[NCSG-EC] Fwd: [NCSG-Discuss] Selection of Replacement / Temporary Councilor

[Tapani Tarvainen]

Dear EC members,

I presume you've seen the post by Ed about the procedural matters
relating to Amr's replacement, but I'll copy it below anyway for
reference and to make commenting here easier.

I would very much like to hear if you disagree on Ed's analysis
or would just like to add something to some particular point,
or if you have anything to add he failed to cover.
(I will get back on the issue of GAC liaison later.)

Regards,

-- 
Tapani Tarvainen

----- Forwarded message from Edward Morris <egmorris1 at toast.net> -----

 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

----- End forwarded message -----