(Revised) Proposed Corrections
Proposed Corrections to Bylaws
To the Board:
On 11 May 2003, I proposed a set of revisions to the New Bylaws that went into effect on 15 December 2002 to correct various technical flaws that have come to light since the last set of corrections became effective on 25 March 2003. In each case, the revision is intended to correct an inconsistency or inadvertent omission.
In my 11 May 2003 proposal, I requested that members of the Board and community send me any comments they had concerning my proposal. I received the following comments:
In view of paragraphs 2 and 3 above, I have slightly modified the revisions
I proposed to Article IV, Section 4 and to Article XIV, and I have added
a proposal to amend Article X, Section 5(2). I therefore submit the resulting
revised proposals for bylaws corrections shown below for the Board's consideration
at its 2 June 2003 meeting.
The Board shall cause a periodic review, if feasible no less frequently
than every three years, of the performance and operation of each Supporting
Organization, Supporting Organization Council, Advisory Committee (other
than the Governmental Advisory Committee) and Nominating Committee by
an entity or entities independent of the organization under review. The
goal of the review, to be undertaken pursuant to such criteria and standards
as the Board shall direct, shall be to determine (i) whether that organization
has a continuing purpose in the ICANN structure, and (ii) if so, whether
any change in structure or operations is desirable to improve its effectiveness.
The results of such reviews shall be posted on the Website for public
review and comment, and shall be considered by the Board no later than
the second scheduled meeting of the Board after such results have been
posted for 30 days. The consideration by the
Board includes the ability to revise the structure or operation of the
parts of ICANN being reviewed by a two-thirds vote of all members of the
Board. The first such reviews, to be initiated within one year
following the adoption of these Bylaws, shall be of the GNSO
[Explanation: Article IV, Section 4 was a significant innovation in the New Bylaws, recognizing that (in the Evolution and Reform Committee's words), "an organization like ICANN, dealing with a medium as rapidly changing as the Internet, must be willing and able to change as required by future events." Thus, Article IV, Section 4 establishes "a requirement for periodic review of all elements of ICANN, to ensure that bureaucratic inertia does not set in . . . ."
This staggered review of all of ICANN's structures was intended to lead to structural and operational improvements based on the review. This ultimate outcome of the review is not clearly stated in the language, and some ambiguities have arisen as to how changes will be effected. To clarify matters, an additional sentence is proposed to ensure that all the independently reviewed parts of ICANN will be subject to revisions in their structure and operation by a two-thirds vote of all members of the Board. This is the vote required by Article XIX for amendments to the bylaws.
The proposed deletion of "Names" in the last sentence is to correct a terminology error. No change in substantive meaning is intended.]
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 to the title of Article VII, Section 8 is proposed to distinguish it from Article VII, Section 9, below.]
No person who is an employee of or paid consultant to ICANN (including the Ombudsman) shall simultaneously serve in any of the Nominating Committee positions described in Section 2 of this Article.
[Explanation: The New Bylaws contain no restriction on ICANN employees and paid consultants serving on the Nominating Committee. Because these roles are inconsistent with the independent operation of the Nominating Committee, an express prohibition should be included.]
[Explanation: Article VI-B, Section 3(c), of the Old Bylaws provided that no two of a constituency's representatives on the DNSO Names Council could be from the same ICANN Geographic Region. Due to an oversight, that geographic diversity requirement was not carried over to the GNSO Council. Consistent with Core Value 4 ("Seeking and supporting broad, informed participation reflecting the functional, geographic, and cultural diversity of the Internet at all levels of policy development and decision-making."), the proposed sentence restores the requirement. Geographic diversity in the Nominating Committee's selections to the GNSO Council is required by Article VII, Section 5, of the New Bylaws.]
[Explanation: Under the New Bylaws, the council of the GNSO is properly designated the "GNSO Council", not the "Names Council". The above proposal therefore corrects the terminology in Article X, Section 5(2).]
There shall be at least the following Advisory Committees:
[Explanation: As stated in Article VII, Section 2(5), of the New Bylaws, the Governmental Advisory Committee has a non-voting liaison, rather than a voting delegate, on the Nominating Committee. The above revision to Article XI, Section 2, corrects an inconsistency.]
ICANN shall, to maximum extent permitted by the CNPBCL, indemnify each
of its agents against expenses, judgments, fines, settlements, and other
amounts actually and reasonably incurred in connection with any proceeding
arising by reason of the fact that any such person is or was an agent
of ICANN, provided that the indemnified person's
acts were done in good faith and in a manner that the indemnified person
reasonably believed to be in ICANN's best interests and not criminal.
For purposes of this Article, an "agent" of ICANN includes any
person who is or was a Director, Officer, employee, or any other agent
[Explanation: Under the New Bylaws, ICANN is constituted of many different types of bodies. The proposed revisions make clear that persons acting within the scope of their responsibilities on those bodies should be indemnified provided they act in good faith and in a manner reasonably believed to be in ICANN's interests and not criminal.]
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