[NCUC-EC] [Ext] FW: NCUC Bylaw ambiguity on NCUC Chair Term limit

Wed Jul 17 16:34:31 CEST 2024

Thanks Pedro. Great for you to confirm that this has to be submitted to the ICANN board, although I suspect that such a minor change would not be a problem or entail a substantial process. And I cannot dispute your well-reasoned argument for opting for a change of the bylaws.

However, reading your message triggered a memory of us discussing this before our recent elections with the result that we decided to defer this change as the bylaws require the vote “by the membership during the next regular election”, which of course won’t happen until next year. My recollection was that we did not have enough time to make all the arrangements before this year’s elections. Of course, the discussions can proceed, but any ballot measure will unfortunately have to wait. 

Ken

From: Pedro de Perdigão Lana <pedrodeperdigaolana at gmail.com> 
Sent: Wednesday, July 17, 2024 10:12 AM
To: Ken Herman <ken at kherman.com>
Cc: Andrea Glandon <andrea.glandon at icann.org>; Exec. Comm <ncuc-ec at lists.ncuc.org>
Subject: Re: [NCUC-EC] [Ext] FW: NCUC Bylaw ambiguity on NCUC Chair Term limit

Hi Ken,

You are correct - ICANN Bylaws (Article 11, Section 11.5.c) state that GNSO SG/Cs "shall maintain recognition with the ICANN Board", and this item was detailed in a written process (GNSO Charter Amendment Process <https://gnso.icann.org/sites/default/files/filefield_41943/charter-amendment-process-28sep13-en.pdf> ) approved by the Board. On the other side, our procedures to amend the Bylaws before forwarding them to the board are relatively simple (NCUC Bylaws, section IX - in short, a vote with a doubly qualified quorum)

However, I believe we don't have the choice of not going through this longer process and changing only the operating procedures. Term limits seem to be a subject of the bylaws (section I, 'c', although there is margin for other interpretations here), which appears to be confirmed by the provision related to term limits to regional ECs in section IV, 'E', 2) - with this in mind, it would be atypical that a limit to a coordination position would be established under a hierarchically lower norm of the institution. We could use the operating procedures to say that the regional limits apply to the chair, but this would probably seem too out of place.

Since the process may take a few months, I think it would be better to try to finish it (or go through most of it) before the incoming EC officially starts the activities, because I assume the first months are the busiest ones. Besides that, the new EC members will be involved nevertheless through the 3 regional representatives that are staying or through participation in the open consultation with the NCUC community that we plan to do.

Cordially,

Pedro de Perdigão Lana

Lawyer <https://www.nic.br/> , GEDAI/UFPR <https://www.gedai.com.br/>  Researcher

PhD Candidate (UFPR), LLM in Business Law (UCoimbra) 

Board Member @ NCUC (ICANN) <https://www.ncuc.org/> , ISOC BR <https://isoc.org.br/> , CC Brasil <https://br.creativecommons.net/>  and IODA <https://ioda.org.br/> 

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Em qua., 17 de jul. de 2024 às 05:34, Ken Herman <ken at kherman.com <mailto:ken at kherman.com> > escreveu:

Pedro, it would be a good idea to first find out what a bylaw change entails. I remember hearing somewhere that the bylaws for C’s and SG’s require ICANN board approval, so any alterations my require a substantial process. So let’s find that out. We may be able to accomplish what we decide through a review of the operating procedures, something which seems to be needed anyway. 

Either way, we can begin whatever process we desire, but I suggest that we allow the subsequent administration take the lead. If the incoming chair and new EC members agree (they do not actually begin their terms until close to the new year, so there is no obligation for them to assume any responsibilities), work on an operating procedures review can begin before the term.

Ken

From: Pedro de Perdigão Lana <pedrodeperdigaolana at gmail.com <mailto:pedrodeperdigaolana at gmail.com> > 
Sent: Tuesday, July 16, 2024 11:16 PM
To: Exec. Comm <ncuc-ec at lists.ncuc.org <mailto:ncuc-ec at lists.ncuc.org> >
Cc: Ken Herman <ken at kherman.com <mailto:ken at kherman.com> >; Andrea Glandon <andrea.glandon at icann.org <mailto:andrea.glandon at icann.org> >
Subject: Re: [NCUC-EC] [Ext] FW: NCUC Bylaw ambiguity on NCUC Chair Term limit

Hi everyone,

How should we start this process? Indicating to the community what we want to change in the bylaws, and asking for input regarding the alternatives we talked about here, or first defining a consensus position within the EC and then presenting it to the community to check for divergence?

Cordially,

Pedro de Perdigão Lana

Lawyer <https://www.nic.br/> , GEDAI/UFPR <https://www.gedai.com.br/>  Researcher

PhD Candidate (UFPR), LLM in Business Law (UCoimbra) 

Board Member @ NCUC (ICANN) <https://www.ncuc.org/> , ISOC BR <https://isoc.org.br/> , CC Brasil <https://br.creativecommons.net/>  and IODA <https://ioda.org.br/> 

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Em sex., 17 de mai. de 2024 às 12:44, Pedro de Perdigão Lana <pedrodeperdigaolana at gmail.com <mailto:pedrodeperdigaolana at gmail.com> > escreveu:

Hi Benjamin, Ken,

I think we are all in agreement on needing a bylaws reform, explicitly declared, defining how many terms (which will also define how many years) the NCUC chair can run. This should be decided after a broad debate with the NCUC community, which could also involve term limitations for other EC positions (now that you mentioned, it would indeed be unreasonable for the NCUC Chair to have a shorter limit than the rest of the EC).

Regarding the interaction between Ken and Andrea, for now my understanding is also that we don't currently have a term limit, because such a limitation should be clearly determined by the bylaws.

Cordially,

Pedro de Perdigão Lana

Lawyer <https://www.nic.br/> , GEDAI/UFPR <https://www.gedai.com.br/>  Researcher

PhD Candidate (UFPR), LLM in Business Law (UCoimbra) 

Board Member @ CC Brasil <https://br.creativecommons.net/> , ISOC BR <https://isoc.org.br/>  and IODA <https://ioda.org.br/> 

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Em sex., 17 de mai. de 2024 às 11:04, Andrea Glandon <andrea.glandon at icann.org <mailto:andrea.glandon at icann.org> > escreveu:

You’re welcome! Agreed, this is the reason I went with the bylaws. I could ask 5 different people and there could be 5 different answers of intent. I felt safest going with the bylaws.

Kind Regards,

Andrea

From: Ken Herman <ken at kherman.com <mailto:ken at kherman.com> >
Date: Friday, May 17, 2024 at 09:01
To: Andrea Glandon <andrea.glandon at icann.org <mailto:andrea.glandon at icann.org> >
Cc: "'Exec. Comm'" <ncuc-ec at lists.ncuc.org <mailto:ncuc-ec at lists.ncuc.org> >
Subject: RE: [Ext] FW: [NCUC-EC] NCUC Bylaw ambiguity on NCUC Chair Term limit

Thanks Andrea. This is really very helpful. 

I do not give any credence to what others may say about intent. It could be that the wording was simply left out of the text in error, but for me the bylaws text is very specific in almost every other area, so it’s difficult for me to believe that something so important would have been left so vague.

But, rather than dwell on the past, we can focus on how we want to proceed, and I am grateful for the discussion my EC colleagues are having with respect to this issue and it seems we are working towards a consensus on how to proceed with addressing this issue.

Thanks again.

Ken

From: Andrea Glandon <andrea.glandon at icann.org <mailto:andrea.glandon at icann.org> > 
Sent: Friday, May 17, 2024 9:51 AM
To: Ken Herman <ken at kherman.com <mailto:ken at kherman.com> >
Cc: 'Exec. Comm' <ncuc-ec at lists.ncuc.org <mailto:ncuc-ec at lists.ncuc.org> >
Subject: Re: [Ext] FW: [NCUC-EC] NCUC Bylaw ambiguity on NCUC Chair Term limit

Hi Ken, 

This is definitely something I have had to ask questions about, go to the bylaws. There is nothing in the bylaws about term limits for the chair. I have asked others and have been told the intent was for the chair to have the same number of terms as the regional representatives, but according to the bylaws there is no term limit. I went back and forth about the wording on the wiki and went with the bylaws. According to the bylaws there is no term limit for the chair. Of course, this is completely up to you all and I will gladly change the wording.

Thanks!

Kind Regards,

Andrea

From: Ken Herman <ken at kherman.com <mailto:ken at kherman.com> >
Date: Friday, May 17, 2024 at 08:42
To: Andrea Glandon <andrea.glandon at icann.org <mailto:andrea.glandon at icann.org> >
Cc: "'Exec. Comm'" <ncuc-ec at lists.ncuc.org <mailto:ncuc-ec at lists.ncuc.org> >
Subject: [Ext] FW: [NCUC-EC] NCUC Bylaw ambiguity on NCUC Chair Term limit

Andrea, it occurs to me that you function as the key decision-maker regarding the point Benjamin raises on term limits for the NCUC Chair. I realized this when looking at the elections page where it states:

1.	“Chair - currently held by Benjamin Akinmoyeje - eligible for re-election”

My question to you is: When is the NCUC Chair not eligible for re-election and why?

Your answer will help us clarify the issue, especially when we come to explain this to the community.

Thanks

Ken

From: Benjamin Akinmoyeje <benakin at gmail.com <mailto:benakin at gmail.com> > 
Sent: Friday, May 17, 2024 7:58 AM
To: Pedro de Perdigão Lana <pedrodeperdigaolana at gmail.com>
Cc: Ken Herman <ken at kherman.com <mailto:ken at kherman.com> >; Exec. Comm <ncuc-ec at lists.ncuc.org <mailto:ncuc-ec at lists.ncuc.org> >
Subject: Re: [NCUC-EC] NCUC Bylaw ambiguity on NCUC Chair Term limit

Thank you all for the email.

The amendment issue is coming up because of the confusion and different interpretations we have seen, even in our response to the challenge.

So my question now is how do we proceed or decide when a chair is term-limited? The community must have a common understanding regarding the NCUC chair position term limit. 

If NCUC EC's term is 3 years, why would the chair term be two years in alignment with NCSG 's chair term?

The amendment or adjustment I am recommending is to have an explicit declaration in the bylaws stating this "x amount of years is the term limit for the Chair" and not subjective interpretation by different community members. 

We can have a community-acceptable understanding of the Chair's term limit in the NCUC operational guidelines.  Do you think this will work?

Kind regards,

Benjamin 

On Thu, May 16, 2024 at 9:54 PM Pedro de Perdigão Lana <pedrodeperdigaolana at gmail.com <mailto:pedrodeperdigaolana at gmail.com> > wrote:

Hi everyone,

Thanks Benjamin for seeing and proposing this change.

I'm with Ines and Ken here, but recognizing that Amin has a good point - I think we should not restrict to current EC members, and following the same pattern as the Stakeholder Group leads us to some temporal alignment, which is especially important if other institutions within ICANN also follow the same pattern.

I also agree we don't rush the process - although just implementing a term limit would probably go through and could be proposed to this election, I believe we should announce the change(s) we want to make (the healthy divergence we are having here shows us that the specifics of this limit also needs to be discussed with the NCUC as whole), and check with the community if there are any others that could use the opportunity to also be implemented. This would take at least a few months, so next year's election seems a better option.

Cordially,

Pedro de Perdigão Lana

Lawyer [nic.br] <https://urldefense.com/v3/__https:/www.nic.br/__;!!PtGJab4!84EV1FjA6gpCQQjkUH6UGEQttKDPFrj6ll1johaTTO0L7JamAKIb6StZdvv_eWc3454k7ymnUEXM_imKEWLQDg$> , GEDAI/UFPR [gedai.com.br] <https://urldefense.com/v3/__https:/www.gedai.com.br/__;!!PtGJab4!84EV1FjA6gpCQQjkUH6UGEQttKDPFrj6ll1johaTTO0L7JamAKIb6StZdvv_eWc3454k7ymnUEXM_ikP4urhig$>  Researcher

PhD Candidate (UFPR), LLM in Business Law (UCoimbra) 

Board Member @ CC Brasil [br.creativecommons.net] <https://urldefense.com/v3/__https:/br.creativecommons.net/__;!!PtGJab4!84EV1FjA6gpCQQjkUH6UGEQttKDPFrj6ll1johaTTO0L7JamAKIb6StZdvv_eWc3454k7ymnUEXM_ilrnHyROw$> , ISOC BR [isoc.org.br] <https://urldefense.com/v3/__https:/isoc.org.br/__;!!PtGJab4!84EV1FjA6gpCQQjkUH6UGEQttKDPFrj6ll1johaTTO0L7JamAKIb6StZdvv_eWc3454k7ymnUEXM_in1WXwQ8A$>  and IODA [ioda.org.br] <https://urldefense.com/v3/__https:/ioda.org.br/__;!!PtGJab4!84EV1FjA6gpCQQjkUH6UGEQttKDPFrj6ll1johaTTO0L7JamAKIb6StZdvv_eWc3454k7ymnUEXM_ilomOBo2g$> 

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Em qui., 16 de mai. de 2024 às 14:01, Ken Herman <ken at kherman.com <mailto:ken at kherman.com> > escreveu:

Hi all. I have to agree with Ines here; we should not restrict the opportunity to run for Chair to current EC members only.

I also do not agree to having only a 1-year term. There may be merit in a 3-year limit, but I believe that 2 years is appropriate. 

I accept Ines’ suggestion that we try not to rush this through. Keep in mind that once we open discussions for the bylaw amendment, the door will likely open for suggestions to other components of the bylaws.

Ken

From: Hfaiedh Ines <hfaiedh.ines2 at gmail.com <mailto:hfaiedh.ines2 at gmail.com> > 
Sent: Thursday, May 16, 2024 10:50 AM
To: Amin Hacha <aminhacha at gmail.com <mailto:aminhacha at gmail.com> >
Cc: Ken Herman <ken at kherman.com <mailto:ken at kherman.com> >; Exec. Comm <ncuc-ec at lists.ncuc.org <mailto:ncuc-ec at lists.ncuc.org> >
Subject: Re: [NCUC-EC] NCUC Bylaw ambiguity on NCUC Chair Term limit

Hi Amin

Thank you for your email. I do not agree with excluding non-EC members from running for Chair. 

Elections should be open to all NCUC members and I think it s healthy.

On Thu, May 16, 2024, 15:29 Amin Hacha <aminhacha at gmail.com <mailto:aminhacha at gmail.com> > wrote:

Dear Ken,
I meant in my proposal that the chair should serve a single one-year term and should not have the option to run for re-election for a consecutive second year.
>From my perspective and experience, this approach encourages fresh perspectives and enables various members to contribute their leadership skills. Additionally, it ensures regular turnover in leadership positions.
Second, I proposed that the chair should be a member who has served on the EC in the current year of the election. (or maybe can be from the last two years, for example). This will ensure that the chair is familiar with the ongoing discussions, decisions, and challenges faced by the EC. Additionally, it promotes continuity by selecting someone who is already actively engaged in the EC’s work. This idea will be particularly beneficial in the NCUC, where EC members represent the constitutional areas.

 In my view, a Chair who understands the context and history of discussions can lead more effectively.

I hope I have effectively communicated my idea!

Regards,

Amin

On Thu, May 16, 2024 at 3:09 PM Ken Herman <ken at kherman.com <mailto:ken at kherman.com> > wrote:

Thanks Amin. 

I am confused about the term “continuous terms”. Can you clarify? The objective is to introduce term limits, such as the EC members have and the NCSG has for its chair. 

Also, I do not think it’s useful to limit the candidates for the chair to the currently serving EC members, but I do believe that all candidates for both the Chair and the EC should demonstrate knowledge of the roles and current developments within the NCUC.

Ken

From: Amin Hacha <aminhacha at gmail.com <mailto:aminhacha at gmail.com> > 
Sent: Thursday, May 16, 2024 8:25 AM
To: Ken Herman <ken at kherman.com <mailto:ken at kherman.com> >
Cc: Benjamin Akinmoyeje <benakin at gmail.com <mailto:benakin at gmail.com> >; Exec. Comm <ncuc-ec at lists.ncuc.org <mailto:ncuc-ec at lists.ncuc.org> >
Subject: Re: [NCUC-EC] NCUC Bylaw ambiguity on NCUC Chair Term limit

I support your proposal, Ken, to include this item on the ballot for this election.

I suggest that the Chair be elected for a single one-year term without the option of serving continuous terms. The Chair should be a member who has served on the EC in the current year of the election.
I believe that the new Chair must be well-informed and well-versed in all the discussions that have taken place in the EC. This will empower the EC to move forward effectively.

Regards,

Amin

On Thu, May 16, 2024 at 1:19 PM Ken Herman <ken at kherman.com <mailto:ken at kherman.com> > wrote:

Bejamin, this is indeed an issue that should be addressed. If this can get on the ballot for this election, then it can be addressed without waiting another year.

My proposal is to align the NCUC Chair term with the NCSG. 

Thus, the bylaws would change as follows:

Section IV.

Paragraph D.

From: The Chair is elected by the NCUC membership and is responsible for the overall administration of the Constituency.

To: The Chair is elected by the NCUC membership for a one-year term and is limited to two consecutive terms. The Chair and is responsible for the overall administration of the Constituency.

Ken

From: NCUC-EC <ncuc-ec-bounces at lists.ncuc.org <mailto:ncuc-ec-bounces at lists.ncuc.org> > On Behalf Of Benjamin Akinmoyeje
Sent: Thursday, May 16, 2024 6:51 AM
To: Exec. Comm <ncuc-ec at lists.ncuc.org <mailto:ncuc-ec at lists.ncuc.org> >
Subject: [NCUC-EC] NCUC Bylaw ambiguity on NCUC Chair Term limit

Dear Leaders,

Good day. I hope you are doing well.

There is an issue I would like to bring to your attention and the need to address the gap.

Currently, there is no explicit declaration of the NCUC Chair limit, and the issue has been opened to different interpretations.

To avoid future crises, I would like to ask that we amend the NCUC charter to clearly state the term limit of the NCUC chair.

Below is the process required to achieve an amendment 

IX. Changes to these Bylaws
A. Amendments may be proposed by the Executive Committee, by majority vote, or by a
petition of five (5) percent of the then-current active members. Any proposed amendment must
be placed on a ballot for voting by the membership during the next regular election.
B. Bylaws amendments shall be passed if at least two-thirds of the votes cast in the election
favor its adoption provided a quorum of 40% or more of the eligible Individual and Organizational
Members cast a ballot in the election.

Please let me know what are your thoughts.

Kind regards,

Benjamin 

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