[council] Response of General Counsel to request to check eligibility of Board candidates

["Bruce Tonkin" <Bruce.Tonkin@xxxxxxxxxxxxxxxxxx>]

To: Chair, GNSO Council
From: ICANN General Counsel & ICANN Board Secretary

Bruce,

I have received your request and reviewed the available information
about the proposed nominees for the GNSO's appointment on the ICANN
Board.  I have reviewed only the information available and did not
conduct background checks, consider the impact of potential conflicts or
review personal information.

All of your nominees except one appear to be eligible to stand for the
board seat according to my review.  It is important to note, however,
that my review led me to a determination that one nominee, Marilyn Cade,
is ineligible to stand for the board during this mid- term election
process, due to her conflicting service with the 2006 Nominating
Committee.  Even though Ms. Cade has stepped down from her position on
the Nominating Committee, the ICANN Bylaws at Article VII, Section 8
clearly and unambiguously state that a person who serves on the
Nominating Committee, even after such service has ended, shall not be
eligible for a board seat until the end of the next Annual Meeting.

More information about my review of this has been set out and challenged
by Ms. Cade in a reconsideration request that was made to the ICANN
Reconsideration Committe of the Board.  As you are aware from her public
comments she had also asked the Reconsideration Committee to "stay" the
GNSO election process.  Her Reconsideration Request is posted at
http://www.icann.org/committees/reconsideration/cade-request-03may06.htm

The Reconsideration Commitee held a meeting to discuss this issue on
9 May 2006 and made a recommendation to the ICANN Board on this  
issue.   The Reconsideration Committee acted in an expedited fashion  
in order to allow the GNSO to move forward with its election process as
quickly as possible so that the vacant board seat on the ICANN Board
will be filled promptly.

The Reconsideration Committee's recommendation was as follows:

"The committee concludes that there are no grounds for reconsideration,
as Article VII, Section 8, is clear that Ms. Cade cannot, under any
circumstances, become eligible to fill the current midterm vacancy on
the ICANN Board without a change to the applicable bylaws. Moreover,
Article VII, Section 8, does not allow flexibility to consider "exigent
circumstances" under any situation. Given that this committee has
considered the Request and made its recommendation, we see no reason to
respond to the stay request."

The full text of the recommendation, history and analysis are posted
publicly at
http://www.icann.org/committees/reconsideration/reconsideration-recommen
dation-06-3.htm

Additionaly, the ICANN Board during its Special Meeting on 10 May
2006 considered the Reconsideration Commitee's recommendation and
ratified it by a vote of 13-0 with one abstention, details of that vote
will be posted on the ICANN website shortly.

I hope that this clarifies my position regarding your nominees for board
seat 14 and please do let me know if there is anything else that my
office can assist you in relating to this process.

best regards,
John Jeffrey
General Counsel & Secretary
ICANN