[ALAC] CONSENSUS CALL: My comments on Draft Bylaws

[Vanda Scartezini]

I tend to agree that once selected/elected to seat at board and being at the time to be observer – (some time before general assembly), I believe person shall be free from other positions and a replaced process shall be in place. Meantime one vice chair could respond for the AC/SO position till new selection/election process to fill this position is finished.
Best,
Vanda Scartezini
Polo Consultores Associados
Av. Paulista 1159 # 1004
01311-200 – Sao Paulo/SP – Brazil
Phone: + 55 11 3266-6253
Mobile: + 55 11 98181-1464

From: <alac-bounces at atlarge-lists.icann.org> on behalf of Seun Ojedeji <seun.ojedeji at gmail.com>
Date: Friday, May 20, 2016 at 2:58 AM
To: Alan Greenberg <alan.greenberg at mcgill.ca>
Cc: ALAC Working List <alac at atlarge-lists.icann.org>
Subject: Re: [ALAC] CONSENSUS CALL: My comments on Draft Bylaws


Sent from my LG G4
Kindly excuse brevity and typos
On 19 May 2016 18:13, "Alan Greenberg" <alan.greenberg at mcgill.ca<mailto:alan.greenberg at mcgill.ca>> wrote:
>
> At 19/05/2016 12:23 PM, Seun Ojedeji wrote:
>
>> As proposed in the CCWG proposal, the Chair's of SO/AC would represent the EC.
>
>
> Or it could be someone else if the AC/SO chose.
>

SO: Yes that's right.

>
>>  In the case of AtLarge that will be the ALAC Chair. At the moment noting prevents an ALAC Chair from being nominated as a board member just that he/she will need to resign his/her Chair position if he happens to make it to the board. In that case, there will be no room for concurrent occupant of the EC and of the board(either liaison or voting).
>
>
> He/she would clearly have to resign the EC position immediately.
>
SO: Hmm... By immediately, do you mean after occupying the board seat? Or Prior to nomination? If the latter then it may not be inline with what I understand to be the intent your write-up

>
Whether would have to resign the Chair position prior to actually being seated is an interesting question.
>
SO: Well I think there is some logic and time factor here; in the case of AtLarge elected board member, once the AtLarge(ALAC) completes her selection process, I would expect that such person would resign his/her ALAC/AtLarge position (either chair or not) and same should be the case if it was a nomcom position seat as well. Now I am focusing on AtLarge here as I believe each SO/AC should have independence in setting their process and we should not restrict them at the bylaw level expect ensuring that one person does not occupy EC and Board simultaneously.

>

Since the Board tend to allow incoming Directors to be observers, resignation would probably be required immediate, but perhaps there would be reasons to stay temporarily as Chair and NOT be an observer on the Board.
>

SO: Yeah resignation is required as per section 5.4.2 of the current bylaw, i think its an ideal thing to do and i don't see any possible reason why someone elected/selected to be on the board would want to still maintain previous positions in anyway. There will always be people to fill such a seat (ofcourse may not be as good as the out-gone but Rome is not built in a day)

>
>
>> My question then would be to know if we currently identified conflict of interest(and such disallow) in our current board member selection/nomination process where a sitting Chair cannot be nominated? If that exist then I will have to differ on my previous stand and agree with Tijani.
>
>
> There are NO general restrictions about who can apply for a Board position other than they cannot currently be on the NomCom. An AC/SO might have local rules. There are none for the ALAC that relate to this, other than Board applicants cannot sit on the two selection committees we have.
>

SO: Yeah thats my thought as well. So it means my initial support still stand.

> Such a rule has never been suggested that I am aware of. And given the example with several sitting (non-At-Large) Board members, I would not want such a rule.
>

SO: There are some merits/demerits of having such rule and we can always discuss that latter, but if we must then it would be at AtLarge level as we don't have to lockin(restrict) the bylaw that much.

Regards

> Alan
>
>>  Otherwise I think the fix should be at our board selection process instead; by requiring that sitting Chair cannot be nominated for board talkless of being elected.
>>
>> Regards
>>
>> Sent from my LG G4
>> Kindly excuse brevity and typos
>> On 19 May 2016 16:56, "Tijani BEN JEMAA" < tijani.benjemaa at fmai.org.tn<mailto:tijani.benjemaa at fmai.org.tn>> wrote:
>> Alan,
>> I support your comment on
>> Section 4.6(e)(v) but not 7.4(d) because I don’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<tel:%2B216%2098%20330%20114>
>>           +216 52 385 114<tel:%2B216%2052%20385%20114>
>> -----------------------------------------------------------------------------
>>
>>
>>
>>> Le 19 mai 2016 à 14:56, Alan Greenberg <alan.greenberg at mcgill.ca<mailto:alan.greenberg at mcgill.ca> > a écrit :
>>> 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 Byl
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