[CCWG-ACCT] Fwd: FW: ICANN Board Comments on Third CCWG-Accountability Draft Proposal on Work Stream 1 Recommendations

Sat Dec 26 11:46:32 UTC 2015

Hello Bruce,

 Thanks for this summary of the Board's concerns regarding Inspection rights, a restatement of the view offered by the Board in it's 14 December 2015 public response to the CCWG work stream one Proposal of  30 November 2015.

 Upon reading it would appear to me that this Board response did not take into account in it's comment the 10 December 2015 memo concerning Inspection proffered by the CCWG independent counsel (copy attached). I'm very supportive of and excited about the general  way forward proposed by Counsel, notwithstanding that there are still several options for the community to consider within the context of the memorandum.

 Am I correct in my supposition that the contents of the aforementioned memo were not considered during the Board's deliberation on Inspection that resulted in the position taken and published in the Board's 14 December 2015 public comment?

 Kind Regards,

 Edward Morris

----------------------------------------
 From: "Bruce Tonkin" <Bruce.Tonkin at melbourneit.com.au>
Sent: Thursday, December 24, 2015 11:27 AM
To: "Accountability Cross Community" <accountability-cross-community at icann.org>
Subject: Re: [CCWG-ACCT] Fwd: FW: ICANN Board Comments on Third CCWG-Accountability Draft Proposal on Work Stream 1 Recommendations   
Hello James,

>> With respect Bruce that is a total misleading description of the transparency proposals that are in the CCWG's 3rd Draft, the requirements that the CCWG have identified are based entirely on the existing California corporations code that hundreds if not thousands of non-profits both smaller and larger than ICANN adhere to on a daily basis without having a large staffing contingent to support that requirement.

I don't believe I provided a description of the transparency proposal in the CCWG 3rd draft. I was responding to the general allegation that the Board did not support transparency.

Our formal written feedback was provided in the context of the California corporations code. The law relating to access to records is quite brief, we have provided concrete processes implementing this power on the context of ICANN. We expect the processes set out in the bylaws will ultimately be adjudicated by the IRP process - and not a California court - so more detail on the processes is needed.

We have actually gone beyond the bare minimum requirements in the corporations code - which relate to minutes of meetings and accounting records. We already provide much of that information publicly - so there is no need to visit the office and review minutes for example. We also provide quarterly financial reports. Accounting records on their own provide information on income received and suppliers paid. It doesn't always give you context.

We stated:

The Board supports a well-defined right of inspection of accounting records and minutes of meetings in support of the community powers.

The Board proposes that the inspection right be framed in the Bylaws as follows: The community will have a right to seek accounting records and minutes of meetings that are related to the exercise of the Community Powers. To obtain records, the community should have a minimum of two SOs/ACs seeking a Community Forum on the topic, and no fewer than three SOs/ACs supporting a request for the records. The Sole Designator should have the power to enforce ICANN's failure to abide by the records request, following an escalation path (as appropriate) of reconsideration, Ombudsman and ultimately IRP; the right to the records rests in the Empowered Community.

This formation achieves a few objectives. First, similar to the use of inspection rights in the membership structure, this gives the community special access to records that are tethered to the powers that the community holds. Second, it reinforces the Empowered Community as having interests in the records, as opposed to making the Sole Designator as a separate power structure within ICANN. Third, because the inspection rights are tethered to the community powers, the Sole Designator is not being asked to take on inspection or investigatory powers that are beyond its enforcement role. With these limitations, the Board would support the inclusion of inspection rights in the Fundamental Bylaws.

New Commitment to Investigations

Separately, the Board understands that there could be areas where the community might wish to have additional power in requiring - and having transparency into - investigations of potential fraud or financial mismanagement in ICANN. To address these concerns, the Board supports the development of the following inspection or audit process: Upon three SOs/ACs coming together to identify a perceived issue with fraud or mismanagement of ICANN resources, ICANN will retain a third-party, independent firm (acceptable to the SOs/ACs that have identified the issue) to undertake a specified audit to investigate that issue. The audit report will be made public, and the ICANN Board will be required to consider the recommendations and findings of that report. The investigatory process should first be developed outside of the ICANN Bylaws, and can be incorporated into the Bylaws when appropriate.

Allowing for the right to access specific documents related to the community powers, as well as a new ability to trigger third-party investigations, addresses the community concerns of greater access to documents and additional accountability in operations. These two companion processes provide a clear line between information that is appropriate for general public release (transparency), and information that may be confidential or proprietary but necessary to review if there are concerns raised about management practices.

Regards,
Bruce Tonkin

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community at icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20151226/890e070c/attachment-0001.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: Memo. Q A on Developing Inspection Right Bylaws Provisions (00742405xA3536)-2.pdf
Type: application/octet-stream
Size: 120371 bytes
Desc: not available
URL: <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20151226/890e070c/Memo.QAonDevelopingInspectionRightBylawsProvisions00742405xA3536-2-0001.pdf>