Proposed Additions to Bylaws
Concerning Ineligibilities (Amended)
Additions to Bylaws Concerning Ineligibilities (Amended)
To the Board:
On 25 February 2003, the ICANN Board considered a set of clarifications, technical corrections, and minor modifications, proposed by the Evolution and Reform Committee, to the New Bylaws that went into effect on 15 December 2002. At the 25 February meeting, the Board unanimously adopted resolution 03.16, which made all but one of the ERC's proposed amendments to the bylaws. The Board did not, however, take action on the ERC's proposal to add an Article VII, Section 8, concerning ineligibility of Nominating Committee members for selection to ICANN bodies. The Board believed that the restrictions in the ERC's proposed language should be strengthened and requested me, as General Counsel, to prepare a revised version of the proposed section.
In consultation with the ERC, on 3 March 2003 I posted revised proposed language for Article VII, Section 8, of the bylaws. That provision met the Board's concern that participants on a Nominating Committee should be not be eligible for selection to the Board during the Nominating Committee's term, whether they are selected by the Nominating Committee or by a Supporting Organization. The same principle would apply to selections to the GNSO Council, the ALAC, and any other ICANN body with at least one position that the Nominating Committee is responsible for filling. Once the Nominating Committee's term ends at the conclusion of an annual meeting, participants in that Nominating Committee would become eligible for selection to these bodies. In the ordinary course, the first vacancies to be filled would be Board seats filled by Supporting Organizations six months after the annual meeting.
Since posting that proposal, another needed correction to the New Bylaws concerning ineligibility issues has come to light. In September 1999, the Board added a provision to the Old Bylaws (Article VI, Section 4) that explicitly stated that members of the Supporting Organization Councils may not simultaneously serve on the Board. In adding this provision, the Board concluded that simultaneous service is inappropriate because the Board is responsible for reviewing the appropriateness of policy recommendations made by the Supporting Organization Councils. The section added in September 1999 also provided for recusal of those Supporting Organization Council members being considered by the Council for selection to the Board. These provisions avoided the conflicting position in which such a candidate would be placed if he or she participated in the selection process.
Inadvertently, the provisions of the Article VI, Section 4 of the Old Bylaws were not carried forward to the New Bylaws that became effective on 15 December 2002. (This may be because the former Article VI, which concerned Supporting Organizations generally, has no analog in the New Bylaws.) To remedy this situation, I propose adding the substance of the omitted language to Article VI, Section 4 of the New Bylaws1 (concerning additional qualifications of Directors). The language of the former Article VI, Section 4 has been slightly revised to reflect that Supporting Organization Councils may have liaisons as well as regular members. To add clarity, I also propose to include a cross-reference in Article VI, Section 4(3) of the New Bylaws to the provision of Article VII, Section 8 of the New Bylaws regarding ineligibility of Nominating Committee participants for selection to the Board and other ICANN bodies.
The presentation below includes the both the ineligibility language presented on 3 March (concerning ineligibility of Nominating Committee participants) and the newly proposed language (concerning ineligibility of Supporting Organization Council participants). Added text is underlined and in magenta.
Note 1: The fact that Article VI, Section 4 of the Old Bylaws and Article VI, Section 4 of the New Bylaws are involved in this proposed amendment is simply an unfortunately confusing coincidence.
ARTICLE VI: BOARD OF DIRECTORS, Section 4. ADDITIONAL QUALIFICATIONS
[Explanation: The addition of Section 4(2) above restores the substance of Article VI, Section 4 of the Old Bylaws, as originally adopted on 27 September 1999, with slight adaptation to the circumstances of the New Bylaws. That provision was inadvertertently omitted from the New Bylaws. The proposed Section 4(2) establishes two limitations on participants in Supporting Organization Councils serving or being selected as Directors. First, because the Board is responsible for reviewing and adopting the policy recommendations sent to the Board by Supporting Organization Councils, no participant (including a liaison) on a Supporting Organization Council may simultaneously serve as a member (i.e. Director) of the Board. It is expected that members of Supporting Organization Councils will serve as liaisons to the Board. The second limitation is that participants in Supporting Organization Councils who are nominated to be selected by the Council to be a member (i.e. Director) of the Board must recuse themselves from the Council's selection process. The constituency that chose the Council member may select a replacement for purposes of that selection process. The recused member would be expected to continue to participate in other business of the Council not connected with the selection process.
To enhance clarity, Section 4(3) above provides a cross-reference to Article VII, Section 8, which limits the ability of Nominating Committee members to be selected to the Board (and other bodies).]
ARTICLE VII: NOMINATING COMMITTEE, Section 8. INELIGIBILITY FOR SELECTION.
No person who serves on the Nominating Committee in any capacity shall be eligible for selection by any means to any position on the Board or any other ICANN body having one or more membership positions that the Nominating Committee is responsible for filling, until the conclusion of an ICANN annual meeting that coincides with, or is after, the conclusion of that person's service on the Nominating Committee.
[Explanation: The addition of section 8 corrects an unintentional omission by clarifying that those serving in any capacity on each year's Nominating Committee are ineligible to be selected to membership (by the Nominating Committee or otherwise) on the Board or any other body including membership having at least one position that the Nominating Committee is responsibility for filling. (The possibility of a vacancy to be filled during the Nominating Committee's term should be considered in making this determination.) The ineligibility lasts only until the Nominating Committee's term expires at the conclusion of the next annual meeting. If a person continues to serve for even part of the next Nominating Committee's term, however, he or she would also be ineligible for selection during that Nominating Committee's term.]
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