[rpd] [PDWG-Appeal] REPORT ON Appeal against the non-consensus determination on proposal AFPUB-2019-GEN-006-DRAFT02 (RPKI R

[Owen DeLong]

> On Mar 3, 2021, at 12:56 AM, JORDI PALET MARTINEZ via RPD <rpd at afrinic.net> wrote:

> 

> Hi Owen, all,

> 

> I've made similar questioning about the situation and the Board didn't clarified.

> 

> Further to that, I've asked the Board to clarify about their interpretation of bylaws 11.4. I must insist on that. We need to have a very clear view on that.

> 

> This is important because according to that one, the "emergency" for modifying the procedures, ToR or PDP/CPM, doesn't seem to be correct.

> 

> As Fernando suggested in a previous email (https://lists.afrinic.net/pipermail/rpd/2021/012633.html):

> "Jordi, article 11.4 is completely out of the PDP.

> 

> Even if this exists in the AfriNic bylaws the Board of Directors is not authorized by the community to adopting policies without the prior consensus of the community. You are preferring something that is illegal."


Like it or not, the bylaws are the primary governing document of the organization, effectively like the constitution.

The bylaws delegate to the board and the community the powers to set policy through the PDP and CPM. Without the authority granted by the bylaws, the PDP and the CPM have no force.


> And in the same thread, Owen said:

> "The board has the power to set the policies by which AFRINIC administers resources. The board delegates that power to the PDWG through the PDP which still requires that the board ratify any policy proposed for adoption by the PDWG."


Like it or not, the board is the fiduciary of the organization and as fiduciary has the power and responsibility to conduct the affairs of the organization within the bounds set by the bylaws. In the current bylaws, the members do not even have the power to recall a board member (though they have the power to change the bylaws and such a change could eventually be used to recall a board member).


> Also, Owen indicated (https://lists.afrinic.net/pipermail/rpd/2021/012631.html):

> "FWIW, a plain english reading of the words there limits the boards authority to do so to only those policies regarding the management of internet number resources and would not include the management of the policy development process or the policy development working group itself.

> 

> One has to stretch that rule quite far in order to extend it to envelop either, let alone both of those other categories which is what would be necessary for the board to appoint co-chairs."

> 

> Interestingly, now Owen says:

> "If you don’t like the rules or feel that the rules do not fit the situation, then there are defined processes

>    by which they can be modified. Those processes have rules and exist to protect the rights of the

>    community as well as the board. The board has full power to modify the ToR or the CPM on an

>    emergency basis if needed, so there really is no excuse for not doing this properly."

> 

> We are all very confused about all this and it means we need a clear signal from the Board about their interpretation and then we may need to address the problem from the PDP and may be the bylaws must be amended to recognize one way or the other, but not lack of clarity on the interpretation and the Board using that depending on each case ... which is what is happening already.


I agree that we need a clear indication from the board how they are interpreting the rules. However, it is also important that we indicate to the board as a community (and where applicable, especially as members of the organization) how we feel the rules are intended and what we expect from the board as a result.  In some cases, there’s a clear plain-english meaning. In some cases, there may be specific legal construction which is not intuitive or aligned with the plain-english meaning.

I am not the final authority or arbiter of how the rules are to be interpreted, nor am I an expert on legal construction, especially under Mauritian law.

Everything I have expressed is my best-effort at reasonable and proper understanding of the rules as written and a desire that we all choose to follow the rules as written until they are legitimately changed. My primary goal in expressing same is that we put a stop to the various efforts to “make it up” as we go along and pretend that the rules don’t exist or say something different from what they actually say.

Owen