[CCWG-ACCT] Notes-Recordings-Transcript links for Accountability WP1 Meeting #7 8 April

Brenda Brewer brenda.brewer at icann.org
Thu Apr 9 11:49:48 UTC 2015

Dear all, 


The notes, recordings and transcripts for the CCWG ACCT WP1 Meeting #7 on 8 April 2015 will be
available here:  https://community.icann.org/pages/viewpage.action?pageId=52894985

Action Items

Action:  Matthew to lead the team and produce a mapping table, Avri and Fiona volunteering.  target
Friday or Monday (13)

Action: Jordan to put out a draft to the group.


These high-level notes are designed to help you navigate through content of the call and do not
substitute in any way the transcript.


1 ..Agenda review: new items for the call

Stress test call:  general community detail, to formally consider advice of a SO/AC.  Will be added
to the agenda as an additional discussion between items 3 and 4.

3. Working through our draft Comment Report


Work items for Apr 6 completed and AoC intro the bylaws also done.  Little ahead of schedule.

Aim for draft text on the mechanisms, and need discussion with legal advisors to prepare this.  No
topic about other AoC matters coming into the bylaws.

There is no topic in WP1 work about other AoC matters coming into the bylaws. Bringing AoC's into
the bylaws, the 4 reviews from the affirmation have been WP1's focus. Affirmation paragraphs 3, 4,
7, and 8 and there are some commitments which also need to be considered.  Some of these are
reflected in the core values and mission of WP2, but some commitments of the affirmation have not
made it through WP2.  Use the table to indicate if the commitment is being addressed or not.  For
example para 8. 

Each commitment of the AoC needs to be checked that they are making their way into the bylaws in
some form. 

Given the importance of the AoC, then should look at how each item it being addressed, by WP1 or
WP2, and if at all.

Q.  In the AoC one side is USG and other is ICANN.  If transferred to the bylaws, who are the two
parties, who committed to what and to whom?

Response: Legal advice suggests that if no longer two parties, the commitments can be in the bylaws
as obligations for the Board to uphold.

And if the powers being suggested by WP1 are accepted then the Board would remain committed to those

Not for the CCWG to cancel the AoC, but right for the group to be incorporating the commitments.
Check list a good thing.

(legal) A number of things being discussed with the legal group are enforcement mechanisms for
various rights.  Several mechanics talk about creating members, and if done then any of these
commitments in the bylaws can be enforced by the members.  Tricky to work out the member mechanism,
but can be done

Action:  Mathew to lead the team and produce a mapping table, Avri and Fiona volunteering.  target
Friday or Monday (13)

Discussion document: CCWG-ACCT Working Party 1: Community Empowerment

After the call the paper will be opened as a google doc to allow direct editing. 

Either gives clarity and detail and further understanding for members of WP1.  What if members have
a comment on substance, what is the moment process now? 

Response:  raise on the call or comments in the document.  Text might not reflect agreement.  Text
in bold highlints issues what have not been agreed (this will be changed to txt inside square [ ...
] brackets.  These are issues that should discussed by the group, and raised wth co-chairs.

Addition: on removal of individual board members, At Large needs to be included in that ability.

Directed vote - the model considered in Istanbul was the community council model, and if that is not
adopted it will have consequences for voting.

The community council has not been agreed as the mechanism to represent the community, other still
under consideration.

Are we talking about reconsideration or veto.  Sending something back is difference, and this is
shown by a different balance between section titles and the body text.

Individual board member removal, the imbalance between removing a SO/AC selected Director and a
NomCom appointee.  Seems under CA law that having people who appointed a director remove a director
is not hard.  But the power to remove NomCom appointees not as simple.

Stress Test team assessed if tests relying on a power of "community veto", which is an element of a
number of tests, was necessary. Found that the absence of a community veto would not cause any
stress test to fail.

The "community veto" was intended to apply to a narrow range of issues; strategic plan, budget,
bylaws changes.  The powers the CCWG is recommending deal with all those that were proposed for the
community veto.

(legal)  scope of community power over the board.  The current organization of ICANN may accomplish
WP1's goals, but some of the proposed new mechanisms may disrupt this.  The board does have certain
fiduciary duties defined by statute.  It will be possible to give the community the ability to name
those board members who should act in accordance with the bylaws, and remove those members by some
means.  Can also set up a review mechanisms for fundamental bylaws.  But reviewing budget and

plan, must be highly specific or my run afoul of the Board's fiduciary responsibility.

Holly: "the boards duties to the corporation should be aligned to the communities interests through
a well drafted corporate purpose in the articles. 

The headings might be changed to say "force reconsideration of..." to reflect the need to provide
some alternative to what has been prevented by the veto. 

In the proposal document, if there's not yet consensus on a point, should we present more than one
option, or consider an alternative option?   And suggest text for or against particular
propositions?   If options are offered, then the pros and cons of each should possible. And can get
guidance on this from the whole CCWG.

4. Discussion (incl with the legal advisors) on how to work out our mechanism

Holly Gregory:  outline covering legal concerns by the end of the week.

How is the community organized: as designator or membership, etc.  Primary mechanisms to hold
accountability is through the selection of directors, removal of a director or the whole board.  The
power to approve and disapprove the bylaws including fundamental bylaws also possible.  As is the
AoC into the bylaws.

It seems the community feels directors do not always represent the community's interest, as seems to
be the case, it can be useful to have the "corporate purpose" set out in the bylaws, this needs to
be fulfilled and is another accountability mechanism for the arsenal.

WP1 has  worked on some mechanisms,  if some of those models allow us the wield powers , we should
hear about these.

WP1, statutory delegates/designators. Least disruptive.  Rights could be given to those designated.
Next level is to create a membership.  The community council might be shaped like members or
designators, and CCWG also shaped as designators,  The supervisory board is more complex and moving
away from that.

To refine and revise the designators would be least disruptive and easiest, but a narrower scope
available to designators vs members.

Focus on the power WP1 wants to give the community, response will be if legal or not, and then how
best to organize those powers (member or designator) and how to decide who will be the
representatives on those bodies.

Powers:  enumerated in the comment document section 6.5.  (1) would there be other powers, unlikely
to have other rights thru some general veto or otherwise. (2) 6.5.2 power to reject budget to
strategy, interferes with normal operation and so needs to be carefully articulated.

Stephanie/Steven of Adler.  Feel members would be the more viable structure over the budget or very
specific decisions.  Corporate purpose, great care to get it right, and can be used as an
accountability mechanisms (less certain than Holly of this) asking if the corporation is following
and if not bring in the attorney general.

Powers under 6.3 6.4 6.5. 6.5, could be held for members of designators,

Designators standing to sue less clear that members.

A model of members of designators. Is there a critical difference between the two?  Designator path
is similar to what ICANN has, because not involving the big change of creating ICANN as a member
org.  Changes to the bylaws to clarify the designator role.  Members, may be clearer to provide some
of be veto and approval rights, fairly certain can do on the model.

The least change model is likely to be one the community generally will accept. 

Templates on Friday will provide further guidance.  How to take legal advice is important now.
Useful to receive an assessment of the two options, and why going down designator or membership will
not allow some powers to be delivered.

5.  Agree agenda for 10 & 13 April calls

Action: Jordan to put out a draft to the group.

6. AoB




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