[Party1] RES: Proposal for a Community Veto Process on Key Board Decisions via Bylaws Amendment

[Robin Gross]

Hello Pedro,

Thanks for your questions about this proposal, which I'll try to answer in-line below.

On Feb 3, 2015, at 11:33 AM, Pedro Ivo Ferraz da Silva wrote:

> Hello Robin,
>  
> Thank you very much for the interesting contribution. I am sure the two WP1 rapporteurs would like to discuss this and other contributions once we have a reasonable inventory, but I would just like to raise some questions beforehand
> in order to make sure I fully understand your proposal:
>  
> ·         In the following extract, do you really propose the Board would have the ability to veto the community's veto or did I get it wrong? "The board would then be required to adopt this Decision of the Community unless it voted (unanimous or super-majority) to reject the Decision of the Community that was reached via this process and which would be stipulated to in bylaws and/or articles of incorporation."

Yes, the board would have an opportunity to reject or otherwise not act on the community veto.  The particular threshold required to over-rule the community veto would be worked out by this group, but I'd think we'd want it to be a very high threshold, like a unanimous board decision or a super-majority of board members would need to vote against the community decision.  This requirement of the board having the final say and an opportunity to reject the community's decision is what is required by California Corporations law that mandates the board of directors have the "ultimate direction" of the corporation.

California Corporations Code -- Nonprofit Public Benefit Corp:
5210.  Each corporation shall have a board of directors. Subject to
the provisions of this part and any limitations in the articles or
bylaws relating to action required to be approved by the members
(Section 5034), or by a majority of all members (Section 5033), the
activities and affairs of a corporation shall be conducted and all
corporate powers shall be exercised by or under the direction of the
board. The board may delegate the management of the activities of the
corporation to any person or persons, management company, or
committee however composed, provided that the activities and affairs
of the corporation shall be managed and all corporate powers shall be
exercised under the ultimate direction of the board.

>  
> ·         What exactly do you mean by "relevant Community"? I believe this concept would definitely need to be nailed down, as it may include many different actors. All SOs and ACs would be an ideal initial list of sub- communities, but we would also need to consider IANA customers and other important actors part of the greater "Internet multistakeholder community" which obviously do have a stake in what ICANN does.
>  

This is a critical definition indeed.  As a starting point for discussion, let's say the "relevant community" would be those who are impacted by a particular board decision and it would vary although be broad in reach.  It sounds like there may be some circumstances when it would not be appropriate for the G community to have a "vote" on activities of the CC community and vice versa, so we could tailor the plan to accommodate that separation and other concerns as we work through the details.

Hopefully that helps.  Please let me know if there are other questions or thoughts about this possible mechanism of a "community veto".

Thank you,
Robin

> Kind regards,
>  
> Sec. Pedro Ivo Ferraz da Silva
> Divisão de Sociedade da Informação (DI)
> Ministério das Relações Exteriores
> T: + 55 61 2030-6609
>  
> De: wp1-bounces at icann.org [mailto:wp1-bounces at icann.org] Em nome de Robin Gross
> Enviada em: terça-feira, 3 de fevereiro de 2015 15:50
> Para: Steve DelBianco; Jordan Carter; Accountability Cross Community; wp1 at icann.org
> Assunto: [Party1] Proposal for a Community Veto Process on Key Board Decisions via Bylaws Amendment
>  
> Steve, Jordan, all,
>  
> As promised on this morning's call, below is a further elaboration of the community empowerment proposal to amend the bylaws to create a community veto process.  Thank you in advance for including this proposal along with the other suggestions for community empowerment mechanisms in the group inventory for further consideration.  
>  
> Best,
> Robin
>  
> Community Veto Process on Key Board Decisions via Bylaws Amendment
>  
> Amend the existing corporate bylaws (and /or articles of incorporation) to create a new mechanism that empowers the Community to overturn board decisions on a limited number of specific, enumerated issues and also to recall nonperforming board members.  This community veto process would be fashioned such that a decision to over-rule the board is determined via aggregation of decisions of the existing ICANN community structures.  Each individual component of the relevant Community (for example, GAC, GNSO, At-Large, CCNSO, etc.) would have a proportional share in the over-all Decision of the Community (to veto or not to veto the board).  Each of these individual structures already has internal mechanisms to make decisions through which the larger Decision of the Community could ultimately be determined.  We must scope what specific enumerated decisions can trigger such a community veto process (ex: the list developed in Frankfurt) and also a specific mechanism for triggering the veto process (ex: complaint supported by relevant 2 community components).
>  
> The ombudsman (or neutral 3rd-party) could act as the facilitator of this community veto process in a purely administrative role: accept the matter for review, call the question to community vote, and collect the decisions of the individual components to reach the overall Decision of the Community (to veto or not to veto).  The board would then be required to adopt this Decision of the Community unless it voted (unanimous or super-majority) to reject the Decision of the Community that was reached via this process and which would be stipulated to in bylaws and/or articles of incorporation.   
>  
> Coupled with another bylaws revision providing for the ability of the community to recall recalcitrant board members, it would be difficult for the board to disregard the bottom-up Decision of the Community on a few specific matters.  Larry Strickling's speech last week hinted that an ability to recall board members would be part of the solution NTIA is looking for in the transition.  Under this community veto model, the board would still maintain the requisite ultimate direction and control that is required by California corporations law (§5210), but we could significantly empower the community by creating a veto process with teeth behind it.
>  
> Amending the bylaws allows us to create the ability to overturn board decisions and thus empower the community without the need to create complicated new membership organizations or super-structures to be representational of the community.  Creating a community veto process is a simpler and lighter approach to achieving the same community powers and would use the existing organizational structure.  This would be a more bottom-up method of reaching a decision of the community to overturn a particular board decision and it wouldn't require a radical remaking of ICANN's organizational and legal structure, but rather, a couple key bylaws amendments.  The creation of this community veto process is not without challenges, but I think most concerns can be addressed as we hammer it out and further develop the community veto model as a possibility to consider for empowering the community with respect to key board decisions.

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/wp1/attachments/20150204/894afe0f/attachment-0001.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: signature.asc
Type: application/pgp-signature
Size: 496 bytes
Desc: Message signed with OpenPGP using GPGMail
URL: <http://mm.icann.org/pipermail/wp1/attachments/20150204/894afe0f/signature-0001.asc>