Hi Tapani,

You’re actually half-way there in terms of what I thought might have been a way forward on this. For clarity, I haven’t spoken about any of this to Rafik, and as you said, I am aware that it’s very unlikely that he may want to serve for a third-term…, but that isn’t what I had in mind.

What I was thinking was that he may continue between now, and when a new NCSG EC and Councilors are in place following the AGM in October. Once that is done, he could resign, and allow the new NCSG EC to fill his seat as per the NCSG Charter.

This would allow the current election cycle to proceed as planned without any unnecessary incident, and would also allow for the the empty seat to be appropriately filled in October, once the new NCSG Chair is in place, and when NPOC and NCUC confirm their own appointments to next year’s NCSG EC.

I am also in favor of using clear and unambiguous procedures that are already in place, particularly if their use is somewhat of a novel(ish) precedent. The Temp Spec was one such solution, and this could be too.

If you ask me for my personal insight, I believe it is unlikely that the Council would reject this course of action. They may even find it as interesting and novel as I (and perhaps you) do, especially if the plan to have Rafik step down in October is explained to them. I suspect the Council may very well vote unanimously on this (may even be placed on the Consent Agenda), but even if that isn’t the case, I’m confident enough to guess that a supermajority vote in favor of this may be reasonably expected.

This would be an interesting exercise, which may raise awareness of an existing procedure across the entire GNSO, not just the NCSG (I wonder how many from other SGs are aware of this), it’d allow us to move forward without the need to alter the election schedule or bend any rules, and should be a satisfactory outcome to all parties involved. It delays nothing, and creates no serious negative consequences that I can think of.

Yes…, the NCSG had fewer candidates than it needed, but that is a fact. No reason we need to find it embarrassing at all. We’re all volunteers here. Fortunately, the drafters of the ICANN Bylaws and GNSO Operating Procedures foresaw that issues like this (or even if not exactly like this one), and had the good sense to put in some procedures to allow what I believe is an elegant solution.

Thanks for entertaining me on this. :-)

Amr

> On May 31, 2020, at 10:51 PM, Tapani Tarvainen <[log in to unmask]> wrote:
> 
> 
> 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