[ncdnhc-discuss] Resolutions

[Harold J. Feld]

Hopefully, these will be posted to the webpage soon.

The following resolutions were posted to the list and recieved second.

Proposed Resolution #1

PROPOSED RESOLUTION: BOARD EDUCATION ON DUTIES

Whereas: ICANN's responsibilities extend globally, but its place of 
incorporation is in the state of California in the United States.

Whereas: California Corporations Law specifies both rights and 
obligations of corporate directors including directors of Public Benefit 
Corporations such as ICANN under which directors personally may incur 
both civil and criminal liabilities.

Whereas: Under the California Corporations Law, directors of a Public 
Benefit Corporation, have a legal duty to perform their duties on the 
Board and on committees of the Board "in good faith, in a manner such 
director believes to be in the best interests of the corporation and 
with such care,
including reasonable inquiry, as an ordinarily prudent person in a like 
position would use under similar circumstances." (Calif Code, Section 
5231, Nonprofit Public Benefits Corporation, 
www.leginfo.ca.gov/.html/corp_table_of_contents.html).

Whereas: California Code Section 5231 requires an understanding of 
complex legal concepts that are influenced and interpreted under 
California and United States law and cases.

Whereas: Only one current Director of the ICANN board is a) a U.S. 
citizen or b) an attorney licensed in California. Accordingly, the ICANN 
Directors may not be expert in their legal responsibilities or even in 
the culture from which these rules and obligations are derived.

Whereas: All Constituencies of ICANN are entitled to and deserving of 
Directors who know and understand their legal obligations under 
California law with respect to the employees and staff of ICANN, the 
purposes of the Corporation, and the corporate actions taken by the 
Directors (including MoUs and contracts signed).

Be it hereby resolved that:

The ICANN Board undertake immediately after the Shanghai meeting, and 
prior to any further meetings, conference calls, or decisions, to engage 
an independent legal expert to offer a class or classes (online, by 
telephone or in person) on the rights and obligations on Board members 
under US and California law. Such an expert must be neutral, and come 
from a law firm or ethics practice that does not currently participate 
in the ICANN process or represent clients who participate in the ICANN 
process.

Such a process must delve into the meaning of obligations including 
"good faith," "care," "reasonable inquiry" and "ordinarily prudent person."

Such a class must be obligatory on all existing Directors, and a 
prerequisite for all new Directors prior to assuming their office.

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Proposed Resolution #2

Submitted by Hans Klein
Director, Civil Society Democracy Project
Computer Professionals for Social Responsibility (CPSR)

PROPOSED RESOLUTION: NEUTRALITY OF STAFF AND COUNSEL

Whereas: The deliberations and decisions of ICANN must be made in the
interests of the global Internet community as a whole.

Whereas: The protection of ICANN and the protection of its directors
require that its policy and legal advice come from independent and neutral
advisors.

Whereas: All ICANN constituencies are entitled to the reassurance that
their concerns and recommendations are being fairly and impartially
evaluated by the staff and counsel responsible for the preparation of
recommendations and reports to the directors and to the Internet
community.

Whereas: The Neutrality and Independence of ICANN's staff and counsel
are critical to public perceptions of legitimacy and accountability.

Be it resolved that:

The ICANN Board should take immediate steps to adopt a policy
which requires that no staff or counsel of ICANN who is engaged in policy
or legal recommendations or reports shall directly or indirectly 
represent (as
a legal matter) or directly or indirectly benefit (as a financial 
matter) from
individuals or entities who participate in any of the ICANN constituencies
or in any ICANN process.

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A third resolution was proposed by myself, but was not seconded by 
anyone.  Accordingly, it will not be considered.

Harold Feld