[ALAC] REVISED: My comments on Draft Bylaws

[Alan Greenberg]

Here are my revised comments.

Thanks to all for your feedback. It is a much stronger statement as a result.

They are submitted Public Comment on my own behalf. I believe that 
Based on the comments so far, I have the full support of the ALAC on 
the first item, and significant but not full support on the second. I 
will wait until tomorrow near the end of the comment period to post a 
message about ALAC support (adjusting the above if necessary based on 
further input).

Also attached is a redline version showing the changes from the 
earlier version.

Alan

=============================

Background:
The Affirmation of Commitment (AoC) Reviews are being integrated into 
the Bylaws. The AoC called for the reviews to be held every three 
years, but was unclear as to how the three years was to be measured. 
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 Proposal 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 on 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 PDP WG 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 AoC-like Review. 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", I and others in 
the community will gladly act as a sounding board 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 or RDS plan to review, and would even suggest that once 
implemented, the new Bylaws 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 naming, 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. The CCWG has been very careful to only implement exactly what is 
specified or implied in the CCWG Proposal. The EC Administration is 
not explicitly named, but is implied in Proposal Paragraph 178, 
bullet 8 and elsewhere. There is no mention of restrictions such as 
those in this proposed Bylaw, and as described below, I can see no 
compelling reason to vary from the CCWG Proposal.

2. I cannot understand what the relationship is between 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 or removing a director.

3. 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").

4. 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"

5. I note that the wording in the proposed Bylaws is different from 
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.

6. 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).

I strongly suggest that Section 7.4(d) be replaced by: "No person may 
serve simultaneously on the EC Administration and as a Director or 
Liaison to the Board. If a member of of the EC Administration is 
appointed as a Liaison to the Board, that person must be replaced by 
their AC/SO on the EC Administration prior to the Liaison appointment 
becoming effective. If a person is nominated by the Nominating 
Committee or an AC/SO to become a Director, that person must be 
replaced by their AC/SO on the EC Administration prior to the EC 
Administration designating that person as a Director and prior to 
that person taking part in any Board activities as an observer."
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