[CCWG-ACCT] Draft Bylaw comments

[Alan Greenberg]

Following a not quite comprehensive review of the 
Draft Bylaws, focusing on the areas where I had 
the most involvement and/or concern, I have drafted a number of comments.

If there are any sections where other who have 
reviewed the Bylaws can tell me I have mis-read anything, please let me know.

Alan

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Section 4.3(k)(ii)
"In the event that a Standing Panel is not in 
place when an IRP Panel must be convened for a 
given proceeding or is in place but does not have 
capacity due to other IRP commitments or the 
requisite diversity of skill and experience 
needed for a particular IRP proceeding, the 
Claimant and ICANN shall each select a qualified 
panelist from outside the Standing Panel and the 
two panelists selected by the parties shall select the third panelist.

I would suggest that first "Shall" should be 
"may". It is possible if the issue is capacity, 
diversity of skill or experience, there may be 
some panelists that qualify, even if there are not three.
==========

Section 4.6(b)(ii)
"The issues that the review team 
 may assess are 
the following" does not properly implement CCWG 
Annex 9, paragraph 84 "Issues that may merit 
attention in this review include:".

The original AoC mandated the list that follows. 
Paragraph 84 did not require that an ATRT address 
them all, but also allowed an ATRT to address 
other issues not listed. The Bylaw language is 
prescriptive and limits the topics.
==========

Section 4.6(e)(v)
During the CCWG discussions on the interval 
between 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 Bylaws for the organizations review 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".
==========

Section 6.1(g)(iv)
"how the Decisional Participant determines 
whether an issue subject to a petition has been resolved,"

In all of the other Roman Numeral phrases, there 
are specific processes to design or rules to 
write. This one is out of place. In any given 
case, the process to decide whether the issue has 
gone away will depend on exactly what that issue 
was. There does not seem to be a way to write 
that generic process in any way that will prove 
useful when the need to "determine" arises. I 
suggest that this section be deleted.
==========

Section 6.2(a)(v)
"Articles" should be "Articles of Incorporation" 
(Articles alone would refer to any of the 27 Articles within the Bylaws).
==========

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."

This seems both problematic and uncalled for, and 
I do not believe is based on anything in the CCWG 
proposal. There is a more reasonable restriction 
in 7.4 (b) that says someone serving on the Board 
cannot occupy other positions. But in this case, 
the EC Administration (the AC/SO Chairs or other 
delegates) can only act on instructions they are 
given. To restrict them from being considered 
means that they cannot even submit a confidential 
application to the NomCom, a restriction that is 
placed on no one in ICANN except those actually sitting on the current NomCom.
==========

Section 7.11(a)(i)(B)
For removal of a Board member by the Board, the 
current Bylaw says a 3/4 majority vote of all 
Board members, except the member subject to the 
removal is required. The revision omits the 
exclusion allowing that director to participate 
in the vote. What is the compelling rationale for 
this change which is not related to any CCWG recommendation?
==========

Section 7.12(b)
This section stipulates what process should ensue 
after the entire Board (except the President) is 
removed because they are mentally unsound, 
convicted of a felony, or being found by a court 
to have breached their duty as a Director. 
Presumably the last Board member is removed by 
action of the President, the last person 
standing, who somehow convinced the last Director 
to remove themselves (for the 3/4 vote).

This is also the only reference I could find for 
AC/SO appointing Interim Directors which is 
required in the case of the EC removing the 
entire Board. But in that case, the Interim 
Directors were supposed to be named BEFORE the 
final vote so that the Interim Board would be 
ready to immediately take office as required by 
Paragraph 97 of Annex 4 ("Having a Board in place 
at all times is critical to the operational 
continuity of ICANN and is a legal requirement").
==========

Section 12.2(d)(ix)(F)
"Rules of Procedure" is a defined ALAC document. 
I am not sure if that is sufficient to justify 
upper case here , but regardless, I would assume 
the usage should be consistent throughout the 
sentence. I note that in Annex A, terms such as 
"Policy Development Process Manual", "Initial 
Report", "Final Report" and other terms are all capitalized.
==========

Annex D, Section 1.2
The term PDP is used here. That is a defined term 
in the Bylaws referring only to the GNSO. My 
understanding is that the section related to a 
Bylaw change as a result of any formal policy 
development process from an SO. The ccNSO uses 
the defined term "ccPDP" and the ASO section is 
silent on what their policy process is called.
==========

Annex D, Section 1.4(b)(i-ii)
The higher threshold should apply not only to 
Fundamental Bylaws, but also to the Articles of Incorporation.
==========