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Draft: DNSO amendments to ICANN bylaws


  "The approach set forth in this draft assumes that the Supporting
 Organizations will be policy advisory bodies within ICANN, with the
 additional characteristics that (1) they each select *three* Directors
 of ICANN and (2) there is a presumption (rebuttable if they fail to
 meet the criteria set forth in the Bylaws) that their
 *recommendations* will be approved by the Board.  If the approach
 reflected in this draft is finally adopted, the actions of those
 participating would presumably be subject to the insurance *and
 other protections afforded ICANN officers, directors and
 employees* so long as they were within the legitimate scope of the
 Supporting Organization's activities."

 Reading over the amendment proposal, I held the following
    Are nominations to the Board different in kind from other
 'recommendations' an SO might make? If not, are the 'criteria' in
 the Bylaws sufficient? If not, is there explicit definition of the
 difference?  What protections does being part of ICANN, Inc extend
 to the SOs?  Does an SO have the power to 'secede' and
 independently incorporate in the event the present approach
 becomes unworkable?

 I have not been able to find clear answers in either the Draft
 Amendments or the Bylaws as they stand. (One might suspect
 that the *assumption that they are different is responsible for a lot
 of confusing verbiage.) In any case, the search  produced some
 further procedural questions:


 (This Article is reserved for use when the Corporation has

 Q1: When does membership begin? (E.g. with the formation of
 DNSO/ Names council? With 'selection of nominations'?)

 V: 4(iv). Nine (9) At Large Directors, selected pursuant to a
 process to be established by a majority
      vote of all the At Large Board members of the Initial Board; and

 Q2: What is the status of the Membership SO?

 V: 4(v). The person who shall be, from time to time, the President
 of the Corporation.

 Q3: The 'allocation of positions' implies that the President is found
 outside of the nominated Board of Directors. Are there to be further
 bylaws or stipulations pertaining to that selection process, or, if it
 is an *office of a nominated Director, is there a by-election or other
 'reallocation' process to fill the vacated seat?


 V:22. The Directors shall receive no compensation for their services
 as Directors. The Board may, however, authorize the
 reimbursement of actual and necessary reasonable expenses
 incurred by Directors performing duties as Directors.

 FAQ 9. "As stated by the Board in its DNSO Formation Concepts
 statement, released in Singapore, the DNSO should be self-
 supporting and not funded from general ICANN revenues."

 Q4: What oversight power does the Board have over the accounting
 of  SO fundraising?


 extant VI: 1(a). The Supporting Organizations shall serve as
 advisory bodies to the Board and shall have such powers and
 duties as may be prescribed by the Board and these Bylaws. The
 Board may add additional Supporting Organizations by a two-thirds
 (2/3) majority vote of all members of the Board and in such event
 shall, by such two-thirds (2/3) vote, reallocate the positions on the
 Board ...

 proposed VI: 2(a).  Each Supporting Organization shall select
 Directors to those seats on the Board designated, pursuant to
 Section 4 of Article V...

 and 2(f)  If the Board declines to accept any such recommendation
 of a Supporting Organization, it shall return the recommendation to
 the Supporting Organization for further consideration, along with a
 statement of the reasons it declines to accept the

 Q5: Is selection of nominees  the equivalent of *election?Can the
 Board decline to accept any such *nomination of an SO?
 I note that the power of reallocation of positions has been dropped --
 is that not a "substantive change"? In the event 3 nominees are not
 put forward, what then? OTOH, if the omission was unintentional,
 can reallocation occur at any time, e.g. after nominations have
 been made?

  V: 9(b). Each Supporting Organization shall (i) select the Board
 members to be nominated by that Supporting Organization through
 a process determined by the Supporting Organization and
 *approved by the Board*...

 proposed VI. 3(a).  Once accepted by the Board through the
 amendment of these Bylaws and the failure of the Board to
 disapprove any [*?*] subsequent decisions by the Supporting
 Organizations or their constituent bodies, the procedures of the
 Supporting Organizations shall prevail in the case of any
 inconsistency with any other provisions of these Bylaws.

 Q6: Is this clause itself inconsistent with Article V? Are all
 (subsequent) changes to the nomination process to be approved by
 the Board?  (Hairy business, this construction of a 'selectorate' for
 an organization already in place! Btw, what decisions of the
 'constituent bodies' are envisioned that would not also be SO

  XII: Except as otherwise provided in the Articles of Incorporation,
 the Articles of Incorporation or Bylaws of the Corporation may be
 altered, amended, or repealed and new Bylaws adopted only upon
 action by two-thirds (2/3) majority vote of all members of the Board.

 proposed VI-B. (d)  If two-thirds (2/3) of the members of the NC
 determine that the DNSO process has produced a community
 consensus, that consensus position shall be forwarded to the
 Board as a consensus recommendation...

 Q7: Is there any precedent anywhere for this definition of
 consensus (or for the bastardized numbering convention ;-))? Will a
 Board decison (by 2/3 majority) be required to amend this
 definition, or is it a 'policy and procedure' of SOs?  Can an SO
 decision to amend Article XII prevail?  The role of the NC is

 FAQ 5. ... it seems desirable to set artificial deadlines to
 encourage early action on the formation of the constituencies.

 Q8: Should this principle be codified in the Bylaws? It seems to be
 as essential aspect of the Interim Board's proceedings.

 In this connection, I have to say the provisions of VI-B: 2, regarding
 the DNSO and the function of the Names Council, appear to be
 well conceived. Indeed, I strongly recommend that the Board duly
 consider adopting these procedures for itself:

 "Any reports or recommendations presented to the NC by such
 bodies shall be *simultaneously posted* on a website accessible
 by the public for public review and comment; absent clear
 justification, which shall be *publicly stated* at the time of any
 action, the NC shall not act on any report or recommendation until
 a *reasonable time* for public comment has passed and the NC
 has reviewed and evaluated all public comments received. The NC
 is responsible for ensuring that all responsible views have been
 heard and considered prior to a decision by the NC."


 refs: http://www.icann.org/bylaws-pr23nov98.html

  All emphases added by myself.