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

[Pedro de Perdigão Lana]

Thanks, Ken! I had forgot about that part, and you are absolutely correct.
In that case, so that we don't have such a large time between starting the
debate and voting, I agree that the best strategy would be leave this to
the incoming EC.

Cordially,

*Pedro de Perdigão Lana*
Advogado - OAB/PR 90.600 <https://www.nic.br/>,  Pesquisador (GEDAI/UFPR
<https://www.gedai.com.br/>)
Doutorando em Direito (UFPR), Mestre em Direito Empresarial (UCoimbra),
Membro da Coordenação - NCUC (ICANN) <https://www.ncuc.org/>, ISOC BR
<https://isoc.org.br/>, IODA <https://ioda.org.br/> e CC Brasil
<https://br.creativecommons.net/>.
Essa mensagem é restrita ao remetente e destinatário(s). Se recebida por
engano, favor responder informando o erro.


Em qua., 17 de jul. de 2024 às 11:34, Ken Herman <ken at kherman.com> escreveu:

> 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/>
>
> This message is restricted to the sender and recipient(s). If received by
> mistake, please reply informing it.
>
>
>
>
>
> Em qua., 17 de jul. de 2024 às 05:34, Ken Herman <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>
> *Sent:* Tuesday, July 16, 2024 11:16 PM
> *To:* Exec. Comm <ncuc-ec at lists.ncuc.org>
> *Cc:* Ken Herman <ken at kherman.com>; Andrea Glandon <
> 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/>
>
> This message is restricted to the sender and recipient(s). If received by
> mistake, please reply informing it.
>
>
>
>
>
> Em sex., 17 de mai. de 2024 às 12:44, Pedro de Perdigão Lana <
> 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/>
>
> This message is restricted to the sender and recipient(s). If received by
> mistake, please reply informing it.
>
>
>
>
>
> Em sex., 17 de mai. de 2024 às 11:04, Andrea Glandon <
> 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>
> *Date: *Friday, May 17, 2024 at 09:01
> *To: *Andrea Glandon <andrea.glandon at icann.org>
> *Cc: *"'Exec. Comm'" <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>
> *Sent:* Friday, May 17, 2024 9:51 AM
> *To:* Ken Herman <ken at kherman.com>
> *Cc:* 'Exec. Comm' <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>
> *Date: *Friday, May 17, 2024 at 08:42
> *To: *Andrea Glandon <andrea.glandon at icann.org>
> *Cc: *"'Exec. Comm'" <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>
> *Sent:* Friday, May 17, 2024 7:58 AM
> *To:* Pedro de Perdigão Lana <pedrodeperdigaolana at gmail.com>
> *Cc:* Ken Herman <ken at kherman.com>; Exec. Comm <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> 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$>
>
> This message is restricted to the sender and recipient(s). If received by
> mistake, please reply informing it.
>
>
>
>
>
> Em qui., 16 de mai. de 2024 às 14:01, Ken Herman <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>
> *Sent:* Thursday, May 16, 2024 10:50 AM
> *To:* Amin Hacha <aminhacha at gmail.com>
> *Cc:* Ken Herman <ken at kherman.com>; Exec. Comm <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> 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> 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>
> *Sent:* Thursday, May 16, 2024 8:25 AM
> *To:* Ken Herman <ken at kherman.com>
> *Cc:* Benjamin Akinmoyeje <benakin at gmail.com>; Exec. Comm <
> 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> 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> *On Behalf Of *Benjamin
> Akinmoyeje
> *Sent:* Thursday, May 16, 2024 6:51 AM
> *To:* Exec. Comm <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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