[council] Request to General Counsel, ICANN, for clarification on GNSO quorum for council actions

["Cade,Marilyn S - LGCRP" <mcade@xxxxxxx>]

To:      Louis Touton, General Counsel, ICANN
From:    Marilyn Cade, Officer of the CBUC, and elected member of the Council

The CC's of this email are sent to the Chair and President of ICANN, to the 
Chair of the ERC, and to Philip Sheppard because he is presently not on the 
Council list since he is a candidate for the board elections.  This 
communication is regarding quorum, not election, and is therefore cc'd to him 
as an officer of the CBUC.  This email can be distributed to other ERC members, 
or to the Board, as appropriate.  A copy of this email will be posted to the 
CBUC to inform them of my actions, as an elected officer.


Subject: Clarification of interpretation of "equalized voting"  in regard to 
determining "quorum" of the GNSO Council

In an informal discussion between some members of the GNSO Council and the 
General Council on Friday, the topic of ratification of a vote was discussed, 
and in this regard, the topic of "quorum" of the Council was the subject of a 
short discussion between the General Counsel and myself.  I had a question of 
how quorum is determined, based on votes or based on numbers of members of the 
Council.

This is a request for clarification of that topic. It is focused on the topic 
of quorum specifically. It is not a commentary on the outcome of the present 
election, nor
my earlier request sent to you, and to the Board chair and President, and 
council which is relevant to the election outcome itself.  It is pertinent, 
however, to all work of the Council, since it asks what the criteria is on 
which quorum is determined.

It is intended as a separate action. While it may result in a request by me to 
the Board for a reconsideration of existing policy, any such request will be 
separately submitted. 

The clarification I seek is related to the determination of how quorum of the 
GNSO is determined. The discussion during the call on Friday with Council was 
not specifically focused in any detail on a question related to this which I 
asked, and my present understanding of the interpretation by the Council, and 
by the General Counsel of ICANN is simply not clear. Therefore, I seek a 
written determination by the General Counsel of this issue, and its 
implications.

First, my understanding is that the bylaws establish "equalized voting" between 
the "provider constitunencies--e.g., those under direct contract to ICANN 
[registries and registrars] and the "user constituencies [which today are the 
CBUC; the IPC; the NCC; and the ISPC]. The bylaws further provide for three 
voting members to be appointed to Council by the Nominating Committee. These 
three seats are vacant at present, and there is no set date for their 
appointment.  These three seats are not considered in the determination of the 
"equalized voting". 

The purpose of the equalized voting, as I understand it, is to create balance 
between two categories of kinds of constituencies in Council. Since it is 
possible that further "user" constituencies, or even that further "provider" 
constituencies might emerge at some time,  the approach was to provide for 
"equalized" voting, rather than to grant a fixed vote per person.  There is a 
second process whereby there will be an evaluation of whether to lower the 
number of seats or votes on the Council per constituency.  Therefore the 
concept of equalized voting provides for a process whereby such changes can be 
dealt with.  I will not dwell on the merits of this approach in this 
communication, now its pros or cons, nor my own constituency's perspective that 
in order to ensure geographic diversity, maintaining three seats per 
constituency are critical. Those debates are reserved for future times. There 
is a matter much more urgent to deal with now.

Having established the above as my understanding of the purpose of "equalized 
voting", I will note that I did not understand that the equalized voting regime 
was intended to establish the determination of quorum.  I did pay close 
attention to this process throughout, as all are aware from my active 
participation in discussions on the lists, and at the public forum. 

At present, in  my view, given that there are 18 members of Council, quorum 
would be reached at 10 people participating.  NOTE: my interpretation is 
people, NOT votes.  When the three additional participants are added, quorum 
would appear to be 11.   In the first scenario, you would have to have 
attendance from multiple constituencies, e.g. at least 4. In the second, at 
least 4. While I might consider it very troublesome that quorum can be called 
without any representation from all constituencies, I leave that discussion to 
later.

There may be a different view held by some: Counting quorum based on votes, not 
people. 

Should quorum be established instead by counting " votes", taking into account 
the equalization of votes, a quorum could be called with all 6 attendees of the 
Registry and Registrars present, adding in one representative from one other 
constituency, but resulting in the ability to enact policy, ratify elections, 
etc. Example: 6 members of Registry and Registrar Constituency x 2 votes each = 
12; add in one  for a total of 13. With the total number of equalized votes, 
this might appear to be a quorum of votes. This would mean that two 
constituencies, plus one participant from another constituency, or the 
nom-Committee members, could make up quorum. 

It is totally non representative of the Council composition.  

I do not believe it the intent of the ERC or the Board to create such an 
unbalanced situation for the Council's functioning.

In practice, the Council has operated over its life, with the expectation of 
all constituencies participating. In fact, in looking at the record of the 
Council, and its predecessor, the DNSO Council, council chairs, as noted above, 
have routinely waited to start meetings until as many constituencies as 
possible are represented on the Council calls, which is  where the majority of 
Councils deliberations are undertaken.  

To move to a situation where it is possible to have an occurrence -- even one 
-- where only 2 constituencies PLUS one representative from another 
constituency considered, or took action on behalf of Council is wrong. Even 
deliberations should not be undertaken in this situation. 

It is critical for the success of the Evolution and Reform Process that this 
Supporting Organization and its constituencies, like other Supporting 
Organizations and their participants, have respect and faith in the processes 
they work within.  The understanding I had, in accepting the "equalized voting" 
and in encouraging my own constituency and other constituencies to accept this, 
in no way foresaw that the Council could undertake work in these circumstances. 

We should all be absolutely committed to ensuring that the broadest possible 
representation of Council is present for discussion, participation, any voting 
or ratification needed in council's work.

I am confident that is the intent of the ICANN Staff, the ERC, the Board, and 
the broad set of concerned and committed stakeholders who care about ICANN's 
success. 

I ask the General Counsel for an interpretation of the by-laws of relevance to 
determining how to establish Council quorum, and I ask that be based on the 
number of members of council, not on the number of votes held.  While I know 
that time is very limited before the upcoming meeting, given that Council has 
policy decisions before it for consideration  and action, I ask for a response 
on the interpretation before the ICANN meetings begin. 



Contact information: 
Marilyn Cade
202-255-7348c
mcade@xxxxxxx