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

[Robin Gross]

On Feb 3, 2015, at 11:55 AM, Seun Ojedeji wrote:

> Appreciation also to Robin, and i have a follow-up to Pedro's useful comments below:
> 
> On Tue, Feb 3, 2015 at 8:33 PM, Pedro Ivo Ferraz da Silva <pedro.ivo at itamaraty.gov.br> wrote:
> 
> ·         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."
> 
> 
> I guess that is how i also understand it and i think its normal to give the board such option in this process and watch them take it ;-). If they then decide to take the route of rejecting then i guess that would be when the second community tool will kick-in, i.e recall of recalcitrant board members. What i think needs to be clarified is whether just empowering the community (a CCWG perhaps) through the bylaw (without formal creation of any membership structure) will be binding. (I guess it will be useful to get legal advice on that)

Thanks, Seun for the observation.  However, there is no legal requirement that the community be comprised of a membership structure for this mechanism to have effect.  Looking at the relevant California Corporations Law Code Section 5210 (below) that specifies how California nonprofit public benefit corporations shall be managed, it makes clear management can be delegated to any persons or committee "however composed".   So the legal advice on this question from this California attorney is that no membership structure is required to achieve a community veto on key board decisions.

Thanks,
Robin

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.
PS:  Sorry to keep citing this Cal. Corp. Sec. 5210, but it is the legal form ICANN is currently organized as, and thus it is the universe in which we live and the rule of law we must comply with if ICANN is to remain a Cal. Nonprofit Public Benefit Corp.
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