Hi Ed,

Thanks for posting this resource, very helpful. As I endeavour to become
more informed, it is postings like this that really make the search process
so much easier.

Cheers,
Joan

On Tue, Feb 21, 2017 at 8:34 AM, Edward Morris <[log in to unmask]> wrote:

> Hello everybody,
>
> I’ve been pleased to see the spirited discussion on list about the process
> to select someone to represent the NCSG on the GNSO Council in light of Amr
> Elsadr’s recent resignation. I know, like and respect all four announced
> candidates, and would encourage anyone else interested in serving on
> Council to put their names into the pool for consideration. As a current
> Councilor I don’t feel it is my role to support or endorse any particular
> candidate so I’m not. Rather, I look forward to welcoming to Council the
> individual selected to serve as a temporary / replacement Councilor and
> pledge to do all I can to help him or her adjust to her or his new role.
>
> I’ve read lots of unique suggestions and ideas that have been promulgated
> on list for filling the open slot: elections, a shared seat, short term
> appointees who pledge not to run for re-election etc. What all of these
> well meaning ad hoc ideas ignore is that we as a community are bound
> together by a set of governing documents that anticipated that vacancies
> may occur on Council and created procedures we may now use to determine
> both who selects the replacement Councilor, the type of replacement, and
> who is eligible to serve as same.  The relevant governing documents are:
>
> 1. The Bylaws For Internet Corporation For Assigned Names and Numbers
> (ICANN Bylaws):
>
> https://www.icann.org/resources/pages/governance/bylaws-en/#article11
>
> 2. The GNSO Operating Procedures, version 3.2 (GNSO OP):
>
> https://gnso.icann.org/en/council/op-procedures-01sep16-en.pdf
>
> 3. The NCSG Charter (NCSG Charter):
>
> https://gnso.icann.org/en/improvements/ncsg-charter-05may11-en.pdf
>
>
> In this post I’d like to go through the relevant sections of these
> documents with you so as we go forward we do so in compliance with the
> documents that constitute the legal essence of the Non-Commercial
> Stakeholder Group.
>
> *HOW WE DETERMINE THE REPLACEMENT COUNCILOR*
>
> 1. ICANN Bylaws
>
> The ICANN Bylaws §11.3c states:
>
> *A vacancy on the **GNSO Council shall be deemed to exist in the case of
> the death, resignation, or removal of any member. Vacancies shall be filled
> for the unexpired term by the appropriate Nominating Committee or
> Stakeholder Group that selected the member holding the position before the
> vacancy occurred by giving the **GNSO Secretariat written notice of its
> selection. Procedures for handling Stakeholder Group-appointed **GNSO
> Council member vacancies, resignations, and removals are prescribed in the
> applicable Stakeholder Group Charter.*
>
> Amr’s resignation has created a vacancy on the GNSO Council. As he was
> appointed by the NCSG, procedures for his replacement are contained in the
> NCSG Charter.
>
> NCSG Charter §3.2 reads:
>
> *In the event that a GNSO Council Representatives is unable to finish his
> or her term, the NCSG-EC will appoint a temporary GNSO Council
> Representative to serve until the next regularly-scheduled election as
> provided in Section 3.8 of the GOP. At that time, a new GNSO Council
> Representative will be elected to serve out the balance of the vacated
> term, if any. *
>
> The NCSG EC is charged with appointing a temporary GNSO Council
> Representative. As Amr’s term was scheduled to end at the next election
> there will be no balance of the vacated term to fill at that time.
>
> I should note that myself, Stephanie Perrin and Rafik Dammak are in the
> first year of a two year term as Councilors that extend to 2018. Stefania
> Milan and Marilia Maciel have terms ending this year. They both, as well as
> whomever is selected to fill the vacant seat, will be eligible to run for
> re-election to Council. Neither are term limited.
>
> *TYPES OF REPLACEMENTS*
>
> The GNSO OP §3.8.3a cites the ICANN Bylaws in referring to Council
> vacancies due to “resignation or other permament vacancy”. However, GNSO OP
> §3.8.3b also states:
>
> *During any transition period following the occurrence of the permanent
> vacancy, but before a new election or appointment and subsequent seating of
> the replacement Councilor, the remedy in Paragraph 3.8.4 is available. *
>
> GNSO OP §3.8.4a reads:
>
> *For a Councilor who is not appointed by the Nominating Committee, the
> appointing organization may, at its discretion, name a Temporary Alternate
> to serve in the absent or vacant Councilor’s seat. *
>
> This is exactly what the NCSG-EC did when it appointed Avri Doria, an
> excellent choice, as a Temporary Alternate to serve in the Council seat
> vacated by Amr during the February 16th GNSO Council meeting. Matt
> Shears, Sarah Clayton and Martin Pablo Silva Valent have also served our
> community exceptionally well  as Temporary Alternate Councilors during the
> current Council term.
>
> It is important to note that Temporary Alternates are NOT full Councilors.
> For example, per GNSO OP §4.7 (ii) :
>
> *A Temporary Alternate may not be selected to register a proxy vote.*
>
> The Temporary Alternate position is designed to be a short term measure to
> prevent any Stakeholder Group from being short a voice during a planned
> absence of a Councilor or in response to a sudden vacancy. It is not
> intended to be a long term solution. As such, rules applicable to selection
> of individuals for Councilor positions (for example, term limits) appear
> not to be applicable to Temporary Alternates (although one could certainly
> argue the spirit of such rules means they should).
>
> So there are two types of substitutes allowed for a vacated seat:
>
> 1. Temporary Alternate: a short term appointment for a limited term with
> limitations on Councilor powers granted to him or her and,
>
> 2. Temporary (NCSG Charter) / Replacement (GNSO OP) Councilor: appointment
> of an individual to serve until the next election period,  which in this
> case means the expiration of the term of the vacated seat.
>
> *ELIGIBILITY ISSUES*
>
> ICANN Bylaws §11.3b contains two provisions of interest:
>
>
>    - For these purposes, a person selected to fill a vacancy in a term
>    shall not be deemed to have served that term,
>    - A former Council member who has served two consecutive terms must
>    remain out of office for one full term prior to serving any subsequent term
>    as Council member.
>
>
> Anyone selected to serve as the Temporary / Replacement Councilor will
> then be eligible to serve an additional two full terms. This currently
> applies, for example, to Marilia Maciel who: 1) filled a vacancy and then
> 2) was elected to serve one full term. She is eligible to run for one
> additional full term.
>
> David Cake is the only NCSG member ineligible to serve as a
> Temporary/Replacement Councilor by virtue of having completed two
> consecutive terms within the past two years (two years being a full term).
>
> *CRITERIA*
>
> ICANN Bylaws §11.3a reads:
>
> *Stakeholder Groups should, in their charters, ensure their representation
> on the GNSO Council is as diverse as possible and practicable, including
> considerations of geography, GNSO Constituency, sector, ability and gender.*
>
> NCSG Charter §3.1 states:
>
> *The NCSG is assigned six (6) GNSO Council seats through the ICANN Bylaws.
> All NCSG GNSO Council representatives will be directly voted on by the full
> membership of the NCSG using weighted voting as defined in Section 4. To
> the maximum extent possible, no more than two (2) NCSG GNSO Council
> Representatives can be declared resident of the same geographic region as
> defined by ICANN. Reasonable efforts should be taken to recruit nominees so
> that all geographical regions may be represented by the NCSG GNSO Council
> Representatives. Reasonable efforts should also be taken to ensure gender
> balance and in no circumstance should there be fewer than 2 members of any
> gender. *
>
>
> Although it could be argued that NCSG Charter §3.1 applies only to those
> Councilors selected by election rather than appointment, read in
> conjunction with ICANN Bylaws §11.3a it is clear that the diversity
> requirements apply here as well. NCSG Charter §3.1 is the Charter component
> that directly complies with ICANN Bylaws §11.3a, a provision that does not
>  specify mode of selection. Poor legal construction in the Charter is no
> reason to ignore the Bylaws requirement and, in fact, if read in such a way
> the NCSG Charter would arguably not be in compliance with the ICANN Bylaws.
>
> The current composition of the NCSG GNSO Council representation is:
>
>
>    - 3 female, 2 male
>    - 2 Europe
>    - 1 North America
>    - 1 Asia / Australia / Pacific
>    - 1 Latin America / Carribean
>
>
> The ICANN Bylaws requires the NCSG EC to attempt, in making its
> appointment, to ensure that our representation on the GNSO Council is “as
> diverse as possible and practicable, including considerations of geography,
> GNSO Constituency, sector, ability and gender”.
>
> In implementing this Bylaws mandate the NCSG Charter created the hard
> requirement that there should be no fewer than two members of the same sex
> in the GNSO Council contingent. As that requirement has already been met by
> the current Council group it is inapplicable to the current appointment.
>
> “To the maximum extent possible” the NCSG EC needs to ensure in making
> this appointment that no more than two Council representatives are
> residents of the same ICANN defined geographic region. As Europe is already
> at the maximum capacity of 2 representatives, “to the maximum extent
> possible” the individual selected for the temporary/replacement role should
> be resident in a different ICANN region. No other region is impacted by
> this section of the Charter.
>
> Reasonable efforts must be made by the NCSG EC to ensure:
>
>
>    - all geographical regions are represented in the GNSO Council cohort,
>    and
>    - the GNSO Council group has gender balance.
>
>
> Amr Elsadar resided in the ICANN designated African region. We no longer
> have an African resident on Council. The NCSG EC needs to make a reasonable
> effort to try to replace Amr with a resident of either Africa or
> Antarctica, the two ICANN regions for which the NCSG does not have Council
> representation.
>
> Amr’s resignation has also left our Council representation with a gender
> imbalance: three woman, two men. The NCSG EC needs to make a reasonable
> effort to “ensure gender balance” by replacing Amr with a male.
>
> As I understand things, self nominations are still being accepted for this
> position. I’m sure the NCSG EC would encourage anyone interested in
> applying for the position, most particularly males and those residing in
> either Africa or Antarctica.  Making a reasonable effort to meet these
> diversity goals would be helped by the largest possible number of
> applicants!
>
> Please note that the only absolute here is that David Cake can not be the
> Temporary/Replacement Councilor. Sorry Dave. :) All other criteria are
> guidelines of various strengths (“maximum extent possible”, “reasonable”)
> that the NCSG EC is obliged to give consideration to but is not required to
> absolutely adhere to. Given the high standards of the NCSG EC I’m sure they
> will try and if, despite best efforts,  their selection does not correspond
> with Bylaws/OP/Charter suggestions I’m quite sure and expect they will tell
> us why. They do not have an easy job.
>
> For the record, these are not requirements that I personally would
> prioritize. Please don’t shot the messenger. :) A commitment to work, to
> participate on Council small groups (where Amr was excellent): these are my
> wish list for my future colleague. I do, however, believe in the rule of
> law rather than the rule of man and these are the rules we have to work
> with.
>
> I wish the NCSG EC well in their deliberations and look forward to
> welcoming a new Councilor on board as soon as possible. We have lots of
> work to do together. The sooner the better.
>
> Kind Regards,
>
> Edward Morris
>
>
>