[ALAC] CONSENSUS CALL: My comments on Draft Bylaws

[Alan Greenberg]

Most of the comments I made (sent to the CCWG 
list and IANA-Issues lists) have either been 
completely integrated into the CCWG comments or 
are not particularly important. There are two 
that I feel still have merit. I have reviewed 
them with the ALT, and I have their full support 
(including Cheryl and Leon who have been very 
involved in the current draft Bylaws as well as 
the more recent comments of the CCWG itself on 
the draft Bylaws. I am not making these comments 
without considerable thought. IN BOTH CASES, IF 
THE CURRENT DRAFT BYLAWS ARE IMPLEMENTED, I 
BELIEVE THAT ICANN WILL BE FOLLOWING A PATH THAT 
WILL NEGATIVELY IMPACT ALL OF US.

I will be submitting these comments to the Public 
Comment on my own behalf, but I would like to be 
able to say that they are supported by the ALAC 
prior to the close of the comment oat 23:59 on 
Saturday. I would appreciate explicit statements 
of support, but in the absence of significant 
opposition, I will say that the comments are those of the ALAC.

Alan

PS I will not be submitting the comment until 
later today. If you notice any typos, please let me know ASAP.

=============================
Background:
The Affirmation of Commitment (AoC) Reviews are 
now being integrated into the Bylaws. The AoC 
called for the reviews to be held every three 
years, but was unclear as to when the three years 
was measured from. The three years has been 
interpreted flexibly to allow more time between 
some reviews and the Board has deferred some 
reviews due to community overload (with the 
agreement of the NTIA, the AoC co-signer). The 
CCWG required the new reviews to be carried out 
no less frequently than every five years, 
measured from the start of one review until the 
start of the next one. It was recently realized 
that the last WHOIS review started in October 
2010, so when the new Bylaws are adopted, we will 
already be several months past the October 2015 
date for the next one to start and will need to 
initiate the next one immediately.

Since the required review is an Registration 
Directory Services Review, renamed from WHOIS 
Review, we would technically NOT be in default, 
since there never has been an "RDS Review". But 
it is assumed that this distinction will not affect ICANN's actions.

Section 4.6(e)(v)
During the CCWG discussions on the interval 
between the reviews, the issue of ICANN 
immediately being in default on the WHOIS/RDS 
review was never raised. Moreover, since those 
discussions were held, the GNSO new RDS PDPWG has 
been convened and is well underway. It is 
reasonably clear that the people in the volunteer 
community who would likely participate in an RDS 
review significantly overlap with those who are 
heavily involved in the RDS PDP. To schedule an 
RDS Review soon after the Bylaws are enacted 
would be serious error and will only serve to 
slow the work of the PDP - a PDP that even now may go on for quite some time.

It is clear that there is work that needs to be 
done that would fall under the auspices of a full 
blown PDP. We need a good picture of how the 
various current WHOIS/RDS efforts mesh together. 
We need to assess how the recommendations of the 
first WHOIS review are being implemented and 
their impact, as well as other WHOIS/RDS related 
activities unrelated to that last AoC review.

But these efforts, as important as they are, do 
not need to be done by a full-blown AoC-like 
review. Most of the work can be done by staff. To 
the extent that "staff cannot be trusted" 
(something that I question, but will address), I 
am others in the community will gladly act as a 
sounding block and review their work. [For the 
record, I was the person on the ATRT2 who did the 
full analysis of the WHOIS RT Recommendation 
implementation, so I have some idea of what I am talking about.]

The current Bylaws for the organizational reviews 
all have explicit time limits in them, but also 
have the words "if feasible". That was true even 
when the organization review interval was 
(foolishly) three years instead of the five years 
it was quickly changed to. "If feasible" allowed 
the Board to save an immense amount of wasted 
community expense and ICANN dollars. We need some 
wriggle room in the current case as well.

I strongly suggest that the draft Bylaws be 
revised to allow additional flexibility to defer 
the RDS review until there is a real RDS to 
review, and would even suggest that once 
implemented, they soon after be amended to add the missing "if feasible".


=============================
Background:
The CCWG Proposal requires the Empowered 
Community (EC) to take a variety of actions but 
was not specific on exactly how this would happen 
or what people would take responsibility for 
ensuring that the actions are carried out. As a 
result this had to be addressed during Bylaw 
drafting. The concept of the EC Administration 
was created, embodied by the Chairs (or other 
delegates) of the AC/SOs participating in the EC.

Along with the creation (or perhaps 
identification, since there was always a need for 
such a body/group) of the EC Administration, a 
section was added to the draft Bylaws placing 
restrictions on the people involved in the EC Administration.


Section 7.4(d)
"No person who serves on the EC Administration 
while serving in that capacity shall be 
considered for nomination or designated to the 
Board, nor serve simultaneously on the EC 
Administration and as a Director or Liaison to the Board."

Lawyers Comments (in reply to my early raising of this issue):
On March 31, 2016, counsel posed the following 
question to the Bylaws Coordination Group and 
received confirmation that the disqualification 
in Section 7.4(d) be included in the Bylaws: 
"Confirm that chairs of the Decisional 
Participants and persons designated by the 
Decisional Participants to serve on the EC Chairs 
Council cannot be nominated or serve on the ICANN 
Board. Such a provision would be consistent with 
other provisions in the current Bylaws, which 
provide that (a) "no person who serves in any 
capacity (including as a liaison) on any 
Supporting Organization Council shall 
simultaneously serve as a Director or liaison to 
the Board (Article VI, Section 4.2)" and (b) 
persons serving on the Nominating Committee must 
be "neutral and objective, without any fixed 
personal commitments to particular individuals, 
organizations, or commercial objectives in 
carrying out their Nominating Committee 
responsibilities” (Article VII, Section 4.4)."]

I note that the term "nominated" as used in the 
new Bylaws is used in the sense of the current 
Nominating Committee. Once a person is 
"nominated" by the NomCom or an AC/SO, they will 
become a Director once the EC takes the 
appropriate action (and the EC has no option to 
NOT take such action). However, this is confusing 
terminology, because an AC/SO may well have a 
nomination process used to select candidates who 
will then vie for the actual AC/SO selection.

I believe that the Bylaws Coordination Group may 
have erred in its reply and moreover, the Bylaw 
drafters went farther than was required in 
implementing that response. There are several reasons.

1. I cannot understand what the relation ship is 
to the EC Administration and the rules that apply 
to the NomCom. The NomCom makes decisions. The 
AC/SO Chairs or other delegates who participate 
in the EC Administration have no discretion 
whatsoever. They MUST follow the directions of 
the entity nominating/removing a director.

2. Given that lack of ability to influence 
outcomes, I find it unreasonable to restrict such 
a person from submitting an SoI to the NomCom or 
to their own AC/SO as a potential director (ie to be "considered").

3. I would find it quite reasonable that they 
would have to surrender (or be deemed to have 
surrendered) their EC Administration seat if they 
are actually nominated (nominated in the sense of 
the Bylaws - will actually serve on the Board 
once the EC Designates them). This is in line 
with the reference to serving "simultaneously"

4. I note that the wording in the proposed Bylaws 
is different that what was asked. The March 31st 
question was "Confirm that chairs of the 
Decisional Participants and persons designated by 
the Decisional Participants to serve on the EC 
Chairs Council cannot be nominated or serve on 
the ICANN Board.". The draft Bylaws extend that 
to "considered for nomination" which is a much wider group.

5. The path of AC/SO Chair to Director is not 
unreasonable - both require high degree of 
confidence in the person expressed by the AC/SO. 
And to be blunt, arguably two of our best 
currently seated AC/SO Directors have followed 
exactly that path, as did the current Board Chair 
(although in that case, since the SSAC has chosen 
not to be part of the EC, the rule would not be applicable). 
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