As I mentioned in the ALAC meeting yesterday, I had made a proposal which does not include the ability of the community to "enforce" its rights other than by the threat or reality of Board member removal. This matches the position taken by most At-Large people involved in the process, as opposed to the stronger Member or even designator model. A copy of my message to the CCWG is appended to this e-mail. At the moment, the "Empowered AC/SO" model is being discussed by the CCWG, which by simply stating that the AC/SO wants to use its rights as a Member, the AC/SO effectively has the same powers (as a legal person) as the Unincorporated Association would have in the previous proposals (but with the "alter ego" structure confusion). This mechanism would also work for Designators instead of Members. In our formal reply to the CCWG Public Comment, we said that if we had to choose between a Member or Designator model, we would select Member, because it was easier to explain that Designators. I now believe that we forgot a major consideration in this choice, and if I had it to do over again, I would choose differently. The reason is that we can start using Designators without changing ICANN into a Membership organization (by altering its Articles of Incorporation), and that I think is a major consideration. Alan
Date: Thu, 18 Jun 2015 21:17:00 -0400 To: CCWG Accountability <accountability-cross-community@icann.org> From: Alan Greenberg <alan.greenberg@mcgill.ca> Subject: Plan B
Given the spread between those who believe that we need ultimate accountability, and those who are willing to trust that the community wishes will be honoured, allow me to put a new variation on the table. We have talked about all of the parts before, but perhaps the combination is new.
This proposal involves no Unincorporated Associates, no Designators and no Members.
Up to now, we have been working with Bylaws that we are now told have no real basis in law, but which so far, have worked. I specifically refer to things like the SOs, ALAC and the NomCom appointing Board members, powers that under California law are only given to Members or Designators, but our less formal entities are granted these powers under the ICANN Bylaws and for whatever reasons, it works.
I propose that we do the same with all of the community powers that we want (including the requirement that Bylaws and certainly fundamental Bylaws be approved), with the exception of formal budget approval (which impinges on Board fiduciary responsibility). In lieu of the latter, we could have a process by which and AC/SO lodges a formal objection to a budget or budget item, and the Board has an obligation to follow-up (I am not going to go into any further details here).
Every Director, as a requirement of being seated signs an irrevocable letter saying that if by specified procedure, they are requested to step down, they will. The procedure might include the formal action of the AC/SO that appointed them, or a more widespread community request passing a specified level of AC/SO support - the details would need to be defined, but do not alter this proposal. The letter would also make reference to an enforcement mechanism that could be invoked. The enforcement mechanism might be to give the ICANN Ombudsman (or some other trustworthy and trusted individual) the right to take court action to require the requested resignation be honoured, or could give that right to the people occupying the AC/SO Chairs. Any such action would be funded by ICANN and funds held in escrow to ensure that this can be carried out.
In unlikely event that a removal included the entire Board, or some number such that the remaining Board members do not meet minimum quorum requirements, the AC/SO Chairs will on an interim basis be added to the Board on an interim basis. This augmented interim Board would have caretaker responsibilities and have only limited rights (to be specified).
Board member removals would be unconditional and not appealable.
I believe that the threat of invoking removal will likely be sufficient to ensure that the community is given good control. And should that fail, the actual removal of the Board member(s) who do not support the community position can actually be removed.
There are many details to be determined but I believe that this is workable. It allows for the most of the powers that have been requested with a minimum number of changes and does not create significant new potential vulnerabilities.
Alan