Re: [IFWP] Re: The Sims-Auerbach Correspondence

[Karl Auerbach <karl@CaveBear.com>]

Let's go through this one more time:

Let's accept ICANN's counsel's poposition that the board has plenary power
to control all actions taken by ICANN -- that no SO action can become the
action of ICANN without the board having to endorse and approve that
action, and that the board can take any action on any matter even if an SO
refuses to do so or objects.

Now let's read VI.2.(e)

ARTICLE VI:  SUPPORTING ORGANIZATIONS 
Section 2:  RESPONSIBILITIES AND POWERS   

(e) Subject to the provisions of Article III, Section 3, the Board
    shall accept the recommendations of a Supporting Organization if the
    Board finds that the recommended policy
      (1) furthers the purposes of, and is in the best interest of, the
          Corporation;
      (2) is consistent with the Articles and Bylaws;
      (3) was arrived at through fair and open processes (including participation
          by representatives of other Supporting Organizations if requested);
    and
      (4) is not reasonably opposed by any other Supporting Organization.
    No recommendation of a Supporting Organization shall be adopted unless
    the votes in favor of adoption would be sufficient for adoption by the
    Board without taking account of either the Directors selected by the
    Supporting Organization or their votes.


See how it says "the Board *shall accept* the recommendations of a
Supporting Organization".

In other words, the default is that the board accepts SO actions.  The
only way the board can escape this obligation is to find that the
action falls into items, 1, 2, 3, or 4.

That list, items 1, 2, 3 and 4 hardly covers the range of reasons why
the board may wish to reject an SO provision.  As such, there are an infinite
number of reasons that this provision places beyond the board's reach
when examining an SO policy initiative.

Yet, we are told by ICANN's chief counsel that the board has no limit to what
it can consider.  That indeed, the board can not be limited because the board
is ultimately responsible for ICANN's acts.

Then what are we to say is the meaining of VI.2.(e)?

What is the meaning of the obligation to accept what SO's recommend?

What is the special meaining of those four conditions if the board is
free to consider those as well as anything else that strikes its
fancy?

If the board has plenary power, then that language is meaningless, even
worse, it is inconstant with the board's obligations.

Language that is meaningless or wrong is language that should be
removed or repaired.

If that language is intended to have meaning, than what is that meaning?

Whatever that intended meaning might be, it is not readily apparent.

The words "shall accept" places a limit on the board's discretion.

The mandatory obligation expressed by the words "shall accept" is
inconsistent with the notion that the board has complete discretion.

If the board really does have the ability to control ICANN's actions, than 
VI.2.(e) is full of useless verbage.

ICANN should simply amend its bylaws, eleminating 2(e) and 2(f) in their
entirety.  Perhaps something can be added that better expresses the
discretion of the board:

	2(e) The board may take notice of recommendations received from
             the Supporting Organizations or from any other source,
	     however such recommendations are merely recommendations and
	     do not bind the board of ICANN or its officers to any course
	     of action until and unless adopted by the Board of Directors.

	     No recommendation of a Supporting Organization shall be
	     adopted unless the votes in favor of adoption would be 
	     sufficient for adoption by the Board without taking account
	     of either the Directors selected by the Supporting Organization
	     or their votes.



And then there is the historical fact: Last summer, the BWG and others
pushed for SO's to be clearly nothing more than standing advisory committees.

But there was pushback, mainly from the original IANA proponents, to
keep SO's strong and able to be immune from, to quote some of
those proponents, the "know nothings" on the board of directors.


Let's deal with your comments on the imposition of ICANN decisions via
contract on another thread.


			--karl--