[CCWG-ACCT] CCWG - Proposed Responses to questions on Draft Bylaws

Thu Apr 7 16:07:54 UTC 2016

On 6, I also have a little concern with the meeting's conclusion:
"The inclusion of the EC consent is required as a legal constraint due to the nature of the Designator model. To keep as close as possible to the conclusions of the CCWG Accountability Report, which did not amend the ability for the ICANN Board to remove one of its members, we recommend that the EC consent should be drafted in the Bylaws only as a matter of formality to endorse the Board decision, without any escalation or consultation process."

Some points:

a)      It is true that there was no discussion on the Board's existing autonomy to dismiss directors; however

b)      it is equally true that there was no discussion on the new power of EC to provide consent,  which has always been at least documented (see "designated directors cannot be removed without cause unless Sole Designator consents" from pg. 10 attached).

c)      what WAS discussed thoroughly, and received broad support, was the sovereignty of the SO/ACs to appoint and dismiss "their" directors, balanced (in response to the Board) with strong due diligence accorded the director.

d)      moreover, there is also the proposal's strong support of the EC's ability to check multiple other consequential Board actions.

So I have difficulty saying that rubberstamping the board's decision to remove an SO/AC is "as close as possible to the conclusions of the CCWG Accountability Report". And therefore I think the proposal by legal counsel, to give the EC the opportunity to oppose, much closer to the Report.

-----Original Message-----
From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Andrew Sullivan
Sent: Thursday, April 7, 2016 11:58 AM
To: accountability-cross-community at icann.org
Subject: Re: [CCWG-ACCT] CCWG - Proposed Responses to questions on Draft Bylaws

On Thu, Apr 07, 2016 at 04:34:14PM +0100, Seun Ojedeji wrote:

> SO: The way I understand it is that the EC powers is applicable on

> board action or inaction hence is not restricted in the manner you've

> described above.

The proposed text I saw appeared to me to say that the EC would effectively be required to rubber-stamp the decision.  Maybe I misunderstood it; if so, good.  (The reason for the rubber stamp is that the EC is actually required to make such an affirmation.)

> I think we all should agree first that board should indeed be able to

> remove their colleague if they do wish and if the requirements meet.

Well, yes and no.  The point I'm trying to make is that this agreement could represent an attack against an approach to additional accountability short of the full replacement of the Board.  Let me try to lay it out in more detail.

Suppose the community were to decide that the Board was insufficiently sensitive to $issue, and were to appoint someone to the Board who was more sensitive to it.  It is not too hard to imagine a case in which such a member would be regarded by the rest of the Board as too disruptive and so on.  So, they remove the member.  The Empowered Community permits the removal.  The community (whichever way the member is appointed) re-appoints, the Board removes again, and so on.

This could be short-circuited by simply making the required Empowered Community action to be a real one, so that if the EC doesn't agree with the Board's decision it can say, "No."

I don't feel super strongly about this -- you could get the same result another way (like by making it plain that's what's going to happen -- I don't believe anyone likes that many trips to the dentist

-- or by just removing the Board).  But since the EC is required to act anyway, it seems one might as well use that occasion to allow the power to be used effectively.

Best regards,

A

--

Andrew Sullivan

ajs at anvilwalrusden.com<mailto:ajs at anvilwalrusden.com>

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