of the DNS is best assured by tried, true and proven corporate structures. I believe that the uniqueness of ICANN is somewhat overstated. ICANN is a California PBC. PBC's have two basic structures under California law: one that is board centric (designator) and one that is member centric (membership). Selection of the model determines who is, to paraphrase a former American president, the final decider. Nothing more. Regardless of our choice as to model, I see no reason to deviate from the route suggested by California statute for the removal of directors or on any other issue of structural detail. The California PBC statute is tried, true and tested. There is case law to buttress the statutes. The statute is not risky and untried, as are our other options. It is made as a uniform whole, with deference to potential conflicts. Stability is my principle concern and, as such, I prefer all choices we make to mirror the statute unless there are strong, special reasons unique to ICANN to deviate from the proven, stable structure of the typical California nonprofit corporation. On this particular issue I see none. Best, Ed ________________________________ From: "Chris Disspain" <ceo@auda.org.au<javascript:;><mailto:ceo@auda.org.au<javascript:;>>> Sent: Friday, October 9, 2015 12:43 AM To: "Robin Gross" <robin@ipjustice.org<javascript:;><mailto:robin@ipjustice.org<javascript:;>>> Cc: wp1@icann.org<javascript:;><mailto:wp1@icann.org<javascript:;>>, "CCWG Accountability" <accountability-cross-community@icann.org<javascript:;><mailto:accountability-cross-community@icann.org<javascript:;>>> Subject: Re: [WP1] Agenda - WP1 mtg - 9 Oct 2015 at 1730-1930 UTC Hi Robin, What’s your position on whether it should be the electing SO/AC that can recall or a wider group? Cheers, Chris On 9 Oct 2015, at 10:39 , Robin Gross <robin@ipjustice.org<javascript:;><mailto:robin@ipjustice.org<javascript:;>>> wrote: Not sure I can make the call tomorrow, so I'll state my position against restrictions to individual director recall rights now. Considering the only public comment calling for limitations on the community's right to recall the individual board members was from the board itself, and the consensus has consistently been for NOT restricting recall rights, but for providing rationales for recalls, I don't understand why we are forced to continue to beat this dead horse. If two public comment periods have not been enough to create anything close to consensus to restrict the community's board recall rights, let's put this issue to bed and focus on the issues where the community is far more divided. Thanks, Robin On Oct 8, 2015, at 1:57 PM, Jordan Carter wrote: Hi all Here is the proposed agenda for our next call: Friday 9 October at 17h30 UTC for up to two hours. Could all those proposing documents for this meeting please circulate them ASAP, with an email subject line that identifies what your document is? 1. Review of Agenda 2. Second review of comments analysis: a) Budget power b) Affirmation of Commitments c) Community Forum d) Community Mechanism as Sole Member / The Model e) Recall of ICANN Board 3. Approach to documenting our work for 12-Oct deadline 4. Any Other Business Please advise any further / other agenda items... thanks, Jordan -- Jordan Carter Chief Executive InternetNZ +64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan@internetnz.net.nz<javascript:;><mailto:jordan@internetnz.net.nz<javascript:;>> Skype: jordancarter Web: www.internetnz.nz<http://www.internetnz.nz><http://www.internetnz.nz/> A better world through a better Internet _______________________________________________ WP1 mailing list WP1@icann.org<javascript:;><mailto:WP1@icann.org<javascript:;>> https://mm.icann.org/mailman/listinfo/wp1 _______________________________________________ WP1 mailing list WP1@icann.org<javascript:;><mailto:WP1@icann.org<javascript:;>> https://mm.icann.org/mailman/listinfo/wp1 _______________________________________________ WP1 mailing list WP1@icann.org<javascript:;><mailto:WP1@icann.org<javascript:;>> https://mm.icann.org/mailman/listinfo/wp1 _______________________________________________ WP1 mailing list WP1@icann.org<javascript:;> https://mm.icann.org/mailman/listinfo/wp1 _______________________________________________ WP1 mailing list WP1@icann.org<mailto:WP1@icann.org> https://mm.icann.org/mailman/listinfo/wp1
No there is no such prohibition. The law is silent on that Kavouss Sent from my iPhone
On 9 Oct 2015, at 15:59, Chartier, Mike S <mike.s.chartier@intel.com> wrote:
Yes, I hear what you’re saying (and don’t have any problem with it, indeed we support the CCWG proposal). I just wonder if it’s an absolute prohibition against any involvement by the rest of the membership.
Mike [Non-Lawyer, not admitted in any bars, casinos, or Golden Corrals]
From: Greg Shatan [mailto:gregshatanipc@gmail.com] Sent: Friday, October 9, 2015 8:33 AM To: Chartier, Mike S Cc: <egmorris1@toast.net>; wp1@icann.org; CCWG Accountability Subject: Re: [WP1] Agenda - WP1 mtg - 9 Oct 2015 at 1730-1930 UTC
Cal Corp Code 5222(b) says nothing about any role in removing a group-elected director for any party other than that group. Quite the opposite. Clauses 2 and 3 both say such a director can be removed "only by" that group.
Any bylaw that gave a role to other groups would be inconsistent with 5222(b).
Greg [Lawyer, but not admitted in CA. This does not constitute legal advice such that an attorney-client relationship is created thereby]
On Friday, October 9, 2015, Chartier, Mike S <mike.s.chartier@intel.com> wrote: I'll yield to the lawyers, but I think the intent and letter is to prevent removal without consent. It may be the case that a requirement for the whole community, including the relevant SO/AC, to consent to removal would still be in compliance.
On Oct 8, 2015, at 8:27 PM, Edward Morris <egmorris1@toast.net<mailto:egmorris1@toast.net>> wrote:
Hi Chris,
I'm not Robin, and I don't know her position, but mine mirrors the California Corporations Code provision for the removal of Board members selected by specific subgroups, specifically §5222(b) which states:
(2) If by the provisions of the articles or bylaws the members of any class, voting as a class, are entitled to elect one or more directors, any director so elected may be removed only by the applicable vote of the members of that class.
(3) If by the provisions of the articles or bylaws the members within a chapter or other organizational unit, or region or other geographic grouping, voting as such, are entitled to elect one or more directors, any director so elected may be removed only by the applicable vote of the members within the organizational unit or geographic grouping.
There are those on the Board who have argued that the fiduciary duty of directors towards the corporation as a whole augers for removal of individual directors buy the whole rather than by the appointing body. The fiduciary responsibility for ICANN directors is actually a creature of statute, a creation of the same California Corporations Code that is favourably disposed, as above, towards removal of individual directors by the selecting body.
I'm a strong believer that the security and stability of the DNS is best assured by tried, true and proven corporate structures. I believe that the uniqueness of ICANN is somewhat overstated. ICANN is a California PBC. PBC's have two basic structures under California law: one that is board centric (designator) and one that is member centric (membership). Selection of the model determines who is, to paraphrase a former American president, the final decider. Nothing more.
Regardless of our choice as to model, I see no reason to deviate from the route suggested by California statute for the removal of directors or on any other issue of structural detail. The California PBC statute is tried, true and tested. There is case law to buttress the statutes. The statute is not risky and untried, as are our other options. It is made as a uniform whole, with deference to potential conflicts. Stability is my principle concern and, as such, I prefer all choices we make to mirror the statute unless there are strong, special reasons unique to ICANN to deviate from the proven, stable structure of the typical California nonprofit corporation. On this particular issue I see none.
Best,
Ed
________________________________ From: "Chris Disspain" <ceo@auda.org.au<mailto:ceo@auda.org.au>> Sent: Friday, October 9, 2015 12:43 AM To: "Robin Gross" <robin@ipjustice.org<mailto:robin@ipjustice.org>> Cc: wp1@icann.org<mailto:wp1@icann.org>, "CCWG Accountability" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [WP1] Agenda - WP1 mtg - 9 Oct 2015 at 1730-1930 UTC
Hi Robin,
What’s your position on whether it should be the electing SO/AC that can recall or a wider group?
Cheers,
Chris
On 9 Oct 2015, at 10:39 , Robin Gross <robin@ipjustice.org<mailto:robin@ipjustice.org>> wrote:
Not sure I can make the call tomorrow, so I'll state my position against restrictions to individual director recall rights now.
Considering the only public comment calling for limitations on the community's right to recall the individual board members was from the board itself, and the consensus has consistently been for NOT restricting recall rights, but for providing rationales for recalls, I don't understand why we are forced to continue to beat this dead horse. If two public comment periods have not been enough to create anything close to consensus to restrict the community's board recall rights, let's put this issue to bed and focus on the issues where the community is far more divided.
Thanks, Robin
On Oct 8, 2015, at 1:57 PM, Jordan Carter wrote:
Hi all
Here is the proposed agenda for our next call: Friday 9 October at 17h30 UTC for up to two hours.
Could all those proposing documents for this meeting please circulate them ASAP, with an email subject line that identifies what your document is?
1. Review of Agenda
2. Second review of comments analysis:
a) Budget power b) Affirmation of Commitments c) Community Forum d) Community Mechanism as Sole Member / The Model e) Recall of ICANN Board
3. Approach to documenting our work for 12-Oct deadline
4. Any Other Business
Please advise any further / other agenda items...
thanks, Jordan
-- Jordan Carter
Chief Executive InternetNZ
+64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz> Skype: jordancarter Web: www.internetnz.nz<http://www.internetnz.nz/>
A better world through a better Internet _______________________________________________ WP1 mailing list WP1@icann.org<mailto:WP1@icann.org> https://mm.icann.org/mailman/listinfo/wp1 _______________________________________________ WP1 mailing list WP1@icann.org<mailto:WP1@icann.org> https://mm.icann.org/mailman/listinfo/wp1 _______________________________________________ WP1 mailing list WP1@icann.org<mailto:WP1@icann.org> https://mm.icann.org/mailman/listinfo/wp1 _______________________________________________ WP1 mailing list WP1@icann.org https://mm.icann.org/mailman/listinfo/wp1 _______________________________________________ WP1 mailing list WP1@icann.org https://mm.icann.org/mailman/listinfo/wp1
Then we can change the Bylaws providing the chance to other community to also participate in election of any member of the Board. Board is a group of persons and individuals collectively taking actions as they are required to protect the public interest and not the interest if any particular group composing the large / global community Regards Kavouss Sent from my iPhone
On 9 Oct 2015, at 02:26, Edward Morris <egmorris1@toast.net> wrote:
Hi Chris,
I'm not Robin, and I don't know her position, but mine mirrors the California Corporations Code provision for the removal of Board members selected by specific subgroups, specifically §5222(b) which states:
(2) If by the provisions of the articles or bylaws the members of any class, voting as a class, are entitled to elect one or more directors, any director so elected may be removed only by the applicable vote of the members of that class.
(3) If by the provisions of the articles or bylaws the members within a chapter or other organizational unit, or region or other geographic grouping, voting as such, are entitled to elect one or more directors, any director so elected may be removed only by the applicable vote of the members within the organizational unit or geographic grouping.
There are those on the Board who have argued that the fiduciary duty of directors towards the corporation as a whole augers for removal of individual directors buy the whole rather than by the appointing body. The fiduciary responsibility for ICANN directors is actually a creature of statute, a creation of the same California Corporations Code that is favourably disposed, as above, towards removal of individual directors by the selecting body.
I'm a strong believer that the security and stability of the DNS is best assured by tried, true and proven corporate structures. I believe that the uniqueness of ICANN is somewhat overstated. ICANN is a California PBC. PBC's have two basic structures under California law: one that is board centric (designator) and one that is member centric (membership). Selection of the model determines who is, to paraphrase a former American president, the final decider. Nothing more.
Regardless of our choice as to model, I see no reason to deviate from the route suggested by California statute for the removal of directors or on any other issue of structural detail. The California PBC statute is tried, true and tested. There is case law to buttress the statutes. The statute is not risky and untried, as are our other options. It is made as a uniform whole, with deference to potential conflicts. Stability is my principle concern and, as such, I prefer all choices we make to mirror the statute unless there are strong, special reasons unique to ICANN to deviate from the proven, stable structure of the typical California nonprofit corporation. On this particular issue I see none.
Best,
Ed
From: "Chris Disspain" <ceo@auda.org.au> Sent: Friday, October 9, 2015 12:43 AM To: "Robin Gross" <robin@ipjustice.org> Cc: wp1@icann.org, "CCWG Accountability" <accountability-cross-community@icann.org> Subject: Re: [WP1] Agenda - WP1 mtg - 9 Oct 2015 at 1730-1930 UTC
Hi Robin,
What’s your position on whether it should be the electing SO/AC that can recall or a wider group?
Cheers,
Chris
On 9 Oct 2015, at 10:39 , Robin Gross <robin@ipjustice.org> wrote:
Not sure I can make the call tomorrow, so I'll state my position against restrictions to individual director recall rights now.
Considering the only public comment calling for limitations on the community's right to recall the individual board members was from the board itself, and the consensus has consistently been for NOT restricting recall rights, but for providing rationales for recalls, I don't understand why we are forced to continue to beat this dead horse. If two public comment periods have not been enough to create anything close to consensus to restrict the community's board recall rights, let's put this issue to bed and focus on the issues where the community is far more divided.
Thanks, Robin
On Oct 8, 2015, at 1:57 PM, Jordan Carter wrote:
Hi all
Here is the proposed agenda for our next call: Friday 9 October at 17h30 UTC for up to two hours.
Could all those proposing documents for this meeting please circulate them ASAP, with an email subject line that identifies what your document is?
1. Review of Agenda
2. Second review of comments analysis:
a) Budget power b) Affirmation of Commitments c) Community Forum d) Community Mechanism as Sole Member / The Model e) Recall of ICANN Board
3. Approach to documenting our work for 12-Oct deadline
4. Any Other Business
Please advise any further / other agenda items...
thanks, Jordan
-- Jordan Carter
Chief Executive InternetNZ
+64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan@internetnz.net.nz Skype: jordancarter Web: www.internetnz.nz
A better world through a better Internet _______________________________________________ WP1 mailing list WP1@icann.org https://mm.icann.org/mailman/listinfo/wp1
WP1 mailing list WP1@icann.org https://mm.icann.org/mailman/listinfo/wp1
Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
This would be a serious reframing of the boards composition. I would approach such an idea with extreme caution. James From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Kavouss Arasteh Date: Friday 9 October 2015 at 3:55 p.m. To: "egmorris1@toast.net<mailto:egmorris1@toast.net>" Cc: "wp1@icann.org<mailto:wp1@icann.org>", CCWG Accountability Subject: Re: [CCWG-ACCT] [WP1] Agenda - WP1 mtg - 9 Oct 2015 at 1730-1930 UTC Then we can change the Bylaws providing the chance to other community to also participate in election of any member of the Board. Board is a group of persons and individuals collectively taking actions as they are required to protect the public interest and not the interest if any particular group composing the large / global community Regards Kavouss Sent from my iPhone On 9 Oct 2015, at 02:26, Edward Morris <egmorris1@toast.net<mailto:egmorris1@toast.net>> wrote: Hi Chris, I'm not Robin, and I don't know her position, but mine mirrors the California Corporations Code provision for the removal of Board members selected by specific subgroups, specifically §5222(b) which states: (2) If by the provisions of the articles or bylaws the members of any class, voting as a class, are entitled to elect one or more directors, any director so elected may be removed only by the applicable vote of the members of that class. (3) If by the provisions of the articles or bylaws the members within a chapter or other organizational unit, or region or other geographic grouping, voting as such, are entitled to elect one or more directors, any director so elected may be removed only by the applicable vote of the members within the organizational unit or geographic grouping. There are those on the Board who have argued that the fiduciary duty of directors towards the corporation as a whole augers for removal of individual directors buy the whole rather than by the appointing body. The fiduciary responsibility for ICANN directors is actually a creature of statute, a creation of the same California Corporations Code that is favourably disposed, as above, towards removal of individual directors by the selecting body. I'm a strong believer that the security and stability of the DNS is best assured by tried, true and proven corporate structures. I believe that the uniqueness of ICANN is somewhat overstated. ICANN is a California PBC. PBC's have two basic structures under California law: one that is board centric (designator) and one that is member centric (membership). Selection of the model determines who is, to paraphrase a former American president, the final decider. Nothing more. Regardless of our choice as to model, I see no reason to deviate from the route suggested by California statute for the removal of directors or on any other issue of structural detail. The California PBC statute is tried, true and tested. There is case law to buttress the statutes. The statute is not risky and untried, as are our other options. It is made as a uniform whole, with deference to potential conflicts. Stability is my principle concern and, as such, I prefer all choices we make to mirror the statute unless there are strong, special reasons unique to ICANN to deviate from the proven, stable structure of the typical California nonprofit corporation. On this particular issue I see none. Best, Ed ________________________________ From: "Chris Disspain" <ceo@auda.org.au<mailto:ceo@auda.org.au>> Sent: Friday, October 9, 2015 12:43 AM To: "Robin Gross" <robin@ipjustice.org<mailto:robin@ipjustice.org>> Cc: wp1@icann.org<mailto:wp1@icann.org>, "CCWG Accountability" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [WP1] Agenda - WP1 mtg - 9 Oct 2015 at 1730-1930 UTC Hi Robin, What’s your position on whether it should be the electing SO/AC that can recall or a wider group? Cheers, Chris On 9 Oct 2015, at 10:39 , Robin Gross <robin@ipjustice.org<mailto:robin@ipjustice.org>> wrote: Not sure I can make the call tomorrow, so I'll state my position against restrictions to individual director recall rights now. Considering the only public comment calling for limitations on the community's right to recall the individual board members was from the board itself, and the consensus has consistently been for NOT restricting recall rights, but for providing rationales for recalls, I don't understand why we are forced to continue to beat this dead horse. If two public comment periods have not been enough to create anything close to consensus to restrict the community's board recall rights, let's put this issue to bed and focus on the issues where the community is far more divided. Thanks, Robin On Oct 8, 2015, at 1:57 PM, Jordan Carter wrote: Hi all Here is the proposed agenda for our next call: Friday 9 October at 17h30 UTC for up to two hours. Could all those proposing documents for this meeting please circulate them ASAP, with an email subject line that identifies what your document is? 1. Review of Agenda 2. Second review of comments analysis: a) Budget power b) Affirmation of Commitments c) Community Forum d) Community Mechanism as Sole Member / The Model e) Recall of ICANN Board 3. Approach to documenting our work for 12-Oct deadline 4. Any Other Business Please advise any further / other agenda items... thanks, Jordan -- Jordan Carter Chief Executive InternetNZ +64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz> Skype: jordancarter Web: www.internetnz.nz<http://www.internetnz.nz/> A better world through a better Internet _______________________________________________ WP1 mailing list WP1@icann.org<mailto:WP1@icann.org> https://mm.icann.org/mailman/listinfo/wp1 _______________________________________________ WP1 mailing list WP1@icann.org<mailto:WP1@icann.org> https://mm.icann.org/mailman/listinfo/wp1 _______________________________________________ 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
I'm not sure whether there is an absolute prohibition against a California Public Benefit corporation adopting director removal protocols other than those set forth in 5222(b) (assuming it is a board of the type covered by 5222(b)). In some cases, these types of statutes are default positions which may be changed and in other cases they are laws that must be followed. Given the phrasing of this law, my gut reaction is that it is the latter, but as I said, I'm not sure. That's one to certify to our Counsel. Also, as a California Public Benefit Corporation and an entity physically situated in California, ICANN is bound by the Cal Corp Code (and all other applicable California laws). Further, Article 4 of ICANN's Articles of Incorporation states that ICANN must act in conformity with all "applicable law," which this clearly is. So, it would be both a violation of California law and ICANN's articles if ICANN were to act in violation of these laws. Greg [Usual caveats apply] On Fri, Oct 9, 2015 at 11:00 AM, James Gannon <james@cyberinvasion.net> wrote:
This would be a serious reframing of the boards composition. I would approach such an idea with extreme caution.
James
From: <accountability-cross-community-bounces@icann.org> on behalf of Kavouss Arasteh Date: Friday 9 October 2015 at 3:55 p.m. To: "egmorris1@toast.net" Cc: "wp1@icann.org", CCWG Accountability Subject: Re: [CCWG-ACCT] [WP1] Agenda - WP1 mtg - 9 Oct 2015 at 1730-1930 UTC
Then we can change the Bylaws providing the chance to other community to also participate in election of any member of the Board. Board is a group of persons and individuals collectively taking actions as they are required to protect the public interest and not the interest if any particular group composing the large / global community Regards Kavouss
Sent from my iPhone
On 9 Oct 2015, at 02:26, Edward Morris <egmorris1@toast.net> wrote:
Hi Chris,
I'm not Robin, and I don't know her position, but mine mirrors the California Corporations Code provision for the removal of Board members selected by specific subgroups, specifically §5222(b) which states:
(2) If by the provisions of the articles or bylaws the members of any class, voting as a class, are entitled to elect one or more directors, any director so elected may be removed only by the applicable vote of the members of that class.
(3) If by the provisions of the articles or bylaws the members within a chapter or other organizational unit, or region or other geographic grouping, voting as such, are entitled to elect one or more directors, any director so elected may be removed only by the applicable vote of the members within the organizational unit or geographic grouping.
There are those on the Board who have argued that the fiduciary duty of directors towards the corporation as a whole augers for removal of individual directors buy the whole rather than by the appointing body. The fiduciary responsibility for ICANN directors is actually a creature of statute, a creation of the same California Corporations Code that is favourably disposed, as above, towards removal of individual directors by the selecting body.
I'm a strong believer that the security and stability of the DNS is best assured by tried, true and proven corporate structures. I believe that the uniqueness of ICANN is somewhat overstated. ICANN is a California PBC. PBC's have two basic structures under California law: one that is board centric (designator) and one that is member centric (membership). Selection of the model determines who is, to paraphrase a former American president, the final decider. Nothing more.
Regardless of our choice as to model, I see no reason to deviate from the route suggested by California statute for the removal of directors or on any other issue of structural detail. The California PBC statute is tried, true and tested. There is case law to buttress the statutes. The statute is not risky and untried, as are our other options. It is made as a uniform whole, with deference to potential conflicts. Stability is my principle concern and, as such, I prefer all choices we make to mirror the statute unless there are strong, special reasons unique to ICANN to deviate from the proven, stable structure of the typical California nonprofit corporation. On this particular issue I see none.
Best,
Ed
------------------------------ *From*: "Chris Disspain" <ceo@auda.org.au> *Sent*: Friday, October 9, 2015 12:43 AM *To*: "Robin Gross" <robin@ipjustice.org> *Cc*: wp1@icann.org, "CCWG Accountability" < accountability-cross-community@icann.org> *Subject*: Re: [WP1] Agenda - WP1 mtg - 9 Oct 2015 at 1730-1930 UTC
Hi Robin,
What’s your position on whether it should be the electing SO/AC that can recall or a wider group?
Cheers,
Chris
On 9 Oct 2015, at 10:39 , Robin Gross <robin@ipjustice.org> wrote:
Not sure I can make the call tomorrow, so I'll state my position against restrictions to individual director recall rights now.
Considering the only public comment calling for limitations on the community's right to recall the individual board members was from the board itself, and the consensus has consistently been for NOT restricting recall rights, but for providing rationales for recalls, I don't understand why we are forced to continue to beat this dead horse. If two public comment periods have not been enough to create anything close to consensus to restrict the community's board recall rights, let's put this issue to bed and focus on the issues where the community is far more divided.
Thanks, Robin
On Oct 8, 2015, at 1:57 PM, Jordan Carter wrote:
Hi all
Here is the proposed agenda for our next call: Friday 9 October at 17h30 UTC for up to two hours.
*Could all those proposing documents for this meeting please circulate them ASAP, with an email subject line that identifies what your document is?*
*1. Review of Agenda*
*2. Second review of comments analysis:*
a) Budget power b) Affirmation of Commitments c) Community Forum d) Community Mechanism as Sole Member / The Model e) Recall of ICANN Board
*3. Approach to documenting our work for 12-Oct deadline*
*4. Any Other Business*
Please advise any further / other agenda items...
thanks, Jordan
-- Jordan Carter
Chief Executive *InternetNZ*
+64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan@internetnz.net.nz Skype: jordancarter Web: www.internetnz.nz
*A better world through a better Internet * _______________________________________________ WP1 mailing list WP1@icann.org https://mm.icann.org/mailman/listinfo/wp1
_______________________________________________ WP1 mailing list WP1@icann.org https://mm.icann.org/mailman/listinfo/wp1
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ WP1 mailing list WP1@icann.org https://mm.icann.org/mailman/listinfo/wp1
Hi Chris, The CCWG proposal (with which I agree on this point) provides that the specific SO/AC who appoints a board member has the power to recall (not the community-at-large). That is the accountability tool which the California legislature provided by statute to hold board members accountable -- and it is the norm in most organizations of these types. Restricting such a right would be a rare exception in practice. Are there examples of other nonprofit public benefit organizations who have restricted members / designators rights of board recall in such a way? Attempts to restrict members / designators rights to recall the board member which they appoint carry a heavy burden of demonstrating why the California legislature got it wrong in creating this accountability tool - and why the vast majority of other organizations who do provide such statutory recall rights have not been destroyed by the power as ICANN claims will happen if this common ordinary power were to exist at ICANN. Thanks, Robin On Oct 8, 2015, at 4:42 PM, Chris Disspain wrote:
Hi Robin,
What’s your position on whether it should be the electing SO/AC that can recall or a wider group?
Cheers,
Chris
On 9 Oct 2015, at 10:39 , Robin Gross <robin@ipjustice.org> wrote:
Not sure I can make the call tomorrow, so I'll state my position against restrictions to individual director recall rights now.
Considering the only public comment calling for limitations on the community's right to recall the individual board members was from the board itself, and the consensus has consistently been for NOT restricting recall rights, but for providing rationales for recalls, I don't understand why we are forced to continue to beat this dead horse. If two public comment periods have not been enough to create anything close to consensus to restrict the community's board recall rights, let's put this issue to bed and focus on the issues where the community is far more divided.
Thanks, Robin
On Oct 8, 2015, at 1:57 PM, Jordan Carter wrote:
Hi all
Here is the proposed agenda for our next call: Friday 9 October at 17h30 UTC for up to two hours.
Could all those proposing documents for this meeting please circulate them ASAP, with an email subject line that identifies what your document is?
1. Review of Agenda
2. Second review of comments analysis:
a) Budget power b) Affirmation of Commitments c) Community Forum d) Community Mechanism as Sole Member / The Model e) Recall of ICANN Board
3. Approach to documenting our work for 12-Oct deadline
4. Any Other Business
Please advise any further / other agenda items...
thanks, Jordan
-- Jordan Carter
Chief Executive InternetNZ
+64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan@internetnz.net.nz Skype: jordancarter Web: www.internetnz.nz
A better world through a better Internet
_______________________________________________ WP1 mailing list WP1@icann.org https://mm.icann.org/mailman/listinfo/wp1
_______________________________________________ WP1 mailing list WP1@icann.org https://mm.icann.org/mailman/listinfo/wp1
Who are those vast majority???? Ka Sent from my iPhone
On 9 Oct 2015, at 05:47, Robin Gross <robin@ipjustice.org> wrote:
Hi Chris,
The CCWG proposal (with which I agree on this point) provides that the specific SO/AC who appoints a board member has the power to recall (not the community-at-large). That is the accountability tool which the California legislature provided by statute to hold board members accountable -- and it is the norm in most organizations of these types. Restricting such a right would be a rare exception in practice. Are there examples of other nonprofit public benefit organizations who have restricted members / designators rights of board recall in such a way?
Attempts to restrict members / designators rights to recall the board member which they appoint carry a heavy burden of demonstrating why the California legislature got it wrong in creating this accountability tool - and why the vast majority of other organizations who do provide such statutory recall rights have not been destroyed by the power as ICANN claims will happen if this common ordinary power were to exist at ICANN.
Thanks, Robin
On Oct 8, 2015, at 4:42 PM, Chris Disspain wrote:
Hi Robin,
What’s your position on whether it should be the electing SO/AC that can recall or a wider group?
Cheers,
Chris
On 9 Oct 2015, at 10:39 , Robin Gross <robin@ipjustice.org> wrote:
Not sure I can make the call tomorrow, so I'll state my position against restrictions to individual director recall rights now.
Considering the only public comment calling for limitations on the community's right to recall the individual board members was from the board itself, and the consensus has consistently been for NOT restricting recall rights, but for providing rationales for recalls, I don't understand why we are forced to continue to beat this dead horse. If two public comment periods have not been enough to create anything close to consensus to restrict the community's board recall rights, let's put this issue to bed and focus on the issues where the community is far more divided.
Thanks, Robin
On Oct 8, 2015, at 1:57 PM, Jordan Carter wrote:
Hi all
Here is the proposed agenda for our next call: Friday 9 October at 17h30 UTC for up to two hours.
Could all those proposing documents for this meeting please circulate them ASAP, with an email subject line that identifies what your document is?
1. Review of Agenda
2. Second review of comments analysis:
a) Budget power b) Affirmation of Commitments c) Community Forum d) Community Mechanism as Sole Member / The Model e) Recall of ICANN Board
3. Approach to documenting our work for 12-Oct deadline
4. Any Other Business
Please advise any further / other agenda items...
thanks, Jordan
-- Jordan Carter
Chief Executive InternetNZ
+64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan@internetnz.net.nz Skype: jordancarter Web: www.internetnz.nz
A better world through a better Internet
_______________________________________________ WP1 mailing list WP1@icann.org https://mm.icann.org/mailman/listinfo/wp1
_______________________________________________ WP1 mailing list WP1@icann.org https://mm.icann.org/mailman/listinfo/wp1
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
the only public comment calling for limitations on the community's right to recall the individual board members was from the board itself,
Actually, Robin, that is not the case: http://forum.icann.org/lists/comments-ccwg-accountability-03aug15/pdfgy3Zals... Regards Christopher On 09 Oct 2015, at 05:47, Robin Gross <robin@ipjustice.org> wrote:
Hi Chris,
The CCWG proposal (with which I agree on this point) provides that the specific SO/AC who appoints a board member has the power to recall (not the community-at-large). That is the accountability tool which the California legislature provided by statute to hold board members accountable -- and it is the norm in most organizations of these types. Restricting such a right would be a rare exception in practice. Are there examples of other nonprofit public benefit organizations who have restricted members / designators rights of board recall in such a way?
Attempts to restrict members / designators rights to recall the board member which they appoint carry a heavy burden of demonstrating why the California legislature got it wrong in creating this accountability tool - and why the vast majority of other organizations who do provide such statutory recall rights have not been destroyed by the power as ICANN claims will happen if this common ordinary power were to exist at ICANN.
Thanks, Robin
On Oct 8, 2015, at 4:42 PM, Chris Disspain wrote:
Hi Robin,
What’s your position on whether it should be the electing SO/AC that can recall or a wider group?
Cheers,
Chris
On 9 Oct 2015, at 10:39 , Robin Gross <robin@ipjustice.org> wrote:
Not sure I can make the call tomorrow, so I'll state my position against restrictions to individual director recall rights now.
Considering the only public comment calling for limitations on the community's right to recall the individual board members was from the board itself, and the consensus has consistently been for NOT restricting recall rights, but for providing rationales for recalls, I don't understand why we are forced to continue to beat this dead horse. If two public comment periods have not been enough to create anything close to consensus to restrict the community's board recall rights, let's put this issue to bed and focus on the issues where the community is far more divided.
Thanks, Robin
On Oct 8, 2015, at 1:57 PM, Jordan Carter wrote:
Hi all
Here is the proposed agenda for our next call: Friday 9 October at 17h30 UTC for up to two hours.
Could all those proposing documents for this meeting please circulate them ASAP, with an email subject line that identifies what your document is?
1. Review of Agenda
2. Second review of comments analysis:
a) Budget power b) Affirmation of Commitments c) Community Forum d) Community Mechanism as Sole Member / The Model e) Recall of ICANN Board
3. Approach to documenting our work for 12-Oct deadline
4. Any Other Business
Please advise any further / other agenda items...
thanks, Jordan
-- Jordan Carter
Chief Executive InternetNZ
+64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan@internetnz.net.nz Skype: jordancarter Web: www.internetnz.nz
A better world through a better Internet
_______________________________________________ WP1 mailing list WP1@icann.org https://mm.icann.org/mailman/listinfo/wp1
_______________________________________________ WP1 mailing list WP1@icann.org https://mm.icann.org/mailman/listinfo/wp1
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear All We have an agenda and we need to follow that agenda The purpose of the message is not to make statement in favour or against a particular subject. The point made is well noted Regards Kavouss Sent from my iPhone
On 9 Oct 2015, at 01:39, Robin Gross <robin@ipjustice.org> wrote:
Not sure I can make the call tomorrow, so I'll state my position against restrictions to individual director recall rights now.
Considering the only public comment calling for limitations on the community's right to recall the individual board members was from the board itself, and the consensus has consistently been for NOT restricting recall rights, but for providing rationales for recalls, I don't understand why we are forced to continue to beat this dead horse. If two public comment periods have not been enough to create anything close to consensus to restrict the community's board recall rights, let's put this issue to bed and focus on the issues where the community is far more divided.
Thanks, Robin
On Oct 8, 2015, at 1:57 PM, Jordan Carter wrote:
Hi all
Here is the proposed agenda for our next call: Friday 9 October at 17h30 UTC for up to two hours.
Could all those proposing documents for this meeting please circulate them ASAP, with an email subject line that identifies what your document is?
1. Review of Agenda
2. Second review of comments analysis:
a) Budget power b) Affirmation of Commitments c) Community Forum d) Community Mechanism as Sole Member / The Model e) Recall of ICANN Board
3. Approach to documenting our work for 12-Oct deadline
4. Any Other Business
Please advise any further / other agenda items...
thanks, Jordan
-- Jordan Carter
Chief Executive InternetNZ
+64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan@internetnz.net.nz Skype: jordancarter Web: www.internetnz.nz
A better world through a better Internet
_______________________________________________ WP1 mailing list WP1@icann.org https://mm.icann.org/mailman/listinfo/wp1
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
participants (9)
-
Chartier, Mike S -
Chris Disspain -
Christopher Wilkinson -
Edward Morris -
Greg Shatan -
James Gannon -
Kavouss Arasteh -
Robin Gross -
Ron Baione