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 > > >