Proposal for a Community Veto Process on Key Board Decisions via Bylaws Amendment
Steve, Jordan, all, As promised on this morning's call, below is a further elaboration of the community empowerment proposal to amend the bylaws to create a community veto process. Thank you in advance for including this proposal along with the other suggestions for community empowerment mechanisms in the group inventory for further consideration. Best, Robin Community Veto Process on Key Board Decisions via Bylaws Amendment Amend the existing corporate bylaws (and /or articles of incorporation) to create a new mechanism that empowers the Community to overturn board decisions on a limited number of specific, enumerated issues and also to recall nonperforming board members. This community veto process would be fashioned such that a decision to over-rule the board is determined via aggregation of decisions of the existing ICANN community structures. Each individual component of the relevant Community (for example, GAC, GNSO, At-Large, CCNSO, etc.) would have a proportional share in the over-all Decision of the Community (to veto or not to veto the board). Each of these individual structures already has internal mechanisms to make decisions through which the larger Decision of the Community could ultimately be determined. We must scope what specific enumerated decisions can trigger such a community veto process (ex: the list developed in Frankfurt) and also a specific mechanism for triggering the veto process (ex: complaint supported by relevant 2 community components). The ombudsman (or neutral 3rd-party) could act as the facilitator of this community veto process in a purely administrative role: accept the matter for review, call the question to community vote, and collect the decisions of the individual components to reach the overall Decision of the Community (to veto or not to veto). The board would then be required to adopt this Decision of the Community unless it voted (unanimous or super-majority) to reject the Decision of the Community that was reached via this process and which would be stipulated to in bylaws and/or articles of incorporation. Coupled with another bylaws revision providing for the ability of the community to recall recalcitrant board members, it would be difficult for the board to disregard the bottom-up Decision of the Community on a few specific matters. Larry Strickling's speech last week hinted that an ability to recall board members would be part of the solution NTIA is looking for in the transition. Under this community veto model, the board would still maintain the requisite ultimate direction and control that is required by California corporations law (§5210), but we could significantly empower the community by creating a veto process with teeth behind it. Amending the bylaws allows us to create the ability to overturn board decisions and thus empower the community without the need to create complicated new membership organizations or super-structures to be representational of the community. Creating a community veto process is a simpler and lighter approach to achieving the same community powers and would use the existing organizational structure. This would be a more bottom-up method of reaching a decision of the community to overturn a particular board decision and it wouldn't require a radical remaking of ICANN's organizational and legal structure, but rather, a couple key bylaws amendments. The creation of this community veto process is not without challenges, but I think most concerns can be addressed as we hammer it out and further develop the community veto model as a possibility to consider for empowering the community with respect to key board decisions.
Hello Robin, Thank you very much for the interesting contribution. I am sure the two WP1 rapporteurs would like to discuss this and other contributions once we have a reasonable inventory, but I would just like to raise some questions beforehand in order to make sure I fully understand your proposal: · In the following extract, do you really propose the Board would have the ability to veto the community's veto or did I get it wrong? "The board would then be required to adopt this Decision of the Community unless it voted (unanimous or super-majority) to reject the Decision of the Community that was reached via this process and which would be stipulated to in bylaws and/or articles of incorporation." · What exactly do you mean by "relevant Community"? I believe this concept would definitely need to be nailed down, as it may include many different actors. All SOs and ACs would be an ideal initial list of sub- communities, but we would also need to consider IANA customers and other important actors part of the greater "Internet multistakeholder community" which obviously do have a stake in what ICANN does. Kind regards, Sec. Pedro Ivo Ferraz da Silva Divisão de Sociedade da Informação (DI) Ministério das Relações Exteriores T: + 55 61 2030-6609 De: wp1-bounces@icann.org [mailto:wp1-bounces@icann.org] Em nome de Robin Gross Enviada em: terça-feira, 3 de fevereiro de 2015 15:50 Para: Steve DelBianco; Jordan Carter; Accountability Cross Community; wp1@icann.org Assunto: [Party1] Proposal for a Community Veto Process on Key Board Decisions via Bylaws Amendment Steve, Jordan, all, As promised on this morning's call, below is a further elaboration of the community empowerment proposal to amend the bylaws to create a community veto process. Thank you in advance for including this proposal along with the other suggestions for community empowerment mechanisms in the group inventory for further consideration. Best, Robin Community Veto Process on Key Board Decisions via Bylaws Amendment Amend the existing corporate bylaws (and /or articles of incorporation) to create a new mechanism that empowers the Community to overturn board decisions on a limited number of specific, enumerated issues and also to recall nonperforming board members. This community veto process would be fashioned such that a decision to over-rule the board is determined via aggregation of decisions of the existing ICANN community structures. Each individual component of the relevant Community (for example, GAC, GNSO, At-Large, CCNSO, etc.) would have a proportional share in the over-all Decision of the Community (to veto or not to veto the board). Each of these individual structures already has internal mechanisms to make decisions through which the larger Decision of the Community could ultimately be determined. We must scope what specific enumerated decisions can trigger such a community veto process (ex: the list developed in Frankfurt) and also a specific mechanism for triggering the veto process (ex: complaint supported by relevant 2 community components). The ombudsman (or neutral 3rd-party) could act as the facilitator of this community veto process in a purely administrative role: accept the matter for review, call the question to community vote, and collect the decisions of the individual components to reach the overall Decision of the Community (to veto or not to veto). The board would then be required to adopt this Decision of the Community unless it voted (unanimous or super-majority) to reject the Decision of the Community that was reached via this process and which would be stipulated to in bylaws and/or articles of incorporation. Coupled with another bylaws revision providing for the ability of the community to recall recalcitrant board members, it would be difficult for the board to disregard the bottom-up Decision of the Community on a few specific matters. Larry Strickling's speech last week hinted that an ability to recall board members would be part of the solution NTIA is looking for in the transition. Under this community veto model, the board would still maintain the requisite ultimate direction and control that is required by California corporations law (§5210), but we could significantly empower the community by creating a veto process with teeth behind it. Amending the bylaws allows us to create the ability to overturn board decisions and thus empower the community without the need to create complicated new membership organizations or super-structures to be representational of the community. Creating a community veto process is a simpler and lighter approach to achieving the same community powers and would use the existing organizational structure. This would be a more bottom-up method of reaching a decision of the community to overturn a particular board decision and it wouldn't require a radical remaking of ICANN's organizational and legal structure, but rather, a couple key bylaws amendments. The creation of this community veto process is not without challenges, but I think most concerns can be addressed as we hammer it out and further develop the community veto model as a possibility to consider for empowering the community with respect to key board decisions.
Appreciation also to Robin, and i have a follow-up to Pedro's useful comments below: On Tue, Feb 3, 2015 at 8:33 PM, Pedro Ivo Ferraz da Silva < pedro.ivo@itamaraty.gov.br> wrote:
· In the following extract, do you really propose the Board would have the ability to veto the community's veto or did I get it wrong? "The board would then be required to adopt this Decision of the Community unless it voted (unanimous or super-majority) to reject the Decision of the Community that was reached via this process and which would be stipulated to in bylaws and/or articles of incorporation."
I guess that is how i also understand it and i think its normal to give the board such option in this process and watch them take it ;-). If they then decide to take the route of rejecting then i guess that would be when the second community tool will kick-in, i.e recall of recalcitrant board members. What i think needs to be clarified is whether just empowering the community (a CCWG perhaps) through the bylaw (without formal creation of any membership structure) will be binding. (I guess it will be useful to get legal advice on that)
· What exactly do you mean by "relevant Community"? I believe this concept would definitely need to be nailed down, as it may include many different actors. All SOs and ACs would be an ideal initial list of sub- communities, but we would also need to consider IANA customers and other important actors part of the greater "Internet multistakeholder community" which obviously do have a stake in what ICANN does.
Hmm...i think going beyond ICANN SOs/ACs could further complicate the task especially as the "Internet multistakeholder community" can mean "infinity" ;-). However i would expect that any SO/AC process will be open enough to accommodated those who are not entirely involved with ICANN community. For instance, I would expect the ccNSO process to provide mechanism that allows non-ccNSO ccTLD to raise their view on a critical issue like this one. Regards!
Kind regards,
Sec. Pedro Ivo Ferraz da Silva
Divisão de Sociedade da Informação (DI)
Ministério das Relações Exteriores
T: + 55 61 2030-6609
*De:* wp1-bounces@icann.org [mailto:wp1-bounces@icann.org] *Em nome de *Robin Gross *Enviada em:* terça-feira, 3 de fevereiro de 2015 15:50 *Para:* Steve DelBianco; Jordan Carter; Accountability Cross Community; wp1@icann.org *Assunto:* [Party1] Proposal for a Community Veto Process on Key Board Decisions via Bylaws Amendment
Steve, Jordan, all,
As promised on this morning's call, below is a further elaboration of the community empowerment proposal to amend the bylaws to create a community veto process. Thank you in advance for including this proposal along with the other suggestions for community empowerment mechanisms in the group inventory for further consideration.
Best,
Robin
*Community Veto Process on Key Board Decisions via Bylaws Amendment*
Amend the existing corporate bylaws (and /or articles of incorporation) to create a new mechanism that empowers the Community to overturn board decisions on a limited number of specific, enumerated issues and also to recall nonperforming board members. This community veto process would be fashioned such that a decision to over-rule the board is determined via aggregation of decisions of the existing ICANN community structures. Each individual component of the relevant Community (for example, GAC, GNSO, At-Large, CCNSO, etc.) would have a proportional share in the over-all Decision of the Community (to veto or not to veto the board). Each of these individual structures already has internal mechanisms to make decisions through which the larger Decision of the Community could ultimately be determined. We must scope what specific enumerated decisions can trigger such a community veto process (ex: the list developed in Frankfurt) and also a specific mechanism for triggering the veto process (ex: complaint supported by relevant 2 community components).
The ombudsman (or neutral 3rd-party) could act as the facilitator of this community veto process in a purely administrative role: accept the matter for review, call the question to community vote, and collect the decisions of the individual components to reach the overall Decision of the Community (to veto or not to veto). The board would then be required to adopt this Decision of the Community unless it voted (unanimous or super-majority) to reject the Decision of the Community that was reached via this process and which would be stipulated to in bylaws and/or articles of incorporation.
Coupled with another bylaws revision providing for the ability of the community to recall recalcitrant board members, it would be difficult for the board to disregard the bottom-up Decision of the Community on a few specific matters. Larry Strickling's speech last week hinted that an ability to recall board members would be part of the solution NTIA is looking for in the transition. Under this community veto model, the board would still maintain the requisite ultimate direction and control that is required by California corporations law (§5210), but we could significantly empower the community by creating a veto process with teeth behind it.
Amending the bylaws allows us to create the ability to overturn board decisions and thus empower the community without the need to create complicated new membership organizations or super-structures to be representational of the community. Creating a community veto process is a simpler and lighter approach to achieving the same community powers and would use the existing organizational structure. This would be a more bottom-up method of reaching a decision of the community to overturn a particular board decision and it wouldn't require a radical remaking of ICANN's organizational and legal structure, but rather, a couple key bylaws amendments. The creation of this community veto process is not without challenges, but I think most concerns can be addressed as we hammer it out and further develop the community veto model as a possibility to consider for empowering the community with respect to key board decisions.
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- ------------------------------------------------------------------------ *Seun Ojedeji,Federal University Oye-Ekitiweb: http://www.fuoye.edu.ng <http://www.fuoye.edu.ng> Mobile: +2348035233535**alt email: <http://goog_1872880453>seun.ojedeji@fuoye.edu.ng <seun.ojedeji@fuoye.edu.ng>* The key to understanding is humility - my view !
Dear All, The thrust of the proposal sound good The détails and language should ber worked out and fine-tuned Kavouss 2015-02-03 20:55 GMT+01:00 Seun Ojedeji <seun.ojedeji@gmail.com>:
Appreciation also to Robin, and i have a follow-up to Pedro's useful comments below:
On Tue, Feb 3, 2015 at 8:33 PM, Pedro Ivo Ferraz da Silva < pedro.ivo@itamaraty.gov.br> wrote:
· In the following extract, do you really propose the Board would have the ability to veto the community's veto or did I get it wrong? "The board would then be required to adopt this Decision of the Community unless it voted (unanimous or super-majority) to reject the Decision of the Community that was reached via this process and which would be stipulated to in bylaws and/or articles of incorporation."
I guess that is how i also understand it and i think its normal to give the board such option in this process and watch them take it ;-). If they then decide to take the route of rejecting then i guess that would be when the second community tool will kick-in, i.e recall of recalcitrant board members. What i think needs to be clarified is whether just empowering the community (a CCWG perhaps) through the bylaw (without formal creation of any membership structure) will be binding. (I guess it will be useful to get legal advice on that)
· What exactly do you mean by "relevant Community"? I believe this concept would definitely need to be nailed down, as it may include many different actors. All SOs and ACs would be an ideal initial list of sub- communities, but we would also need to consider IANA customers and other important actors part of the greater "Internet multistakeholder community" which obviously do have a stake in what ICANN does.
Hmm...i think going beyond ICANN SOs/ACs could further complicate the task especially as the "Internet multistakeholder community" can mean "infinity" ;-). However i would expect that any SO/AC process will be open enough to accommodated those who are not entirely involved with ICANN community. For instance, I would expect the ccNSO process to provide mechanism that allows non-ccNSO ccTLD to raise their view on a critical issue like this one.
Regards!
Kind regards,
Sec. Pedro Ivo Ferraz da Silva
Divisão de Sociedade da Informação (DI)
Ministério das Relações Exteriores
T: + 55 61 2030-6609
*De:* wp1-bounces@icann.org [mailto:wp1-bounces@icann.org] *Em nome de *Robin Gross *Enviada em:* terça-feira, 3 de fevereiro de 2015 15:50 *Para:* Steve DelBianco; Jordan Carter; Accountability Cross Community; wp1@icann.org *Assunto:* [Party1] Proposal for a Community Veto Process on Key Board Decisions via Bylaws Amendment
Steve, Jordan, all,
As promised on this morning's call, below is a further elaboration of the community empowerment proposal to amend the bylaws to create a community veto process. Thank you in advance for including this proposal along with the other suggestions for community empowerment mechanisms in the group inventory for further consideration.
Best,
Robin
*Community Veto Process on Key Board Decisions via Bylaws Amendment*
Amend the existing corporate bylaws (and /or articles of incorporation) to create a new mechanism that empowers the Community to overturn board decisions on a limited number of specific, enumerated issues and also to recall nonperforming board members. This community veto process would be fashioned such that a decision to over-rule the board is determined via aggregation of decisions of the existing ICANN community structures. Each individual component of the relevant Community (for example, GAC, GNSO, At-Large, CCNSO, etc.) would have a proportional share in the over-all Decision of the Community (to veto or not to veto the board). Each of these individual structures already has internal mechanisms to make decisions through which the larger Decision of the Community could ultimately be determined. We must scope what specific enumerated decisions can trigger such a community veto process (ex: the list developed in Frankfurt) and also a specific mechanism for triggering the veto process (ex: complaint supported by relevant 2 community components).
The ombudsman (or neutral 3rd-party) could act as the facilitator of this community veto process in a purely administrative role: accept the matter for review, call the question to community vote, and collect the decisions of the individual components to reach the overall Decision of the Community (to veto or not to veto). The board would then be required to adopt this Decision of the Community unless it voted (unanimous or super-majority) to reject the Decision of the Community that was reached via this process and which would be stipulated to in bylaws and/or articles of incorporation.
Coupled with another bylaws revision providing for the ability of the community to recall recalcitrant board members, it would be difficult for the board to disregard the bottom-up Decision of the Community on a few specific matters. Larry Strickling's speech last week hinted that an ability to recall board members would be part of the solution NTIA is looking for in the transition. Under this community veto model, the board would still maintain the requisite ultimate direction and control that is required by California corporations law (§5210), but we could significantly empower the community by creating a veto process with teeth behind it.
Amending the bylaws allows us to create the ability to overturn board decisions and thus empower the community without the need to create complicated new membership organizations or super-structures to be representational of the community. Creating a community veto process is a simpler and lighter approach to achieving the same community powers and would use the existing organizational structure. This would be a more bottom-up method of reaching a decision of the community to overturn a particular board decision and it wouldn't require a radical remaking of ICANN's organizational and legal structure, but rather, a couple key bylaws amendments. The creation of this community veto process is not without challenges, but I think most concerns can be addressed as we hammer it out and further develop the community veto model as a possibility to consider for empowering the community with respect to key board decisions.
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- ------------------------------------------------------------------------
*Seun Ojedeji,Federal University Oye-Ekitiweb: http://www.fuoye.edu.ng <http://www.fuoye.edu.ng> Mobile: +2348035233535**alt email: <http://goog_1872880453>seun.ojedeji@fuoye.edu.ng <seun.ojedeji@fuoye.edu.ng>*
The key to understanding is humility - my view !
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear Seun, Thank you for the comments. Although I have serious doubts about the reasonability of such a "veto" under these conditions, I don't think it would be fair to consider a Board member "recalcitrant" just because he would exercise his legitimate right of rejecting a community decision. I believe we need to come up with a suggestion that empowers the community on concrete, effective and legal terms. And yes, I support the idea of using the SOs/ACs as channels to convey the opinion of actors in the vast "global multistakeholder community", but as long as there are more effective efforts - there are some already - to reach out to those non-ICANN actors which may be affected by the decisions taken by the Corporation. Regards, Sec. Pedro Ivo Ferraz da Silva Divisão de Sociedade da Informação (DI) Ministério das Relações Exteriores T: + 55 61 2030-6609 -----Mensagem original----- De: Seun Ojedeji [mailto:seun.ojedeji@gmail.com] Enviada em: terça-feira, 3 de fevereiro de 2015 17:55 Para: Pedro Ivo Ferraz da Silva Cc: Robin Gross; accountability-cross-community@icann.org Assunto: Re: [CCWG-ACCT] RES: [Party1] Proposal for a Community Veto Process on Key Board Decisions via Bylaws Amendment Appreciation also to Robin, and i have a follow-up to Pedro's useful comments below: On Tue, Feb 3, 2015 at 8:33 PM, Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br> wrote: · In the following extract, do you really propose the Board would have the ability to veto the community's veto or did I get it wrong? "The board would then be required to adopt this Decision of the Community unless it voted (unanimous or super-majority) to reject the Decision of the Community that was reached via this process and which would be stipulated to in bylaws and/or articles of incorporation." I guess that is how i also understand it and i think its normal to give the board such option in this process and watch them take it ;-). If they then decide to take the route of rejecting then i guess that would be when the second community tool will kick-in, i.e recall of recalcitrant board members. What i think needs to be clarified is whether just empowering the community (a CCWG perhaps) through the bylaw (without formal creation of any membership structure) will be binding. (I guess it will be useful to get legal advice on that) · What exactly do you mean by "relevant Community"? I believe this concept would definitely need to be nailed down, as it may include many different actors. All SOs and ACs would be an ideal initial list of sub- communities, but we would also need to consider IANA customers and other important actors part of the greater "Internet multistakeholder community" which obviously do have a stake in what ICANN does. Hmm...i think going beyond ICANN SOs/ACs could further complicate the task especially as the "Internet multistakeholder community" can mean "infinity" ;-). However i would expect that any SO/AC process will be open enough to accommodated those who are not entirely involved with ICANN community. For instance, I would expect the ccNSO process to provide mechanism that allows non-ccNSO ccTLD to raise their view on a critical issue like this one. Regards! Kind regards, Sec. Pedro Ivo Ferraz da Silva Divisão de Sociedade da Informação (DI) Ministério das Relações Exteriores T: + 55 61 2030-6609 <tel:%2B%2055%2061%202030-6609> De: wp1-bounces@icann.org [mailto:wp1-bounces@icann.org] Em nome de Robin Gross Enviada em: terça-feira, 3 de fevereiro de 2015 15:50 Para: Steve DelBianco; Jordan Carter; Accountability Cross Community; wp1@icann.org Assunto: [Party1] Proposal for a Community Veto Process on Key Board Decisions via Bylaws Amendment Steve, Jordan, all, As promised on this morning's call, below is a further elaboration of the community empowerment proposal to amend the bylaws to create a community veto process. Thank you in advance for including this proposal along with the other suggestions for community empowerment mechanisms in the group inventory for further consideration. Best, Robin Community Veto Process on Key Board Decisions via Bylaws Amendment Amend the existing corporate bylaws (and /or articles of incorporation) to create a new mechanism that empowers the Community to overturn board decisions on a limited number of specific, enumerated issues and also to recall nonperforming board members. This community veto process would be fashioned such that a decision to over-rule the board is determined via aggregation of decisions of the existing ICANN community structures. Each individual component of the relevant Community (for example, GAC, GNSO, At-Large, CCNSO, etc.) would have a proportional share in the over-all Decision of the Community (to veto or not to veto the board). Each of these individual structures already has internal mechanisms to make decisions through which the larger Decision of the Community could ultimately be determined. We must scope what specific enumerated decisions can trigger such a community veto process (ex: the list developed in Frankfurt) and also a specific mechanism for triggering the veto process (ex: complaint supported by relevant 2 community components). The ombudsman (or neutral 3rd-party) could act as the facilitator of this community veto process in a purely administrative role: accept the matter for review, call the question to community vote, and collect the decisions of the individual components to reach the overall Decision of the Community (to veto or not to veto). The board would then be required to adopt this Decision of the Community unless it voted (unanimous or super-majority) to reject the Decision of the Community that was reached via this process and which would be stipulated to in bylaws and/or articles of incorporation. Coupled with another bylaws revision providing for the ability of the community to recall recalcitrant board members, it would be difficult for the board to disregard the bottom-up Decision of the Community on a few specific matters. Larry Strickling's speech last week hinted that an ability to recall board members would be part of the solution NTIA is looking for in the transition. Under this community veto model, the board would still maintain the requisite ultimate direction and control that is required by California corporations law (§5210), but we could significantly empower the community by creating a veto process with teeth behind it. Amending the bylaws allows us to create the ability to overturn board decisions and thus empower the community without the need to create complicated new membership organizations or super-structures to be representational of the community. Creating a community veto process is a simpler and lighter approach to achieving the same community powers and would use the existing organizational structure. This would be a more bottom-up method of reaching a decision of the community to overturn a particular board decision and it wouldn't require a radical remaking of ICANN's organizational and legal structure, but rather, a couple key bylaws amendments. The creation of this community veto process is not without challenges, but I think most concerns can be addressed as we hammer it out and further develop the community veto model as a possibility to consider for empowering the community with respect to key board decisions. _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community -- ------------------------------------------------------------------------ Seun Ojedeji, Federal University Oye-Ekiti web: http://www.fuoye.edu.ng Mobile: +2348035233535 alt email: <http://goog_1872880453> seun.ojedeji@fuoye.edu.ng The key to understanding is humility - my view !
On Feb 4, 2015, at 5:57 AM, Pedro Ivo Ferraz da Silva wrote:
[...]
Although I have serious doubts about the reasonability of such a "veto" under these conditions, I don't think it would be fair to consider a Board member "recalcitrant" just because he would exercise his legitimate right of rejecting a community decision. I believe we need to come up with a suggestion that empowers the community on concrete, effective and legal terms.
Dear Pedro, Perhaps "recalcitrant" was not the best term to describe board members whom the stakeholders have lost confidence in, for whatever reason, and feel the need to remove or replace. Larry Strickling's remarks at SON last week regarding the work of this CCWG: "We also encourage this group to address questions such as how to remove or replace board members should stakeholders lose confidence in them ..." at: http://www.ntia.doc.gov/speechtestimony/2015/remarks-assistant-secretary-str... Best, Robin
On Feb 3, 2015, at 11:55 AM, Seun Ojedeji wrote:
Appreciation also to Robin, and i have a follow-up to Pedro's useful comments below:
On Tue, Feb 3, 2015 at 8:33 PM, Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br> wrote:
· In the following extract, do you really propose the Board would have the ability to veto the community's veto or did I get it wrong? "The board would then be required to adopt this Decision of the Community unless it voted (unanimous or super-majority) to reject the Decision of the Community that was reached via this process and which would be stipulated to in bylaws and/or articles of incorporation."
I guess that is how i also understand it and i think its normal to give the board such option in this process and watch them take it ;-). If they then decide to take the route of rejecting then i guess that would be when the second community tool will kick-in, i.e recall of recalcitrant board members. What i think needs to be clarified is whether just empowering the community (a CCWG perhaps) through the bylaw (without formal creation of any membership structure) will be binding. (I guess it will be useful to get legal advice on that)
Thanks, Seun for the observation. However, there is no legal requirement that the community be comprised of a membership structure for this mechanism to have effect. Looking at the relevant California Corporations Law Code Section 5210 (below) that specifies how California nonprofit public benefit corporations shall be managed, it makes clear management can be delegated to any persons or committee "however composed". So the legal advice on this question from this California attorney is that no membership structure is required to achieve a community veto on key board decisions. Thanks, Robin Nonprofit Public Benefit Corp: 5210. Each corporation shall have a board of directors. Subject to the provisions of this part and any limitations in the articles or bylaws relating to action required to be approved by the members (Section 5034), or by a majority of all members (Section 5033), the activities and affairs of a corporation shall be conducted and all corporate powers shall be exercised by or under the direction of the board. The board may delegate the management of the activities of the corporation to any person or persons, management company, or committee however composed, provided that the activities and affairs of the corporation shall be managed and all corporate powers shall be exercised under the ultimate direction of the board. PS: Sorry to keep citing this Cal. Corp. Sec. 5210, but it is the legal form ICANN is currently organized as, and thus it is the universe in which we live and the rule of law we must comply with if ICANN is to remain a Cal. Nonprofit Public Benefit Corp.
Hi Robin, Thanks a lot for clarifying the membership part and yes it's important to refer to the California law in this context. However from the paragraph you quoted, there is the section below: " ......provided that the activities and affairs of the corporation shall be managed and all corporate powers shall be exercised under the *ultimate direction of the board*..." It may be helpful to understand the implication of that in the sense of asking the question; "who has the ultimate veto?" Cheers! sent from Google nexus 4 kindly excuse brevity and typos. On 4 Feb 2015 21:51, "Robin Gross" <robin@ipjustice.org> wrote:
On Feb 3, 2015, at 11:55 AM, Seun Ojedeji wrote:
Appreciation also to Robin, and i have a follow-up to Pedro's useful comments below:
On Tue, Feb 3, 2015 at 8:33 PM, Pedro Ivo Ferraz da Silva < pedro.ivo@itamaraty.gov.br> wrote:
· In the following extract, do you really propose the Board would have the ability to veto the community's veto or did I get it wrong? "The board would then be required to adopt this Decision of the Community unless it voted (unanimous or super-majority) to reject the Decision of the Community that was reached via this process and which would be stipulated to in bylaws and/or articles of incorporation."
I guess that is how i also understand it and i think its normal to give the board such option in this process and watch them take it ;-). If they then decide to take the route of rejecting then i guess that would be when the second community tool will kick-in, i.e recall of recalcitrant board members. What i think needs to be clarified is whether just empowering the community (a CCWG perhaps) through the bylaw (without formal creation of any membership structure) will be binding. (I guess it will be useful to get legal advice on that)
Thanks, Seun for the observation. However, there is no legal requirement that the community be comprised of a membership structure for this mechanism to have effect. Looking at the relevant California Corporations Law Code Section 5210 (below) that specifies how California nonprofit public benefit corporations shall be managed, it makes clear management can be delegated to any persons or committee "however composed". So the legal advice on this question from this California attorney is that no membership structure is required to achieve a community veto on key board decisions.
Thanks, Robin
*Nonprofit Public Benefit Corp:*
5210. Each corporation shall have a board of directors. Subject to the provisions of this part and any limitations in the articles or bylaws relating to action required to be approved by the members (Section 5034), or by a majority of all members (Section 5033), the activities and affairs of a corporation shall be conducted and all corporate powers shall be exercised by or under the direction of the board. The board may delegate the management of the activities of the corporation to any person or persons, management company, or committee *however composed*, provided that the activities and affairs of the corporation shall be managed and all corporate powers shall be exercised under the ultimate direction of the board.
PS: Sorry to keep citing this Cal. Corp. Sec. 5210, but it is the legal form ICANN is currently organized as, and thus it is the universe in which we live and the rule of law we must comply with if ICANN is to remain a Cal. Nonprofit Public Benefit Corp.
Hello Pedro, Thanks for your questions about this proposal, which I'll try to answer in-line below. On Feb 3, 2015, at 11:33 AM, Pedro Ivo Ferraz da Silva wrote:
Hello Robin,
Thank you very much for the interesting contribution. I am sure the two WP1 rapporteurs would like to discuss this and other contributions once we have a reasonable inventory, but I would just like to raise some questions beforehand in order to make sure I fully understand your proposal:
· In the following extract, do you really propose the Board would have the ability to veto the community's veto or did I get it wrong? "The board would then be required to adopt this Decision of the Community unless it voted (unanimous or super-majority) to reject the Decision of the Community that was reached via this process and which would be stipulated to in bylaws and/or articles of incorporation."
Yes, the board would have an opportunity to reject or otherwise not act on the community veto. The particular threshold required to over-rule the community veto would be worked out by this group, but I'd think we'd want it to be a very high threshold, like a unanimous board decision or a super-majority of board members would need to vote against the community decision. This requirement of the board having the final say and an opportunity to reject the community's decision is what is required by California Corporations law that mandates the board of directors have the "ultimate direction" of the corporation. California Corporations Code -- Nonprofit Public Benefit Corp: 5210. Each corporation shall have a board of directors. Subject to the provisions of this part and any limitations in the articles or bylaws relating to action required to be approved by the members (Section 5034), or by a majority of all members (Section 5033), the activities and affairs of a corporation shall be conducted and all corporate powers shall be exercised by or under the direction of the board. The board may delegate the management of the activities of the corporation to any person or persons, management company, or committee however composed, provided that the activities and affairs of the corporation shall be managed and all corporate powers shall be exercised under the ultimate direction of the board.
· What exactly do you mean by "relevant Community"? I believe this concept would definitely need to be nailed down, as it may include many different actors. All SOs and ACs would be an ideal initial list of sub- communities, but we would also need to consider IANA customers and other important actors part of the greater "Internet multistakeholder community" which obviously do have a stake in what ICANN does.
This is a critical definition indeed. As a starting point for discussion, let's say the "relevant community" would be those who are impacted by a particular board decision and it would vary although be broad in reach. It sounds like there may be some circumstances when it would not be appropriate for the G community to have a "vote" on activities of the CC community and vice versa, so we could tailor the plan to accommodate that separation and other concerns as we work through the details. Hopefully that helps. Please let me know if there are other questions or thoughts about this possible mechanism of a "community veto". Thank you, Robin
Kind regards,
Sec. Pedro Ivo Ferraz da Silva Divisão de Sociedade da Informação (DI) Ministério das Relações Exteriores T: + 55 61 2030-6609
De: wp1-bounces@icann.org [mailto:wp1-bounces@icann.org] Em nome de Robin Gross Enviada em: terça-feira, 3 de fevereiro de 2015 15:50 Para: Steve DelBianco; Jordan Carter; Accountability Cross Community; wp1@icann.org Assunto: [Party1] Proposal for a Community Veto Process on Key Board Decisions via Bylaws Amendment
Steve, Jordan, all,
As promised on this morning's call, below is a further elaboration of the community empowerment proposal to amend the bylaws to create a community veto process. Thank you in advance for including this proposal along with the other suggestions for community empowerment mechanisms in the group inventory for further consideration.
Best, Robin
Community Veto Process on Key Board Decisions via Bylaws Amendment
Amend the existing corporate bylaws (and /or articles of incorporation) to create a new mechanism that empowers the Community to overturn board decisions on a limited number of specific, enumerated issues and also to recall nonperforming board members. This community veto process would be fashioned such that a decision to over-rule the board is determined via aggregation of decisions of the existing ICANN community structures. Each individual component of the relevant Community (for example, GAC, GNSO, At-Large, CCNSO, etc.) would have a proportional share in the over-all Decision of the Community (to veto or not to veto the board). Each of these individual structures already has internal mechanisms to make decisions through which the larger Decision of the Community could ultimately be determined. We must scope what specific enumerated decisions can trigger such a community veto process (ex: the list developed in Frankfurt) and also a specific mechanism for triggering the veto process (ex: complaint supported by relevant 2 community components).
The ombudsman (or neutral 3rd-party) could act as the facilitator of this community veto process in a purely administrative role: accept the matter for review, call the question to community vote, and collect the decisions of the individual components to reach the overall Decision of the Community (to veto or not to veto). The board would then be required to adopt this Decision of the Community unless it voted (unanimous or super-majority) to reject the Decision of the Community that was reached via this process and which would be stipulated to in bylaws and/or articles of incorporation.
Coupled with another bylaws revision providing for the ability of the community to recall recalcitrant board members, it would be difficult for the board to disregard the bottom-up Decision of the Community on a few specific matters. Larry Strickling's speech last week hinted that an ability to recall board members would be part of the solution NTIA is looking for in the transition. Under this community veto model, the board would still maintain the requisite ultimate direction and control that is required by California corporations law (§5210), but we could significantly empower the community by creating a veto process with teeth behind it.
Amending the bylaws allows us to create the ability to overturn board decisions and thus empower the community without the need to create complicated new membership organizations or super-structures to be representational of the community. Creating a community veto process is a simpler and lighter approach to achieving the same community powers and would use the existing organizational structure. This would be a more bottom-up method of reaching a decision of the community to overturn a particular board decision and it wouldn't require a radical remaking of ICANN's organizational and legal structure, but rather, a couple key bylaws amendments. The creation of this community veto process is not without challenges, but I think most concerns can be addressed as we hammer it out and further develop the community veto model as a possibility to consider for empowering the community with respect to key board decisions.
Robin, I hope you can clarify few matters. * You state „to create the ability to overturn board decisions”, but if I understand you well, that is only if the board is not unanimous or has a supermajority in favor or against something. I get the impression that if the board is unanimous or in super majority, it rules. This is recently not the case (although it is formally), as the NTIA has the IANA stick to waggle… * Is the "the ability of the community to recall recalcitrant board members” also subject to the condition of the board not being unanimously or in super majority against such a recall? If it is, I think it will be useless. Cheers, Roelof Meijer SIDN | Meander 501 | 6825 MD | P.O. Box 5022 | 6802 EA | ARNHEM | THE NETHERLANDS T +31 (0)26 352 55 00 | M +31 (0)6 11 395 775 | F +31 (0)26 352 55 05 roelof.meijer@sidn.nl<mailto:roelof.meijer@sidn.nl> | www.sidn.nl<http://www.sidn.nl/> From: Robin Gross <robin@ipjustice.org<mailto:robin@ipjustice.org>> Date: dinsdag 3 februari 2015 18:49 To: Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>, Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>>, Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>>, "wp1@icann.org<mailto:wp1@icann.org>" <wp1@icann.org<mailto:wp1@icann.org>> Subject: [CCWG-ACCT] Proposal for a Community Veto Process on Key Board Decisions via Bylaws Amendment Steve, Jordan, all, As promised on this morning's call, below is a further elaboration of the community empowerment proposal to amend the bylaws to create a community veto process. Thank you in advance for including this proposal along with the other suggestions for community empowerment mechanisms in the group inventory for further consideration. Best, Robin Community Veto Process on Key Board Decisions via Bylaws Amendment Amend the existing corporate bylaws (and /or articles of incorporation) to create a new mechanism that empowers the Community to overturn board decisions on a limited number of specific, enumerated issues and also to recall nonperforming board members. This community veto process would be fashioned such that a decision to over-rule the board is determined via aggregation of decisions of the existing ICANN community structures. Each individual component of the relevant Community (for example, GAC, GNSO, At-Large, CCNSO, etc.) would have a proportional share in the over-all Decision of the Community (to veto or not to veto the board). Each of these individual structures already has internal mechanisms to make decisions through which the larger Decision of the Community could ultimately be determined. We must scope what specific enumerated decisions can trigger such a community veto process (ex: the list developed in Frankfurt) and also a specific mechanism for triggering the veto process (ex: complaint supported by relevant 2 community components). The ombudsman (or neutral 3rd-party) could act as the facilitator of this community veto process in a purely administrative role: accept the matter for review, call the question to community vote, and collect the decisions of the individual components to reach the overall Decision of the Community (to veto or not to veto). The board would then be required to adopt this Decision of the Community unless it voted (unanimous or super-majority) to reject the Decision of the Community that was reached via this process and which would be stipulated to in bylaws and/or articles of incorporation. Coupled with another bylaws revision providing for the ability of the community to recall recalcitrant board members, it would be difficult for the board to disregard the bottom-up Decision of the Community on a few specific matters. Larry Strickling's speech last week hinted that an ability to recall board members would be part of the solution NTIA is looking for in the transition. Under this community veto model, the board would still maintain the requisite ultimate direction and control that is required by California corporations law (§5210), but we could significantly empower the community by creating a veto process with teeth behind it. Amending the bylaws allows us to create the ability to overturn board decisions and thus empower the community without the need to create complicated new membership organizations or super-structures to be representational of the community. Creating a community veto process is a simpler and lighter approach to achieving the same community powers and would use the existing organizational structure. This would be a more bottom-up method of reaching a decision of the community to overturn a particular board decision and it wouldn't require a radical remaking of ICANN's organizational and legal structure, but rather, a couple key bylaws amendments. The creation of this community veto process is not without challenges, but I think most concerns can be addressed as we hammer it out and further develop the community veto model as a possibility to consider for empowering the community with respect to key board decisions.
Hello Roelof, I'm happy to answer these questions below. On Feb 4, 2015, at 10:07 AM, Roelof Meijer wrote:
Robin,
I hope you can clarify few matters.
You state „to create the ability to overturn board decisions”, but if I understand you well, that is only if the board is not unanimous or has a supermajority in favor or against something. I get the impression that if the board is unanimous or in super majority, it rules. This is recently not the case (although it is formally), as the NTIA has the IANA stick to waggle…
That is correct, the board would get a "last chance" to over-rule the community, but it would do so at peril of being removed by the community. And the board vote should be a high threshold to over-rule the community and the specific threshold would be specified in the corporate bylaws and / articles of incorporation. So the board could over-rule the community veto if it unanimously (or by supermajority) voted to reject the decision of the community to veto a board decision. So it would be difficult for the board to reject the community's veto, but not impossible. As a nonprofit public benefit corporation, the board must retain ultimate control under the law, but it can agree to "bind its hands" in this manner and cede to the wishes of the community via amendment to its corporate bylaws.
Is the "the ability of the community to recall recalcitrant board members” also subject to the condition of the board not being unanimously or in super majority against such a recall? If it is, I think it will be useless.
No, I see this provision of a recall mechanism as being an entirely separate tool - although if used in conjunction with a community veto, they would provide a powerful "stick" to the community to encourage the board to be more accountable to the stakeholders. Best, Robin
Cheers,
Roelof Meijer
SIDN | Meander 501 | 6825 MD | P.O. Box 5022 | 6802 EA | ARNHEM | THE NETHERLANDS T +31 (0)26 352 55 00 | M +31 (0)6 11 395 775 | F +31 (0)26 352 55 05 roelof.meijer@sidn.nl | www.sidn.nl
From: Robin Gross <robin@ipjustice.org> Date: dinsdag 3 februari 2015 18:49 To: Steve DelBianco <sdelbianco@netchoice.org>, Jordan Carter <jordan@internetnz.net.nz>, Accountability Cross Community <accountability-cross-community@icann.org>, "wp1@icann.org" <wp1@icann.org> Subject: [CCWG-ACCT] Proposal for a Community Veto Process on Key Board Decisions via Bylaws Amendment
Steve, Jordan, all,
As promised on this morning's call, below is a further elaboration of the community empowerment proposal to amend the bylaws to create a community veto process. Thank you in advance for including this proposal along with the other suggestions for community empowerment mechanisms in the group inventory for further consideration.
Best, Robin
Community Veto Process on Key Board Decisions via Bylaws Amendment
Amend the existing corporate bylaws (and /or articles of incorporation) to create a new mechanism that empowers the Community to overturn board decisions on a limited number of specific, enumerated issues and also to recall nonperforming board members. This community veto process would be fashioned such that a decision to over-rule the board is determined via aggregation of decisions of the existing ICANN community structures. Each individual component of the relevant Community (for example, GAC, GNSO, At-Large, CCNSO, etc.) would have a proportional share in the over-all Decision of the Community (to veto or not to veto the board). Each of these individual structures already has internal mechanisms to make decisions through which the larger Decision of the Community could ultimately be determined. We must scope what specific enumerated decisions can trigger such a community veto process (ex: the list developed in Frankfurt) and also a specific mechanism for triggering the veto process (ex: complaint supported by relevant 2 community components).
The ombudsman (or neutral 3rd-party) could act as the facilitator of this community veto process in a purely administrative role: accept the matter for review, call the question to community vote, and collect the decisions of the individual components to reach the overall Decision of the Community (to veto or not to veto). The board would then be required to adopt this Decision of the Community unless it voted (unanimous or super-majority) to reject the Decision of the Community that was reached via this process and which would be stipulated to in bylaws and/or articles of incorporation.
Coupled with another bylaws revision providing for the ability of the community to recall recalcitrant board members, it would be difficult for the board to disregard the bottom-up Decision of the Community on a few specific matters. Larry Strickling's speech last week hinted that an ability to recall board members would be part of the solution NTIA is looking for in the transition. Under this community veto model, the board would still maintain the requisite ultimate direction and control that is required by California corporations law (§5210), but we could significantly empower the community by creating a veto process with teeth behind it.
Amending the bylaws allows us to create the ability to overturn board decisions and thus empower the community without the need to create complicated new membership organizations or super-structures to be representational of the community. Creating a community veto process is a simpler and lighter approach to achieving the same community powers and would use the existing organizational structure. This would be a more bottom-up method of reaching a decision of the community to overturn a particular board decision and it wouldn't require a radical remaking of ICANN's organizational and legal structure, but rather, a couple key bylaws amendments. The creation of this community veto process is not without challenges, but I think most concerns can be addressed as we hammer it out and further develop the community veto model as a possibility to consider for empowering the community with respect to key board decisions.
For some historical perspective, and recognizing that there were substantial community concerns with the design, here’s information on the community reexamination vote proposal that arose out of the 2009 President’s Strategy Committee work on Improving Institutional Confidence. The Announcement, including the proposed Bylaws revision, is at:https://www.icann.org/news/announcement-2009-07-27-en The comments, as well as the summary of public comment, are at: http://forum.icann.org/lists/iic-proposed-bylaws/ Best, Sam From: Robin Gross <robin@ipjustice.org<mailto:robin@ipjustice.org>> Date: Thursday, February 5, 2015 at 7:33 AM To: Roelof Meijer <roelof.meijer@sidn.nl<mailto:roelof.meijer@sidn.nl>> Cc: "wp1@icann.org<mailto:wp1@icann.org>" <wp1@icann.org<mailto:wp1@icann.org>>, Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Proposal for a Community Veto Process on Key Board Decisions via Bylaws Amendment Hello Roelof, I'm happy to answer these questions below. On Feb 4, 2015, at 10:07 AM, Roelof Meijer wrote: Robin, I hope you can clarify few matters. * You state „to create the ability to overturn board decisions”, but if I understand you well, that is only if the board is not unanimous or has a supermajority in favor or against something. I get the impression that if the board is unanimous or in super majority, it rules. This is recently not the case (although it is formally), as the NTIA has the IANA stick to waggle… That is correct, the board would get a "last chance" to over-rule the community, but it would do so at peril of being removed by the community. And the board vote should be a high threshold to over-rule the community and the specific threshold would be specified in the corporate bylaws and / articles of incorporation. So the board could over-rule the community veto if it unanimously (or by supermajority) voted to reject the decision of the community to veto a board decision. So it would be difficult for the board to reject the community's veto, but not impossible. As a nonprofit public benefit corporation, the board must retain ultimate control under the law, but it can agree to "bind its hands" in this manner and cede to the wishes of the community via amendment to its corporate bylaws. * Is the "the ability of the community to recall recalcitrant board members” also subject to the condition of the board not being unanimously or in super majority against such a recall? If it is, I think it will be useless. No, I see this provision of a recall mechanism as being an entirely separate tool - although if used in conjunction with a community veto, they would provide a powerful "stick" to the community to encourage the board to be more accountable to the stakeholders. Best, Robin Cheers, Roelof Meijer SIDN | Meander 501 | 6825 MD | P.O. Box 5022 | 6802 EA | ARNHEM | THE NETHERLANDS T +31 (0)26 352 55 00 | M +31 (0)6 11 395 775 | F +31 (0)26 352 55 05 roelof.meijer@sidn.nl<mailto:roelof.meijer@sidn.nl> | www.sidn.nl<http://www.sidn.nl/> From: Robin Gross <robin@ipjustice.org<mailto:robin@ipjustice.org>> Date: dinsdag 3 februari 2015 18:49 To: Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>, Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>>, Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>>, "wp1@icann.org<mailto:wp1@icann.org>" <wp1@icann.org<mailto:wp1@icann.org>> Subject: [CCWG-ACCT] Proposal for a Community Veto Process on Key Board Decisions via Bylaws Amendment Steve, Jordan, all, As promised on this morning's call, below is a further elaboration of the community empowerment proposal to amend the bylaws to create a community veto process. Thank you in advance for including this proposal along with the other suggestions for community empowerment mechanisms in the group inventory for further consideration. Best, Robin Community Veto Process on Key Board Decisions via Bylaws Amendment Amend the existing corporate bylaws (and /or articles of incorporation) to create a new mechanism that empowers the Community to overturn board decisions on a limited number of specific, enumerated issues and also to recall nonperforming board members. This community veto process would be fashioned such that a decision to over-rule the board is determined via aggregation of decisions of the existing ICANN community structures. Each individual component of the relevant Community (for example, GAC, GNSO, At-Large, CCNSO, etc.) would have a proportional share in the over-all Decision of the Community (to veto or not to veto the board). Each of these individual structures already has internal mechanisms to make decisions through which the larger Decision of the Community could ultimately be determined. We must scope what specific enumerated decisions can trigger such a community veto process (ex: the list developed in Frankfurt) and also a specific mechanism for triggering the veto process (ex: complaint supported by relevant 2 community components). The ombudsman (or neutral 3rd-party) could act as the facilitator of this community veto process in a purely administrative role: accept the matter for review, call the question to community vote, and collect the decisions of the individual components to reach the overall Decision of the Community (to veto or not to veto). The board would then be required to adopt this Decision of the Community unless it voted (unanimous or super-majority) to reject the Decision of the Community that was reached via this process and which would be stipulated to in bylaws and/or articles of incorporation. Coupled with another bylaws revision providing for the ability of the community to recall recalcitrant board members, it would be difficult for the board to disregard the bottom-up Decision of the Community on a few specific matters. Larry Strickling's speech last week hinted that an ability to recall board members would be part of the solution NTIA is looking for in the transition. Under this community veto model, the board would still maintain the requisite ultimate direction and control that is required by California corporations law (§5210), but we could significantly empower the community by creating a veto process with teeth behind it. Amending the bylaws allows us to create the ability to overturn board decisions and thus empower the community without the need to create complicated new membership organizations or super-structures to be representational of the community. Creating a community veto process is a simpler and lighter approach to achieving the same community powers and would use the existing organizational structure. This would be a more bottom-up method of reaching a decision of the community to overturn a particular board decision and it wouldn't require a radical remaking of ICANN's organizational and legal structure, but rather, a couple key bylaws amendments. The creation of this community veto process is not without challenges, but I think most concerns can be addressed as we hammer it out and further develop the community veto model as a possibility to consider for empowering the community with respect to key board decisions.
Thanks for clarifying that, Robin. With regard to recalling board members, you write "I see this provision of a recall mechanism as being an entirely separate tool”. Are you sure this will be possible under Californian law, given the fact that you submit that „the board [should] still maintain the requisite ultimate direction and control that is required by California corporations law”. It would seem that giving some structure the ability to recall the board, takes the ultimate direction and control away from the board. Or would that have to be arranged through the bylaws and would then be covered by 5210: „..Subject to the provisions of this part and any limitations in the articles or bylaws relating to action required to be approved by the members(Section 5034), or by a majority of all members Best, Roelof From: Robin Gross <robin@ipjustice.org<mailto:robin@ipjustice.org>> Date: donderdag 5 februari 2015 00:33 To: Roelof Meijer <roelof.meijer@sidn.nl<mailto:roelof.meijer@sidn.nl>> Cc: Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>, Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>>, Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>>, "wp1@icann.org<mailto:wp1@icann.org>" <wp1@icann.org<mailto:wp1@icann.org>> Subject: Re: [CCWG-ACCT] Proposal for a Community Veto Process on Key Board Decisions via Bylaws Amendment Hello Roelof, I'm happy to answer these questions below. On Feb 4, 2015, at 10:07 AM, Roelof Meijer wrote: Robin, I hope you can clarify few matters. * You state „to create the ability to overturn board decisions”, but if I understand you well, that is only if the board is not unanimous or has a supermajority in favor or against something. I get the impression that if the board is unanimous or in super majority, it rules. This is recently not the case (although it is formally), as the NTIA has the IANA stick to waggle… That is correct, the board would get a "last chance" to over-rule the community, but it would do so at peril of being removed by the community. And the board vote should be a high threshold to over-rule the community and the specific threshold would be specified in the corporate bylaws and / articles of incorporation. So the board could over-rule the community veto if it unanimously (or by supermajority) voted to reject the decision of the community to veto a board decision. So it would be difficult for the board to reject the community's veto, but not impossible. As a nonprofit public benefit corporation, the board must retain ultimate control under the law, but it can agree to "bind its hands" in this manner and cede to the wishes of the community via amendment to its corporate bylaws. * Is the "the ability of the community to recall recalcitrant board members” also subject to the condition of the board not being unanimously or in super majority against such a recall? If it is, I think it will be useless. No, I see this provision of a recall mechanism as being an entirely separate tool - although if used in conjunction with a community veto, they would provide a powerful "stick" to the community to encourage the board to be more accountable to the stakeholders. Best, Robin Cheers, Roelof Meijer SIDN | Meander 501 | 6825 MD | P.O. Box 5022 | 6802 EA | ARNHEM | THE NETHERLANDS T +31 (0)26 352 55 00 | M +31 (0)6 11 395 775 | F +31 (0)26 352 55 05 roelof.meijer@sidn.nl<mailto:roelof.meijer@sidn.nl> | www.sidn.nl<http://www.sidn.nl/> From: Robin Gross <robin@ipjustice.org<mailto:robin@ipjustice.org>> Date: dinsdag 3 februari 2015 18:49 To: Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>>, Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>>, Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>>, "wp1@icann.org<mailto:wp1@icann.org>" <wp1@icann.org<mailto:wp1@icann.org>> Subject: [CCWG-ACCT] Proposal for a Community Veto Process on Key Board Decisions via Bylaws Amendment Steve, Jordan, all, As promised on this morning's call, below is a further elaboration of the community empowerment proposal to amend the bylaws to create a community veto process. Thank you in advance for including this proposal along with the other suggestions for community empowerment mechanisms in the group inventory for further consideration. Best, Robin Community Veto Process on Key Board Decisions via Bylaws Amendment Amend the existing corporate bylaws (and /or articles of incorporation) to create a new mechanism that empowers the Community to overturn board decisions on a limited number of specific, enumerated issues and also to recall nonperforming board members. This community veto process would be fashioned such that a decision to over-rule the board is determined via aggregation of decisions of the existing ICANN community structures. Each individual component of the relevant Community (for example, GAC, GNSO, At-Large, CCNSO, etc.) would have a proportional share in the over-all Decision of the Community (to veto or not to veto the board). Each of these individual structures already has internal mechanisms to make decisions through which the larger Decision of the Community could ultimately be determined. We must scope what specific enumerated decisions can trigger such a community veto process (ex: the list developed in Frankfurt) and also a specific mechanism for triggering the veto process (ex: complaint supported by relevant 2 community components). The ombudsman (or neutral 3rd-party) could act as the facilitator of this community veto process in a purely administrative role: accept the matter for review, call the question to community vote, and collect the decisions of the individual components to reach the overall Decision of the Community (to veto or not to veto). The board would then be required to adopt this Decision of the Community unless it voted (unanimous or super-majority) to reject the Decision of the Community that was reached via this process and which would be stipulated to in bylaws and/or articles of incorporation. Coupled with another bylaws revision providing for the ability of the community to recall recalcitrant board members, it would be difficult for the board to disregard the bottom-up Decision of the Community on a few specific matters. Larry Strickling's speech last week hinted that an ability to recall board members would be part of the solution NTIA is looking for in the transition. Under this community veto model, the board would still maintain the requisite ultimate direction and control that is required by California corporations law (§5210), but we could significantly empower the community by creating a veto process with teeth behind it. Amending the bylaws allows us to create the ability to overturn board decisions and thus empower the community without the need to create complicated new membership organizations or super-structures to be representational of the community. Creating a community veto process is a simpler and lighter approach to achieving the same community powers and would use the existing organizational structure. This would be a more bottom-up method of reaching a decision of the community to overturn a particular board decision and it wouldn't require a radical remaking of ICANN's organizational and legal structure, but rather, a couple key bylaws amendments. The creation of this community veto process is not without challenges, but I think most concerns can be addressed as we hammer it out and further develop the community veto model as a possibility to consider for empowering the community with respect to key board decisions.
So Robin, This is what you meant with your question just now? Cheers, Roelof From: Roelof Meijer <roelof.meijer@sidn.nl<mailto:roelof.meijer@sidn.nl>> Date: donderdag 5 februari 2015 11:36 To: Robin Gross <robin@ipjustice.org<mailto:robin@ipjustice.org>> Cc: "wp1@icann.org<mailto:wp1@icann.org>" <wp1@icann.org<mailto:wp1@icann.org>>, Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Proposal for a Community Veto Process on Key Board Decisions via Bylaws Amendment Thanks for clarifying that, Robin. With regard to recalling board members, you write "I see this provision of a recall mechanism as being an entirely separate tool”. Are you sure this will be possible under Californian law, given the fact that you submit that „the board [should] still maintain the requisite ultimate direction and control that is required by California corporations law”. It would seem that giving some structure the ability to recall the board, takes the ultimate direction and control away from the board. Or would that have to be arranged through the bylaws and would then be covered by 5210: „..Subject to the provisions of this part and any limitations in the articles or bylaws relating to action required to be approved by the members(Section 5034), or by a majority of all members Best, Roelof
Precisely. And the Jones Day lawyer did say the community to over turn board decisions. Too bad that wasn't included in the memo about whether or not the community could overturn the board. His admission that the community can overturn a board decision is contrary to what the memo says. Best, Robin On Feb 9, 2015, at 3:18 AM, Roelof Meijer wrote:
So Robin,
This is what you meant with your question just now?
Cheers,
Roelof
From: Roelof Meijer <roelof.meijer@sidn.nl> Date: donderdag 5 februari 2015 11:36 To: Robin Gross <robin@ipjustice.org> Cc: "wp1@icann.org" <wp1@icann.org>, Accountability Cross Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Proposal for a Community Veto Process on Key Board Decisions via Bylaws Amendment
Thanks for clarifying that, Robin. With regard to recalling board members, you write "I see this provision of a recall mechanism as being an entirely separate tool”. Are you sure this will be possible under Californian law, given the fact that you submit that „the board [should] still maintain the requisite ultimate direction and control that is required by California corporations law”. It would seem that giving some structure the ability to recall the board, takes the ultimate direction and control away from the board. Or would that have to be arranged through the bylaws and would then be covered by 5210:
„..Subject to the provisions of this part and any limitations in the articles or bylaws relating to action required to be approved by the members(Section 5034), or by a majority of all members
Best,
Roelof
On 04-Feb-15 19:07, Roelof Meijer wrote:
# Is the "the ability of the community to recall recalcitrant board members” also subject to the condition of the board not being unanimously or in super majority against such a recall? If it is, I think it will be useless.
I would assume that removing a single board members would require some process by those who (s)elected the Board member and could be for any reason those (s)electors decided warranted such removal. It could, for example, be because the Board member never consulted with those who (s)elected them. It could be becasue they weren't doing their job. It could be because they were vile, vicious and vindictive. I think the commuity that (s)elects a Board member should be able to remove them as they decide it is needed. If their idea of what is good for ICANN is radically diffferent from the (s)electors then they should be removed. We would need to develop processes within each f the ACSO that (s)elect, and would need to develop a nomcom removal process. As for removal of the chair or of the entire Board, that is a different issue, and I am not sure that I support the removal of the entire board, though removal of the chair by a community wide consensus might make sense. avri
On Thu, Feb 5, 2015 at 9:33 AM, Avri Doria <avri@acm.org> wrote:
On 04-Feb-15 19:07, Roelof Meijer wrote:
Is the "the ability of the community to recall recalcitrant board members” also subject to the condition of the board not being unanimously or in super majority against such a recall? If it is, I think it will be useless.
I would assume that removing a single board members would require some process by those who (s)elected the Board member and could be for any reason those (s)electors decided warranted such removal.
It could, for example, be because the Board member never consulted with those who (s)elected them. It could be becasue they weren't doing their job. It could be because they were vile, vicious and vindictive. I think the commuity that (s)elects a Board member should be able to remove them as they decide it is needed. If their idea of what is good for ICANN is radically diffferent from the (s)electors then they should be removed. We would need to develop processes within each f the ACSO that (s)elect, and would need to develop a nomcom removal process.
I fear this could begin to turn board members into being representative of various SO/AC in terms of their action, which could have negative effect or better still be abused. Currently i believe board are formerly expected to act in the interest of the organisation, just that their actions may not be evident enough to include the community so I think having board members serve in the interest of the organisation (including the community) may be helpful. As you have mentioned, the respective process at board level(bylaw) and SO/AC level (charter?) that ensures there is a broader community need from collective SO/AC to remove board members needs to be determined. In summary, i think board member removal process needs to be difficult by requiring certain level of consensus across SO/AC on a particular issue that lacks other option of resolution.
As for removal of the chair or of the entire Board, that is a different issue, and I am not sure that I support the removal of the entire board, though removal of the chair by a community wide consensus might make sense.
+1 on the entire board removal reasoning; i think removal of certain number of board members that would affect the super majority could be helpful. Not sure how/why the community would want to remove the chair of the board as i think that should remain within the jurisdiction of the board members. Regards
avri
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-- ------------------------------------------------------------------------ *Seun Ojedeji,Federal University Oye-Ekitiweb: http://www.fuoye.edu.ng <http://www.fuoye.edu.ng> Mobile: +2348035233535**alt email: <http://goog_1872880453>seun.ojedeji@fuoye.edu.ng <seun.ojedeji@fuoye.edu.ng>* The key to understanding is humility - my view !
On 05-Feb-15 10:51, Seun Ojedeji wrote:
Currently i believe board are formerly expected to act in the interest of the organisation,
Yes they are. And they are selected because those who select think they will do so and will do so consistent with the views of the (s)electors. there are those who do little to nothing. there are those who never consult. there are those who forget that the community knows what is best for the community. there are those who use their power to abuse. There needs to be a way to remove them - otherwise there is little reality to the accountability. By all means make it difficult. Require unanimity in the various councils. Require 3 readings of the motion to remove. Require non-secret voting. &c.
In summary, i think board member removal process needs to be difficult by requiring certain level of consensus across SO/AC on a particular issue that lacks other option of resolution.
Yes. But it must be possible. avri
Avri, Seun, Entering into one of the issues that at least Ì have with the existing situation (without the intention of accusing anybody): Avri writes: "If their idea of what is good for ICANN is radically different from the (s)electors then they should be removed”. I think you are suggesting that the selectors selected the board member purely for the good of ICANN (the corporation). I submit that it sometimes happens that what is good for a particular constituency plays a role in the selection of a board member and that it is thus possible that there is not always full alignment between the interests of a particular constituency and those of the corporation. So it is not a given that a board member who does no longer agree with his/her selectors, has the worser idea of what is good for ICANN, and should be removed by the selectors… Cheers, Roelof From: Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> Date: donderdag 5 februari 2015 10:51 To: Avri Doria <avri@acm.org<mailto:avri@acm.org>> Cc: "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Proposal for a Community Veto Process on Key Board Decisions via Bylaws Amendment On Thu, Feb 5, 2015 at 9:33 AM, Avri Doria <avri@acm.org<mailto:avri@acm.org>> wrote: On 04-Feb-15 19:07, Roelof Meijer wrote: * Is the "the ability of the community to recall recalcitrant board members” also subject to the condition of the board not being unanimously or in super majority against such a recall? If it is, I think it will be useless. I would assume that removing a single board members would require some process by those who (s)elected the Board member and could be for any reason those (s)electors decided warranted such removal. It could, for example, be because the Board member never consulted with those who (s)elected them. It could be becasue they weren't doing their job. It could be because they were vile, vicious and vindictive. I think the commuity that (s)elects a Board member should be able to remove them as they decide it is needed. If their idea of what is good for ICANN is radically diffferent from the (s)electors then they should be removed. We would need to develop processes within each f the ACSO that (s)elect, and would need to develop a nomcom removal process. I fear this could begin to turn board members into being representative of various SO/AC in terms of their action, which could have negative effect or better still be abused. Currently i believe board are formerly expected to act in the interest of the organisation, just that their actions may not be evident enough to include the community so I think having board members serve in the interest of the organisation (including the community) may be helpful. As you have mentioned, the respective process at board level(bylaw) and SO/AC level (charter?) that ensures there is a broader community need from collective SO/AC to remove board members needs to be determined. In summary, i think board member removal process needs to be difficult by requiring certain level of consensus across SO/AC on a particular issue that lacks other option of resolution. As for removal of the chair or of the entire Board, that is a different issue, and I am not sure that I support the removal of the entire board, though removal of the chair by a community wide consensus might make sense. +1 on the entire board removal reasoning; i think removal of certain number of board members that would affect the super majority could be helpful. Not sure how/why the community would want to remove the chair of the board as i think that should remain within the jurisdiction of the board members. Regards avri _______________________________________________ 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 -- ------------------------------------------------------------------------ Seun Ojedeji, Federal University Oye-Ekiti web: http://www.fuoye.edu.ng Mobile: +2348035233535 alt email:<http://goog_1872880453>seun.ojedeji@fuoye.edu.ng<mailto:seun.ojedeji@fuoye.edu.ng> The key to understanding is humility - my view !
On 05-Feb-15 12:48, Roelof Meijer wrote:
Avri, Seun,
Entering into one of the issues that at least Ì have with the existing situation (without the intention of accusing anybody):
Avri writes: "If their idea of what is good for ICANN is radically different from the (s)electors then they should be removed”. I think you are suggesting that the selectors selected the board member purely for the good of ICANN (the corporation). I submit that it sometimes happens that what is good for a particular constituency plays a role in the selection of a board member and that it is thus possible that there is not always full alignment between the interests of a particular constituency and those of the corporation.
The good of the corporation, which given its mission, is the good of the Internet. Part of being a multistakeholder organization is that all ACSOs have different views on what the good is. That is why we (s)elect from the various ACSO and the larger community (nomcom). What I argue is that the Board can only serve the actual interests of the corporation and its mission when its Board represents the diversity of ICANN's interests. If a Board member goes against the interests of the (s)electors then the corporation cannot serve its mission justly. If a Board member cannot explain why she has done what she has done adequately to those (s)electors that she should be subject to removal. I agree with Seun, it should not be an easy or trivial process, but it should be possible.
So it is not a given that a board member who does no longer agree with his/her selectors, has the worser idea of what is good for ICANN, and should be removed by the selectors…
Nonetheless, if she can't convince the (s)elector that she is doing the right thing, then a vote of no confidence and removal is appropriate. I am not making a value judgement on which opinion is normatively the best for the corporation but rather making the claim that the best for the corporation cannot be achieved if all viewpoints are not properly represented on the Board. This also does not take into account the Board member who is just not doing his job. The Board members are our paid employees, there is no reason they should have a paid sinecure until the next (s)election if they are not performing. That to me is part of accountability. BTW: I think this goes for councils &c. as well (though they are unpaid for their work because it is not as important as Board work), it is just that this is not the subject at hand. avri
Cheers,
Roelof
I tend to agree with much of what Avri said. Board members are selected by SOs and At-Large to represent them, but presumably because there is a belief that the prospective Board member shares a common set of values with the selecting organization. If the org comes to the beleif that they were mistaken, there is no doubt in my mind that they should be able to undo the selection. It will rarely if ever be used, but the possibility should ensure that Board members stay more in touch with the organization that selected them than is not sometimes the case. The removal needs to be unilateral and without a public rationale or opportunity for appeal. Removal of one or more Board members by the overall community is a more difficult one. It should certainly require a strong consensus. Removal of all of the Board is frought with all sorts of problems not the least of which who acts as the interim Board until a new one is selected. Alan At 05/02/2015 03:33 AM, Avri Doria wrote:
On 04-Feb-15 19:07, Roelof Meijer wrote:
Is the "the ability of the community to recall recalcitrant board members" also subject to the condition of the board not being unanimously or in super majority against such a recall? If it is, I think it will be useless.
I would assume that removing a single board members would require some process by those who (s)elected the Board member and could be for any reason those (s)electors decided warranted such removal.
It could, for example, be because the Board member never consulted with those who (s)elected them. It could be becasue they weren't doing their job. It could be because they were vile, vicious and vindictive. I think the commuity that (s)elects a Board member should be able to remove them as they decide it is needed. If their idea of what is good for ICANN is radically diffferent from the (s)electors then they should be removed. We would need to develop processes within each f the ACSO that (s)elect, and would need to develop a nomcom removal process.
As for removal of the chair or of the entire Board, that is a different issue, and I am not sure that I support the removal of the entire board, though removal of the chair by a community wide consensus might make sense.
avri
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Question- coincidental to this conversation I am looking at historical ICANN papers. ICANN is, as Steve told me, adressing policy. Then explain to me please why ICANN is in the business of auctioning ccgTLDs and, becoming a profitable business, 2012 assets were $500,000,000 (give or take a few million) On Fri, Feb 6, 2015 at 1:49 AM, Alan Greenberg <alan.greenberg@mcgill.ca> wrote:
I tend to agree with much of what Avri said.
Board members are selected by SOs and At-Large to represent them, but presumably because there is a belief that the prospective Board member shares a common set of values with the selecting organization. If the org comes to the beleif that they were mistaken, there is no doubt in my mind that they should be able to undo the selection. It will rarely if ever be used, but the possibility should ensure that Board members stay more in touch with the organization that selected them than is not sometimes the case. The removal needs to be unilateral and without a public rationale or opportunity for appeal.
Removal of one or more Board members by the overall community is a more difficult one. It should certainly require a strong consensus. Removal of all of the Board is frought with all sorts of problems not the least of which who acts as the interim Board until a new one is selected.
Alan
At 05/02/2015 03:33 AM, Avri Doria wrote:
On 04-Feb-15 19:07, Roelof Meijer wrote:
Is the "the ability of the community to recall recalcitrant board members” also subject to the condition of the board not being unanimously or in super majority against such a recall? If it is, I think it will be useless.
I would assume that removing a single board members would require some process by those who (s)elected the Board member and could be for any reason those (s)electors decided warranted such removal.
It could, for example, be because the Board member never consulted with those who (s)elected them. It could be becasue they weren't doing their job. It could be because they were vile, vicious and vindictive. I think the commuity that (s)elects a Board member should be able to remove them as they decide it is needed. If their idea of what is good for ICANN is radically diffferent from the (s)electors then they should be removed. We would need to develop processes within each f the ACSO that (s)elect, and would need to develop a nomcom removal process.
As for removal of the chair or of the entire Board, that is a different issue, and I am not sure that I support the removal of the entire board, though removal of the chair by a community wide consensus might make sense.
avri
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-- Sincerely CARRIE Devorah 562 688 2883 DISCLAIMER : With the continuing crossing and interfacing of platforms both on & off line both with & without our knowledge nor approval to note nothing sent over the Internet anymore is ever private nor should be presumed to be so. If it is that much of a secret, say nothing. If you must? Take a lesson from our military- hand write the note, chew then swallow
Dear All, I have read all of your good and valuable suggestions There are good arguments and complementary arguments and sometime cautionary ones for both issues: Removal of a Board Mmember and reactying or acting on the oiccasions that they Veto a community decisions and the procedure on how the Veto is made. Would it be possible the either the chair of the WP or one of you distinguished colleagues that initiated the discussion or any volunteer, take the coordination action to merge and or integrate the thrusts of the proposal for further actions Regards. Kavouss 2015-02-06 21:53 GMT+01:00 Carrie Devorah <carriedev@gmail.com>:
Question- coincidental to this conversation I am looking at historical ICANN papers. ICANN is, as Steve told me, adressing policy. Then explain to me please why ICANN is in the business of auctioning ccgTLDs and, becoming a profitable business, 2012 assets were $500,000,000 (give or take a few million)
On Fri, Feb 6, 2015 at 1:49 AM, Alan Greenberg <alan.greenberg@mcgill.ca> wrote:
I tend to agree with much of what Avri said.
Board members are selected by SOs and At-Large to represent them, but presumably because there is a belief that the prospective Board member shares a common set of values with the selecting organization. If the org comes to the beleif that they were mistaken, there is no doubt in my mind that they should be able to undo the selection. It will rarely if ever be used, but the possibility should ensure that Board members stay more in touch with the organization that selected them than is not sometimes the case. The removal needs to be unilateral and without a public rationale or opportunity for appeal.
Removal of one or more Board members by the overall community is a more difficult one. It should certainly require a strong consensus. Removal of all of the Board is frought with all sorts of problems not the least of which who acts as the interim Board until a new one is selected.
Alan
At 05/02/2015 03:33 AM, Avri Doria wrote:
On 04-Feb-15 19:07, Roelof Meijer wrote:
Is the "the ability of the community to recall recalcitrant board members” also subject to the condition of the board not being unanimously or in super majority against such a recall? If it is, I think it will be useless.
I would assume that removing a single board members would require some process by those who (s)elected the Board member and could be for any reason those (s)electors decided warranted such removal.
It could, for example, be because the Board member never consulted with those who (s)elected them. It could be becasue they weren't doing their job. It could be because they were vile, vicious and vindictive. I think the commuity that (s)elects a Board member should be able to remove them as they decide it is needed. If their idea of what is good for ICANN is radically diffferent from the (s)electors then they should be removed. We would need to develop processes within each f the ACSO that (s)elect, and would need to develop a nomcom removal process.
As for removal of the chair or of the entire Board, that is a different issue, and I am not sure that I support the removal of the entire board, though removal of the chair by a community wide consensus might make sense.
avri
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-- Sincerely CARRIE Devorah 562 688 2883
DISCLAIMER : With the continuing crossing and interfacing of platforms both on & off line both with & without our knowledge nor approval to note nothing sent over the Internet anymore is ever private nor should be presumed to be so. If it is that much of a secret, say nothing. If you must? Take a lesson from our military- hand write the note, chew then swallow
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Hi Robin Thanks so much for this contribution, which will be reflected in the paper I hope to get out this afternoon. Apologies for the delay in replying, have been in a staff retreat all week. Best Jordan On Wednesday, 4 February 2015, Robin Gross <robin@ipjustice.org> wrote:
Steve, Jordan, all,
As promised on this morning's call, below is a further elaboration of the community empowerment proposal to amend the bylaws to create a community veto process. Thank you in advance for including this proposal along with the other suggestions for community empowerment mechanisms in the group inventory for further consideration.
Best, Robin
*Community Veto Process on Key Board Decisions via Bylaws Amendment*
Amend the existing corporate bylaws (and /or articles of incorporation) to create a new mechanism that empowers the Community to overturn board decisions on a limited number of specific, enumerated issues and also to recall nonperforming board members. This community veto process would be fashioned such that a decision to over-rule the board is determined via aggregation of decisions of the existing ICANN community structures. Each individual component of the relevant Community (for example, GAC, GNSO, At-Large, CCNSO, etc.) would have a proportional share in the over-all Decision of the Community (to veto or not to veto the board). Each of these individual structures already has internal mechanisms to make decisions through which the larger Decision of the Community could ultimately be determined. We must scope what specific enumerated decisions can trigger such a community veto process (ex: the list developed in Frankfurt) and also a specific mechanism for triggering the veto process (ex: complaint supported by relevant 2 community components).
The ombudsman (or neutral 3rd-party) could act as the facilitator of this community veto process in a purely administrative role: accept the matter for review, call the question to community vote, and collect the decisions of the individual components to reach the overall Decision of the Community (to veto or not to veto). The board would then be required to adopt this Decision of the Community unless it voted (unanimous or super-majority) to reject the Decision of the Community that was reached via this process and which would be stipulated to in bylaws and/or articles of incorporation.
Coupled with another bylaws revision providing for the ability of the community to recall recalcitrant board members, it would be difficult for the board to disregard the bottom-up Decision of the Community on a few specific matters. Larry Strickling's speech last week hinted that an ability to recall board members would be part of the solution NTIA is looking for in the transition. Under this community veto model, the board would still maintain the requisite ultimate direction and control that is required by California corporations law (§5210), but we could significantly empower the community by creating a veto process with teeth behind it.
Amending the bylaws allows us to create the ability to overturn board decisions and thus empower the community without the need to create complicated new membership organizations or super-structures to be representational of the community. Creating a community veto process is a simpler and lighter approach to achieving the same community powers and would use the existing organizational structure. This would be a more bottom-up method of reaching a decision of the community to overturn a particular board decision and it wouldn't require a radical remaking of ICANN's organizational and legal structure, but rather, a couple key bylaws amendments. The creation of this community veto process is not without challenges, but I think most concerns can be addressed as we hammer it out and further develop the community veto model as a possibility to consider for empowering the community with respect to key board decisions.
-- Jordan Carter Chief Executive, InternetNZ +64-21-442-649 | jordan@internetnz.net.nz Sent on the run, apologies for brevity
Hello Robin, Thank you very much for your contribution. I have a difficulty with this sentence: "Each individual component of the relevant Community (for example, GAC, GNSO, At-Large, CCNSO, etc.) would have a proportional share in the over-all Decision of the Community". Could you be more specific: how would you define the "proportional share" of each component? Regards, Olivier De : accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] De la part de Robin Gross Envoyé : mardi, février 03, 2015 18:50 À : Steve DelBianco; Jordan Carter; Accountability Cross Community; wp1@icann.org Objet : [CCWG-ACCT] Proposal for a Community Veto Process on Key Board Decisions via Bylaws Amendment Steve, Jordan, all, As promised on this morning's call, below is a further elaboration of the community empowerment proposal to amend the bylaws to create a community veto process. Thank you in advance for including this proposal along with the other suggestions for community empowerment mechanisms in the group inventory for further consideration. Best, Robin Community Veto Process on Key Board Decisions via Bylaws Amendment Amend the existing corporate bylaws (and /or articles of incorporation) to create a new mechanism that empowers the Community to overturn board decisions on a limited number of specific, enumerated issues and also to recall nonperforming board members. This community veto process would be fashioned such that a decision to over-rule the board is determined via aggregation of decisions of the existing ICANN community structures. Each individual component of the relevant Community (for example, GAC, GNSO, At-Large, CCNSO, etc.) would have a proportional share in the over-all Decision of the Community (to veto or not to veto the board). Each of these individual structures already has internal mechanisms to make decisions through which the larger Decision of the Community could ultimately be determined. We must scope what specific enumerated decisions can trigger such a community veto process (ex: the list developed in Frankfurt) and also a specific mechanism for triggering the veto process (ex: complaint supported by relevant 2 community components). The ombudsman (or neutral 3rd-party) could act as the facilitator of this community veto process in a purely administrative role: accept the matter for review, call the question to community vote, and collect the decisions of the individual components to reach the overall Decision of the Community (to veto or not to veto). The board would then be required to adopt this Decision of the Community unless it voted (unanimous or super-majority) to reject the Decision of the Community that was reached via this process and which would be stipulated to in bylaws and/or articles of incorporation. Coupled with another bylaws revision providing for the ability of the community to recall recalcitrant board members, it would be difficult for the board to disregard the bottom-up Decision of the Community on a few specific matters. Larry Strickling's speech last week hinted that an ability to recall board members would be part of the solution NTIA is looking for in the transition. Under this community veto model, the board would still maintain the requisite ultimate direction and control that is required by California corporations law (§5210), but we could significantly empower the community by creating a veto process with teeth behind it. Amending the bylaws allows us to create the ability to overturn board decisions and thus empower the community without the need to create complicated new membership organizations or super-structures to be representational of the community. Creating a community veto process is a simpler and lighter approach to achieving the same community powers and would use the existing organizational structure. This would be a more bottom-up method of reaching a decision of the community to overturn a particular board decision and it wouldn't require a radical remaking of ICANN's organizational and legal structure, but rather, a couple key bylaws amendments. The creation of this community veto process is not without challenges, but I think most concerns can be addressed as we hammer it out and further develop the community veto model as a possibility to consider for empowering the community with respect to key board decisions. _________________________________________________________________________________________________________________________ Ce message et ses pieces jointes peuvent contenir des informations confidentielles ou privilegiees et ne doivent donc pas etre diffuses, exploites ou copies sans autorisation. Si vous avez recu ce message par erreur, veuillez le signaler a l'expediteur et le detruire ainsi que les pieces jointes. Les messages electroniques etant susceptibles d'alteration, Orange decline toute responsabilite si ce message a ete altere, deforme ou falsifie. Merci. 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participants (11)
-
Alan Greenberg -
Avri Doria -
Carrie Devorah -
Jordan Carter -
Kavouss Arasteh -
olivier.muron＠orange.com -
Pedro Ivo Ferraz da Silva -
Robin Gross -
Roelof Meijer -
Samantha Eisner -
Seun Ojedeji