[CCWG-ACCT] EC approval of Board-initiated removals

[Mueller, Milton L]

I think Andrew provides an irrefutable example of how making EC approval of board removals a rubber stamp opens the door to abuse at worst, or confusion and indecision at least. I think we need to return to this issue. 

I argued pretty strenuously in the Thursday call chat for EC approval (real, not automatic rubber stamp). 
We know that some kind of EC approval is _legally required_. So there is no avoiding this issue. 

Some argued that we had to make it "automatic" or a rubber stamp, because the CCWG did not explicitly say that it wanted to limit the board's ability to remove its own members. This is true as far as it goes, but the people who made that argument also acknowledged that this was largely an oversight rather than a deliberate decision. So, while the CCWG did not clearly say that it wanted the EC to approve board removals, it did not clearly say that it didn't, either.

Those who favored the "rubber stamp" approach argued that this would be a "substantive change" in the CCWG proposal. I disagree completely - it is filling in a gap that was left inadvertently. Because of the legal requirement for EC approval, there is no avoiding some kind of a change. The issue is whether we make an intelligent adjustment to this problem or a blind, unintelligent one. 

To be fully consistent with the notion of a designator and an empowered community, we need to have the EC approve board-initiated removals, or else limit the board's removal power in some new way that forecloses the possibility of the scenario Andrew identified. 

--MM


> -----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
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