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I know, I'm violating my own very recent commitment to not do this, but on
this one, I can't resist. You keep quoting the bylaws, but you always omit
Section 2 (g), which reads as follows:
"Nothing in this Section 2 is intended to limit the powers of the Board or
the Corporation to act on matters not within the scope of primary
responsibility of a Supporting Organization or to take actions that the
Board finds are necessary or appropriate to further the purposes of the
Corporation."
Since, as you point out, I wrote this language, I feel comfortable in
interpreting it. Taken as a whole, including Section 2 (g), Section 2 sets
up a process where, in the ordinary course, the SOs are primarily
responsible for policy development in areas within their scope, and there
is a presumption that SO recommendations will be accepted in ordinary
circumstances. But there are two savings clauses that preserve, as is
appropriate, the ultimate authority of the Board. The first are Sections
(e) and (f), which taken together set forth specific criteria by which the
Board may reject a recommendation of an SO and the procedures that will be
followed in those circumstances; since those include a finding that the
recommendation "furthers the purposes of, and is in the best interest of,
the Corporation," these provisions leave ample room for the Board to make a
judgment, where appropriate, that is different than that of the SO. The
second is Section (g), which is a general savings clause that provides the
Board with the full range of authority necessary for the Board members to
carry out their fiduciary responsibility. It is hard to imagine when the
Board might have to rely on Section 2 (g), since the criteria in Section 2
(e) and (f) seem sufficiently broad to cover any eventuality, but it is
there nonetheless.
The net of all this, in my opinion, is that the Board has ample power to
make its own decisions, following the recommendations of the SOs if that
seems appropriate and not if, in its considered judgment, it is not.
thus, the notion that this is a weak Board is a figment of either your
imagination or desire; it does not derive from the bylaws.
> > So let's not hear any more of this nonesense that we individuals should
be
> > satisfied with membership in the At Large Membership and forego any
> > meaningful voice in the policymaking of the DNSO.
> While I recognize that there are certain important issues that will
> be dealt with in the DNSO, what if there were other identifiable
> issues which were appropriately (according to the Bylaws) initiated
> by the AL membership? (I keep wanting to call it a supporting
> organization, but that leads to the unfortunate acronym ALSO...)
There were those of us who during last summer's "discussions" advocated a
much stronger role for general membership and a stronger board vis-a-vis
the supporting organizations.
I suggest you take a look at what the Boston Working Group proposed.
Copies are on-line at the NTIA web site or http://www.cavebear.com/bwg/
However, the IANA push was for very strong Supporting Organizations and a
very weak board. Indeed, one of the most common notions floating around
in those days was that the technical community had to protect the Internet
from the technically-challanged (much stronger wording was actually used)
Board. That weak-board/strong SO form still exists within ICANN. I doubt
that we will be able to change it.
> If it happened that those issues got themselves focussed on (not, of
> course, _organized around) before too much more water flows over the
> commercial/ non-commercial dam, is it so inconceivable that the
> workings of the Elected Board could be substantially influenced as it
> comes to consider various SO proposals?
Remember, the elected board is just a part of the board. And the ICANN
board has only very weak powers to interfere with policies made by the
various Supporting Organizations.
Part of the BWG proposals was to significantly change that balance. But
that was one of the points we didn't get.
So it remains the case that the general membership has the ability to
elect board members who are, themselves, rather close to powerless when
confronting a policy choice made by a Supporting Organization.
Here's the relevant parts of the ICANN by-laws. Be careful not to read
too much into section (f) -- it is not triggered until the an SO has sent
in a proposal with the Board rejects under (e). If there is no SO
proposal -- as when the board decides that it would be good to get rid of
an existing, already board-adopted SO proposal, then section (f) doesn't
come into play.
ARTICLE VI: SUPPORTING ORGANIZATIONS
Section 2: RESPONSIBILITIES AND POWERS
(e) Subject to the provisions of Article III, Section 3, the Board
shall accept the recommendations of a Supporting Organization if the
Board finds that the recommended policy
(1) furthers the purposes of, and is in the best interest of, the
Corporation;
(2) is consistent with the Articles and Bylaws;
(3) was arrived at through fair and open processes (including
participation
by representatives of other Supporting Organizations if
requested);
and
(4) is not reasonably opposed by any other Supporting Organization.
No recommendation of a Supporting Organization shall be adopted unless
the votes in favor of adoption would be sufficient for adoption by the
Board without taking account of either the Directors selected by the
Supporting Organization or their votes.
(f) If the Board declines to accept any recommendation of a Supporting
Organization, it shall return the recommendation to the Supporting
Organization for further consideration, along with a statement of the
reasons it declines to accept the recommendation. If, after
reasonable efforts, the Board does not receive a recommendation from
the Supporting Organization that it finds meets the standards of
Section 2(e) of this Article VI or, after attempting to mediate any
disputes or disagreements between Supporting Organizations, receives
conflicting recommendations from Supporting Organizations, and the
Board finds there is a justification for prompt action, the Board may
initiate, amend or modify and then approve a specific policy
recommendation.
