RE: [liaison6c] Re: [council] Draft Revisions to the ICANN Bylaws Relating to GNSO Restructure
Avri,
I agree with everything you said with one exception: I did not think that Staff
was "presenting us with what (they) felt was the only
possible interpretation." As I think I have made clear in my comments, I like
others was very surprised that they suggested the approach of one Council seat
per constituency but I did not think like some do that they are suggesting that
this is the only way to go or that they are trying to drive the train on this.
As I have stated, I think it is clearly the wrong way to go.
Chuck
> -----Original Message-----
> From: owner-liaison6c@xxxxxxxxxxxxxx
> [mailto:owner-liaison6c@xxxxxxxxxxxxxx] On Behalf Of Avri Doria
> Sent: Saturday, April 04, 2009 11:48 PM
> To: council@xxxxxxxxxxxxxx; policy-staff@xxxxxxxxx
> Cc: liaison6c@xxxxxxxxxxxxxx
> Subject: [liaison6c] Re: [council] Draft Revisions to the
> ICANN Bylaws Relating to GNSO Restructure
>
>
> Denise,
>
> Thank you for the detailed note on the Staff's position on
> these issues.
>
> In this not I want tomake a few points on the issue
> concerning the changes to X.3.1
>
> 1. From the full report of the board (which is curiously difficult to
> find on line: for those who need to get new copy it can be
> found at:
> http://www.icann.org/topics/gnso-improvements/gnso-improvement
> s-report-03feb08.pdf
> )
> The Board requests the Council, with
> support from Staff, to prepare suggested changes to
> the Bylaws,
> within six months, regarding the Council's structure on the
> basis of four broad stakeholder groups and voting practices
> consistent with the principles outlined above.
>
> Thus unless the council agrees to the proposed amendments,
> they will not constitute changes prepared by the council with
> the support of the staff. In the case of the one council
> seat per constituency, I believe the staff is advocating an
> position that can neither be warranted by the Board
> recommendations nor by council decisions at this point.
> While the recommendations made by the staff are appreciated
> as a starting point, it is the GNSO council that must make
> the decisions. In reading your discussion, I had the feeling
> you were presenting us with what you felt was the only
> possible interpretation. I wish to take issue with this assumption.
>
> 2. I certainly see no language in the Board/BCG
> recommendations requiring that each new constituency get a
> seat on the council. In fact all of the discussions on
> seating in the council is at the SG level.
> And my reading of the recommendations, as well as the length
> discussions the council had with the BCG indicate the
> intention to de-link the seats in the council from the
> constituency structure. Perhaps we will need to get a ruling
> from the Board on this as it is difficult to proceed with
> such diametrically opposed understandings on the board's
> decision. My reading says that there is no direct linkage
> between the existence of a constituency and a seat on the
> Council, though of course the SG has to show that is is
> giving fair representation to all in the SG group - whatever
> constituency they may be a member of or however many
> constituencies they may be a member of.
>
> 3. There was certainly no language indicating that once we
> got to more then 6 constituencies in a non-contracted house
> or more then 3 constituencies in the contracted house that we
> would need to restructure
> yet again. I hope that we are successful in bringing new
> constituencies into the process, and I think that a well
> defined WG process will aid in doing so. But if the by-law
> change you and your staff advocate were to be advanced, I
> believe that pain of an additional restructuring as well as
> the waste of time and effort it would constitute would work
> as a disincentive to the acceptance on new constituencies.
> It would be as hard to add the 4th constituency to one of the
> contracted house as it was to add new constituencies before
> the reorg we are suffering through at the moment. I believe
> that creating disincentives for the creation on new
> constituency was definitely not something the Board was
> intending in its decision.
>
> 4. While it is true that the reason for constituting new
> constituencies is to allow greater voice, given the function
> of the future council as a management group, and given that
> voice is dependent on WG participation and not council
> membership, the subject of voice and a council seat are
> orthogonal to each other. Thus I do not believe that a
> requirement for one council seat for each new constituency
> can be backed up by an interpretation of the requirements for
> change made by the Board.
>
> 5. Finally it is up to the stakeholders charters, as approved
> by the board to determine the process by which seats are
> allocated - this is explicit in the BCG recommendation. Each
> of the SG has been given the opportunity to design a fair and
> comprehensive system for doing so. The Board will review each
> of these SGs in order to determine whether they do or not. It
> seems to me that the right of self determination by the SGs
> with the advice and consent of the Board must not be
> abrogated by Policy Staff fiat.
>
> thanks
>
> a.
>
>
>
> On Tue, 2009-03-31 at 11:31 -0700, Denise Michel wrote:
> > Many thanks to all of you who have already commented on the draft
> > revisions to the ICANN Bylaws relating to GNSO
> restructuring that were
> > circulated late last week to start community discussion (also
> > attached). Your emails were particularly useful in getting
> everyone
> > to focus quickly on several specific issues. In this
> message, we'll
> > attempt to address a number of the specific comments made
> Friday and
> > over the weekend to give you some background on our
> drafting thoughts
> > to help further the dialogue.
> >
> > Article X:
> >
> > §3.1 Issue: This proposed Bylaws amendment assigns the
> > responsibility for selecting Council representatives to the four
> > Stakeholder Groups with the stipulation that each Board-recognized
> > Constituency shall be allocated a minimum of one seat on the GNSO
> > Council.
> >
> > This article seems to have garnered the most immediate
> attention and
> > questions. Rather than prejudging this issue, Staff's view
> was that
> > this revision was entirely consistent with the GNSO Improvements
> > Report, the Board's resolution, and various Board
> discussions to-date.
> > Existing constituency Council seats are currently
> hard-wired into the
> > Bylaws and no Board member or Board committee has suggested
> to us that
> > this be changed. As discussed in greater detail below,
> elements in the
> > Board-approved GNSO Improvements Report and in Board resolutions
> > suggest that the role of Constituencies within the GNSO
> continues to
> > be significant and merits ongoing support in the Bylaws.
> >
> > 1. The GNSO Improvements Report produced by the Board Governance
> > Committee (BGC) and endorsed by the Board last June emphasized the
> > continued primacy of the Constituency structure as a fundamental
> > building block of the GNSO. The Report did not attempt to
> change the
> > existing Bylaws mechanisms by which the Board evaluates and
> approves
> > GNSO Constituencies, but instead recommended that the
> process be more
> > fluid, open, and accessible.
> >
> > In fact, the Report contains many references to expanding
> Constituency
> > involvement in the GNSO by (a) encouraging new groups to form, (b)
> > providing those structures with standard "tool kits" of
> administrative
> > services, (c) evening "the playing field" among constituencies, (d)
> > creating general best-practice guidelines to ensure consistent
> > operational practices across different groups, and (e) assuring the
> > community that transparency, openness and fairness remain
> fundamental
> > ICANN principles. The Report specifically states that:
> > "It should be noted that we view the new stakeholder structure
> > primarily as a way to organize the Council. While it will also
> > encourage the constituencies to maximize their common interests, it
> > does not on its own change the constituency structure
> itself." (Board
> > GNSO Improvements Report, page 42).
> >
> > The ICANN Board, in its 1 October 2008 resolutions, reinforced its
> > support for the following principles pertaining to the formation of
> > the new Stakeholder Groups. The Board specifically
> requested that, in
> > establishing the newly formed structures, all constituency
> members and
> > other relevant parties comply with the Board's principles
> including,
> > "The inclusion of new actors/participants, where
> applicable, and the
> > expansion of constituencies (emphasis added) within Stakeholder
> > Groups, where applicable."
> >
> > The GNSO Improvements Report anticipated the creation of a lightly
> > structured Stakeholder Group (SG) organizational layer to
> be inserted
> > between Constituencies and the GNSO Council with a primary
> > responsibility to select/allocate/apportion GNSO Council
> seats among
> > its Constituency members. It did not anticipate the elimination of
> > Constituencies in favor of Stakeholder Groups, although some in the
> > community now suggest that Constituencies may no longer be
> necessary.
> >
> >
> > Staff's position is not new and, at the Board's direction,
> Staff has
> > made every effort to share its understanding with the
> community over
> > the past six months through informal discussions with Constituency
> > leaders and by providing sample organizational templates
> designed to:
> > (a) help the community assess existing Constituency charters; (b)
> > guide the development of potential new Constituency
> charters; and (c)
> > assist community leaders as they fashioned new Stakeholder
> Group (SG)
> > charters.
> >
> > 2. Second, among the stated goals of restructuring is to encourage
> > the formation of new Constituencies to enhance the diversity of
> > viewpoints in ICANN. As is true in the current Bylaws, Staff's
> > proposed amendment in this section continues to place the
> > responsibility with the Board to determine if the viewpoint
> > represented by the Constituency applicant is significant
> enough to be
> > entitled to recognition and, thereby, a minimum of one Council seat.
> >
> > Based upon a few of the Stakeholder Group voting systems that have
> > been submitted thus far, a newly approved Constituency may
> not gain a
> > Council seat, which raises concerns about depriving the
> GNSO Council
> > of the new voices that the Board formally recognizes. It is
> > conceivable that, without the GNSO seat requirement, an incumbent
> > interest group could control a Stakeholder Group and potentially
> > prevent these new viewpoints from fully participating in the GNSO.
> > Without the promise of being able to participate
> meaningfully at the
> > Council level, Staff is concerned that prospective new
> organizations
> > may not pursue the arduous tasks of organizing,
> petitioning, drafting
> > a charter, and defending their viability in being formally
> recognized
> > as a Constituency within the GNSO. Without Board
> protection in this
> > potentially volatile and delicate vetting process,
> Constituencies in
> > formation may cease to make the effort. If that reality should be
> > allowed to unfold, the GNSO will have failed to achieve a vital
> > element of the Board's vision.
> >
> > It has been suggested that there should not be a hard-wiring of
> > Constituencies to Council seats and seat allocation should be a
> > Stakeholder Group responsibility. We agree that SGs should
> have that
> > responsibility, although not without any constraints, and this is
> > reflected in these proposed Bylaws to spur consideration and
> > discussion. The current allocation of Council seats to
> Constituencies
> > has been hard-wired since 2003. It does not seem inconsistent to
> > accord a similar right to each prospective new Constituency that is
> > Board-approved. (See Article XX below for discussion of
> what happens
> > in the future should we reach a point where the number of
> > Constituencies exceeds the number of Council seats.)
> >
> > 3. Third, as it relates to the non-contracted party house,
> the GNSO
> > restructuring removed three seats (collectively) from the
> Commercial
> > Constituencies and provided a new Non-Commercial Stakeholder Group
> > with six seats. The rationale for this shift was that this was
> > appropriate because, with the proper outreach and recruitment
> > activities, additional non-commercial Constituencies would
> be formed
> > that would hold seats to represent different viewpoints on the GNSO
> > Council.
> > "...a new non-commercial Stakeholders Group must go far beyond the
> > membership of the current Non-Commercial Users Constituency (NCUC).
> > We must consider educational, research, and philanthropic
> > organizations, foundations, think tanks, members of academia,
> > individual registrant groups and other non- commercial
> organizations,
> > as well as individual registrants, as part of a non-commercial
> > registrants Stakeholders Group." (Board GNSO Improvements
> Report, page
> > 32)
> >
> > Guaranteeing a Council seat to new Constituencies in this SG, which
> > will have half of the Council's non-contracted party seats,
> provides
> > assurance that diverse viewpoints will be represented and
> heard on the
> > Council.
> >
> >
> > §3.3 Issue: Procedures and voting threshold for
> removal of an NCA
> > for cause.
> >
> > The language concerning removal of a Nominating Committee Appointee
> > (NCA) for cause was included for completeness, but Staff is
> > recommending that it (along with all non-PDP thresholds) be
> relocated
> > to the GNSO Council's Operating Rules. The provision and voting
> > thresholds, as specified for each house, were taken from
> the Working
> > Group on GNSO Council Restructure (WG-GCR) Report approved by the
> > Board in its 1 October 2008 meeting (see below).
> >
> > It is, Resolved (2008.10.01.09), the Board adopts all voting
> > thresholds proposed in the WG-GCR Report. The Board
> requests that the
> > GNSO develop any additional voting thresholds or categories
> that may
> > be needed as part of its proposed GNSO Improvements Implementation
> > Plan to be submitted to the Board for approval.
> >
> > This issue could conceivably be revisited in the context of the
> > Council Operating Rules effort since it is anticipated that those
> > rules would need to be approved by the Board before becoming
> > effective.
> >
> >
> > §3.6: Issue: Board Seats #13 and #14
> >
> > As explained in the footnote to this section, the language
> presented
> > in yellow highlight was recommended in the WG-GCR Report;
> however, it
> > has not been approved by the Board. Staff is hoping to
> collect some
> > final additional community feedback on the matter again
> this month and
> > expects final Board action on this matter at it's 23 April meeting.
> > Once the Board has acted, this section will be amended to
> reflect the
> > Board's decision as to the methodology and any other rules
> pertaining
> > to these selections. I have asked Rob to make a final request to
> > constituency leaders for feedback on the Board Seat issue
> and he will
> > follow up on that mater this week.
> >
> >
> > §3.8 Issue: Confusion as to whether the NCAs are appointed to
> > each voting house by the Nominating Committee.
> >
> > Staff acknowledges that the original wording in (a) and (b)
> could be
> > interpreted in a way that was not intended by the drafters. Staff
> > recommends the following amendment to this section to avoid
> ambiguity
> > as to how the NCAs are actually selected/appointed to each voting
> > house:
> >
> > a. The Contracted Party House includes the Registry
> Stakeholder Group
> > (three members), the Registrar Stakeholder Group (three
> members), and
> > one Nominating Committee Appointee (NCA) for a total of
> seven voting
> > members; and b. The Non-Contracted Party House includes the
> > Commercial Stakeholder Group (six members), the Non-Commercial
> > Stakeholder Group (six members), and one Nominating Committee
> > Appointee (NCA) for a total of thirteen voting members.
> > The assignment of each Nominating Committee Appointee to a voting
> > house is determined by the GNSO Council Operating Rules and
> > Procedures.
> >
> >
> > Article XX
> >
> > §5.1 Issue: Provision that the Board resolves any condition in
> > which the number of Constituencies exceeds the available
> Council seats
> > in a Stakeholder Group.
> >
> > Staff refers to the explanation provided above in response
> to Article
> > X, §3.1.
> >
> > Arguably, this language may not need to be expressed in the Bylaws;
> > however, Staff believes that it is important to recognize formally
> > that this potential condition (i.e. Constituencies exceeding the
> > number of SG Council seats) could have the effect of causing
> > prospective new Constituencies to wonder how they can
> become involved
> > if there are no remaining positions available. While the
> circumstance
> > appears to be remote in today's environment, there should be a
> > provision to address it before it occurs. If the Board elects to
> > change the Council organization or voting structure then the Bylaws
> > would have to be modified in any case. One alternative might be to
> > move the language from this section to Article XX-Transition.
> >
> >
> > §5.5 Issue: Transition language to map the existing
> Constituency
> > seats to the new Stakeholder Groups.
> >
> > Staff emphasizes that this section of the transition
> article is only
> > intended to map the existing Constituency seats (SGs do not yet
> > formally exist) to the new Stakeholder Groups.
> >
> >
> > §5.11 Issue: Voting thresholds for Policy Development Process
> >
> > As explained in an email sent to the Council list on
> Friday, 27 March
> > by Ken Bour, the voting thresholds originally prescribed by the
> > Working Group on GNSO Council Restructuring (WG-GCR) contained both
> > PDP and non-PDP elements. In this re-drafting exercise, Staff
> > recommended that the thresholds be parsed out as follows:
> the non-PDP
> > voting thresholds will be contained in Council OR&P while the PDP
> > thresholds will be included in Article XX-Transition until
> such time
> > as the Policy Process Steering Committee (PPSC) and Policy
> Development
> > Process (PDP) Work Team (Jeff Neumann, Chair) have completed
> > deliberations and are prepared to recommend a formal
> revision to Annex
> > A of the Bylaws. Since the PDP thresholds are currently
> specified in
> > Annex A, which is not being revised as part of the Council
> > restructuring effort, Staff recommends that the new PDP thresholds
> > should be included in Article XX vs. Council OR&P. Article XX is a
> > "transition" document only and, once the PDP voting thresholds are
> > successfully relocated from Annex A to the Council OR&P (Staff's
> > recommendation), Article XX can be removed from the Bylaws in its
> > entirety (assuming all other transition matters are
> completed). Below
> > are the voting thresholds recast into the two groupings:
> >
> > Non-PDP:
> > a) Elect Council Chair: requires 60% of both houses.
> > b) Remove NCA for Cause: requires 75% of both houses
> (excluding the
> > NCA subject to removal); subject to Board approval.
> > c) All other GNSO Council Business (default): requires
> majority of
> > both houses.
> >
> > PDP:
> > a) Create an Issues Report: requires more than 25% vote of both
> > houses or majority of one house.
> > b) Initiate a PDP within Scope: requires more than 33% vote of
> > both houses or more than 66% vote of one house.
> > c) Initiate a PDP not within Scope: requires a vote of more than
> > 75% of one house and a majority of the other house ("Super
> Majority").
> > d) Approve a PDP without a Super Majority: requires a
> majority of
> > both houses and further requires that one representative of
> at least 3
> > of the 4 Stakeholder Groups supports.
> > e) Approve a PDP with a Super Majority: requires
> greater than 75%
> > majority in one house and majority in the other house.
> >
> > The PDP thresholds (above) were taken from the consensus
> > recommendation of the WG-GCR and have been approved by the Board.
> >
> > Staff recommends that, while the thresholds themselves are
> not subject
> > to Council or community rewrite, the PPSC and PDP Work Team do have
> > the goal of reengineering the entire PDP. If, in the
> course of those
> > deliberations, it appears that some or all of the above thresholds
> > need to be modified or recast, the Board will need to take those
> > recommendations under advisement.
> >
> > Staff also notes that the Operations Steering Committee
> (OSC) and the
> > GNSO Council Operations Team are working on developing the methods,
> > procedures, administration, and tools (to become part of the Council
> > OR&P) that will need to be in place when the Council takes
> its first
> > bicameral vote, which could be as early as its June meeting
> in Sydney.
> >
> >
> > General Comments
> >
> > Finally, contrary to a recent comment, Staff would like to clarify
> > that it has not prejudged or "made up its mind" on any of these
> > issues. As the GNSO Improvements Report noted:
> >
> > "Many details, of course, remain to be worked out
> concerning the new
> > stakeholder structure for the Council, including the role of
> > constituencies and/or interest groups within them. As
> noted earlier,
> > we welcome the GNSO working with Staff to develop the appropriate
> > Implementation Plan." (Board GNSO Improvements Report at page 33).
> >
> > In preparing the draft Bylaws, Staff has tried to track the
> > implementation of GNSO Improvements and Restructuring to specific
> > directions from the Board. We hope that this exercise serves to
> > facilitate discussions on these important topics in order
> to resolve
> > them in a timely manner. We welcome further conversation about how
> > these elements might be achieved with different language.
> All Policy
> > Staff involved can be reached via policy-staff@xxxxxxxxx and
> > +1-310-823-9358.
> >
> > Regards,
> >
> > Denise Michel
> > Vice President, Policy
>
>