[discuss] [IANAxfer] [ccnso-igrg] Two accountability questions - help pls- Workshop 23 - ICANN accountability

[John Curran]

On Sep 11, 2014, at 2:09 PM, Mike Roberts <mmr at darwin.ptvy.ca.us> wrote:

> Before this thread goes any further, someone should ask a lawyer familiar with California statutes to give an opinion on the ICANN Board’s ability to delegate its powers to a third party entity, whether inside the bylaws or not.

Really?  Wouldn't it be better if the community would consider its requirements,
and then use that to determine whether ICANN is properly constituted or needs
to change, rather than presuming that any outcome must be constrained by the
current specific mode and manner of incorporation?

Keeping to the current Calf. public benefit incorporation, it is indeed very
difficult to delegate Board authority, and in fact, now committees exercising 
the authority of the board may not even include members who are not directors.  
For those who are interested in the constraints (which are routinely trotted
out with respect to ICANN), a good starting point is "Changes in the California 
Nonprofit Corporation Law affecting public benefit corporations"
<http://www.lexology.com/library/detail.aspx?g=235c0c93-e40f-49f4-83d4-61a61ad40405>

Of course, the point that is doesn't seem to ever get mentioned is that such 
constraints on Board authority delegation for CA public benefit corps are not 
with respect to powers that are actually held by its _members_... i.e. if a 
public benefit corporation has actual members, those members can indeed, per 
the bylaws, collectively hold authority which is normally exercised by the
Board of Directors.  That does, of course, require having actual bona fide
members, which brings with it quite a few more accountability provisions...  
Perhaps this why this is not discussed more often as an option?
 
Yes, by all means seek out legal counsel, but make sure you ask them the
questions in the form of "how can we accomplish what we wish" rather than
"what is potentially wrong with this approach" ...

FYI,
/John

Disclaimer: my views alone.