Inside ICANNWatch  
Submit Story
Lost Password
Site Messages
Top 10 Lists
Latest Comments
Search by topic

Our Mission
ICANN for Beginners
About Us
How To Use This Site
Slash Tech Info
Link to Us
Write to Us

  Useful ICANN sites  
  • ICANN itself
  • Bret Fausett's ICANN Blog
  • Internet Governance Project
  • UN Working Group on Internet Governance
  • Karl Auerbach web site
  • Müller-Maguhn home
  • UDRPinfo.com;
  • UDRPlaw.net;
  • CircleID;
  • LatinoamerICANN Project
  • ICB Tollfree News

  •   At Large Membership and Civil Society Participation in ICANN  
  • icannatlarge.com;
  • Noncommercial Users Constituency of ICANN
  • NAIS Project
  • ICANN At Large Study Committee Final Report
  • ICANN (non)Members page
  • ICANN Membership Election site

  • ICANN-Related Reading
    Browse ICANNWatch by Subject

    Ted Byfied
    - ICANN: Defending Our Precious Bodily Fluids
    - Ushering in Banality
    - ICANN! No U CANN't!
    - roving_reporter
    - DNS: A Short History and a Short Future

    David Farber
    - Overcoming ICANN (PFIR statement)

    A. Michael Froomkin
    - When We Say US™, We Mean It!
    - ICANN 2.0: Meet The New Boss
    - Habermas@ discourse.net: Toward a Critical Theory of Cyberspace
    - ICANN and Anti-Trust (with Mark Lemley)
    - Wrong Turn in Cyberspace: Using ICANN to Route Around the APA & the Constitution (html)
    - Form and Substance in Cyberspace
    - ICANN's "Uniform Dispute Resolution Policy"-- Causes and (Partial) Cures

    Milton Mueller
    - Ruling the Root
    - Success by Default: A New Profile of Domain Name Trademark Disputes under ICANN's UDRP
    - Dancing the Quango: ICANN as International Regulatory Regime
    - Goverments and Country Names: ICANN's Transformation into an Intergovernmental Regime
    - Competing DNS Roots: Creative Destruction or Just Plain Destruction?
    - Rough Justice: A Statistical Assessment of the UDRP
    - ICANN and Internet Governance

    David Post
    - Governing Cyberspace, or Where is James Madison When We Need Him?
    - The 'Unsettled Paradox': The Internet, the State, and the Consent of the Governed

    Jonathan Weinberg
    - Sitefinder and Internet Governance
    - ICANN, Internet Stability, and New Top Level Domains
    - Geeks and Greeks
    - ICANN and the Problem of Legitimacy

    Highlights of the ICANNWatch Archive
    (June 1999 - March 2001)

    NomCom Board of Directors
    Marilyn Cade Out of the Nomcom and Into...Something
    posted by michael on Tuesday May 02 2006, @11:46AM

    Long-time ICANNite Marilyn Cade resigned from the 2006 Nomcom a few days ago in order to stand for election as a GNSO-selected ICANN Board member, replacing recently resigned Michael Palage.

    It appears, however, that questions have been raised as to her eligibility to stand for election, and that the General Counsel has ruled her ineligible. Presumably, the stumbling block is Article VII, Sec. 8 of the ICANN Bylaws which state

    No person who serves on the Nominating Committee in any capacity shall be eligible for selection by any means to any position on the Board or any other ICANN body having one or more membership positions that the Nominating Committee is responsible for filling, until the conclusion of an ICANN annual meeting that coincides with, or is after, the conclusion of that person's service on the Nominating Committee.

    There are two issues here: What jobs are affected by the bar, and how long it lasts.

    The first issue is whether this bar is limited to "selection by the Nominating Committee" as the headline says, or whether one reads the words in the text to apply the bar to "selection by any means to any position on the Board" regardless of who does the selecting. The words "selection by any means to any position" do suggest that the text reaches more broadly than selection by the NomCom, although the structural placement of this clause in Art. VII cuts against that reading. On balance, while the issue isn't totally free from doubt, the ICANN counsel seems on reasonably strong grounds here, as courts very commonly give weight to text over headings when construing documents in which the two potentially conflict. The rule is almost invariably followed when construing legislation; it is not, however, as invariably followed when construing a contract (or by-laws), and I do not know whether California is a state with a strict rule on the subject. Notably, these by-laws lack a clause saying that the headlines are for ease of reading only.

    To the extent that the text is genuinely ambiguous, the question becomes what would best effectuate the policy that this clause is designed to achieve. Here too, however, there is scope for reasonable argument on both sides. For myself, I think that there's considerable scope for devilment if the NomCom membership will be subject to people's desires for other jobs. Since members cannot easily be replaced, there are balance issues; there are also practical implications of having someone switch roles so quickly--which might impact the frankness with which people speak to the NomCom. And finally, there's the philosophical question of whether ICANN is better off when the NomCom has people who are (too?) interested in holding office or those who are more (too?) disinterested...

    The temporal issue is easier to resolve: If the bar applies, does it persist once a person has resigned from the NomCom? By its own terms the bar is forward-looking, extending past the end of service to "the conclusion of an ICANN annual meeting that coincides with, or is after, the conclusion of that person's service on the Nominating Committee." If the bar exists, it extends until the conclusion of the Marrakesh Meeting, currently scheduled to end June 30, 2006 next Annual Meeting in São Paulo, Brazil, 4-8 December 2006. (thank you tlr!)

    Ms Cade, however, protests, claiming she is qualified to stand for election to the Board from the GNSO given her resignation from the NomCom. Ms. Cade states that she is taking her case to the Ombudsman, and may also file a Reconsideration Request, as can be seen from her email to the GNSO Council (text below).

    Dear colleagues,

    I wanted to announce my resignation from the Nominating Committee as a representative from the BC, and advise fellow councilors of my interest in standing for election to the vacant Board seat now open for nomination.

    In order to stand for election, I have advised the Nominating Committee that I am resigning [from the Nominating Committee]and have asked to be removed from the Nominating Committee list and activities.

    In order to be fully transparent, I advise the Council that I am disputing an interpretation by the General Counsel regarding my eligibility to stand for election due to the Nominating Committee service. I have filed an ombudsman's appeal and am preparing a Reconsideration Request. In my view, I am fully qualified, now that I have resigned from the Nominating committee to be a candidate for election. The General Counsel has disagreed with my eligibility status, thus my appeals through the ombudsman, and possibly Reconsideration.

    I don't mean to clog the Council list with this topic, since that would be inappropriate, but please do let me know of any questions you may have. If nominated and seconded, then I'll have a chance to campaign, like any other candidate. At this point, the purpose of this posting is informational.

    Best regards,

    Marilyn Cade

      ICANNWatch Login  


    [ Don't have an account yet? Please create one. It's not required, but as a registered user you can customize the site, post comments with your name, and accumulate reputation points ("karma") that will make your comments more visible. ]

      Related Links  
    · ICANNWatch.org
    · Michael Palage
    · ICANN
    · Marilyn Cade
    · the 2006 Nomcom
    · recently resigned Michael Palage
    · Article VII, Sec. 8 of the ICANN Bylaws
    · email to the GNSO Council
    · More NomCom stories
    · Also by michael
    This discussion has been archived. No new comments can be posted.
    Marilyn Cade Out of the Nomcom and Into...Something | Log in/Create an Account | Top | 14 comments | Search Discussion
    Click this button to post a comment to this story
    The options below will change how the comments display
    Check box to change your default comment view
    The Fine Print: The following comments are owned by whoever posted them. We are not responsible for them in any way.
    by KarlAuerbach on Tuesday May 02 2006, @01:33PM (#16746)
    User #3243 Info | http://www.cavebear.com/
    I'm not sure that this is germaine to the current issue, but don't forget that ICANN called it's election for board members in year 2000 a "selection" rather than an "election" in order to evade a provision of California law that gives rights to those who are voters in corporate "elections" for board seats.

    When ICANN "reformed" and created its nominating committee, it was, at least in my mind (and remember I was on the board when this was adopted) that the provisions to exclude nomcom people from stepping into seats was intended as a general prophalpytic (sp) measure rather than a sieve through which some nomcom members could pass simply by resigning their seats.

    Besides, it does not create a positive image for a nominating committee person to walk around the obvious intent of the rule.

    Moreover, this request for review or ombudsman ought to go to end of the several year long line of complaints about ICANN process; there is no reason why this deserves priority.

    [ Reply to This | Parent ]
    • 1 reply beneath your current threshold.
    Annual Meeting is in Sao Paolo
    by tlr (reversethis-{gro.tsixe-ton-seod} {ta} {relsseor}) on Tuesday May 02 2006, @08:14PM (#16747)
    User #34 Info | http://log.does-not-exist.org/
    The next Annual Meeting isn't in Marrakesh, but in Sao Paolo; see these board minutes [icann.org]:
    Whereas, ICANN has received a proposal for hosting ICANN's Eighth Annual Meeting in São Paulo, Brazil, 4-8 December 2006.
    Whereas, the proposal has been reviewed and approved by ICANN staff and the Meetings Committee.
    Resolved (06.04), the President is authorized to make arrangements for ICANN's Eighth Annual Meeting in São Paulo, Brazil, and the Board hereby designates the 8 December 2006 meeting in São Paulo as ICANN's 2006 Annual Meeting.
    [ Reply to This | Parent ]
    Unfair advantage
    by patrick on Wednesday May 03 2006, @10:03AM (#16749)
    User #4289 Info | http://patrick.vande-walle.eu/
    The form call for statements of interest was issued on Apr 18th, that is 15 days ago. During that time, Ms Cade, as a Nomcom member, could potentialy see the statements of interest of other candidates.

    Obviously, she would have an unfair advantage over other potential candidates.
    [ Reply to This | Parent ]
    Point was to prohibit GNSO Selection in this Case
    by George Matrox on Wednesday May 03 2006, @02:37PM (#16759)
    User #3946 Info

    Read the rest of this comment...

    [ Reply to This | Parent ]
    Re:Pointless PIRouettes
    by patrick on Friday May 05 2006, @10:13AM (#16761)
    User #4289 Info | http://patrick.vande-walle.eu/
    As an ISOC board member, I can assure you the PIR money is well spent. Don't take my word for it. The details are at http://www.isoc.org/isoc/fin/ISOC2005budget.pdf [isoc.org]
    [ Reply to This | Parent ]
  • 2 replies beneath your current threshold.

  • Search ICANNWatch.org:

    Privacy Policy: We will not knowingly give out your personal data -- other than identifying your postings in the way you direct by setting your configuration options -- without a court order. All logos and trademarks in this site are property of their respective owner. The comments are property of their posters, all the rest © 2001, 2002, 2003, 2004, 2005, 2006, 2007, 2008 by ICANNWatch.Org. This web site was made with Slashcode, a web portal system written in perl. Slashcode is Free Software released under the GNU/GPL license.
    You can syndicate our headlines in .rdf, .rss, or .xml. Domain registration services donated by DomainRegistry.com