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Legal SubTeam Meeting #12 (22 April)

Legal SubTeam Meeting #12 (22 April)

Owned by Brenda Brewer
Last updated: Mar 02, 2025 by Aleksey KhapchenkoVersion comment

Attendees: 

Sub-Group Members:  Kavouss Arasteh - Alan Greenberg - Samantha Eisner - Alice Munyua - David McAuley - Greg Shatan - Izumi Okutani - León Sánchez - Mathieu Weill - Maura Gambassi - Pär Brumark - Robin Gross - Steve del Bianco - Thomas Rickert - Wisdom Donkor - Edward Morris - Philip Corwin - Athina Fragkouli

Legal Counsel: Holly Gregory - Tyler Hilton - Michael Clark - Edward McNicholas - Miles Fuller - Josh Hofheimer - Ingrid Mittermaier - Rosemary Fei - Steven Chiodini - 

Staff:  Adam Peake - Grace Abuhamad - Alice Jansen

Apologies:  

**Please let Brenda know if your name has been left off the list (attendees or apologies).**

Transcript

Transcript CCWG ACCT LEGAL #12 22 April.doc

Transcript CCWG ACCT LEGAL #12 22 April.pdf

Recording

The Adobe Connect recording is available here: https://icann.adobeconnect.com/p8ers04yvwu/ 

The audio recording is available here:  http://audio.icann.org/gnso/gnso-accountability-legal-22apr15-en.mp3

Proposed Agenda

1. Welcome & roll call
2. Review of draft answers to lawyers questions 
3. Discussion on Comparison Chart on Governance Models Including Chris Disspain's questions 
4. Review on WP2 document 
5. Discussion with lawyers 
6. A.O.B 

Notes

Legal Subteam - Call # 12 -  22 April 2015

This call is being recorded.

Chat sessions are being archived and follow the ICANN Expected Standards of Behavior: http://www.icann.org/en/news/in-focus/accountability/expected-standards 

Legal Subteam Documents:
https://icann-community.atlassian.net/wiki/spaces/acctcrosscomm/pages/97715875/Legal+Subteam+Documents 
 

 

These high-level notes are designed to help you navigate through content of the call and do not substitute in any way the transcript.

Action: Legal advisors to produce a simple summary chart [Thursday Apr 23, 15:00 UTC]
Action: Leon, draft answers, consolidate discussion points submit to legal sub-group for proof reading and then circulate to CCWG
Action: Legal advisors to review old documents and provide summaries only of information that is not clearly identified in the table.  

1. Welcome & roll call

Samantha Eisner and Alice Munyua are on the bridge.

2. Review of draft answers to lawyers questions

Draft memo of April 17, with questions and answers from the legal team

How imp is it for the mechanisms to be binding, rather than  the current arrangement?

When the lawyers see questions such as viability and assume legally enforceable, so clarification is valuable. 
Question/comment: could we at some point define our objectives: Removal of singe board member(s)  Recall of whole board.  Change of bylaw.  Approval of or rejection of budget or strategy.  Or any other of the core objectives of the mission.  
And present a table showing whether designator / member can execute these requirements. 
What might be added to, for example to designators, to make those powers apply.

Lean summary chart, directed to non-lawyers, would be helpful. 

Action: lawyers to produce a simple summary chart [Thursday Apr 23, 15:00 UTC]

What is meant by reconsideration under 2a? A process by which a decision of the board is turned back to them to re-think, without any requirement for them to take any specific action.  Number of times something can be sent back, or only once, is another consideration.  Concern with the potential of an endless loop of turning things back. 

Comment: Reconsideration is part of a natural process, veto from beginning would be unusual, step by step with reconsideration not an alternative to veto.  Veto as the later action. 

Some may seem reconsideration or turn to an independent arbitrator may be enough rather than veto.

Discussion of the style of legal advice:  Can the lawyers produce summary advice first, and longer memo on record:  from general to detail?

wrt Q4.  How will the membership model work for some communities --GAC and ccNSO have been mentioned.  Not comfortable with saying member model is preferred at this time given the outstanding questions. 
Response: The member model seems to best fit our requirements
Response: The member model doesn't seem to provide the flexibility needed, may need to look at the other model and consider making precedent as ICANN continues to make new ground in organizational governance. 
Response: question asked by counsel.  Answer as is, and add an additional para asking if the designator model can be put in the bylaws and give greater flexibility.  

Some input in budget and strategy is sensible, but what is not satisfactory about what the community has now?  And what might be possible to bind the board.

Comment about how best to interact with the independent lawyers:  The notion of preference of the group can only be handled at the CCWG level, not sub-group.  But the sub-group can help guide the lawyers to clarity in their briefing documents. 4 models on the table:  member, designator, all SO/AC as a single member, status quo.  Receive information on the pros and cons on these options and hand this back to the CCWG for discussion.  Lawyer and legal sub-group should be in a position to inform the CCWG of options and ti highlight the tradeoffs that have to be made.  

Single member model, SO and AC would join a single body of ICANN and act as member. 

Whether members are multiple or single, they should be able to do the same things.  If more implementable from a community standpoint then can look at this.  And believe a single members is possible.  Will provide more precise analysis.  

If single member model, can single SO/AC still exercise statutory rights such as examining documents, recalling individual directors?  Questions from the call can be provided. 

If a single member model, would the members of the single member structure have to be legal persons? 

Action Leon: Draft answers, consolidate discussion points submit to legal sub-group for proof reading and then circulate to CCWG

3. Discussion on Comparison Chart on Governance Models Including Chris Disspain's questions 

1. Full Board Recall
2. Individual Director Recall
3. Approve Regular Amendments to the Articles or Bylaws
4. Approve Changes to "Golden" FUNDAMENTAL  Bylaws or Articles Provisions

These are achievable under both models, might be slightly easier under the member model.  Both would need work done on the orgs that select directors, as they recommended to be a legal person, and under member must be a legal person.  And Full Board Recall will require some combined mechanism to ensure the individual directors are recalled together by the sending orgs.

5. Approve Strategic Plan
6. Approve Budget

Member and designator are different .  Under corporate law, the members have powers to reserve powers to themselves in the bylaws, and these could be reserved.

With designator there is less clarity, they cannot reserve certain powers to themselves, cannot reserve these powers in a truly binding manner.
The designators do not have standing to bring a suit against the company for a violation of fiduciary duties, the members do have this.  
If member model not acceptable, the could look to create contracts between the designate and the company, where the company agreed to defer certain decisions to the designators for their approval.  But, that contact cannot abdicate the board's fiduciary duties, can't go too far or the contract would not be enforceable. 

Reconsideration and independent review panels.  Can look at mechanisms to strengthen this, but ultimately, decisions on budget and strategic plan will be reserved for the board, but the blocking powers are reserved for the members.  

If want these two powers, robust and simple. Must use member model.  If want reconsideration rights that expire then can look at the designator model.  But working against the legal norm when introducing contracts. A problem with contractual relationships: if under a contract it forced the organization to something beyond their fiduciary duty, then the director would be personally liable for breach of their fiduciary duties.  

Legal advisors note that they are pushing the designator model to the limits.  If want truly enforceable model for the last two powers, then should go with membership. 

Comment: sufficient to have the first four in place.  For the last two rely on the goodwill, of the board, or they get removed.  The threat says listen to the community or we remove those not willing to listen to the community.

Some contract for the designators as the SO/AC to remove their members, but what about the NomCom?  Can the rest of the community remove the NomCom appointees? 

NomCom organized as representatives of the SO/AC and constituencies.   Legal advisors need to look at how the NomCom is organized, but that more implementation issue that needs to be worked through (under both models).   

Contact to allow the collective of designators to remove their director together.  Or some clause in the bylaws where on a vote of no confidence in the board, then they agree to act to remove their Directors. 

The bylaws also need to be valid.  If the bylaws said the community must approve the budget, then that abdicates fiduciary responsibilities and so not valid. 

5/6 powers would push contracts to the limit.  What would full board recall contract look like, and would that push things to the limit.
Contracts are valid.  A contract among the members, or a contract for Directors as a condition on being a director to submit a commitment to resign in the event of a vote of no confidence.  

These contracts OK.  Less certain when writing contracts which are is essentially at odds with the requirements of the law.  

If NomCom were as today, then would need a committee that was comprised of designators or and unincorporated association, and enter into the same arrangement with the SO/AC.  Suggesting redoing much of the bylaws, then the structure of the NomCom be revisited as well.

Easier to sort out issues of budget etc. on this side.  IRP: having the IRP act as a reviewer of board decisions after the fact also has fiduciary issues, 

The NomCom is made of ICANN constituencies, and these constituencies would also be designators in their own right.  How does that work? 

Legal advisors: Pre-service resignation commitment is likely the easiest way to implement full board recall.  And in a community vote, the voters needn't be the designators or members, but could be separately defined.  

Action: Legal advisors will review old documents and provide summaries only of information that is not clearly identified in the table.  

Pre-service resignation letter, can it refer to some specific action of the community which might give the means to remove some individual NomCom members. 

A.  can draft the letter in more detail and trigger a particular director's letter would be triggered.  But picking off single NomCom directors might seem to be second guessing the NomCom and threaten the independence of the NomCom.

4. Review on WP2 document  (not addressed)
5. Discussion with lawyers  (not addressed)
END

Action Items

Action: Legal advisors to produce a simple summary chart [Thursday Apr 23, 15:00 UTC]
Action: Leon, draft answers, consolidate discussion points submit to legal sub-group for proof reading and then circulate to CCWG
Action: Legal advisors to review old documents and provide summaries only of information that is not clearly identified in the table.  

Documents Presented

Chat Transcript

 Alice Jansen: (4/22/2015 16:57) Welcome to the legal sub team call #12 ! Please note that chat sessions are being archived and follow the ICANN Expected Standards of Behavior: http://www.icann.org/en/news/in-focus/accountability/expected-standards  

  Pär Brumark (GAC Niue): (17:00) Hi! Can not connectCan not connect to Adobe Connect Sound via Computer?

  Holly Gregory (Sidley): (17:00) hello all!

  arasteh: (17:00) Hi every body,

  Leon Sanchez: (17:00) Hi Holly!

  Leon Sanchez: (17:00) Hello Kavouss!

  Holly Gregory (Sidley): (17:01) Hi Leon!

  arasteh: (17:01) hi evrybodyC

  David McAuley: (17:01) Hello all

  Grace Abuhamad: (17:01) Done Par!

  arasteh: (17:01) Leon

  Thomas Rickert: (17:01) Hello all!

  Pär Brumark (GAC Niue): (17:01) Thx Grace!

  arasteh: (17:01) Does the hand rasing system working

  Grace Abuhamad: (17:02) Yes

  Greg Shatan: (17:02) Hello all.

  Robin Gross [GNSO - NCSG]: (17:02) Hello again!

  Grace Abuhamad: (17:02) Kavouss -- we are dialing out to you again

  Grace Abuhamad: (17:04) I have Alice Munyua on the phone bridge

  David McAuley: (17:06) so many documents, feel like a paper hanger in a high wind

  David McAuley: (17:07) appreciate greg including some of my suggestions in the doc on screen

  David McAuley: (17:07) Greg, that is

  arasteh: (17:07) Tks Alice

  arasteh: (17:07)  I am connected

  David McAuley: (17:07) I think they are in there Leon

  arasteh: (17:07) Lean

  Alan Greenberg: (17:07) What is the passcode for bridge access?

  Alice Jansen: (17:07) please mute your lines (typing in the background)

  arasteh: (17:07) I have a humble suggestion

  arasteh: (17:08) May I Rise it

  Robin Gross [GNSO - NCSG]: (17:08) Alan: "legal"

  Alice Jansen: (17:08) Alan - see private chat - for security reasons, we cannot reveal it on public chat

  David McAuley: (17:08) That's right leon, we need some enforceability - If the status quo were to be deemed adequate then we should not have the accountability issues that we have identified

  Grace Abuhamad: (17:08) @Robin -- please note we will need to strike your passcode from the record :)

  Robin Gross [GNSO - NCSG]: (17:09) oops, :-)

  arasteh: (17:09) LEAON

  Grace Abuhamad: (17:09) it's ok. We will remove it from Chat Transcript.

  arasteh: (17:09) PLS REPLY

  Robin Gross [GNSO - NCSG]: (17:11) what is meant by "reconsideration" in the answer to 2A?

  Greg Shatan: (17:12) I think Agenda item 3 will answer Kavouss's question.

  Greg Shatan: (17:13) I suggest we finish discussion of this agenda item first.

  Robin Gross [GNSO - NCSG]: (17:14) can the community have control over what budgets get put before the board for approval?  So the community essentially approves it before the board makes its decision on it?  If so, isn't that an option worth exploring?

  Thomas Rickert: (17:16) By when can we have these?

  Greg Shatan: (17:16) You can "blame" some of the length of the comparison chart on yours truly, since I was one of the pre-counsel drafters....

  Holly Gregory (Sidley): (17:17) we will try to have it by this time tomorrow.

  Edward McNicholas, Sidley Austin LLP: (17:17) Good morning; Ed from Sidley joining in.

  Leon Sanchez: (17:19) Welcom Ed!

  Leon Sanchez: (17:19) I mean Welcome :-)

  Greg Shatan: (17:23) Reconsideration does not give the power to veto.  Separately, it is worth considering whether a reconsideration should precede a veto.

  Greg Shatan: (17:24) If in fact, the community (in some form) has the power to veto.

  Holly Gregory (Sidley): (17:26) +1 Robin

  Samantha Eisner: (17:26) +1 to Robin.

  Samantha Eisner: (17:29) I agree that there are many opportunities to build in formal processes (including budget/strat plans) formal  public comment requirements and how those should be dealt with (which don't exist today) and could include some form of consultation process as well, so there's not a build in of reference to teh formal reconsideration in the middle of the budget approval process, while it would still remain one of the accountability mechanisms available if the bd continues to not follow the community's guidance

  Mathieu Weill, ccNSO, co-chair: (17:34) We would also need to systematically recall what the question was, so staff can manage a wiki page with all questions and answers

  Robin Gross [GNSO - NCSG]: (17:35) Do we talk about the answer in 4A?  I don't agree with the answer.

  Thomas Rickert: (17:37) Can you substantiate that, Robin?

  Izumi Okutani (ASO): (17:37) It would help to have more explanation on why it is more preferable.

  Greg Shatan: (17:37) This is really a very narrow question based on two variables.  It's not a general question.

  Holly Gregory (Sidley): (17:39) Robin, the member model is far clearer.  the designator model my not be able to give you what you want in terms of enforceability re budget and strategy.  o lack of clarity no risk re enforceability

  David McAuley: (17:39) I agree with much of Robin’s positions, but not this one. On membership vs designator models maybe another way to tale a legal look would be to ask for a “complexity” vs. “powers” comparison – to me it seems clear based on what we have seen so far that membership gives us additional powers under Cal law

  David McAuley: (17:39) "take a legal look" that is

  Holly Gregory (Sidley): (17:40) so lack of clarity re enforcement and greater risk re lack of enforcement.  

  Mathieu Weill, ccNSO, co-chair: (17:42) Maybe the question is not answerable by this group ? defining CCWG preferences on models is not possible yet

  Holly Gregory (Sidley): (17:42) this discussion is very very helpful for lawyers.  

  Mathieu Weill, ccNSO, co-chair: (17:42) Answer shoudl be : we don't know. Keep things open at this stage please

  David McAuley: (17:43) Good point Mathieu

  Izumi Okutani (ASO): (17:43) I like the suggestion Mathieu

  Thomas Rickert: (17:43) Me, too!

  Thomas Rickert: (17:43) This is a debate the CCWG needs to have

  Robin Gross [GNSO - NCSG]: (17:43) we have those processes, but they have no teeth.

  David McAuley: (17:44) agree this is a ccwg issue

  Alan Greenberg: (17:44) They have no teeth, but moreover there is nothing that compells ICANN to continue with the kind of dialogue that is going on now.

  Mathieu Weill, ccNSO, co-chair: (17:44) @Thomas but we need more concrete grasp about consequences of various models

  Samantha Eisner: (17:44)  and they are not in the bylaws nor required by the bylaws

  Greg Shatan: (17:45) The basic question is whether we prefer a model where the community has the power to bind the board on budgets and strategic plans. Is our answer to this "I  don't know?"

  David McAuley: (17:45) answer to 4.A is a placeholder as it mentions discussions - maybe we can make ot more emphatic

  Holly Gregory (Sidley): (17:45) we can bind ICANN to continue community input on budget and strategy through bylaws that ICANN board cannot change -- "fundamental bylaw concept"

  Greg Shatan: (17:50)  I must disagree with our colleague Kavouss on this point.   Going out to the public with no preference would be a mistake.

  David McAuley: (17:51) agree need to look at single membership model, questions has been posed

  Thomas Rickert: (17:51) We need information on the 4 models for discussion by the CCWG for the intense work days

  Robin Gross [GNSO - NCSG]: (17:51) Greg, I disagree, we need to hear from the community before we make a recommendation.

  Greg Shatan: (17:51) I think we need to criticize every model, and try to improve every model.  We can't dance around the need to come to a decision.  But I agree that those decisions need to be made by the CCWG.

  Holly Gregory (Sidley): (17:51) could speaker explain 3rd model he mentioned?

  Robin Gross [GNSO - NCSG]: (17:51) what are the communities priorities on these powers, for example.

  Izumi Okutani (ASO): (17:52) Yes, Greg, I'm with you that we would want to  provide preference for public comment.  Then again, when we do,  I suggest we  clearly explain why and provide comarison with other possibilities so people can review whether they agree with preference presented by CCWG.

  Greg Shatan: (17:53) The sole membership construction, is a possibility described in the legal document in several places: the comments by the legal experts on the PCCWG mechanism template (page 64) and the Community Council mechanism template (page 69). I sent several emails about it to the WP1 list, suggesting to look in the possibility as indeed it would not necessitate every SO and AC to become a legal entity. And, as you do, suggesting: "make the „Community Council” the sole member of ICANN (and thus a formal legal entity), consisting of either the SO and AC chairs or SO/AC elected representatives” (from an email of 14 April).

  David McAuley: (17:53) Holly, the thrid option was single member option where all sos/acs exost under one member entity (I think)

  Holly Gregory (Sidley): (17:53) so model 3 is really a variation on the member model?

  Mathieu Weill, ccNSO, co-chair: (17:53) Thks Greg

  Leon Sanchez: (17:54) I'm back

  Adam Peake: (17:54) See http://mm.icann.org/pipermail/accountability-cross-community/2015-April/002453.html

  Leon Sanchez: (17:54) sorry for the hiccup

  David McAuley: (17:54) yes, that;s right Holly

  Robin Gross [GNSO - NCSG]: (17:54) could portions of the member (for example the GNSO) act under this 3rd model without the agreement of the other segments of the member?

  Rosemary Fei: (17:55) Yes, you can, Holly

  Rosemary Fei: (17:55) Have a single member

  Rosemary Fei: (17:55) We use it a lot

  Greg Shatan: (17:55) Correct -- this is an implementation issue.  Trying to get around some of the perceived issues with the regular member model.

  Holly Gregory (Sidley): (17:56) thanks Rosemary !  glad I got it right ...

  Rosemary Fei: (17:56) Until this AM, I never saw anything about a single member model in CCWG emails.  Were they shared earlier?

  Greg Shatan: (17:56) But does the single member solve the problem of turning SOACs into separate members?

  David McAuley: (17:56) Good question @Robin, and I think Ed asked as well on list

  Rosemary Fei: (17:57) Rights vest in the member, or members.  Unless you're a member, you don't get them.  You must be a legal person to be a member.

  Greg Shatan: (17:57) Under the single member model, how could an SO recall "its" board member.

  Edward Morris: (17:58) +1 Greg

  Rosemary Fei: (17:58) It couldn't, because it doesn't have "its" board member.  There would be one member, and only that member would have statutory rights of a member.

  Robin Gross [GNSO - NCSG]: (17:58) any way to draft around that?

  Rosemary Fei: (17:58) That's the question -- I'm unclear what the single member would look like.

  Holly Gregory (Sidley): (17:59) the member could be a human person who takes direction from a non legal entity/community on how to vote -- is that correct Rosemary?

  arasteh: (17:59) gREG

  David McAuley: (17:59) I think we need legal advice on a preferred approach ultimately delivered to the ccwg

  arasteh: (18:00) May you pls provide examples for single and group members pls

  David McAuley: (18:00) what i earlier called the holistic approach

  arasteh: (18:00) KA

  Rosemary Fei: (18:00) Yes, certainly, Holly, members can be live people., and you can come up with a process for choosing that person in the bylaws (i.e., admission of members)

  Greg Shatan: (18:00) David, I think we have had that answer.

  Mathieu Weill, ccNSO, co-chair: (18:00) @david : I think WHEN we have a preferred approach, we'll need detailed legal advice on this option. Until then we need to explore options

  David McAuley: (18:02) I agree @Mathieu but hope in picking our preferred option we weigh legal "holistic" advice - I think that is possible w/out compromising us being at the helm

  Greg Shatan: (18:02) I think Leon is back....

  Rosemary Fei: (18:02) There are not necessarily "members" of the single member -- the single member is an entity.  There is no equivalent to the single member in ICANN's current structure.

  Josh Hofheimer (Sidley): (18:02) Hello, I am online.

  arasteh: (18:04) are so and AC a group members ?

  Mathieu Weill, ccNSO, co-chair: (18:05) Agreed David. But that's two different types of input : a pros and cons on all options 1st, then a more traditional legal advice

  David McAuley: (18:05) Fair point Mathieu

  Edward Morris: (18:05) Go on Leon - phone trouble

  Grace Abuhamad: (18:06) Ed -- do you want a dial out?

  Edward Morris: (18:06) Grace. That would be great. Keep getting dropped. +44 7472687857

  Greg Shatan: (18:07) We have been exploring options for quite some time....

  Grace Abuhamad: (18:09) ok dialing

  Edward Morris: (18:09) Thanks :)

  Leon Sanchez: (18:14) So, so far it comes down to how much we want to influence the SP and Budget because the other 4 powers are achevable by either structure

  Ingrid Mittermaier: (18:16) Leon, yes, that is correct.

  Leon Sanchez: (18:16) Thanks @Ingrid

  Steve DelBianco   [GNSO - CSG]: (18:20) THanks for being clear about the advantages of Member over Designators.  

  Mathieu Weill 2: (18:21) this is very good. the notes will be very useful. we'd need very concrete FAQs on the concrete steps towards a member or designator model, including the how to create a unincorporated association

  Greg Shatan: (18:23) Keeping in mind the advice that unincorporated associations are required under either the designator or the member model.

  Robin Gross [GNSO - NCSG]: (18:23) Bylaws could require a budget process where the community (designators) pre-approves a budget and then it goes to the board for ultimate approval.

  Greg Shatan: (18:23) As per the legal advice received to date.

  Mathieu Weill: (18:24) agreed Greg

  Greg Shatan: (18:24) Robin -- what keeps the board from changing the budget after the community approves it?

  Robin Gross [GNSO - NCSG]: (18:25) this is where we need to have enforceable bylaws.

  Greg Shatan: (18:25) We also need to have valid bylaws.

  Greg Shatan: (18:25) A bylaw that doesn't allow a board member to exercise fiduciary duty would be dead in the water.

  Josh Hofheimer (Sidley): (18:25) @Robin, I disagree with that assertion, and will articulate if it comes around to me

  Robin Gross [GNSO - NCSG]: (18:26) please do.  I'd like to hear about this point.

  Rosemary Fei: (18:26) It's in the chart in the slide deck we presented last Tuesday.

  Leon Sanchez: (18:27) @Josh I will go to you after we listen to Alan and David

  David McAuley: (18:27) Leon, you can put Josh ahead of me

  Holly Gregory (Sidley): (18:27) we will provide a summary of what Josh and Rosemary said when we provide the redraft of the chart including the "headline conclusions"

  David McAuley: (18:27) Thanks Holly - this is very important

  Leon Sanchez: (18:27) Thanks @Holly

  Leon Sanchez: (18:28) Will do @David. Thanks for that

  Holly Gregory (Sidley): (18:28) Robin, the bylaw you seek would likely be in lid in a designator model

  Rosemary Fei: (18:29) Slide #15 in the last Tuesday presentation

  Robin Gross [GNSO - NCSG]: (18:30) thanks.

  Greg Shatan: (18:31) Holly -- does "in lid" = "invalid"?

  Rosemary Fei: (18:31) Nominating Committee could be an unincorporated association, just like the other members/designators

  Holly Gregory (Sidley): (18:32) yes. my typing stinks!

  Greg Shatan: (18:32) Typing lessons before law school turned out to be one of the best things I ever did.

  Alan Greenberg: (18:32) @Rosemary, yes, I know that would be technically possible, but I do not beleive that itis somethng that we could bind them to.

  Samantha Eisner: (18:33) Josh, the NomCom has representation on it from grops taht do not select voting members of the Board

  Rosemary Fei: (18:33) @Alan, legally, I don't understand how the Nom Com would be different from any other uninc assoc

  Robin Gross [GNSO - NCSG]: (18:34) perhaps we can't build a 100% enforcement on budget/stat plan, but can we build a process that gives us signficiantly more power in that process?

  Alan Greenberg: (18:34) People put on the NomCom are put there in their individual capacity and I think we would have VERY significant problem saying that they would be BOUND to follow the orders of the ACs and SOs

  David McAuley: (18:34) my question answered leon

  Leon Sanchez: (18:34) @Greg I never followed too much advice from my dad when younger. But one thing I did followed was his advice on typing lessons.

  David McAuley: (18:34) Leon

  Leon Sanchez: (18:34) Thanks David

  Greg Shatan: (18:35) Maybe we need to help demystify the uninconrporated association a bit.

  Robin Gross [GNSO - NCSG]: (18:35) Leon, my mom made me take typing in high school "so I could always find work"

  Thomas Rickert: (18:35) That would be the idea of conditional advance resignation?

  Alan Greenberg: (18:35) Binding the NomCom delegates would being into question why they exist.

  David McAuley: (18:35) but new question occurs, hand up

  Leon Sanchez: (18:35) @Robin your mom is a wise woman who inherited her wisdom to you!

  Mathieu Weill: (18:36) @greg yes to demystify unincorporated. assoc. I have started a list of concrete questions

  Samantha Eisner: (18:36) Could Board members agree through a pre-service letter to resign if there is a vote of x% of the community?

  Rosemary Fei: (18:36) We've raised both the possibility of constituting the Nom Com just like the other appointing bodies, and we've also raised the possibiity of looking again at the NomCom, and give its appointments to other bodies.  And there may be other approaches we haven't discussed yet; our analysis to date has been at a high level.

  Greg Shatan: (18:37) I have lowered my hand to allow us to move on.  Enough of what I wanted to say has been said.

  Josh Hofheimer (Sidley): (18:37) @sam, yes.  resignation letters can be deployed.

  Rosemary Fei: (18:38) @Sam, yes, we mentioned that as an option -- directors would provide a resignation conditioned on threshold vote to recall

  Alan Greenberg: (18:39) Presumably the Board Member pre-service letter in irrevocable?

  Leon Sanchez: (18:40) yes @Alan, being a requirement to become a Director I think it would be irrevocable

  Holly Gregory (Sidley): (18:41) yes, the letter is irrevocable -- and such letters are already common in corporate law contexts

  David McAuley: (18:41) Thanks @Rosemary

  Holly Gregory (Sidley): (18:42) this is an excellent discussion

  Rosemary Fei: (18:43) I don't understand why the Nom Com would insist on ignoring a community high threshold vote to recall.

  Samantha Eisner: (18:43) One of the issues I see on the NomCom is seeing it as a separate member of the group when it is actually a collection of groups across the ICANN community.  

  Robin Gross [GNSO - NCSG]: (18:44) I agree, Samantha.

  Rosemary Fei: (18:44) @sam, then the solution might be to pull the Nom Com apart, and reallocate its seats.

  Robin Gross [GNSO - NCSG]: (18:44) it is not a distinct separate interest

  Samantha Eisner: (18:44) What are the specific powers that are granted to individual members?  Could the nomcom itself if it were a member take something to court to enforce?

  Rosemary Fei: (18:45) There's no rule that you can't form an entity with divergent interests within it

  Greg Shatan: (18:45) Isn't it more accurate to say that the NomCom is  a collection of individuals across the ICANN community?

  Mathieu Weill: (18:45) don't mean to confuse but why not submit NomCom board nominations to community approval ? that s a regular process for directors in many orgs right ?

  Samantha Eisner: (18:45) Could the nomcom's operating procedures be developed in a way that it acts based on community inputs (i.e., the same community threshold?)

  Josh Hofheimer (Sidley): (18:45) @Alan +1

  Robin Gross [GNSO - NCSG]: (18:45) yes, Mathieu.

  Alan Greenberg: (18:46) @Sam, yes, the NomCom *COULD* be changed to do that, but I think that there wouldbe significan philosophical push-back.

  Alan Greenberg: (18:46) But I could be wrong.

  Samantha Eisner: (18:47) yes

  Samantha Eisner: (18:47) one second

  Rosemary Fei: (18:48) Individuals are able to participate in multiple organizations, if that's what you want.  So someone could be on an SO, and also on NomCom

  Josh Hofheimer (Sidley): (18:49) @Sam, the NomCom could still be a "designator" under a member organized model.  That would give the NomCom the powere to select and remove directors, but not the other powers reserved to members

  Edward Morris: (18:49) +1 Josh

  David McAuley: (18:50) Intereesting point from Josh

  Pär Brumark (GAC Niue): (18:50) +1 Mathieu

  Rosemary Fei: (18:50) Josh is right, but the whole community could still not remove the NomCom directors.  The pre-service resignation works, though.

  Greg Shatan: (18:50) I think the question goes to the peculiarity of the NomCom concept....

  Samantha Eisner: (18:50) @Mathieu, not commenting on teh value of pre-approval, but how does that impact the removal requirement?

  Mathieu Weill: (18:51) if it is done every year for every director ?

  Steve DelBianco   [GNSO - CSG]: (18:54) So how about we flesh-out the Member model first?

  David McAuley: (18:54) +1 Steve

  Samantha Eisner: (18:54) For the CCWG, if there is a solution through which the recall issue can be achieved, do we need to address teh composition and operations of the NomCom  in WS2?  There will be a NomCom review within the next year.

  Leon Sanchez: (18:54) Agreed Rosemary

  Robin Gross [GNSO - NCSG]: (18:54) the easier model from a legal perspective, might not be one that will fly geo-politically.

  Holly Gregory (Sidley): (18:55) every time a director is up for potential re up. ( election or selection) , they would submit letter of resignation as. condition to be seated on the board and the letter would be irrevocable

  Adam Peake: (18:56) NomComs only exist for 1 year, the are reconstituted for for each annual cycle.  Perhaps something to consider?

  Holly Gregory (Sidley): (18:56) my hand is up

  Steve DelBianco   [GNSO - CSG]: (18:57) Have to drop now, but thank you for being clearer about your recommendations

  David McAuley: (18:58) sounds reasonable Holly

  Greg Shatan: (18:58) Maybe the lawyers can supply flash cards to the CCWG....

  Holly Gregory (Sidley): (18:58) flash cards or Tarot cards

  Greg Shatan: (18:59) I would appreciate lunch.

  Leon Sanchez: (18:59) You're one minute away from luch @Greg :-)

  Alan Greenberg: (19:01) I think that this may well have been a very productive meeting.

  David McAuley: (19:01) +1 @Alan

  Leon Sanchez: (19:02) I think we've has a very good meeting today

  Leon Sanchez: (19:02) Thanks to all for your participation and contributions

  Samantha Eisner: (19:02) I've been thinking that pre-service letters could also be a way to address some of the potentiality for the Board to not follow IRP declarations, etc.

  David McAuley: (19:02) Agree, thank you Leon (and Thomas while Leon was away)

  Alan Greenberg: (19:02) I can answer very briefly if you wish

  Robin Gross [GNSO - NCSG]: (19:02) I think so too, Sam.

  Josh Hofheimer (Sidley): (19:02) I have another call and have to depart.  By all

  Robin Gross [GNSO - NCSG]: (19:03) thanks to the lawyers for this discussion!

  David McAuley: (19:03) Thanks Josh

  Alan Greenberg: (19:03) Each yer's nomcom is a different one from the last. I am not worried about insulting a past nomcom. They would all admit they sometimes make mistakes.

  Rosemary Fei: (19:03) @Alan, perhaps you can send an email to the list?

  David McAuley: (19:03) This was very productive, does that mean we need more calls?

  Holly Gregory (Sidley): (19:03) thanks all.  this was a very helpful meeting.  

  Rosemary Fei: (19:04) Bye, everyone.  Yes, very helpful.

  Michael Clark (Sidley): (19:04) Agree with Holly

  Pär Brumark (GAC Niue): (19:04) Thx all!

  Robin Gross [GNSO - NCSG]: (19:04) thanks, Leon!

  Izumi Okutani (ASO): (19:04) Thank you all, and the lawers

  Adam Peake: (19:04) thank you

  Athina Fragkouli (ASO): (19:04) thank you

  Leon Sanchez: (19:04) Have a great day everyone!