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.

INELIGIBILITY FOR SELECTION BY NOMINATING COMMITTEE

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

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.

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