DRAFT: DNSO AMENDMENTS TO ICANN BYLAWS
"The approach set forth in this draft assumes that the Supporting
Organizations will be policy advisory bodies within ICANN, with the
additional characteristics that (1) they each select *three* Directors
of ICANN and (2) there is a presumption (rebuttable if they fail to
meet the criteria set forth in the Bylaws) that their
*recommendations* will be approved by the Board. If the approach
reflected in this draft is finally adopted, the actions of those
participating would presumably be subject to the insurance *and
other protections afforded ICANN officers, directors and
employees* so long as they were within the legitimate scope of the
Supporting Organization's activities."
Reading over the amendment proposal, I held the following
questions:
Are nominations to the Board different in kind from other
'recommendations' an SO might make? If not, are the 'criteria' in
the Bylaws sufficient? If not, is there explicit definition of the
difference? What protections does being part of ICANN, Inc extend
to the SOs? Does an SO have the power to 'secede' and
independently incorporate in the event the present approach
becomes unworkable?
I have not been able to find clear answers in either the Draft
Amendments or the Bylaws as they stand. (One might suspect
that the *assumption that they are different is responsible for a lot
of confusing verbiage.) In any case, the search produced some
further procedural questions:
ARTICLE II: MEMBERSHIP
(This Article is reserved for use when the Corporation has
members.)
Q1: When does membership begin? (E.g. with the formation of
DNSO/ Names council? With 'selection of nominations'?)
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V: 4(iv). Nine (9) At Large Directors, selected pursuant to a
process to be established by a majority
vote of all the At Large Board members of the Initial Board; and
Q2: What is the status of the Membership SO?
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V: 4(v). The person who shall be, from time to time, the President
of the Corporation.
Q3: The 'allocation of positions' implies that the President is found
outside of the nominated Board of Directors. Are there to be further
bylaws or stipulations pertaining to that selection process, or, if it
is an *office of a nominated Director, is there a by-election or other
'reallocation' process to fill the vacated seat?
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V:22. The Directors shall receive no compensation for their services
as Directors. The Board may, however, authorize the
reimbursement of actual and necessary reasonable expenses
incurred by Directors performing duties as Directors.
FAQ 9. "As stated by the Board in its DNSO Formation Concepts
statement, released in Singapore, the DNSO should be self-
supporting and not funded from general ICANN revenues."
Q4: What oversight power does the Board have over the accounting
of SO fundraising?
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extant VI: 1(a). The Supporting Organizations shall serve as
advisory bodies to the Board and shall have such powers and
duties as may be prescribed by the Board and these Bylaws. The
Board may add additional Supporting Organizations by a two-thirds
(2/3) majority vote of all members of the Board and in such event
shall, by such two-thirds (2/3) vote, reallocate the positions on the
Board ...
proposed VI: 2(a). Each Supporting Organization shall select
Directors to those seats on the Board designated, pursuant to
Section 4 of Article V...
and 2(f) If the Board declines to accept any such recommendation
of a Supporting Organization, it shall return the recommendation to
the Supporting Organization for further consideration, along with a
statement of the reasons it declines to accept the
recommendation...
Q5: Is selection of nominees the equivalent of *election?Can the
Board decline to accept any such *nomination of an SO?
I note that the power of reallocation of positions has been dropped --
is that not a "substantive change"? In the event 3 nominees are not
put forward, what then? OTOH, if the omission was unintentional,
can reallocation occur at any time, e.g. after nominations have
been made?
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V: 9(b). Each Supporting Organization shall (i) select the Board
members to be nominated by that Supporting Organization through
a process determined by the Supporting Organization and
*approved by the Board*...
proposed VI. 3(a). Once accepted by the Board through the
amendment of these Bylaws and the failure of the Board to
disapprove any [*?*] subsequent decisions by the Supporting
Organizations or their constituent bodies, the procedures of the
Supporting Organizations shall prevail in the case of any
inconsistency with any other provisions of these Bylaws.
Q6: Is this clause itself inconsistent with Article V? Are all
(subsequent) changes to the nomination process to be approved by
the Board? (Hairy business, this construction of a 'selectorate' for
an organization already in place! Btw, what decisions of the
'constituent bodies' are envisioned that would not also be SO
decisions?)
-----------------------
XII: Except as otherwise provided in the Articles of Incorporation,
the Articles of Incorporation or Bylaws of the Corporation may be
altered, amended, or repealed and new Bylaws adopted only upon
action by two-thirds (2/3) majority vote of all members of the Board.
proposed VI-B. (d) If two-thirds (2/3) of the members of the NC
determine that the DNSO process has produced a community
consensus, that consensus position shall be forwarded to the
Board as a consensus recommendation...
Q7: Is there any precedent anywhere for this definition of
consensus (or for the bastardized numbering convention ;-))? Will a
Board decison (by 2/3 majority) be required to amend this
definition, or is it a 'policy and procedure' of SOs? Can an SO
decision to amend Article XII prevail? The role of the NC is
mentioned
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FAQ 5. ... it seems desirable to set artificial deadlines to
encourage early action on the formation of the constituencies.
Q8: Should this principle be codified in the Bylaws? It seems to be
as essential aspect of the Interim Board's proceedings.
In this connection, I have to say the provisions of VI-B: 2, regarding
the DNSO and the function of the Names Council, appear to be
well conceived. Indeed, I strongly recommend that the Board duly
consider adopting these procedures for itself:
"Any reports or recommendations presented to the NC by such
bodies shall be *simultaneously posted* on a website accessible
by the public for public review and comment; absent clear
justification, which shall be *publicly stated* at the time of any
action, the NC shall not act on any report or recommendation until
a *reasonable time* for public comment has passed and the NC
has reviewed and evaluated all public comments received. The NC
is responsible for ensuring that all responsible views have been
heard and considered prior to a decision by the NC."
Cheers,
kerry
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refs: http://www.icann.org/bylaws-pr23nov98.html
http://www.icann.org/dnso/dnsobylaws1.html
All emphases added by myself.
