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Proposed bylaw change might need some tuning

  • To: nomcom-bylaw-revision@xxxxxxxxx
  • Subject: Proposed bylaw change might need some tuning
  • From: Thomas Roessler <tlr@xxxxxx>
  • Date: Tue, 7 Oct 2008 10:22:58 +0200

Hello,

I'm writing this comment in a personal capacity, as somebody who moved into his country of residence less than five years ago, holds another country's passport, has at one point payed taxes in both countries for one year, and had the pleasure to serve on an ICANN nominating committee in the past.

First of all, I suspect that the intent behind this proposed bylaw change is a useful one -- namely, letting people who have close ties to several countries (and regions) pick one of these countries, and be considered as if that country was theirs (whatever that means in detail).


Unfortunately, I'm not sure the proposed change leads to the desired effect.


1. Whatever change is made needs to be reflected in article VI section 5 as well (the article that defines the geographic regions, and repeats part of the rules in 2.*).


2. The current text sounds as if it takes all citizenships *and* the country of residence into account for the purpose of calculating the number of directors that represent a country. I.e., a citizen of the UK who lives in Tokyo and indicates an interest in being taken into account as an "Asian" candidate would now also be counted toward the maximum five European Board members.

At no time when it makes its selection shall the Nominating Committee select a Director to fill any vacancy or expired term whose selection would cause the total number of Directors (not including the President) who are citizens of, or have been Domiciled (as defined below) for more than five years in, countries in any one Geographic Region (as defined in Section 5 of this Article) to exceed five; and the Nominating Committee shall ensure when it makes its selections that the Board includes at least one Director who is a citizen of, or Domiciled (as defined below) for more than five years in, a country in each ICANN Geographic Region (“Diversity Calculation”).


That sounds like it'll make the Nominating Committee's life more difficult rather than less, and will also negatively affect the chances of anybody to join the board who lives in one region, is a citizen of a country in another one, and opts to be considered for their region of residence (if one of the two regions in question is one that's well-represented on the board). It is also not clear whether the "have been domiciled" piece of this clause only applies to candidates who opt for a country, or whether it applies to candidates who have ever lived there, according to the bylaws' definition. If the latter, then that means that the Nominating Committee would need to consider the history of residence of candidates.


3. The proposed change is phrased in terms of *countries* of residence. E.g., a citizen of South Africa who has lived in a number of different European countries for many years could not be considered as a "European Candidate" unless they have kept their current domicile for five years. It would appear more logical to phrase the bylaw rule in terms of geographic regions, not countries, and leave details to the Nominating Committee's judgment.


4. There seems to be an assumption that the following text always identifies a single country:

For purposes of this sub-section 2 of Article VI, Section 2 of the ICANN Bylaws, a person can only have one “Domicile,” which shall be determined by where the candidate files his/her income tax returns, and has a permanent residence and place of habitation.

That is not necessarily the case; it would seem that this detailed set of criteria might lead to more trouble than it's worth.


5. The proposed change only applies to the board, not to other ICANN bodies that have regional diversity requirements, and to which the nominating committee makes appointments. Is that intended?


It might be worthwhile to look into a simpler approach by which candidates with multiple passports (and expats) can pick any of the relevant countries or regions as the one that they want to be considered for; criteria could be as loose as requiring either a passport of a relevant country, or a residence in the relevant region over five years.

It would then be left to the nominating committee to exercise its judgment in determining whether it accepts the candidate's choice, or whether (in considering the candidate's overall application) the candidate's choice is implausible, and disqualifies them.


Regards,

Thomas Roessler




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