[ALAC] CONSENSUS CALL: My comments on Draft Bylaws

[Alan Greenberg]

Thanks Seun. Noted. 

Alan 

On May 19, 2016 10:30:30 AM EDT, Seun Ojedeji <seun.ojedeji at gmail.com> wrote:
>Hi Alan,
>
>On the second point, if I understand it correctly, you are proposing
>that
>the following text be removed from the current bylaw draft:
>
>"...be considered for nomination or designated to the Board, nor..."
>
>So it then reads:
>
>"No person who serves on the EC Administration while serving in that
>capacity shall serve simultaneously on the EC Administration and as a
>Director or Liaison to the Board"
>
>I support it, however I will suggest that you explicitly indicate that
>as
>an action required as what you have stated in your current text seem to
>all
>be rationales.
>
>Regards
>Sent from my LG G4
>Kindly excuse brevity and typos
>On 19 May 2016 14:58, "Alan Greenberg" <alan.greenberg at mcgill.ca>
>wrote:
>
>> 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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-- 
Sent from my Android device with K-9 Mail. Please excuse my brevity.
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