[Gnso-bylaws-dt] Meeting invitation: GNSO Drafting Team call / Thursday, 26 September 2019 at 21:00 UTC

[Steve DelBianco]

As discussed last week, I believe the clock should not start until GNSO Council receives the petition.
So I am also aligned with Heather’s view.

On 9/26/19, 10:38 AM, " Wolf-Ulrich.Knoben"  wrote:

I like your interpretation and am in full support. BTW this again shows me that lawyers and techies are often following a similar logic in procedural matters ;-).

To bring the interpretation of Annex D section 3.1 (a) to perfection we should be clear about the origin of the "individual". Is here a "GNSO-relationship" requested? Or could any individual with or without any DP-related affiliation submit a petition to any of the DPs? The latter may open the individual searching for the most likely "removal-friendly" DP.
Am 26.09.2019 um 14:07 schrieb Heather Forrest:

Reminder to all that we have our extra call this week (in roughly 9 hours).

Our sole focus in this extra call is to reach a decision on how/to whom to submit a petition to remove a director. We need to interpret Bylaws Annex D in the GNSO context. I have read this again carefully and reviewed the recordings from our previous calls. Here is my interpretation as a strawman for our call:

The language of Annex D section 3.1 ((a) "Subject to the procedures and requirements developed by the applicable Decisional Participant, an individual may submit a petition to a Decisional Participant...") tells me that the key terms are "individual" and "Decisional Participant". As I understand our previous calls, we all agree (in this contexts and elsewhere in our work) that "individual" means anyone. The term is not defined in the Bylaws.

Then in Annex D section 3.1 (b), ("During the period beginning on the date that the Decisional Participant received the Nominating Committee Director Removal Petition..."), this tells me that the clock starts when the Decisional Participant receives the petition.

Article 6, section 6.1 defines "Decisional Participant": (a) The Empowered Community ("EC") shall be a nonprofit association formed under the laws of the State of California consisting of the ASO, the ccNSO (as defined in Section 10.1), the GNSO (as defined in Section 11.1), the ALAC (as defined in Section 12.2(d)(i)) and the GAC (each a "Decisional Participant" or "associate," and collectively, the "Decisional Participants").

Annex D, Section 3.1(b) therefore can be read: "During the period beginning on the date that the Decisional Participant received the Nominating Committee Director Removal Petition), this tells us that the clock starts when the GNSO receives the petition."  Section 11.2 of the Bylaws describes the GNSO as "consist[ing] of" "[a] Number of Constituencies"... "organized within the Stakeholder Groups". I do not understand 11.2 to allow us to interpret any single constituency or Stakeholder Group individually as the GNSO. Rather, the GNSO consists of all of those. Back to Annex D, Section 3.1(b), my view is that "when the GNSO receives the petition" means the GNSO as a whole, not any individual SG or C. For matters of the EC, the GNSO Council acts for the GNSO as a whole. Hence the clock starts ticking when the GNSO Council receives the petition.

If the "individual" in Annex D section 3.1(a) submits the petition to something other than the GNSO Council, the clock has not yet started. That's not to say that an individual is prevented from submitting to an SG/C, but it seems to me that the SG/C is obliged to send on to the Council ASAP, without debate or discussion. Annex D doesn't give us any ground to enable an SG or C to delay or discuss, and further, "individual" means the petitioner, not an SG or C.

I have copied the relevant Annex D section 3.1(a) and (b) below. For ease, link to the full Bylaws here: https://www.icann.org/resources/pages/governance/bylaws-en/#annexD

Heather

ARTICLE 3 PROCEDURE FOR EXERCISE OF EC'S RIGHTS TO REMOVE DIRECTORS AND RECALL THE BOARD

Section 3.1. NOMINATING COMMITTEE DIRECTOR REMOVAL PROCESS

(a) Subject to the procedures and requirements developed by the applicable Decisional Participant, an individual may submit a petition to a Decisional Participant seeking to remove a Director holding Seats 1 through 8 and initiate the Nominating Committee Director Removal Process ("Nominating Committee Director Removal Petition"). Each Nominating Committee Director Removal Petition shall set forth the rationale upon which such individual seeks to remove such Director. The process set forth in this Section 3.1 of Annex D is referred to herein as the "Nominating Committee Director Removal Process."

(b) During the period beginning on the date that the Decisional Participant received the Nominating Committee Director Removal Petition (such date of receipt, the "Nominating Committee Director Removal Petition Date") and ending at 11:59 p.m. (as calculated by local time at the location of ICANN's principal office) on the date that is the 21st day after the Nominating Committee Director Removal Petition Date (as it relates to a particular Director, the "Nominating Committee Director Removal Petition Period"), the Decisional Participant that has received a Nominating Committee Director Removal Petition ("Nominating Committee Director Removal Petitioned Decisional Participant") shall either accept or reject such Nominating Committee Director Removal Petition; provided that a Nominating Committee Director Removal Petitioned Decisional Participant shall not accept a Nominating Committee Director Removal Petition if, during the same term, the Director who is the subject of such Nominating Committee Director Removal Petition had previously been subject to a Nominating Committee Director Removal Petition that led to a Nominating Committee Director Removal Community Forum (as discussed in Section 3.1(e) of this Annex D).


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