[council] Re: formal position requirement

[John Jeffrey <john.jeffrey@xxxxxxxxx>]

Stephane -

The rotation I mentioned earlier referred to cycle of NomCom appointments.  
There is no requirement for rotation of the NomCom appointees among the three 
seats.  To follow the Bylaws, I recommend that its preferable for the NomCom's 
appointments to be considered for the specific roles on the Council (Contracted 
House NCA, Non-Contracted House NCA and Non-Voting NCA).

The NomCom cycle of appointments to the GNSO Council is 2 in odd years and 1 in 
even years.  Given that each time an appointment is made, there is the 
potential for a new person to be appointed to the seat, my suggestion below was 
to encourage the GNSO and the NomCom to consider if it is preferable to have 
both voting NCAs appointed at the same time, with the Non-voting NCA appointed 
in the following year, or if the GNSO would be better served by having one 
voting NCA and the Non-voting NCA appointed in the same year, with the other 
voting NCA appointed in the next year.

I hope this clarifies my statement for you.  Please let me know if you have 
additional question.


John Jeffrey
General Counsel & Secretary
ICANN
4676 Admiralty Way, Suite 330
Marina del Rey, CA USA 90292
direct dial - +1.310.301.5834
mobile - +1.310.404.6001
JJ@xxxxxxxxx<mailto:JJ@xxxxxxxxx>

On Oct 20, 2011, at 12:22 AM, Stéphane Van Gelder wrote:

Thanks JJ, I am copying the Council on my response.

>From my reading of the bylaws, I see no mention of a requirement for rotation. 
>So in theory, an NCA could be constantly given the same assignment by the 
>NomCom. Is this read correct? If so, why are you suggesting rotation systems 
>in your last paragraph?

Adam, please let us know what the NomCom plans to do and when. I'm sure you 
understand that the GNSO is keen to get this matter resolved before we sit the 
new Council, on the Wednesday of the Dakar meeting…

Stéphane



Le 19 oct. 2011 à 19:43, John Jeffrey a écrit :

Resending - may have been an error in transmission.

Begin forwarded message:

From: John Jeffrey 
<<mailto:john.jeffrey@xxxxxxxxx>john.jeffrey@xxxxxxxxx<mailto:john.jeffrey@xxxxxxxxx>>
Subject: Fwd: formal position requirement
Date: October 19, 2011 9:19:12 AM PDT
To: Stéphane Van Gelder 
<<mailto:stephane.vangelder@xxxxxxxxx>stephane.vangelder@xxxxxxxxx<mailto:stephane.vangelder@xxxxxxxxx>>,
 Adam Peake <<mailto:ajp@xxxxxxxxxxxx>ajp@xxxxxxxxxxxx<mailto:ajp@xxxxxxxxxxxx>>
Cc: Samantha Eisner 
<<mailto:Samantha.Eisner@xxxxxxxxx>Samantha.Eisner@xxxxxxxxx<mailto:Samantha.Eisner@xxxxxxxxx>>,
 Robert Hoggarth 
<<mailto:robert.hoggarth@xxxxxxxxx>robert.hoggarth@xxxxxxxxx<mailto:robert.hoggarth@xxxxxxxxx>>,
 Liz Gasster 
<<mailto:liz.gasster@xxxxxxxxx>liz.gasster@xxxxxxxxx<mailto:liz.gasster@xxxxxxxxx>>,
 Daniel Halloran 
<<mailto:daniel.halloran@xxxxxxxxx>daniel.halloran@xxxxxxxxx<mailto:daniel.halloran@xxxxxxxxx>>
Bcc: John Jeffrey 
<<mailto:john.jeffrey@xxxxxxxxx>john.jeffrey@xxxxxxxxx<mailto:john.jeffrey@xxxxxxxxx>>

Dear Stephane and Adam,
I write to you jointly as Chairs of the GNSO and the NomCom.  I received the 
attached note from Carlos Dionisio Aguirre regarding the NomCom appointees to 
the GNSO and noted the need to provide advice on the ICANN Bylaws.
Article X, Section 3.e requires the NomCom to appoint three members of the GNSO 
Council.  Of those appointees, one shall be non-voting, and “one voting 
representative shall be assigned to each House . . . by the Nominating 
Committee.”  This Bylaws provision requires the NomCom to assign voting 
representatives among the GNSO’s contracted and non-contracted party houses.  
Pursuant to the Bylaws, this assignment work should not be left to the GNSO.
I appreciate that with the GNSO Restructuring, the initial assignment of the 
single NomCom Appointee (NCA) selected by the NomCom in 2010 did not pose a lot 
of complexity.  However, now that the restructured form of the GNSO Council is 
in place and the NomCom is making appointments for multiple NCAs, it is 
important for the NomCom to complete the assignment process and identify the 
roles of the NCAs to the GNSO.  If possible, I encourage the NomCom to complete 
this assignment process prior to the ICANN AGM in Dakar, Senegal and the 
seating of the new GNSO Council members (28 October 2011).
Due to the NomCom’s appointment rotation (2 NCAs to the GNSO in odd years, 1 
NCA in even years), it may be beneficial for the NomCom and GNSO to consult 
together to determine if the GNSO would be better served by having both voting 
NCAs rotate at the same time, or if it is preferable to have 1 voting and 1 
non-voting NCA rotate at the same time, with the term of the other voting NCA 
rotating in even years.  Further, as the NomCom and the GNSO continue dialogue 
on identifying skill sets for the NCAs to the GNSO, skills desirable for each 
role (Non-Contracted House NCA, Contracted House NCA and Non-Voting NCA) could 
be identified for NomCom consideration.
I look forward to seeing you in Dakar.  If you have any questions, or we can be 
of assistance to you, please let us know.

John Jeffrey
General Counsel & Secretary
ICANN
<mailto:JJ@xxxxxxxxx>JJ@xxxxxxxxx<mailto:JJ@xxxxxxxxx>

From: <mailto:carlosaguirre62@xxxxxxxxxxx> 
carlosaguirre62@xxxxxxxxxxx<mailto:carlosaguirre62@xxxxxxxxxxx>
To: <mailto:john.jeffrey@xxxxxxxxx> 
john.jeffrey@xxxxxxxxx<mailto:john.jeffrey@xxxxxxxxx>
Subject: formal position requirement
Date: Mon, 10 Oct 2011 16:09:01 +0000




Cordoba, October 10th 2011.



Dear John Jeffrey
ICANN General Councel



I’m writting to you, to ask your formal  opinion as General Councel in relation 
with the meaning of one clause of the ICANN bylaws.



First, let me introduce myself: I`m Carlos Dionisio Aguirre, some of my hats 
are: Lawyer Specialist in business law, teacher of Economy, and Informatic`s 
Legislation at National University of Cordoba in Argentina , International 
Director of AGEIA DENSI (Academic NGO), Vice President of ADIAR (Argentinian 
Cyberlaw Lawyers Asociation), Former ALAC member elected and reelected by 
LACRALO, and currently ICANN NCA GNSO Council.



Im very interested in your particular opinion & intelligence (understanding) 
about the following clause, and as ICANN General Councel:







“BYLAWS FOR INTERNET CORPORATION FOR ASSIGNED NAMES AND NUMBERS…
ARTICLE VII: NOMINATING COMMITTEE …
Section 3. GNSO COUNCIL
1. Subject to the provisions of Transition Article XX, Section 5 of these 
Bylaws and as described in Section 5 of Article X, the GNSO Council shall 
consist of:
a. three representatives selected from the Registries Stakeholder Group;
b. three representatives selected from the Registrars Stakeholder Group;
c. six representatives selected from the Commercial Stakeholder Group;
d. six representatives selected from the Non-Commercial Stakeholder Group; and
e. three representatives selected by the ICANN Nominating Committee, one of 
which shall be non-voting, but otherwise entitled to participate on equal 
footing with other members of the GNSO Council including, e.g. the making and 
seconding of motions and of serving as Chair if elected. One Nominating 
Committee Appointee voting representative shall be assigned to each House (as 
described in Section 3(8) of this Article) by the Nominating Committee.”



This formal asking, has to do particularly with the last sentence in the 
paragraph exposed and highlighted in red.





Some opinions by me, first: ( you can contradict if you believe I am wrong, 
please)



-Bylaws are mandatory into ICANN environment for all and everybody.
-All into ICANN environment are regulated by our bylaws.
-everybody have to respect and fulfill the clauses content in ICANN bylaws.
-If bylaws are representing  “the legal” into ICANN environment, not fulfill 
this rules means “not legal”. So, the fact commited after that,  is null, or at 
least could be reviewed.
-Bylaws were made by all community for ICANN community, and it is not possible 
that “some parts”  in agreement ( through detour the decisions of the whole 
community), choose to change, against what bylaws are saying.





Now :



I am asking formaly your position as ICANN General Councel, because:



IMHO the sentence mentioned is absolutely clear, transparent, no need 
interpretation and shows what the bylaws want in relation on it.



IMHO If  the NCA appointees were not assigned to each house (into GNSO), the 
situation would constitute a violation or at least a serious lack of commitment 
by NomCom.



IMHO if GNSO after that (the previous situation) convalidate this (the no 
assign by GNSO) and decide “by consensus” of two houses (CPH & NCPH), assign 
one of them on each, is also a violation of our bylaws, or at least act against 
it.



IMHO If the situation occur. What happen with the resolutions taken by GNSO? 
Having in account that the quorum was obtained on this way (with some members 
bad designated in each houses, or designated against bylaws rules.



IMHO consider that the situation is serious, because is happening right now 
(and is not new), affect seriously “the transparency”  (what is part of CORE) 
of ICANN. And IMHO is the same to say to all community: “don`t take in account 
bylaws rules, because somebody can change, in agreement with other,  if it is 
onvenient for they .”`





That is what I feel about this complicated situation, and my legal formation 
forced me to claim for a formal interpretation of this clause, in order to 
solve (IMO) the serious situation what is happening, and keep safe the concept 
of “transparency” into ICANN.



Before to conclude, and give in advance my thanks for your prompt response, I 
want to say that in this event there are not involved my own interests. Im part 
of the ICANN community, Im part of the civil society into this, and Im 
currently acting by me, in my personal capacity, and in their representation.



Lastly I Think would be good to get your definition and opinion in order to 
give advice and define this controversy.  Is my intention give publicity to this



Thanks, in advance



All my respect.

Carlos Dionisio Aguirre
NCA GNSO Council - ICANN
former ALAC member by LACRALO
Abogado - Especialista en Derecho de los Negocios
[redacted]