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Reconsideration Request 06-3

03 May 2006

To: ICANN Reconsideration Committee
CC: John Jeffrey, General Counsel, ICANN
From: Requesting Party:

Marilyn S. Cade
3515 Duff Drive
Falls Church, Va
22041
marilynscade@xxxxxxxx, or mscade@xxxxxxxxxx
+1 202-360-1196
Efax:  +1 202-318-1172

Re: Reconsideration Request of Marilyn S. Cade regarding eligibility to stand for election to mid term vacancy in ICANN Board from GNSO.

 

This Reconsideration Request is submitted under the ICANN bylaws, Article IV, Section 2, which provides for a reconsideration due to one or more actions by staff that contradict established ICANN policy(ies).

Requested Actions:

I am requesting  reconsideration of a decision of the General Counsel regarding the restrictive application of a bylaw to my eligibility to stand as a candidate in the GNSO Election to fill a mid term vacancy on the ICANN Board. My appeal is based on the failure of the General Counsel to take into account the need for unique treatment caused by the exigent circumstances of a mid term election.

Due to the time sensitivity caused by the GNSO election process, I am also asking that the Reconsideration Committee stay the present election process until such time as they render their opinion. The impact on the election process timeline is explained later in this document.

Staff Actions or Inactions with Relevant Dates:

During the weeks of April 19 and 24, there were a number of interactions between myself and the General Counsel regarding my intent to resign from the Nominating Committee and to stand for election to fill a mid term vacancy, created by the resignation of Michael Palage from the ICANN Board. The General Counsel advised me initially on Thursday, April 20, of his determination that I was not eligible, due to Nominating Committee service. There were then further conversations and relevant emails advising me that he had determined that I was not eligible to stand for election. In our discussions and email interactions, I advised the General Counsel that I disagree with his interpretation and believe the bylaws are being too broadly applied. I advised him that I am pursuing all means of appeal/redress applicable. In conversation with the General Counsel, we have both agreed that both the Ombudsman process and the Reconsideration process are applicable to my circumstances.

I learned of the mid term vacancy through the posting to the ICANN web site and GNSO communications process,

I did file an Ombudsman appeal. On 1 May 2006, the Ombudsman advised me of his decision. In his decision, the Ombudsman merely engaged in a review of the literal language of the bylaw, and confirmed the interpretation of the General Counsel regarding his determination that I am ineligible to stand for election. 

The completion of the Ombudsman appeal process and the Ombudsman's decision has not satisfied my concerns, nor redressed the harm to me that is created by the General Counsel's decision.  On 2 May 2006 I advised the General Counsel that having reviewed the record in more detail, I note that there has been a previous mid term vacancy, where unique and exigent approach was allowed, and that the General Counsel is aware of the unique application of ICANN's policies in this circumstances, and has not taken these facts into account in his determination of my eligibility.

I seek Reconsideration because I do not believe that the General Counsel in making his determination has fully and fairly considered all aspects of the circumstances that require a review of issues beyond the mere words in the bylaws in Article VII, Section 8 that he has advised he has considered in his decision. I do not believe that he has acted to take into account all relevant information which he should, and does have at his disposal regarding mid term vacancies and ICANN practice in allowing exceptions and flexibility.

This Reconsideration Request is based on additional and different grounds than considered by the Ombudsman. It addresses specific staff inactions on the part of the General Counsel which are described in detail below.

Grounds for Reconsideration related to Staff inactions:

I am basing my reconsideration request on inaction of the General Counsel in failing to take into account all information and circumstances related to unique treatment provided to at least one mid term vacancy in official positions of leadership within ICANN when he denied my eligibility to stand for the election to fill the vacancy created by the resignation of Michael Palage.

While all considerations of the Nominating Committees are confidential, the process work of the Nominating Committee is described in the annual reports prepared by the chairs of the Nominating Committee, including publication of procedures, etc. Members of the Nominating Committee also discuss the recruitment processes as part of their outreach. The circumstances described below are relevant to my reconsideration request and are necessarily narrowly proscribed in detail. Information that is common knowledgeâ€"such as the existence of a mid term vacancy -- or was discussed in the normal reports on the Nominating Committee's work is addressed. However, there is by necessarily a high level portrayal of the circumstances.

In mid 2005, the Nominating Committee, an official ICANN body, addressed a mid term vacancy in one of the seats that they are responsible for filling. The official procedures of the Nominating Committee (ICANN's policies) provide a well defined and published process, as is described in the Procedures of the Nominating Committee [available on the ICANN website, and provided for in Article VII, Section 7] to address full term appointments. Those procedures were at that time silent on treatment or application to mid term vacancies. The 2005 Nominating Committee, after consideration, determined that unique and special procedures were needed to deal with a mid term vacancy. The General Counsel's office was aware of the mid term vacancy, and of the creation of unique mid term selection procedures by the 2005 Nominating Committee.

It is clear from ICANN's bylaws and past practice that the bylaws originally intended to address procedures for filling full term vacancies, which occur on a planned and announced timeline, with published dates available on the ICANN web site. They were not designed to deal with the special circumstances of mid term vacancies.  

The unexpected need to fill an appointed or elected position mid term is a special situation that places pressure on ICANN to fill said seat from a limited pool of qualified candidates in a short period of time. As noted, ICANN has faced this exigent circumstance in the past.

In 2005, the Nominating Committee dealt with the unusual circumstance of a mid term vacancy in the GNSO Council and determined that full term procedures available could not be applied to deal with a replacement appointee to an unexpected mid term vacancy.  

The General Counsel was and is fully aware of the 2005 Nominating Committee's decision that the unique circumstances of a mid term vacancy required a new and flexible procedure that was not consistent with full term and published Nominating Committee Procedures.

However, in the circumstances which I am appealing, the General Counsel has applied a bylaw which is crafted for one apparent set of circumstances — full term board vacancies announced and published on the ICANN web site -- to mid term vacancies -- and this has resulted in an overly restrictive application of the bylaw.

In developing this bylaw, ICANN did not anticipate the situation where a Board mid term vacancy would appear; in exigent circumstances such as is the present situation.  In fact, the support of the General Counsel for the Nominating Committee's approach to creating a unique procedure to fill the 2005 mid term vacancy is a clear indication that he in fact has supported a flexible application of the bylaws in the past, in a related circumstance of a mid term vacancy.

The General Counsel has had information available to him about the unique application of ICANN policies to a mid term vacancy. In this situation where I seek reconsideration, there has been a failure of the General Counsel to provide similar flexibility to the present mid term vacancy of the GNSO elected board seat regarding my eligibility to stand for election.

Further, by failing to develop new or modified procedures, or develop clear and transparent advice on such mid term vacancies, the General has also failed through inaction to provide the required transparent and fair procedures. [ICANN bylaws, Article II, Section 1].

Given the acceptance by ICANN of such flexible application of the policies related to filling a mid term vacancy as described above,  it is necessary and reasonable to provide similar flexibility in determining the eligibility of a candidate for an unexpected mid-term vacancy, as I am requesting.

I also believe that applying the bylaw in this manner contradicts established ICANN policy (ies), Section III, Transparency, Section 1. Purpose: ICANN and its constituency bodies shall operate to the maximum extent feasible in an open and transparent manner and consistent with procedures designed to ensure fairness.  In addition, Article I, Mission and Core Values, Core Value 7, Employing open and transparent policy development mechanisms that (i) promote well informed decisions based on expert advice and (ii) ensure that those entities most affected can assist in the policy development process" should be taken into account.

At a minimum, this would indicate that the General Counsel should have sought input from the Supporting Organizations regarding how to address mid term vacancies in a timely manner and after the occurrence of a previous mid term vacancy, which was handled in unique and flexible manner and not consistent with the relevant publicly posted procedures/policies; this flexible approach had his knowledge and acceptance.  Thus, ICANN did not require a strict adherence to the full term procedures of the Nominating Committee, and allowed a very flexible and one time approach to address this unexpected mid term vacancy.

The relevant section of the ICANN bylaws that the General Counsel has relied on to make his original determination is provided below.

See Bylaws, Article VII, Section 8: Ineligibility for Selection by Nominating Committee:

"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."

This is clearly not sufficient information to take into consideration in making this determination of eligibility to stand for election. Instead, the General Counsel must take into account the additional information regarding a similar mid term vacancy, described above.

This section of the bylaws was written to ensure that no one serving on the Nominating Committee be eligible to run for a position on the Board 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.  The bylaws were written anticipating that Board vacancies would become available after the normal conclusion of a Member's term. Indeed, the terms of office of Board members are provided in the ICANN bylaws, Article VI, Composition of the Board, Section 8, and information about the terms of office of the board members are published on the ICANN web site.

The intent of the bylaws was to require a Nominating Committee member to resign their position in order to avoid any conflict of interest or the appearance of a conflict of interest.  This would ensure that a Nominating Committee member would have the opportunity to either not accept further appointment to the Nominating Committee if a normal full term vacancy was announced on the ICANN web site, or normally conclude their term by the annual meeting during which the Board vacancy would appear.  However, in developing this bylaw, ICANN did not anticipate the situation where a Board vacancy would appear, in exigent circumstances, in a mid-term situation, without notice and without transparency. 

In fact, as noted, when a midterm vacancy occurred in a seat appointed by the Nominating Committee just last year, ICANN considered this vacancy so unique and so urgent that it bypassed the published and agreed selection process of the Nominating Committee completely, instead adopting a unique approach of seconding a candidate based on proposals from Nominating Committee members directly, to fill that mid term vacancy. This approach to dealing with this mid term vacancy was completely unique, and agreed and supported by the ICANN General Counsel.

Given that I have irrevocably resigned my position on the Nominating Committee to fully avoid any conflict of interest, ICANN's General Counsel should now apply a similar flexibility in interpreting the bylaws to allow the greatest pool of qualified candidates to stand for election to this mid term election of a Board member from the GNSO.

Options for Addressing the Reconsideration Request:

The Reconsideration Committee has several options to address the needed flexibility to address the exigent circumstances of a mid term unexpected vacancy.

1) The Reconsideration Committee can overturn the General Counsel's interpretation of the applicability of the limitation of the present bylaw to mid term elections and instruct the General Counsel to apply the same flexibility that was provided in the 2005 mid term vacancy that took place in an appointed leadership position. The impact of delay on the completion of the election process would be only a few weeks.

2) The Reconsideration Committee could advise the GNSO to leave the Board seat vacant until the largest pool of qualified candidates can apply and be fairly considered for election, under the restrictive interpretation of the bylaw, which would be until the lapse of the Nominating Committee period. This would create a Board vacancy for a period of June through the first week of December, 2006.

3) The Reconsideration Committee could advise the Supporting Organizations and the Board of the need for a bylaw change to address the exigent circumstances of unannounced, unplanned mid term board vacancies. In this instance, the time frame, should the staff move expeditiously, can be minimized to a few weeks, including a 21 day public comment period.

The burden of not having a second elected Board member is this instance should not be undue, since it would ensure that the GNSO Council and its constituencies have the ability to consider a qualified candidate pool, and the election and seating of the Board member should be achievable, in any case, by the time of the Marrakech meeting of ICANN.

Will there be harm to the Nominating Committee Process by my resignation:

I want to assure the Reconsideration Committee, and all readers of this document that I carefully considered whether there would be harm to the Nominating Committee process and to my Constituency's participation. The answer to that is no.  There will still be one BC representative to the Nominating Committee; there are several small business representatives in the BC who will be available fill the BC's now vacant seat, and that process is underway within the BC. The BC officers were fully informed of my intention to stand, and I also advised my full constituency, including of the eligibility challenge, and my pursuit of all applicable appeals.

The Nominating Committee is still in the process of recruiting candidates and there is no consideration of candidates for any vacant positions.

I agree that like board members who leave the Board but are bound by the agreement to maintain confidentiality of all process discussions that past Nominating Committee members, including myself are still bound to the confidentiality agreement signed within the Nominating Committee.

Thus, there is no risk or harm to the Nominating Committee or its integrity.

 

Direct Harm to Applicant:

The inaction of the General Counsel to failing to provide flexible interpretation of the relevant bylaw to the exigent circumstance of this mid term vacancy is of material impact to the ability of an otherwise qualified candidate to stand for election.

It is well known that there is a limited pool of qualified Board applicants, with minimum conflicts of interest, who understand the Internet and the ICANN processes. It is clear that this failure to provide an exigent process specifically to deal with mid term vacancy/ies will limit the availability of qualified candidates for the GNSO consideration, including myself.

Adverse impact on others and to ICANN:

The failure to provide this flexibility will have a harmful effect on parties who would otherwise agree to volunteer to be on the Nominating Committee to fulfill the important function of selecting candidates to both Supporting Organizations, AT Large, and to the Board.

Given that it is impossible to predict acts of God, or nature, or changes in employment which might require a Board member to step down, there will undoubtedly be further mid term vacancies. The Nominating Committee itself relies on the voluntary support and participation from active representatives from the constituencies and the At Large, as well as the technical community. Any of these individuals could in the future be interested in standing for an unplanned, unscheduled mid term vacancy, created either on the SO Council, the ALAC, or on the Board. Yet, they would be prohibited from that opportunity if the General Counsel's determination stands and no mid term procedures/flexibility is allowed. 

Impact on the composition of the Board if elected:

The Supporting Organization relevant to this decision has an existing board member, Alejandro Pisanty, who is from Latin America, and the vacant seat was formerly held by a North American, Michael Palage. As required by the bylaws, I am not in the same geographic region as the second GNSO elected Board Member.  As a female member of the Board, I would contribute to gender diversity of the elected and appointed Board members.

Conclusion:

During 2005, circumstances demonstrated that it was impossible to forecast that a mid term vacancy will occur, and flexibility in ICANN's policies and procedures were supported. Yet the General Counsel of ICANN failed to take into account the unique circumstances of a mid term vacancy, or the previous flexibility in a similar mid term vacancy.

The need for urgent and unique provisions that are unique to mid term vacancies was fully visible to the General Counsel, yet there is no reflection of that need or its implications in the decision that the General Counsel has offered of the request I have made to treat this mid term vacancy as an unusual and unique circumstance.

In addition, the General Counsel advised me that his interpretation is based on concerns that he believed were present at the time of the development of the processes of the bylaws governing the Nom-Comm that individuals might become members of the Nominating Committee, work to affect the candidacy options in some way through selections made by the Nominating Committee, and then stand for election in a manner where a vacancy is affected through actions of the Nominating Committee. It is clear that there is no ability to have undertaken such manipulation either in creating the vacancy, nor in influencing the selection of the Nominating Committee candidates in this cycle, since I have resigned from the Nominating Committee.

I fully concur with the need to have a candidate for any election resign from the Nominating Committee if there is a mid term, unplanned election they wish to stand for. It is possible that there even need to be time limits that do not accept candidacy if the full consideration of appointed candidates has begun. That is not the present case.

 

The very strict and broad interpretation of the bylaw section by the General Counsel in the instances of addressing this and any other mid term vacancies are not in the interest of ICANN, nor a reasonable assessment of risk to ICANN.

ICANN Reconsideration Committee should

1) Reverse the General Counsel's interpretation of the applicability of the restrictions of this bylaw section to exigent circumstances of an unplanned, unscheduled mid term vacancy that exists today in the GNSO board seat and provide assurance of eligibility to the reconsideration applicant (Marilyn Cade) for this unscheduled mid term vacancy.

2) In addition to 1) above, consider instructing the General Counsel to provide modified procedures for this and future mid term elections which allow resignation of a Nominating Committee member up to the time that the Nominating Committee is undertaking considerations of candidates, in the event of a mid term vacancy that a Nominating Committee member is otherwise qualified to stand for.

Importance of Temporary stay of action:

I ask that the GNSO Council election process be suspended until the determination of the Reconsideration Committee. There is no harm to the GNSO processes through this stay. Given that the Board is otherwise fully constituted, and that there is one elected Board representative from the GNSO, the delay to allow the full consideration of all relevant information is well justified.

However, if this requested delay is not granted, then this in itself may deny me the opportunity to be nominated and to stand for election.

Therefore, I ask that the Reconsideration Committee make a positive determination that I am eligible to stand for election from the GNSO to the vacant Board seat, based on the exigent circumstances related to mid term vacancy. The Reconsideration Committee should then advise the community, and the GNSO of their decision, and allow the GNSO election process to resume.

Any documents and further relevant Information:

The relevant bylaw sections are available on the ICANN website and are largely referenced in this Reconsideration Request.

The flexible and exigent process followed by the 2005 Nominating Committee is referenced in the 2005 Nominating Chair's Final Report, and further information can be obtained by private and confidential discussions with the Chair, George Sadowsky, or with myself. The procedures were developed by a Subcommittee of the 2005 Nominating Committee which I chaired, and were documented and approved by vote of the full Nominating Committee.

Mr. Sadowsky's contact information can be provided to the Reconsideration Committee by the ICANN staff, or by me.

Should the Reconsideration committee seek further information, please contact me at

Marilyn Cade

+1 202-360-1196

marilynscade@xxxxxxxxxxx

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