The circumstances under which this provision (Article VII, Section 8) was adopted into the bylaws seem to strongly support the General Counsel's conclusion that the prohibition applies to seats on the Board filled by the GNSO.

Toward the end of the 2002-2003 Reform Process, the framework under which the Nominating Committee would operate was being finalized. On February 8, 2003, the Evolution and Reform Committee posted "ERC's Proposed Clarifications, Corrections, and Modifications to New Bylaws [icann.org]," which proposed the following text for Article VII, Section 8: "No person who serves on the Nominating Committee in any capacity shall be eligible for selection to any position by the Nominating Committee, 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."

That proposed revision was discussed at the Board's meeting held on February 25, 2003. According to the minutes of that meeting [icann.org], "Several Board members raised the concern that the bylaws provision proposed to be added (Article VI, Section 8) on the ineligibility of Nominating Committee participants for selection to ICANN positions was not sufficiently stringent. After some discussion, the Board concluded that the ineligibility provisions should be strengthened, and requested Mr. Touton [then ICANN's General Counsel] to prepare revised language for consideration at a later Board meeting. By consensus, the reference to adding the proposed Article VI, Section 8 was dropped from the resolution." (The use of "Article VI" in the proposed resolution to refer to the Nominating Committee Article appears to be an error that was corrected to read "Article VII" by another entry in the minutes of the February 25 meeting.) Thus, the Board insisted on a stringent provision for disqualification of Nominating Committee members, rejecting a provision that would have allowed a Nominating Committee member to be selected for membership on the Board by the GNSO.

On March 3, 2003, the General Counsel posted [icann.org] and forwarded to the Board a document entitled "Proposed Addition to Bylaws". That document began with the following report by the General Counsel to the Board:

To the Board:

On 25 February 2003, the ICANN Board considered a set of clarifications, technical corrections, and minor modifications, proposed by the Evolution and Reform Committee, to the New Bylaws that went into effect on 15 December 2002. At the 25 February meeting, the Board unanimously adopted resolution 03.16, which made all but one of the ERC's proposed amendments to the bylaws. The Board did not, however, take action on the ERC's proposal to add an Article VII, Section 8, concerning ineligibility of Nominating Committee members for selection to ICANN bodies. The Board believed that the restrictions in the ERC's proposed language should be strengthened and requested the General Counsel to prepare a revised version of the proposed section.

In consultation with the ERC, I have prepared the revised proposal that appears below for addition of an Article VII, Section 8, of the bylaws. This provision meets the Board's concern that participants on a Nominating Committee should be not be eligible for selection to the Board during the Nominating Committee's term, whether by the Nominating Committee or by a supporting organization. This same principle would apply to selections to the GNSO Council, the ALAC, and any other ICANN body with at least position that the Nominating Committee is responsible for filling.

Once the Nominating Committee's term ends at the conclusion of an annual meeting, participants in that Nominating Committee would become eligible for selection to these bodies. In the ordinary course, the first vacancies to be filled would be Board seats filled by Supporting Organizations six months after the annual meeting.

In the presentation below, added text is underlined and in magenta.

Respectfully submitted,

Louis Touton
General Counsel

The General Counsel then proposed the following substitute language for Article VII, Section 8:

ARTICLE VII: NOMINATING COMMITTEE, Section 8. INELIGIBILITY FOR SELECTION.

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.

and gave the following explanation in his posted report:

Explanation: The addition of section 8 corrects an unintentional omission by clarifying that those serving in any capacity on each year's Nominating Committee are ineligible to be selected to membership (by the Nominating Committee or otherwise) on the Board or any other body including membership having at least one position that the Nominating Committee is responsibility for filling. (The possibility of a vacancy to be filled during the Nominating Committee's term should be considered in making this determination.) The ineligibility lasts only until the Nominating Committee's term expires at the conclusion of the next annual meeting. If a person continues to serve for even part of the next Nominating Committee's term, however, he or she would also be ineligible for selection during that Nominating Committee's term.

On March 8/9, 2003, the General Counsel posted "Proposed Additions to Bylaws Concerning Ineligibilities (Amended) [icann.org]," which made some revisions to another provision, but repeated the proposed text and explanation of Article VII, Section 8, from his March 3 report.

At the next Board meeting, held on March 18, 2003, the Board enacted the substitute language proposed by the General Counsel into the bylaws. The minutes of the meeting show that this was done by the following resolution:

Whereas, on 8 February 2003, the Evolution and Reform Committee posted various proposed amendments to the bylaws, which it amended on 23 February 2003;

Whereas, on 25 February 2003, the Board adopted many of the proposed bylaws, but did not adopt proposed Article VII, Section 8, instead requesting the General Counsel to prepare a revised version of the language of that section;

Whereas, on 3 March 2003 the General Counsel posted a revised version of Article VII, Section 8 of the bylaws, concerning ineligibility of Nominating Committee members for selection to certain ICANN positions;

Whereas, based on comment from the community the General Counsel posted a revised proposal on 8 March 2003, which also proposed to amend Article VI, Section 4, concerning ineligibility of members of Supporting Organization Councils to serve on the Board;

Whereas, after considering the General Counsel's revised proposal, the Board concludes that adoption of the amendments to the bylaws as stated in that proposal would, with a revision [relating to the other provision, not Article VII, Section 8], be in the best interest of ICANN;

Resolved [03.31] that the Board adopts the proposed amendments to the bylaws shown in Appendix A to these minutes (amending Article VI, Section 4 and adding Article VII, Section 8), to become effective on 25 March 2003;

Resolved further [03.32] that the prohibition on selection of Nominating Committee members to certain ICANN bodies embodied in new Article VII, Section 8, shall only apply to persons who serve on the Nominating Committee on or after the effective date of that provision."

Thus, it appears that Ms. Cade's postion that she is eligible for selection by the GNSO to the Board matches what was originally proposed, but that approach was rejected by the Board in adopting the current bylaws provision. As the General Counsel said on March 3, 2003, the current language of Article VII, Section 8 was specifically intended to "meet[] the Board's concern that participants on a Nominating Committee should be not be eligible for selection to the Board during the Nominating Committee's term, whether by the Nominating Committee or by a supporting organization."