Understanding of Amended Paragraph 72 of Annex 2
Now that the Co-Chairs have just issued their decision on how to proceed, I want to return to a subject that I first raised in the chat room on the call held twelve hours ago. Section 72 of Annex 2 will now read [bracketed text in red to be deleted]: The CCWG-Accountability also recommends that in a situation where the GAC may not participate as a Decisional Participant because the Community Power is proposed to be used to challenge the Board's implementation of GAC consensus advice and the threshold is set at four in support, the power will still be validly exercised if three are in support and no more than one objects, with the following exception: · Where the power to be exercised is recalling the entire Board for implementing GAC advice, the reduced threshold would apply only [either (1)] after an IRP has found that, in implementing GAC advice, the Board acted inconsistently with the ICANN Bylaws[, or (2) if the IRP is not available to challenge the Board action in question]. If the Empowered Community has brought such an IRP and does not prevail, the Empowered Community may not exercise its power to recall the entire the Board solely on the basis of the matter decided by the IRP. It may, however, exercise that power based on other grounds. As I read the remaining text, the first paragraph establishes the general principle that in any situation where the Empowered Community proposes to challenge the Board's implementation of GAC consensus advice, using any of the available community powers, the GAC would be barred from being a decisional participant, and that where the threshold for taking action is four SO/Ac votes it would drop to three. I would note in passing that the voting threshold for exercise of a community power is set at four (per items 46-70) for only three community powers: 1. Reject a proposed Operating Plan/Strategic Plan/Budget 2. Recall the entire Board of Directors 3. Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process Paragraph 2 then goes on to create an exception for that reduced threshold situation -- applicable only to removal of the Board in its entirety, and not to rejection of an operating plan/budget or a review of IANA functions where the Board has acted pursuant to GAC consensus advice. For Board removal in its entirety the EC would first be required to pursue an IRP - and if the IRP determined that the Board implementation of GAC consensus advice had not violated the Bylaws the reduced voting threshold would not apply, and the matter could not be further pursued unless there were other, non-Bylaws grounds for pursuing it. In the latter instance (non-Bylaws ground), the threshold for full Board removal would be four votes (unanimity of all SOs and ACs other than the GAC, which would remain non-decisional). Are we agreed on that view so far? Now here is where it gets interesting, in regard to matters of Board implementation of GAC consensus advice about which the community was aggrieved, and regardless of whether such implementation involved an alleged Bylaws violation and was therefore subject to an IRP --- If the community sought to exercise power 4a contained at section 55 - "Remove an individual Board Director nominated by an SO or AC (and appointed by the Empowered Community)" - none of the above in para 72 would be relevant because the majority of the nominating SO/AC could do that on its own by an internal ¾ majority vote after inviting and considering comments from all SOs/ACs (noting that it's not entirely clear whether the GAC would be barred from commenting, although it's of little relevance since the electing SO/AC is in no way bound by the opinions of the others). That removal could include the Chairman of the Board if he/she was the nominee of a particular SO or AC. If the community sought to exercise power 4b contained at section 58 - "Remove an individual Board Director nominated by the Nominating Committee (and appointed by the Empowered Community)" - the lowered threshold requirement in para 72 would not be relevant because the required threshold support is "Three support, and no more than one objection", and the GAC would be barred as a decisional participant if the challenge pertained to the Board member voting to implement GAC consensus advice. Again, this power is available to remove the Chair if he/she was a NomCom appointee (Note: I have checked the ICANN Bylaws and any Board member other the President/CEO, regardless of how they were placed on the Board, can be elected to the Chair or Vice Chair position). Putting this all together, even after the CCWG's Co-Chairs decision to proceed with striking clause 2 of the second paragraph of section 72, the Empowered Community could still remove the Board Chairman and Vice Chair (and sequentially chosen replacement Chairs and Vice Chairs, if they failed to lead the Board to reverse its decision implementing GAC advice), and could remove one or more additional members of the Board, whether placed on the Board by an SO/AC or by the NomCom, so long as such actions were taken individually and not collectively. And the community, if the aggrieved view was sufficiently widespread, could collectively remove (and then replace) sufficient numbers of Board members to compel a reversal of the implementation of GAC consensus advice. Indeed, there is no limitation placed on the number of Board members who may be removed via community powers 4a and 4b so long as each is a discrete assertion of those powers pertaining to a particular Board member. If I am correct on this interpretation then, the removal of clause 2 may not be all that significant. If anyone believes that my interpretation of any or all of this is incorrect - especially Board or GAC members - I would urge them to voice disagreement now. I would also welcome expressions of support for this interpretation. If you have read this far, thanks. Best to all, Philip Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey
Hello, If removal on other grounds happen; I presume that would be in a situation where IRP outcome was in favour of the board but the community still wants to spill the board anyway (perhaps by vote of no confidence). In that case, I would expect that it's no longer about GAC and a threshold of 4 would be applicable. Regards On 23 Feb 2016 20:24, "Phil Corwin" <psc@vlaw-dc.com> wrote:
Now that the Co-Chairs have just issued their decision on how to proceed, I want to return to a subject that I first raised in the chat room on the call held twelve hours ago.
*Section 72 of Annex 2 will now read [bracketed text in red to be deleted]:*
The CCWG-Accountability also recommends that in a situation where the GAC may not
participate as a Decisional Participant because the Community Power is proposed to be used to
challenge the Board’s implementation of GAC consensus advice and the threshold is set at four
in support, the power will still be validly exercised if three are in support and no more than one
objects, with the following exception:
· Where the power to be exercised is recalling the entire Board for implementing GAC
advice, the reduced threshold would apply only [either (1)] after an IRP has found that, in
implementing GAC advice, the Board acted inconsistently with the ICANN Bylaws[, or (2) if
the IRP is not available to challenge the Board action in question]. If the Empowered
Community has brought such an IRP and does not prevail, the Empowered Community
may not exercise its power to recall the entire the Board solely on the basis of the matter
decided by the IRP. It may, however, exercise that power based on other grounds.
As I read the remaining text, the first paragraph establishes the general principle that in any situation where the Empowered Community proposes to challenge the Board’s implementation of GAC consensus advice, using any of the available community powers, the GAC would be barred from being a decisional participant, and that where the threshold for taking action is four SO/Ac votes it would drop to three.
*I would note in passing that the voting threshold for exercise of a community power is set at four (per items 46-70) for only three community powers:*
1. Reject a proposed Operating Plan/Strategic Plan/Budget
*2. **Recall the entire Board of Directors*
3. Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process
Paragraph 2 then goes on to create an exception for that reduced threshold situation -- applicable only to removal of the Board in its entirety, and not to rejection of an operating plan/budget or a review of IANA functions where the Board has acted pursuant to GAC consensus advice. For Board removal in its entirety the EC would first be required to pursue an IRP – and if the IRP determined that the Board implementation of GAC consensus advice had not violated the Bylaws the reduced voting threshold would not apply, and the matter could not be further pursued unless there were other, non-Bylaws grounds for pursuing it. In the latter instance (non-Bylaws ground), the threshold for full Board removal would be four votes (unanimity of all SOs and ACs other than the GAC, which would remain non-decisional).
*Are we agreed on that view so far?*
Now here is where it gets interesting, in regard to matters of Board implementation of GAC consensus advice about which the community was aggrieved, and regardless of whether such implementation involved an alleged Bylaws violation and was therefore subject to an IRP ---
If the community sought to exercise power 4a contained at section 55 – “Remove an individual Board Director nominated by an SO or AC (and appointed by the Empowered Community)” – none of the above in para 72 would be relevant because the majority of the nominating SO/AC could do that on its own by an internal ¾ majority vote after inviting and considering comments from all SOs/ACs (noting that it’s not entirely clear whether the GAC would be barred from commenting, although it’s of little relevance since the electing SO/AC is in no way bound by the opinions of the others). That removal could include the Chairman of the Board if he/she was the nominee of a particular SO or AC.
If the community sought to exercise power 4b contained at section 58 – “Remove an individual Board Director nominated by the Nominating Committee (and appointed by the Empowered Community)” – the lowered threshold requirement in para 72 would not be relevant because the required threshold support is “Three support, and no more than one objection”, and the GAC would be barred as a decisional participant if the challenge pertained to the Board member voting to implement GAC consensus advice. Again, this power is available to remove the Chair if he/she was a NomCom appointee (Note: I have checked the ICANN Bylaws and any Board member other the President/CEO, regardless of how they were placed on the Board, can be elected to the Chair or Vice Chair position).
*Putting this all together, even after the CCWG’s Co-Chairs decision to proceed with striking clause 2 of the second paragraph of section 72, the Empowered Community could still remove the Board Chairman and Vice Chair (and sequentially chosen replacement Chairs and Vice Chairs, if they failed to lead the Board to reverse its decision implementing GAC advice), and could remove one or more additional members of the Board, whether placed on the Board by an SO/AC or by the NomCom, so long as such actions were taken individually and not collectively. And the community, if the aggrieved view was sufficiently widespread, could collectively remove (and then replace) sufficient numbers of Board members to compel a reversal of the implementation of GAC consensus advice. Indeed, there is no limitation placed on the number of Board members who may be removed via community powers 4a and 4b so long as each is a discrete assertion of those powers pertaining to a particular Board member.*
If I am correct on this interpretation then, the removal of clause 2 may not be all that significant.
*If anyone believes that my interpretation of any or all of this is incorrect – especially Board or GAC members – I would urge them to voice disagreement now. I would also welcome expressions of support for this interpretation.*
If you have read this far, thanks.
Best to all, Philip
*Philip S. Corwin, Founding Principal*
*Virtualaw LLC*
*1155 F Street, NW*
*Suite 1050*
*Washington, DC 20004*
*202-559-8597/Direct*
*202-559-8750/Fax*
*202-255-6172/cell*
*Twitter: @VlawDC*
*"Luck is the residue of design" -- Branch Rickey*
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Phil, Your analysis looks correct to me. Greg Shatan On Tue, Feb 23, 2016 at 2:43 PM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Hello,
If removal on other grounds happen; I presume that would be in a situation where IRP outcome was in favour of the board but the community still wants to spill the board anyway (perhaps by vote of no confidence). In that case, I would expect that it's no longer about GAC and a threshold of 4 would be applicable.
Regards On 23 Feb 2016 20:24, "Phil Corwin" <psc@vlaw-dc.com> wrote:
Now that the Co-Chairs have just issued their decision on how to proceed, I want to return to a subject that I first raised in the chat room on the call held twelve hours ago.
*Section 72 of Annex 2 will now read [bracketed text in red to be deleted]:*
The CCWG-Accountability also recommends that in a situation where the GAC may not
participate as a Decisional Participant because the Community Power is proposed to be used to
challenge the Board’s implementation of GAC consensus advice and the threshold is set at four
in support, the power will still be validly exercised if three are in support and no more than one
objects, with the following exception:
· Where the power to be exercised is recalling the entire Board for implementing GAC
advice, the reduced threshold would apply only [either (1)] after an IRP has found that, in
implementing GAC advice, the Board acted inconsistently with the ICANN Bylaws[, or (2) if
the IRP is not available to challenge the Board action in question]. If the Empowered
Community has brought such an IRP and does not prevail, the Empowered Community
may not exercise its power to recall the entire the Board solely on the basis of the matter
decided by the IRP. It may, however, exercise that power based on other grounds.
As I read the remaining text, the first paragraph establishes the general principle that in any situation where the Empowered Community proposes to challenge the Board’s implementation of GAC consensus advice, using any of the available community powers, the GAC would be barred from being a decisional participant, and that where the threshold for taking action is four SO/Ac votes it would drop to three.
*I would note in passing that the voting threshold for exercise of a community power is set at four (per items 46-70) for only three community powers:*
1. Reject a proposed Operating Plan/Strategic Plan/Budget
*2. **Recall the entire Board of Directors*
3. Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process
Paragraph 2 then goes on to create an exception for that reduced threshold situation -- applicable only to removal of the Board in its entirety, and not to rejection of an operating plan/budget or a review of IANA functions where the Board has acted pursuant to GAC consensus advice. For Board removal in its entirety the EC would first be required to pursue an IRP – and if the IRP determined that the Board implementation of GAC consensus advice had not violated the Bylaws the reduced voting threshold would not apply, and the matter could not be further pursued unless there were other, non-Bylaws grounds for pursuing it. In the latter instance (non-Bylaws ground), the threshold for full Board removal would be four votes (unanimity of all SOs and ACs other than the GAC, which would remain non-decisional).
*Are we agreed on that view so far?*
Now here is where it gets interesting, in regard to matters of Board implementation of GAC consensus advice about which the community was aggrieved, and regardless of whether such implementation involved an alleged Bylaws violation and was therefore subject to an IRP ---
If the community sought to exercise power 4a contained at section 55 – “Remove an individual Board Director nominated by an SO or AC (and appointed by the Empowered Community)” – none of the above in para 72 would be relevant because the majority of the nominating SO/AC could do that on its own by an internal ¾ majority vote after inviting and considering comments from all SOs/ACs (noting that it’s not entirely clear whether the GAC would be barred from commenting, although it’s of little relevance since the electing SO/AC is in no way bound by the opinions of the others). That removal could include the Chairman of the Board if he/she was the nominee of a particular SO or AC.
If the community sought to exercise power 4b contained at section 58 – “Remove an individual Board Director nominated by the Nominating Committee (and appointed by the Empowered Community)” – the lowered threshold requirement in para 72 would not be relevant because the required threshold support is “Three support, and no more than one objection”, and the GAC would be barred as a decisional participant if the challenge pertained to the Board member voting to implement GAC consensus advice. Again, this power is available to remove the Chair if he/she was a NomCom appointee (Note: I have checked the ICANN Bylaws and any Board member other the President/CEO, regardless of how they were placed on the Board, can be elected to the Chair or Vice Chair position).
*Putting this all together, even after the CCWG’s Co-Chairs decision to proceed with striking clause 2 of the second paragraph of section 72, the Empowered Community could still remove the Board Chairman and Vice Chair (and sequentially chosen replacement Chairs and Vice Chairs, if they failed to lead the Board to reverse its decision implementing GAC advice), and could remove one or more additional members of the Board, whether placed on the Board by an SO/AC or by the NomCom, so long as such actions were taken individually and not collectively. And the community, if the aggrieved view was sufficiently widespread, could collectively remove (and then replace) sufficient numbers of Board members to compel a reversal of the implementation of GAC consensus advice. Indeed, there is no limitation placed on the number of Board members who may be removed via community powers 4a and 4b so long as each is a discrete assertion of those powers pertaining to a particular Board member.*
If I am correct on this interpretation then, the removal of clause 2 may not be all that significant.
*If anyone believes that my interpretation of any or all of this is incorrect – especially Board or GAC members – I would urge them to voice disagreement now. I would also welcome expressions of support for this interpretation.*
If you have read this far, thanks.
Best to all, Philip
*Philip S. Corwin, Founding Principal*
*Virtualaw LLC*
*1155 F Street, NW*
*Suite 1050*
*Washington, DC 20004*
*202-559-8597 <202-559-8597>/Direct*
*202-559-8750 <202-559-8750>/Fax*
*202-255-6172 <202-255-6172>/cell*
*Twitter: @VlawDC*
*"Luck is the residue of design" -- Branch Rickey*
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
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Seun, It could still be about the GAC (or more accurately, about the Board's implementation of GAC advice) -- it's just that the grounds for spilling the Board would have to be something other than a Bylaws violation. You are correct that the threshold would be 4 (based on the decision just put forward by the Chairs). Greg On Tue, Feb 23, 2016 at 2:59 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Phil,
Your analysis looks correct to me.
Greg Shatan
On Tue, Feb 23, 2016 at 2:43 PM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Hello,
If removal on other grounds happen; I presume that would be in a situation where IRP outcome was in favour of the board but the community still wants to spill the board anyway (perhaps by vote of no confidence). In that case, I would expect that it's no longer about GAC and a threshold of 4 would be applicable.
Regards On 23 Feb 2016 20:24, "Phil Corwin" <psc@vlaw-dc.com> wrote:
Now that the Co-Chairs have just issued their decision on how to proceed, I want to return to a subject that I first raised in the chat room on the call held twelve hours ago.
*Section 72 of Annex 2 will now read [bracketed text in red to be deleted]:*
The CCWG-Accountability also recommends that in a situation where the GAC may not
participate as a Decisional Participant because the Community Power is proposed to be used to
challenge the Board’s implementation of GAC consensus advice and the threshold is set at four
in support, the power will still be validly exercised if three are in support and no more than one
objects, with the following exception:
· Where the power to be exercised is recalling the entire Board for implementing GAC
advice, the reduced threshold would apply only [either (1)] after an IRP has found that, in
implementing GAC advice, the Board acted inconsistently with the ICANN Bylaws[, or (2) if
the IRP is not available to challenge the Board action in question]. If the Empowered
Community has brought such an IRP and does not prevail, the Empowered Community
may not exercise its power to recall the entire the Board solely on the basis of the matter
decided by the IRP. It may, however, exercise that power based on other grounds.
As I read the remaining text, the first paragraph establishes the general principle that in any situation where the Empowered Community proposes to challenge the Board’s implementation of GAC consensus advice, using any of the available community powers, the GAC would be barred from being a decisional participant, and that where the threshold for taking action is four SO/Ac votes it would drop to three.
*I would note in passing that the voting threshold for exercise of a community power is set at four (per items 46-70) for only three community powers:*
1. Reject a proposed Operating Plan/Strategic Plan/Budget
*2. **Recall the entire Board of Directors*
3. Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process
Paragraph 2 then goes on to create an exception for that reduced threshold situation -- applicable only to removal of the Board in its entirety, and not to rejection of an operating plan/budget or a review of IANA functions where the Board has acted pursuant to GAC consensus advice. For Board removal in its entirety the EC would first be required to pursue an IRP – and if the IRP determined that the Board implementation of GAC consensus advice had not violated the Bylaws the reduced voting threshold would not apply, and the matter could not be further pursued unless there were other, non-Bylaws grounds for pursuing it. In the latter instance (non-Bylaws ground), the threshold for full Board removal would be four votes (unanimity of all SOs and ACs other than the GAC, which would remain non-decisional).
*Are we agreed on that view so far?*
Now here is where it gets interesting, in regard to matters of Board implementation of GAC consensus advice about which the community was aggrieved, and regardless of whether such implementation involved an alleged Bylaws violation and was therefore subject to an IRP ---
If the community sought to exercise power 4a contained at section 55 – “Remove an individual Board Director nominated by an SO or AC (and appointed by the Empowered Community)” – none of the above in para 72 would be relevant because the majority of the nominating SO/AC could do that on its own by an internal ¾ majority vote after inviting and considering comments from all SOs/ACs (noting that it’s not entirely clear whether the GAC would be barred from commenting, although it’s of little relevance since the electing SO/AC is in no way bound by the opinions of the others). That removal could include the Chairman of the Board if he/she was the nominee of a particular SO or AC.
If the community sought to exercise power 4b contained at section 58 – “Remove an individual Board Director nominated by the Nominating Committee (and appointed by the Empowered Community)” – the lowered threshold requirement in para 72 would not be relevant because the required threshold support is “Three support, and no more than one objection”, and the GAC would be barred as a decisional participant if the challenge pertained to the Board member voting to implement GAC consensus advice. Again, this power is available to remove the Chair if he/she was a NomCom appointee (Note: I have checked the ICANN Bylaws and any Board member other the President/CEO, regardless of how they were placed on the Board, can be elected to the Chair or Vice Chair position).
*Putting this all together, even after the CCWG’s Co-Chairs decision to proceed with striking clause 2 of the second paragraph of section 72, the Empowered Community could still remove the Board Chairman and Vice Chair (and sequentially chosen replacement Chairs and Vice Chairs, if they failed to lead the Board to reverse its decision implementing GAC advice), and could remove one or more additional members of the Board, whether placed on the Board by an SO/AC or by the NomCom, so long as such actions were taken individually and not collectively. And the community, if the aggrieved view was sufficiently widespread, could collectively remove (and then replace) sufficient numbers of Board members to compel a reversal of the implementation of GAC consensus advice. Indeed, there is no limitation placed on the number of Board members who may be removed via community powers 4a and 4b so long as each is a discrete assertion of those powers pertaining to a particular Board member.*
If I am correct on this interpretation then, the removal of clause 2 may not be all that significant.
*If anyone believes that my interpretation of any or all of this is incorrect – especially Board or GAC members – I would urge them to voice disagreement now. I would also welcome expressions of support for this interpretation.*
If you have read this far, thanks.
Best to all, Philip
*Philip S. Corwin, Founding Principal*
*Virtualaw LLC*
*1155 F Street, NW*
*Suite 1050*
*Washington, DC 20004*
*202-559-8597 <202-559-8597>/Direct*
*202-559-8750 <202-559-8750>/Fax*
*202-255-6172 <202-255-6172>/cell*
*Twitter: @VlawDC*
*"Luck is the residue of design" -- Branch Rickey*
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
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Phil, I believe all this is correct. It is one of the many reasons I didn't mind which fork was taken. Jordan On Wednesday, 24 February 2016, Phil Corwin <psc@vlaw-dc.com> wrote:
Now that the Co-Chairs have just issued their decision on how to proceed, I want to return to a subject that I first raised in the chat room on the call held twelve hours ago.
*Section 72 of Annex 2 will now read [bracketed text in red to be deleted]:*
The CCWG-Accountability also recommends that in a situation where the GAC may not
participate as a Decisional Participant because the Community Power is proposed to be used to
challenge the Board’s implementation of GAC consensus advice and the threshold is set at four
in support, the power will still be validly exercised if three are in support and no more than one
objects, with the following exception:
· Where the power to be exercised is recalling the entire Board for implementing GAC
advice, the reduced threshold would apply only [either (1)] after an IRP has found that, in
implementing GAC advice, the Board acted inconsistently with the ICANN Bylaws[, or (2) if
the IRP is not available to challenge the Board action in question]. If the Empowered
Community has brought such an IRP and does not prevail, the Empowered Community
may not exercise its power to recall the entire the Board solely on the basis of the matter
decided by the IRP. It may, however, exercise that power based on other grounds.
As I read the remaining text, the first paragraph establishes the general principle that in any situation where the Empowered Community proposes to challenge the Board’s implementation of GAC consensus advice, using any of the available community powers, the GAC would be barred from being a decisional participant, and that where the threshold for taking action is four SO/Ac votes it would drop to three.
*I would note in passing that the voting threshold for exercise of a community power is set at four (per items 46-70) for only three community powers:*
1. Reject a proposed Operating Plan/Strategic Plan/Budget
*2. **Recall the entire Board of Directors*
3. Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process
Paragraph 2 then goes on to create an exception for that reduced threshold situation -- applicable only to removal of the Board in its entirety, and not to rejection of an operating plan/budget or a review of IANA functions where the Board has acted pursuant to GAC consensus advice. For Board removal in its entirety the EC would first be required to pursue an IRP – and if the IRP determined that the Board implementation of GAC consensus advice had not violated the Bylaws the reduced voting threshold would not apply, and the matter could not be further pursued unless there were other, non-Bylaws grounds for pursuing it. In the latter instance (non-Bylaws ground), the threshold for full Board removal would be four votes (unanimity of all SOs and ACs other than the GAC, which would remain non-decisional).
*Are we agreed on that view so far?*
Now here is where it gets interesting, in regard to matters of Board implementation of GAC consensus advice about which the community was aggrieved, and regardless of whether such implementation involved an alleged Bylaws violation and was therefore subject to an IRP ---
If the community sought to exercise power 4a contained at section 55 – “Remove an individual Board Director nominated by an SO or AC (and appointed by the Empowered Community)” – none of the above in para 72 would be relevant because the majority of the nominating SO/AC could do that on its own by an internal ¾ majority vote after inviting and considering comments from all SOs/ACs (noting that it’s not entirely clear whether the GAC would be barred from commenting, although it’s of little relevance since the electing SO/AC is in no way bound by the opinions of the others). That removal could include the Chairman of the Board if he/she was the nominee of a particular SO or AC.
If the community sought to exercise power 4b contained at section 58 – “Remove an individual Board Director nominated by the Nominating Committee (and appointed by the Empowered Community)” – the lowered threshold requirement in para 72 would not be relevant because the required threshold support is “Three support, and no more than one objection”, and the GAC would be barred as a decisional participant if the challenge pertained to the Board member voting to implement GAC consensus advice. Again, this power is available to remove the Chair if he/she was a NomCom appointee (Note: I have checked the ICANN Bylaws and any Board member other the President/CEO, regardless of how they were placed on the Board, can be elected to the Chair or Vice Chair position).
*Putting this all together, even after the CCWG’s Co-Chairs decision to proceed with striking clause 2 of the second paragraph of section 72, the Empowered Community could still remove the Board Chairman and Vice Chair (and sequentially chosen replacement Chairs and Vice Chairs, if they failed to lead the Board to reverse its decision implementing GAC advice), and could remove one or more additional members of the Board, whether placed on the Board by an SO/AC or by the NomCom, so long as such actions were taken individually and not collectively. And the community, if the aggrieved view was sufficiently widespread, could collectively remove (and then replace) sufficient numbers of Board members to compel a reversal of the implementation of GAC consensus advice. Indeed, there is no limitation placed on the number of Board members who may be removed via community powers 4a and 4b so long as each is a discrete assertion of those powers pertaining to a particular Board member.*
If I am correct on this interpretation then, the removal of clause 2 may not be all that significant.
*If anyone believes that my interpretation of any or all of this is incorrect – especially Board or GAC members – I would urge them to voice disagreement now. I would also welcome expressions of support for this interpretation.*
If you have read this far, thanks.
Best to all, Philip
*Philip S. Corwin, Founding Principal*
*Virtualaw LLC*
*1155 F Street, NW*
*Suite 1050*
*Washington, DC 20004*
*202-559-8597/Direct*
*202-559-8750/Fax*
*202-255-6172/cell*
*Twitter: @VlawDC*
*"Luck is the residue of design" -- Branch Rickey*
-- Jordan Carter Chief Executive, InternetNZ +64-21-442-649 | jordan@internetnz.net.nz Sent on the run, apologies for brevity
Hello Phil, I think in essence that you are correct that in addition to removing the Board via a Board as a whole spill process, that the community still has the option of removing individual Board members through the individual Board member recall process. So yes it is possible to remove all the voting directors, by exercising that process on a one-by-one basis. In terms of removing the chair or vice-chair of the Board, the community is effectively removing the Board director that currently holds that role. If that happens, the Board will of course elect a replacement chair or vice-chair from the remaining Board directors. I would expect that if an individual Board director that is currently the chair became subject to an individual Board member recall process, that the chair would stand down pending the outcome of the process and the vice-chair would take over until such time as an new chair is appointed. So doubt the discussion will end up being a discussion to remove the chair, but a discussion about the performance of the individual Board director. At least I hope that is how the processes will be used. Regards, Bruce Tonkin
Thanks for weighing in, Bruce. I agree that evaluation of each individual Board member is the way the process should be used. I was just observing that two separate processes exist for the removal of individual Board members and that there is no limitation on the number that may be employed against within a given time period. As previously stated, I hope we never get to that point. Best, Philip Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey -----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Bruce Tonkin Sent: Tuesday, February 23, 2016 7:09 PM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] Understanding of Amended Paragraph 72 of Annex 2 Hello Phil, I think in essence that you are correct that in addition to removing the Board via a Board as a whole spill process, that the community still has the option of removing individual Board members through the individual Board member recall process. So yes it is possible to remove all the voting directors, by exercising that process on a one-by-one basis. In terms of removing the chair or vice-chair of the Board, the community is effectively removing the Board director that currently holds that role. If that happens, the Board will of course elect a replacement chair or vice-chair from the remaining Board directors. I would expect that if an individual Board director that is currently the chair became subject to an individual Board member recall process, that the chair would stand down pending the outcome of the process and the vice-chair would take over until such time as an new chair is appointed. So doubt the discussion will end up being a discussion to remove the chair, but a discussion about the performance of the individual Board director. At least I hope that is how the processes will be used. Regards, Bruce Tonkin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community ----- No virus found in this message. Checked by AVG - www.avg.com Version: 2016.0.7303 / Virus Database: 4533/11679 - Release Date: 02/22/16
Technically, the limitation will be applicable to the status of the individual board member to be removed i.e whether appointed by SO/AC or by nomcom as the removal processes and required thresholds differ. The other limitation I foresee is the time it would take to carry out the one-by-one removal process unless ofcourse the community trigger the process concurrently which is unlikely.(it will be quite a record breaking coup :-) ) However, if the goal is to spill significant number of the board by removing the individual members, then it'd be better to go the single route of spilling the entire board to save time. Nevertheless, I guess the main catch is that both options are possible. Regards On 24 Feb 2016 01:25, "Phil Corwin" <psc@vlaw-dc.com> wrote:
Thanks for weighing in, Bruce.
I agree that evaluation of each individual Board member is the way the process should be used. I was just observing that two separate processes exist for the removal of individual Board members and that there is no limitation on the number that may be employed against within a given time period. As previously stated, I hope we never get to that point.
Best, Philip
Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell
Twitter: @VlawDC
"Luck is the residue of design" -- Branch Rickey
-----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] On Behalf Of Bruce Tonkin Sent: Tuesday, February 23, 2016 7:09 PM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] Understanding of Amended Paragraph 72 of Annex 2
Hello Phil,
I think in essence that you are correct that in addition to removing the Board via a Board as a whole spill process, that the community still has the option of removing individual Board members through the individual Board member recall process. So yes it is possible to remove all the voting directors, by exercising that process on a one-by-one basis.
In terms of removing the chair or vice-chair of the Board, the community is effectively removing the Board director that currently holds that role. If that happens, the Board will of course elect a replacement chair or vice-chair from the remaining Board directors.
I would expect that if an individual Board director that is currently the chair became subject to an individual Board member recall process, that the chair would stand down pending the outcome of the process and the vice-chair would take over until such time as an new chair is appointed.
So doubt the discussion will end up being a discussion to remove the chair, but a discussion about the performance of the individual Board director. At least I hope that is how the processes will be used.
Regards, Bruce Tonkin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
----- No virus found in this message. Checked by AVG - www.avg.com Version: 2016.0.7303 / Virus Database: 4533/11679 - Release Date: 02/22/16 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
It all depends on the dynamics of future scenarios that we cannot predict today. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: Seun Ojedeji [mailto:seun.ojedeji@gmail.com] Sent: Tuesday, February 23, 2016 8:04 PM To: Phil Corwin Cc: accountability-cross-community@icann.org; Bruce Tonkin Subject: Re: [CCWG-ACCT] Understanding of Amended Paragraph 72 of Annex 2 Technically, the limitation will be applicable to the status of the individual board member to be removed i.e whether appointed by SO/AC or by nomcom as the removal processes and required thresholds differ. The other limitation I foresee is the time it would take to carry out the one-by-one removal process unless ofcourse the community trigger the process concurrently which is unlikely.(it will be quite a record breaking coup :-) ) However, if the goal is to spill significant number of the board by removing the individual members, then it'd be better to go the single route of spilling the entire board to save time. Nevertheless, I guess the main catch is that both options are possible. Regards On 24 Feb 2016 01:25, "Phil Corwin" <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>> wrote: Thanks for weighing in, Bruce. I agree that evaluation of each individual Board member is the way the process should be used. I was just observing that two separate processes exist for the removal of individual Board members and that there is no limitation on the number that may be employed against within a given time period. As previously stated, I hope we never get to that point. Best, Philip Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey -----Original Message----- 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 Bruce Tonkin Sent: Tuesday, February 23, 2016 7:09 PM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] Understanding of Amended Paragraph 72 of Annex 2 Hello Phil, I think in essence that you are correct that in addition to removing the Board via a Board as a whole spill process, that the community still has the option of removing individual Board members through the individual Board member recall process. So yes it is possible to remove all the voting directors, by exercising that process on a one-by-one basis. In terms of removing the chair or vice-chair of the Board, the community is effectively removing the Board director that currently holds that role. If that happens, the Board will of course elect a replacement chair or vice-chair from the remaining Board directors. I would expect that if an individual Board director that is currently the chair became subject to an individual Board member recall process, that the chair would stand down pending the outcome of the process and the vice-chair would take over until such time as an new chair is appointed. So doubt the discussion will end up being a discussion to remove the chair, but a discussion about the performance of the individual Board director. At least I hope that is how the processes will be used. Regards, Bruce Tonkin _______________________________________________ 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 ----- No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2016.0.7303 / Virus Database: 4533/11679 - Release Date: 02/22/16 _______________________________________________ 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 ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2016.0.7303 / Virus Database: 4533/11679 - Release Date: 02/22/16
participants (5)
-
Bruce Tonkin -
Greg Shatan -
Jordan Carter -
Phil Corwin -
Seun Ojedeji