Recommendation of the Reconsideration Committee
On 3 May 2006, Marilyn S. Cade submitted a request that ICANN reconsider a decision of the General Counsel denying her "eligibility to stand as a candidate in the GNSO Election to fill a mid term vacancy on the ICANN Board." (See Marilyn S. Cade's 3 May 2006 Request for Reconsideration (hereinafter, the "Request").) Ms. Cade further asks that ICANN stay the election process until a determination has been made by the Reconsideration Committee on whether Ms. Cade is eligible to stand as a candidate in that process.
B. Procedural Requirements
Article IV, Section 2.2 of ICANN's Bylaws states in relevant part that a person or entity may submit a request for reconsideration or review of an ICANN staff action or inaction only if the following factors have been met:
Bylaws, Art. IV, § 2.2.
Dismissal of a request for reconsideration is mandatory if the Reconsideration Committee finds that the requesting party does not meet these requirements. The Reconsideration Committee may also dismiss a request "where it is repetitive, frivolous, non-substantive, or otherwise abusive. . . ." Bylaws, Art. IV, § 2.16.
Marilyn S. Cade resigned on 26 April 2006 from her position as a voting member of the ICANN Nominating Committee ("NomCom"). (Request, p.4.) NomCom is responsible for — among other things — the selection of all ICANN Directors except the President and those selected by ICANN's Supporting Organizations. Bylaws, Art. VII, § 1. According to the Request, the purpose for Ms. Cade's resignation was to pursue her candidacy for a midterm vacancy on the ICANN Board. (Request, p.1.)
Ms. Cade copied John Jeffrey, ICANN's General Counsel and Board Secretary, on her note to the Nominating Committee. Both in the General Counsel's response to her resignation and during the two weeks preceding her resignation, the Request states that Ms. Cade was advised by the ICANN General Counsel that she was ineligible to stand for election for the midterm vacancy on the Board. (Request, p.1.) Additionally, Ms. Cade copied the General Counsel on her email resigning from the Nominating Committee. The General Counsel immediately responded by email to Ms. Cade imploring her to withdraw her resignation. The General Counsel's decision that Ms. Cade was ineligible to fill the vacant seat on the ICANN Board at this time was based upon the plain language of Article VII, Section 8 of the Bylaws, which reads:
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.
Bylaws, Art. VII, § 8 (emphasis added). Specifically, there is no dispute that the Nominating Committee is responsible for filling some membership positions on the Board. Further, there is no dispute that Ms. Cade did not conclude her service on the NomCom until 26 April 2006. Finally, there is no dispute that the first ICANN annual meeting after 26 April 2006 will not occur until December 2006 in Sao Paulo, Brazil. As such, there can be no dispute that Ms. Cade cannot fill any Board vacancy "until the conclusion of" ICANN's annual meeting in December 2006. Unsatisfied with the General Counsel's decision, Ms. Cade filed an appeal with the ICANN Ombudsman who, on 1 May 2006, "confirmed the interpretation of the General Counsel regarding his determination that [Ms. Cade was] ineligible to stand for election." (Request, p.2.) This Request followed.
D. Grounds for Request for Reconsideration
The Request argues that the General Counsel interpreted Article VII, Section 8 of the Bylaws too narrowly and failed "to take into account the need for unique treatment caused by the exigent circumstances of a mid term election." (Request, pp.1-4.) The Request takes the position that Article VII, Section 8 should only apply to "full term board vacancies announced and published on the ICANN web site" because ICANN's Bylaws were "originally intended to address procedures for filling full term vacancies ...[and] were not designed to deal with the special circumstances of mid term vacancies." (Request, pp.2-4.) The Request does not provide any facts to support this statement. Rather, the Request relies on a single example where NomCom altered its own procedures to address midterm vacancies.
In mid 2005, NomCom was required to fill a midterm vacancy on the GNSO Council. (Request, p.2.) While NomCom had operating procedures in place, "[t]hose procedures were at that time silent on treatment or application to mid term vacancies." (Request, p.2 (emphasis added).) According to the Request, NomCom 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." (Request, pp.2, 4.) The Request states that "this approach . . . was . . . agreed and supported by the ICANN General Counsel." (Request, p.4.)
Based on the above, the Request argues that the General Counsel should have afforded the same flexibility to Article VII, Section 8 of the Bylaws. (Request, p.3-4.) The Request argues that the General Counsel's strict interpretation of Article VII, Section 8 violates various provisions of the Bylaws because it contradicts or fails to take into consideration his earlier approval of NomCom's modified operating procedures—thus raising issues of transparency and fair procedures. (Request, p.3.)
The Request asks that the Reconsideration Committee: (i) "[r]everse the General Counsel's interpretation . . . and provide assurance of eligibility to the reconsideration applicant (Marilyn Cade) for this unscheduled mid term vacancy"; and (ii) "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. . . ." (Request, p.6.) The Request further asks that the midterm Board "election process be suspended until the determination of the Reconsideration Committee." (Request, p.6.)
E. Analysis of Grounds for Reconsideration
It is the opinion of the Reconsideration Committee that none of the grounds for reconsideration stated above supports reconsideration.
The fact that NomCom altered its own procedures in 2005 to address midterm vacancies has no application to the issues raised in this Request. Article VII, Section 7 of the Bylaws gives NomCom explicit authority to alter its procedures "as it deems necessary." Bylaws, Art. VII, § 7 ("The Nominating Committee shall adopt such operating procedures as it deems necessary, which shall be published on the Website."). Moreover, NomCom's operating procedures provide that NomCom may modify those procedures at any time. Nominating Committee Procedures 2006, § B.1, available at http://www.icann.org/committees/nom-comm/procedures-2006.html ("In setting and publicizing its procedures, the NomCom reserves the right to modify them in the course of its work in order to ensure efficiency and effectiveness in fulfilling its responsibilities."). Article VII, Section 8 of the Bylaws — the Bylaw at issue here — provides no similar flexibility.
When read in its entirety, the language of Article VII, Section 8 is unambiguous: Any current or former member of NomCom cannot be "eligible for selection by any means to any position on the Board" unless the date of their resignation from NomCom "coincides with, or is after" the "conclusion of an ICANN annual meeting".2 Bylaws, Art. VII, § 8 (emphasis added). Ms. Cade resigned from NomCom on or about 1 May 2006. The next ICANN annual meeting will not occur for another seven months. Accordingly, the Bylaws are quite definitive in this respect.3 As a former member of NomCom, the earliest that Ms. Cade could be eligible to stand for election to the Board is after the annual meeting in December 2006.
Consequently, the General Counsel's "approval" of NomCom's 2005 operating procedures are not inconsistent with the General Counsel's reading of the Bylaws as they relate to Ms. Cade's candidacy for the midterm Board vacancy or his decision to not consider "exigent circumstances" in this instance. (Request, pp.2-4.) Indeed, we believe that had Article VII, Section 8 been at issue in 2005, when NomCom had to fill a midterm vacancy, we would have reached the same conclusions as we reach today — that the General Counsel was not free to consider "exigent circumstances" when interpreting this provision of the Bylaws.
The Request's additional argument — that Article VII, Section 8 of the Bylaws should not apply to midterm vacancies because the Bylaws only contemplated full term vacancies — also lacks merit. (Request, p.4.) Article VII, Section 8 unambiguously states that a former NomCom member is ineligible for selection by any means — which would include a midterm selection. Bylaws, Art. VII, § 8. Moreover, the Bylaws themselves demonstrate that the architects did consider midterm vacancies. See, e.g., Bylaws, Art. VI, § 2 ("At no time shall the Nominating Committee select a Director to fill a vacancy or expired term whose selection . . . .") (emphasis added); Bylaws, Art. VI, § 12 ("A vacancy or vacancies in the Board of Directors shall be deemed to exist in the case of death, resignation, or removal of any Director . . ..") (emphasis added).
In short, the Reconsideration Committee cannot conclude that Ms. Cade is eligible for Board candidacy without violating the Bylaws. Similarly, the Reconsideration Committee cannot instruct the General Counsel to provide modified midterm election procedures to allow for the candidacy of recent NomCom members. The only way to do either of these tasks is to amend the Bylaws, which can only occur "upon action by a two-thirds vote of all members of the Board." Bylaws, Art. XIX.
The committee concludes that there are no grounds for reconsideration, as Article VII, Section 8, is clear that Ms. Cade cannot, under any circumstances, become eligible to fill the current midterm vacancy on the ICANN Board without a change to the applicable bylaws.4 Moreover, Article VII, Section 8, does not allow flexibility to consider "exigent circumstances" under any situation. Given that this committee has considered the Request and made its recommendation, we see no reason to respond to the stay request.
1 While the Reconsideration Committee does not necessarily agree that a Reconsideration Request is the proper method to question the General Counsel's opinions, because the GNSO has also asked for a determination of the candidates' eligibility to stand for election to the Board, we have considered the merits of the Request and provide this recommendation to the Board accordingly.
2 Any ambiguity that may exist because of the word tense of "serves" found at the beginning of Article VII, section 8 is quickly clarified by the remainder of the provision, rendering the entire provision unambiguous.
3 The Reconsideration Committee notes that there is great logic in the restriction contained in the Bylaws, which prevents members of the Nominating Committee from routinely resigning from that committee in order to stand for election to the Board.
4 Board member and Reconsideration Committee member Raimundo Beca has abstained from this one basis for this recommendation.
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