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

[Seun Ojedeji]

Hi Robin,

Thanks a lot for clarifying the membership part and yes it's important to
refer to the California law in this context. However from the paragraph you
quoted, there is the section below:

" ......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*..."

It may be helpful to understand the implication of that in the sense of
asking the question; "who has the ultimate veto?"

Cheers!
sent from Google nexus 4
kindly excuse brevity and typos.
On 4 Feb 2015 21:51, "Robin Gross" <robin at ipjustice.org> wrote:

> 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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