[Acct-Legal] Fwd: [CCWG-ACCT] Plan B

[Greg Shatan]

Passing this on to the legal subteam mailing list.

Greg
---------- Forwarded message ----------
From: Alan Greenberg <alan.greenberg at mcgill.ca>
Date: Thu, Jun 18, 2015 at 9:17 PM
Subject: [CCWG-ACCT] Plan B
To: CCWG Accountability <accountability-cross-community at icann.org>


Given the spread between those who believe that we need ultimate
accountability, and those who are willing to trust that the community
wishes will be honoured, allow me to put a new variation on the table. We
have talked about all of the parts before, but perhaps the combination is
new.

This proposal involves no Unincorporated Associates, no Designators and no
Members.

Up to now, we have been working with Bylaws that we are now told have no
real basis in law, but which so far, have worked. I specifically refer to
things like the SOs, ALAC and the NomCom appointing Board members, powers
that under California law are only given to Members or Designators, but our
less formal entities are granted these powers under the ICANN Bylaws and
for whatever reasons, it works.

I propose that we do the same with all of the community powers that we want
(including the requirement that Bylaws and certainly fundamental Bylaws be
approved), with the exception of formal budget approval (which impinges on
Board fiduciary responsibility). In lieu of the latter, we could have a
process by which and AC/SO lodges a formal objection to a budget or budget
item, and the Board has an obligation to follow-up (I am not going to go
into any further details here).

Every Director, as a requirement of being seated signs an irrevocable
letter saying that if by specified procedure, they are requested to step
down, they will. The procedure might include the formal action of the AC/SO
that appointed them, or a more widespread community request passing a
specified level of AC/SO support - the details would need to be defined,
but do not alter this proposal. The letter would also make reference to an
enforcement mechanism that could be invoked. The enforcement mechanism
might be to give the ICANN Ombudsman (or some other trustworthy and trusted
individual) the right to take court action to require the requested
resignation be honoured, or could give that right to the people occupying
the AC/SO Chairs. Any such action would be funded by ICANN and funds held
in escrow to ensure that this can be carried out.

In unlikely event that a removal included the entire Board, or some number
such that the remaining Board members do not meet minimum quorum
requirements, the AC/SO Chairs will on an interim basis be added to the
Board on an interim basis. This augmented interim Board would have
caretaker responsibilities and have only limited rights (to be specified).

Board member removals would be unconditional and not appealable.

I believe that the threat of invoking removal will likely be sufficient to
ensure that the community is given good control. And should that fail, the
actual removal of the Board member(s) who do not support the community
position can actually be removed.

There are many details to be determined but I believe that this is
workable. It allows for the most of the powers that have been requested
with a minimum number of changes and does not create significant new
potential vulnerabilities.

Alan



_______________________________________________
Accountability-Cross-Community mailing list
Accountability-Cross-Community at icann.org
https://mm.icann.org/mailman/listinfo/accountability-cross-community
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/ccwg-accountability5/attachments/20150618/574660c9/attachment.html>