[wg-review] Re: [wrg-review] Constituencies, 1 governance and legality

[Sotiropoulos <sotiris@hermesnetwork.com>]

Ok Kent,  I've read it a few times over and also gone to the CNPBCL Code.

>1/30/01 6:40:04 PM, Kent Crispin <kent@songbird.com> wrote:
>
>>Article II, Section 1:
>>
>>    The Corporation shall not have members as defined in the California
>>    Nonprofit Public Benefit Corporation Law ("CNPBCL"), notwithstanding
>>    the use of the term "Member" in these bylaws, in a selection plan
>>    adopted by Board resolution, or in any other action of the Board. 
>>    Instead, the Corporation shall allow individuals (described in these
>>    bylaws as "Members") to participate in the activities of the
>>    Corporation as described in this Article II and in a selection plan
>>    adopted by Board resolution, and only to the extent set forth in
>>    this Article II and in a selection plan adopted by Board resolution. 
>>
>>I don't know how it could be more plain.  The corporation doesn't have
>>members.  (I know that Karl Auerbach has entertaining legal theories. 
>>You just have to consider that Karl is a full-time engineer who got a
>>law degree, while the bylaws were written by full-time lawyers that
>>everybody (except Karl) thinks are top notch.)

Well, this is how the CNPBCL Code defines "members":

5056.  (a) "Member" means any person who, pursuant to a specific
provision of a corporation's articles or bylaws, has the right to
vote for the election of a director or directors or on a disposition
of all or substantially all of the assets of a corporation or on a
merger or on a dissolution unless the provision granting such right
to vote is only effective as a result of paragraph (2) of subdivision
(a) of Section 7132.  "Member" also means any person who is
designated in the articles or bylaws as a member and, pursuant to a
specific provision of a corporation's articles or bylaws, has the
right to vote on changes to the articles or bylaws.
   (b) The articles or bylaws may confer some or all of the rights of
a member, set forth in this part and in Parts 2 through 5 of this
division, upon any person or persons who do not have any of the
voting rights referred to in subdivision (a).
   (c) Where a member of a corporation is not a natural person, such
member may authorize in writing one or more natural persons to vote
on its behalf on any or all matters which may require a vote of the
members.
   (d) A person is not a member by virtue of any of the following:
   (1) Any rights such person has as a delegate.
   (2) Any rights such person has to designate or select a director
or directors.
   (3) Any rights such person has as a director.

Now, granted that California Code Law does not enjoin any corporation to *have* members, it does allow 
Corporations to set up their own "membership" mandates.  I think it is quite clearly apparent that *some kind of 
membership* is involved in the fact that "the Corporation (ICANN) shall allow individuals (described in these bylaws 
as "Members") to participate in the activities of the Corporation as described in this Article II and in a selection plan 
adopted by Board resolution, and only to the extent set forth in this Article II and in a selection plan adopted by 
Board resolution."  Since, however, the @Large is able to vote in Directors of the Board, does it not follow that 
such members are actually acting according to the CNPBCL definition of "members" (i.e. "5056.  (a) "Member" 
means any person who, pursuant to a specific provision of a corporation's articles or bylaws, has the right to
vote for the election of a director or directors...) ???

I'd appreciate a response.



Sotiris Sotiropoulos
          Hermes Network, Inc. 


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