[ALAC] CONSENSUS CALL: My comments on Draft Bylaws

Thu May 19 17:02:34 UTC 2016

Tijani, if I mis-stated your position, my 
apologies. I do not recall any opposition when 
this was discussed on the ALT call.

On the subject, I too do not support the 
simultaneous holding of the two positions. Can 
you explain what conflict you see in a Chair 
applying for a Board position, with the clear 
understanding that he/she would have to resign 
the EC Admin position if selected?

Alan

At 19/05/2016 11:54 AM, Tijani BEN JEMAA wrote:
>Alan,
>
>I support your comment on Section 4.6(e)(v) but 
>not 7.4(d) because I donâ€™t find it a problem 
>to restrict to someone who is serving on the EC 
>administration to be simultaneously on the board 
>or to be candidate to such position. I even find 
>it a kind of avoiding the concentration of power 
>in the hands of a single person.
>
>So please record my full support to your 
>comments on section 4.6(e)(v) and my opposition to those about section 7.4(d).
>
>-----------------------------------------------------------------------------
>Tijani BEN JEMAA
>Executive Director
>Mediterranean Federation of Internet Associations (FMAI)
>Phone: +216 98 330 114
>           +216 52 385 114
>-----------------------------------------------------------------------------
>
>
>
>>Le 19 mai 2016 Ã  14:56, Alan Greenberg 
>><<mailto:alan.greenberg at mcgill.ca>alan.greenberg at mcgill.ca> a Ã©crit :
>>
>>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 responsibilitiesÃ¢€ (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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