[CCWG-ACCT] ICANN Board comments - Recommendation 3 - Fundamental Bylaws

[Greg Shatan]

I agree with the result the Board came to (at least in part), but not the
reasoning.  Each SO or AC should have the right to inspect.  However, the
role of the Designator is not merely to "add or remove Board members." The
Designator plays a critical role in the exercise of several of the powers,
in addition to its role in enforcing those powers via director removal.
The Designator is an integral part of the Empowered Community.  We accepted
the diminution of  power and leverage that came with the shift from Single
Member to Single Designator.  We should not further diminish the role of
the Single Designator by reducing it to its statutorily-defined designator
powers.

(Technically, the designator should have inspection powers as well, to the
extent that such inspection may be useful as the community seeks to
exercise its powers through the Designator.  As a practical matter, this
can be solved by having any of the SOs or ACs exercise the inspection
right, so we're covered that way.)

Greg

On Sat, Jan 23, 2016 at 6:59 PM, Bruce Tonkin <
Bruce.Tonkin at melbourneit.com.au> wrote:

> Hello All,
>
> >
> > The Board is supportive of the changes reflected in the document after
> the first reading.  The Board notes that while it is supportive of the
> inspection right being reflected as a Fundamental Bylaw, the inspection
> right should be noted as a right of the community, and not of the Sole
> Designator, to align with the Board's comments on Recommendation 1.
>
> Just to provide a little more context in response to questions on the list.
>
> The role of the designator is to add or remove Board directors.   This
> role is enforceable under California law.
>
> The inspection right is a right for the ACs and SOs.   An AC or SO can
> exercise this right independently of the legal entity that will be the sole
> designator.     If ICANN doesn't respond to an appropriate request from an
> SO or AC, it would be in breach of its bylaws.   The community can then use
> the IRP to get a binding decision.    In the unlikely event that the Board
> does not comply with the outcome of the IRP decision, then the designator
> has the power to remove Board members.
>
> In the bylaws we want to make sure that we don't confuse the role of the
> designator (add or remove Board members) with the various roles of the SO
> and ACs in the bylaws.   The bylaws are primarily enforced by the IRP, and
> then the designator (via removal of Board directors) if the IRP is not
> complied with, and then the courts if the decision of the designator is not
> complied with.   This is a clear escalation path that applies to all bylaws.
>
> Regards,
> Bruce Tonkin
>
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