Posted: 28 December 2001
Period for Comment Expires: 31 January 2002

Proposed Revision to Bylaws: Alignment of Directors' Terms

At its third annual meeting held on 15 November 2001 in Marina del Rey, California, USA, the ICANN Board informally expressed interest in revising ICANN's bylaws to provide that the expiration (and therefore commencement) of all Directors' terms coincide with the conclusion of ICANN's annual meetings. The Board requested the General Counsel to prepare and post for public comment proposed amendments to ICANN's bylaws that would accompish this alignment of Directors' terms.

Background. The bylaws provide that the terms of all ICANN At-Large Directors expire at the conclusion of annual meetings, which have historically been held in November of each year. See Article II, Section 3 (conclusion of annual meeting in 2002) and Article V, Section 1 (conclusion of annual meetings in 2000 and 2002). In contrast, the bylaws provide that the terms of Directors selected by Supporting Organizations expire on 30 September of each year. (The President also serves as a Director, with a term lasting only so long as he or she holds the office of President. See Article V, Section 9(c)(1).)

Rationale for Alignment of Terms. The proposed change to bring all Directors' (as well as officers') terms into alignment assures that all new Directors are seated at a general public meeting of the Corporation, immediately following an opportunity at that meeting for them to become more informed about matters before the Corporation through dialog with the community and through formal new Director orientation regarding roles and responsibilities. Currently, some new Directors are seated in October and may immediately need to participate in Board meetings without the opportunity of being fully informed about ICANN and current issues.

Synchronous seating of new Directors at an annual meeting is a customary, although not legally required, practice of organizations. The different times for seating different types of ICANN Directors arose by historical happenstance, rather than any deliberate decision that there should be different dates on which Directors' terms end.

Proposed Amendments to the Language of the Bylaws. To accomplish the alignment, I recommend revisions to Article V, Sections 9(b) and 9(c). These recommended revisions are shown below, with added words underlined and in magenta and deleted words in striken out and in red. Comments (not to become part of the bylaws) are in gray type.

ARTICLE V: STRUCTURE OF THE BOARD OF DIRECTORS

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Section 9. SELECTION AND TERM

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(b) Prior to October 1 of each year beginning in the year 2000, each Supporting Organization entitled to select a Director (other than an Original Director selected by the Supporting Organization under Section 2 of this Article) shall (i) make its selection according to the procedures specified by Article VI (including Articles VI-A, VI-B, and VI-C)., and (ii) give the Board and The Supporting Organization shall give the Secretary of the Corporation written notice of the selection within at least fifteen days written notice of after that selection. The term of such a Director shall commence on the October 1 after the Secretary's receipt of such written notice.

Comment: The completion of the Supporting Organizations' processes for selection of Directors by 1 October of each year is retained to allow orientation of newly selected Directors to begin before they assume their offices. Reference to providing notice of the selection to "the Board and the Secretary" has been simplified to require notice only to the Secretary, inasmuch as the Secretary is the recipient of all official notices to the Board in any event. The last sentence, relating to the commencement date of the terms of Directors selected by Supporting Organizations, has been deleted because its substance is covered by the proposed new Article V, Section 9(c)(5) (see below) concerning the expiration of terms of office of such Directors. Newly selected Directors selected by Supporting Organizations will be seated upon expiration of their predecessors' terms.

(c) The regular term of office of a Director shall be three (3) years, except as follows:

Comment: With the proposed re-alignment, all Directors' terms will end on various dates determined by the timing of the annual meetings. Thus, the general rule that the term as exactly three years no longer applies to any type of Director. Instead, a new Section 9(c)(5) is proposed to be added so that the term of each type of Director is specified without reference to a general rule.

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4. The staggered terms of the Original Directors selected by any Supporting Organization as provided by Section 2 of this Article shall extend until the conclusion of the second, third, and fourth Annual Meeting of the Corporation be one (1) year, two (2) years, and three (3) years, respectively, after the Supporting Organization's notification of their selections and designations is received by the Secretary with each term considered to have begun on October 1, 1999 regardless of when those Original Directors actually take office.

Comment: The word "staggered" and the phrase "as provided by Section 2 of this Article" are added to clarify the meaning. The remaining changes specify that the terms of the Directors originally selected by a Supporting Orgainzaiton (whether now existing or created in the future) would expire at the conclusion of the second, third, and fourth annual meetings after the Directors are seated. This results in the staggered terms of these Original Directors being (1) between one and two years, (2) between two and three years, and (3) between three and four years.

5. The term of a Director selected by any Supporting Organization to succeed a Director previously selected by it (other than a Director selected to fill a vacancy) shall expire at the conclusion of the third Annual Meeting of the Corporation after the one at the conclusion of which the term of the Director's precedessor expired.

Comment: Section 9(c)(5) is new. It provides that terms of Directors selected by a Supporting Organization (after the first set of Directors it selects) shall run until the third annual meeting after they are seated. Note that the terms of Directors who are selected to fill vacancies are governed by Article V, Section 12. Under that provision, a Director selected to fill a vacancy serves for the unexpired term of his or her predecessor in office.

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Public Comment Requested. Public comment is requested on this proposed bylaw amendment. Comments should be submitted no later than 31 January 2002 by e-mail or through the web-based forum, both of which may be accessed by the links below.

Respectfully submitted,

Louis Touton
General Counsel