Hi Amr, fellow nit-picker extraordinaire!

On Sun, May 31, 2020 at 06:50:51PM +0000, Amr Elsadr ([log in to unmask]) wrote:

[me]
> > there's really no alternative if enough candidates aren't
> > available during the election, but nonetheless it would also be at
> > least slightly bending the rules.

> That’s NOT true. There is an alternative, but you may just not be
> aware of it.

OK, I concede that of course there are theoretical alternatives, like
dissolving NCSG on the spot, maybe just all members resigning at once
and what not. But "really" above was meant to suggest there are no
practical, realistic alternatives. And I was aware of the one you
mention but didn't consider it realistic in the present situation.

> I know you like to read up on procedural nuances and details. Why
> not take a look at what the ICANN Bylaws and GNSO Operating
> Procedures provide as an alternative under what they refer to as a
> “Special Circumstance”? Specifically, [Article 11.3(b), paragraph 2
> of the ICANN
> Bylaws](https://www.icann.org/resources/pages/governance/bylaws-en/#article11),
> and section 2.1.2 of the [GNSO Operating
> Procedures](https://gnso.icann.org/sites/default/files/file/field-file-attach/op-procedures-24oct19-en.pdf).
> These at least provide an alternative course of action, which had it
> been selected, could have led to a resolution of this situation
> without creating the constitutional and procedural mess we
> unnecessarily find ourselves in now.

Those provide that NCSG could petition the council to allow its
councillor to exceed term limit and serve a third consecutive term.

In the present situation the only term-limited councillor is Rafik.

So yes, one option would have been to ask Rafik to stay on and
then petition the Council to accept a third term for him.

But it was my understanding that Rafik has no desire to continue, and
I don't think it would've been trivial to persuade the Council, with
75% supermajority in both houses, to go for it. I rather suspect they
would at least have asked for a bit more of a search for a candidate
along the lines of 2.1.1(b), even though 2.1.2 doesn't actually have
require such.

In any event it would've taken much longer time and been somewhat
embarrassing to have the entire Council sort out our internal mess.

Hardly easier or less messy than the alternatives EC did consider.

> As I said on Friday’s “meet the candidates” call, our elected
> representatives need to be fully versed in the bylaws and operating
> procedures that govern the GNSO.

Fortunately I'm not running for any position, nor intend to ever
again, so I don't have to. Anyway I rather doubt all councillors
(of any group) are as well versed in GNSO bylaws as you are. :-)

But I was indeed aware of that Special Circumstances thing, even
though I'd forgotten details like the supermajority percentages.
(It came up when I drafted the procedures for handling those
diversity rules in our elections. Unfortunately I didn't then
think of the possiblity of not having enough candidates at all.)

> The way I see it, the EC kinda worked outside of the election
> schedule it itself developed and announced. This resulted in
> confusion,

Yes. Communication was not as good as it might've been.

> and a misinformed notion that there was no alternative path out of
> this situation, when there really was.

There are always alternatives. The two EC considered were just the
easiest, most practical ones, and IMHO the only really practical ones.

> > So while neither option is really pretty, I don't see any serious
> > legalistic argument against either, and I'm happy to let the EC decide
> > which is best.

> You may still hold this opinion after looking at the sections of the
> bylaws and the OPs I pointed to above, but I’d be very interested in
> hearing wether you do actually still believe this statement is true,
> or wether you’ve changed your mind.

I certainly haven't changed my mind about the above: both of those
options are doable without bending any rules too much.

Whether or not other alternatives would've been viable - still no, for
reasons explained above, but there I might be more open to persuasion.
Feel free to try. :-)

(I can actually think of several additional alternatives myself, some
even sort of within the realm of possibility, but none I would
consider advocating.)

-- 
Tapani Tarvainen