Chris. Acknowledged. I defer to you. I am not subtle in my dotage… 😉 But I am frustrated, as you know… Best, /Stephen From: Chris Disspain <chris@disspain.uk> Date: Thursday, August 11, 2022 at 11:58 To: "Stephen Deerhake @ ASNIC" <sdeerhake@nic.as> Cc: ccNSO Council <ccnso-council@icann.org> Subject: Re: [ccnso-council] Topics to discuss with the ICANN Board Stephen, Some overarching comments and then some specific ones on your topics. Both topics are arcane and heavily legal based and not, IMO and respectfully, topics that should be on our agenda for a face to face meeting with the board. Putting any topic before the board in a face to face meeting that simply allows them to defer to legal and or say ‘well our advice is that we are not in breach or not ignoring the bylaws’ achieves nothing substantive. Further, if there’s an option for the board to say ’that’s a topic we would need to be briefed on before we can discuss’ then they will ALWAYS take that option. In general, topics or subjects phrased in the way that Jordan’s is are always going to have a more successful outcome because they are not specific questions requiring specific answers but rather conversation starters about areas of importance. Your topic 1: ‘can the board selectively ignore ICANN bylaws’ is confrontational and IMO not a useful question. The answer is obviously 'no we can’t and we are not’. And the answer to your subsequent questions will be ’this is a matter of interpretation of the bylaw and the board is guided in that by general counsel.’. It doesn’t seem to me to achieve much to have this discussion in a face to face with the board. So, let me ask you to consider what your goal is in raising this issue? If it is to draw out the point that the board is acting outside the bylaws then a better way might be to compose a clear (and non-confrontational) letter to General Counsel with a copy to the Board Chair and CEO setting out factually what has happened and asking for clarity on the interpretation of the relevant bylaw. If your goal is a different one then I would be happy to discuss what approaches would be best suited to achieving it. Your topic 2: as I’ve said above, I don’t think this is a suitable topic for our face to face as it is clearly a legal interpretation issue and that is something that general counsel does, not the board. However, I do believe that the matter does need to be discussed not least because on one interpretation, me being on the Nom Comm would mean that I cannot re-nominate for the ccNSO council in March 2023. I’m not saying the I want to re-nominate and of course even if I do there may be no appetite amongst the European ccNSO membership to re-elect me BUT I could not in all conscience resign from the Nom Comm half way through a Nom Comm term so I think it is essential for this matter to be sorted out. I propose that we discuss it as a council and figure out the best way forward. Cheers, CD Chris Disspain chris@disspain.uk<mailto:chris@disspain.uk> +44 7880 642456 [cid:1C74BF39-15E1-4E9E-8C07-5F69061E674F] On 11 Aug 2022, at 15:00, Stephen Deerhake @ ASNIC via Ccnso-council <ccnso-council@icann.org<mailto:ccnso-council@icann.org>> wrote: Greetings fellow council members, I have two topics, the first of which is basically a constitutional question, and the second of which is a straight up request for an interpretation of a rather badly worded ICANN Bylaw. For the latter, presumably the Board would nudge the tortoise that is ICANN Legal to come out of their shell and provide the Community an interpretation. Let me begin with my first topic… The constitutional question is this: Can the ICANN Board selectively ignore ICANN Bylaws? This is essentially what they have been doing with respect to Section 15(a) of Annex B with respect to the ccNSO PDP-3 Retirement of ccTLDs policy, which the ccNSO Community presented to them some seven months ago. Although I have reason to believe that at the end of the day (and hopefully within my lifetime) the Board will eventually exercise their responsibility under Section 15(a) of Annex B, the question remains. Can the ICANN Board selectively ignore ICANN Bylaws? Admittedly in their defence, at ICANN74, a spirited argument was made that they were (are) in compliance with Annex B Section 15(a), citing the clause “…taking into account procedures for Board consideration.” It is my view that holding this clause as paramount to how Annex B Section 15(a) begins “The Board shall meet to discuss the ccNSO Recommendation as soon as feasible after receipt of the Board Report from the Issue Manager…” is incorrect. Annex B Section 15(a) begins with a straightforward statement that the “Board shall meet…”. I do not see any ambiguity there. I submit if it were the intent of the legal eagles who wrote the Bylaws essentially overnight in the run-up to the IANA transition to give the ICANN Board an “out” with respect to actually having to act on Policy presented to them by a Supporting Organisation, they would have (or should have) lead Annex B 15(a) with language to that effect. But they did not. Thus it is my contention that Board is in violation of their obligations under Annex B, Section 15(a), and have been for some seven months or so now… Which brings me back to my question: Can the Board selectively ignore ICANN Bylaws? I would like to hear them pontificate on this topic. This is of obvious interest to not just the ccNSO, but the other SO/ACs, as well as the Community writ large. My second topic is straight-forward: What exactly does Section 8.8 of the ICANN Bylaws mean? They bylaw reads as follows: Section 8.8. Ineligibility for selection by the Nominating Committee No person who serves on the Nominating Committee in any capacity shall be eligible for nomination by any means to any position on the Board or any other ICANN body having one or more membership positions that the Nominating Committee is responsible for filling, until the conclusion of an ICANN annual meeting that coincides with, or is after, the conclusion of that person's service on the Nominating Committee. What does this say? Or more to the point, what does ICANN Legal think its actual intent is? Does it preclude a sitting ccNSO Council member from being the ccNSO’s sole representative to the NomCom? Is that the intent here? If so, we likely goofed with Pablo’s term on the NomCom. I do not have an answer to this; I just want to pose the question. That’s it from me. Best Regards, /Stephen _______________________________________________ Ccnso-council mailing list Ccnso-council@icann.org<mailto:Ccnso-council@icann.org> https://mm.icann.org/mailman/listinfo/ccnso-council _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on.
