Re: [wg-review] Clarifications requested from BoD, Staff, NC, TC,Chair prior to co-Chair elections

[Kent Crispin <kent@songbird.com>]

On Tue, Jan 09, 2001 at 02:35:06AM -0400, Peter de Blanc wrote:
> It is clear in sections:
> 
> "Under Article VI Section 2(c) of the ICANN bylaws, the ICANN board is
> obligated to refer to the Domain Name Supporting Organization those
> proposals 'not received from a Supporting Organization' and which pertain to
> the domain name system."
> 
> While this accurately states the general tenor of Section 2(c), it fails to
> note the effect of Article VI, Section 2(g):
> 
> "Nothing in this Section 2 is intended to limit the powers of the Board or
> the Corporation to act on matters not within the scope of primary
> responsibility of a Supporting  Organization or to take actions that the
> Board finds are necessary or appropriate to further the purposes of the
> Corporation."
> 
> that ICANN (staff and board) can do ANYTHING it wants WITHOUT DNSO
> involvement.
> 
> Unless and until that (section) is changed, well, status quo...

Peter, that section has very little to do with it.  The ICANN board can
effectively do anything they want regardless.  This is because of a very
fundamental point that many people's minds seem to actively reject. 

A corporation is not a government; bylaws are not a constitution.  A 
corporation is fundamentally intended to support the interests of
the owners of the corporation, and in a corporation without members, 
the owners are effectively the BoD.

For example, you and I and a couple of friends could form a non-profit
corp to foster the production of music at ICANN meetings.  We would be
the BoD and the officers in our corp.  For a corporation like that,
nobody has a problem understanding that the corporation would exist for
OUR purposes -- of course we can modify the bylaws to our hearts
content; we could dissolve the corp if we got bored with it, etc.  It's
OUR corporation. 

But *exactly* the same legal structure applies to ICANN.

The BoD of the corp can amend the bylaws at any time; this is not a bug,
it is an intended and well-established characteristic of a corporation. 
It is a bit more difficult to amend the articles, since the articles are
filed with the state, but the board can do it by transferring the assets
and structure of the corporation to a new corporation with new articles
-- an afternoon's legal work, perfectly doable. 

It's understandable that a layperson could make this mistake, because
bylaws do superficially look like a constitution of some sort.  It is
utterly amazing that someone with any legal training could make such a
mistake.  But the fact is, Karl's theories about this are pure legal
fanatasy.  Article VI, Section 2(g) only expresses a pre-existing fact,
and it is there just to be absolutely sure that people understand it:
The board can do anything it deems necessary, regardless of what the
DNSO decides. 

Karl's theories about members of ICANN are fantasies, as well.  If you
and I decided we needed another board member for our corp, we, as board
members, could decide to let our friends pick one of themselves to be a
board member, and we could decide to accept that choice.  The important
thing is that we, the board, are controlling that process -- just to be
*very* sure that the state doesn't get the wrong idea we could put an
explicit clause in our bylaws making it clear that our friends making
that choice are not members of our corporation. 

In the case of ICANN, only a lunatic would imagine that the Board was
suddenly going to turn the assets of the corporation over to a
completely unknown membership.  It would be utterly irresponsible on the
part of the Board to do so. 

-- 
Kent Crispin                               "Be good, and you will be
kent@songbird.com                           lonesome." -- Mark Twain
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