[CCWG-ACCT] ICANN Board comments - Recommendation 3 - Fundamental Bylaws

[Avri Doria]

Hi,

I agree that enforcement is the smallest part of future behaviors,
despite the fact that it is a motivator.

I thought the designator was the way in which the community, which makes
up that designator, expressed its will.

avri

On 24-Jan-16 12:02, Greg Shatan wrote:
> Seun,
>
> You misunderstand me.  The Designator does more than "enforce"
> powers.  Under our proposal, the designator is also the vehicle for
> _exercising_ a number of the powers (e.g., approving/rejecting
> bylaws).  The exercise of the new powers by the designator will be a
> much more common occurrence than the enforcement of those powers by
> removing directors.  I anticipate the latter will rarely (if ever)
> occur, though the fact it can occur is part of our accountability
> framework.  There are other reasons for the Board to comply with the
> community's exercise of its powers, aside from sheer terror at being
> removed.  For one thing, these powers are enshrined in the bylaws, and
> the Board (like any Board) will not take the prospect of violating our
> Bylaws lightly.
>
> We have had a tendency to overemphasize the enforcement end of things,
> and I think this is one more action in that vein.  Let's try to avoid
> that.  Just like our proposal is about far more than "enforcement," so
> is the Single Designator.
>
> So, no, your statement did not "close this particular item."  Rather,
> it demonstrates exactly why this item is not really closed.
>
> Greg
>
> On Sun, Jan 24, 2016 at 10:48 AM, Seun Ojedeji <seun.ojedeji at gmail.com
> <mailto:seun.ojedeji at gmail.com>> wrote:
>
>     On 24 Jan 2016 16:15, "Greg Shatan" <gregshatanipc at gmail.com
>     <mailto:gregshatanipc at gmail.com>> wrote:
>     >
>     > I agree with the result the Board came to (at least in part),
>     but not the reasoning.  Each SO or AC should have the right to
>     inspect.  However, the role of the Designator is not merely to
>     "add or remove Board members." The Designator plays a critical
>     role in the exercise of several of the powers, in addition to its
>     role in enforcing those powers via director removal. 
>     >
>     SO: I guess Bruce was rightly mentioning the powers of the
>     designator. I believe we we will only be getting those powers
>     enforced as a result of the "add/remove" power of the designator.
>
>     So in summary we don't get enforcement of the various powers
>     because it's a role of the designator but on the basis that the
>     designator may use its only statutory power, which is to
>     add/remove board members.
>
>     I generally agree with the result and would have even preferred
>     that a threshold be required for inspection. However, on the basis
>     that each SO/AC may need access to certain information to make
>     informed/independent decisions, it makes sense to allow such right
>     to each SO/AC.
>
>     Hopefully this close this particular item.
>
>     Regards
>
>       on Recommendation 1.
>     >>
>     >> Just to provide a little more context in response to questions
>     on the list.
>     >>
>     >> The role of the designator is to add or remove Board
>     directors.   This role is enforceable under California law.
>     >>
>     >> The inspection right is a right for the ACs and SOs.   An AC or
>     SO can exercise this right independently of the legal entity that
>     will be the sole designator.     If ICANN doesn't respond to an
>     appropriate request from an SO or AC, it would be in breach of its
>     bylaws.   The community can then use the IRP to get a binding
>     decision.    In the unlikely event that the Board does not comply
>     with the outcome of the IRP decision, then the designator has the
>     power to remove Board members.
>     >>
>     >> In the bylaws we want to make sure that we don't confuse the
>     role of the designator (add or remove Board members) with the
>     various roles of the SO and ACs in the bylaws.   The bylaws are
>     primarily enforced by the IRP, and then the designator (via
>     removal of Board directors) if the IRP is not complied with, and
>     then the courts if the decision of the designator is not complied
>     with.   This is a clear escalation path that applies to all bylaws.
>     >>
>     >> Regards,
>     >> Bruce Tonkin
>     >>
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