[CCWG-ACCT] Personal thoughts on sole member
Carlos Raúl Gutiérrez
carlosraulg at gmail.com
Mon Oct 5 12:27:15 UTC 2015
Greg,
thank you for this excellent review and comments on Bruce Tomkins memo written common english!
Very helpful for the legalese challenged
I´m keeping a hard copy of it (and of course as pdf in my computer….:-)
Carlos Raúl Gutiérrez
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> On Oct 4, 2015, at 6:42 PM, Greg Shatan <gregshatanipc at gmail.com> wrote:
>
>
> We seem to be getting to a point in this process where "ontogeny recapitulates philogeny." In other words, where we need to go through entire evolutionary process in miniature as we consider a change to the current (Second Draft) proposal.
>
> We started out with a "full membership" model of sorts. There were several problematic issues, such as the ability of GAC members (i.e., sovereign entities) to join ICANN as members in a membership structure, and concerns about the possibility of any member to exercise the statutory powers of members.
>
> The "single member model" evolved from the full member model in large part to provide solutions to those problems, while maintaining the significant power inherent in the Membership in a membership-based non-profit. Since the single member was the only member of ICANN, concerns about the ability to "join" ICANN were resolved. With only one member, controlled by the SO/ACs working in concert, the concern of a single "rogue" member exercising one of the statutory powers was also resolved. I don't believe we have adequately resolved the participation and decision-making mechanisms for the sole member yet, but this is an iterative process, and these are not irresoluble issues (although they will be more quickly resolved if energy is expended building up the single member model rather than tearing it down).
>
> The single member structure was intended to be as lightweight and low maintenance as possible. This led to the "unincorporated association" being advanced as the most likely legal structure for the member, as opposed to a non-profit corporation. As we know, a California unincorporated association is a legal entity, with a great deal of flexibility around its organizational and governance structure. While not needed, articles of association and bylaws are possible, and often recommended. Similarly, a board or council or other governance structure could be adopted if needed. I don't believe that "membership" in the unincorporated association is required to participate in governance, so GAC concerns should not be an issue -- a structure could be adopted whereby the "associators" (the SO/ACs that are actually forming the association) share power with SO/ACs that are not part of the formation process. If providing "advice" with a certain threshold of "deference" is preferable to a vote for some organizations, I am confident that can be accommodated.
>
> While this is more flexible than a non-profit corporation, and thus more attractive to many, the non-profit was never taken completely out of consideration. It is entirely possible that the sole member could be formed as a corporation rather than an unincorporated association. If we do so, we may want to avoid some of the other evils that were raised in the CWG-Stewardship with regard to "Contract Co." (and to a lesser extent PTI): essentially, creating a "second ICANN." (I always felt these concerns were overblown.) The full member model Bruce posits revives some of those concerns, although, as Bruce points out, there are advantages to the more robust and well-understood structure of a non-profit corporation.
>
> Unfortunately, I think Bruce misses some of the key elements that went into the single member model. The single member was always intended to be a "thin" organization, with just the minimum necessary personhood and structure to deliver the will of the community as a whole. So, I don't think it's accurate to say that the "sole member concentrates all the responsibilities of membership into a single legal entity." The sole member concentrates the power of the community into a single entity, but not the broader responsibilities. It was always our intention for the deliberative and consultative responsibilities to remain with the SO/AC's (all of them), so that it would represent the "broader Internet community." To concentrate on the method of application (the single member) rather than the participants (the broader community) is to mistake the package for its contents. Admittedly, we can do a better job of demonstrating that the single member can be operationalized without disenfranchising parts of our community.
>
> As for the observation that Bruce is "not aware of any similar Internet based body that operates under this model." -- technically speaking, I am sure he's right. The use of the "single member" is probably somewhat novel. But again, that focuses on the single member as if it were the solution, and not just a small piece of a much larger solution. The single member is just an adaptor (or a transformer? or piece of middleware?) to take the will of the community and transmit it to the corporation with the power and position of "the membership" in a membership non-profit. This should really be viewed as a slight variation on the typical membership model, which Bruce has indicated he is well aware of.
>
> I agree that "it is far better that SOs and ACs participate in the ICANN model as themselves." Our goal was also to "empower these groups ... in appropriate ways" through the use of the Community Forum and the Community Mechanism. I would rather concentrate on getting there in our model, rather than relying solely on a bylaws-based solution. I am highly confident that we can empower all SO/ACs in appropriate ways in the Single Member Model.
>
> At the same time, I'm not opposed to making the single member a "much more formal structure." As noted above, it was kept less formal to meet the concerns of certain participants. As Bruce notes, one of the advantages of a non-profit corporate structure are the clearly defined fiduciary duties -- the duty of care, the duty of loyalty, and most importantly the duty of obedience (to mission, values and purpose and to the public benefit). A non-profit corporation would "bake" those principles into the single member, mollifying those who were concerned that the unincorporated association would result in a member that could be careless and capricious, without any standards other than "we do as we please" (frankly, I think that's an incorrect view of the UA CMSM, but solving perception is as important as solving reality). I also suggested a Board with the same structure as ICANN, so it's good to see great minds thinking alike on that point.
>
> However, I don't think that the single member, even with these extra structural pieces, sounds like "what we already have" because the goal of the single member -- acting as a conduit for the community in holding the Board and the corporation accountable -- is quite different from that of the Board. Similarly, I would take issue with the contention that the sole member (or for that matter, any membership) is "completely unnecessary in that we already have a Board that does much the same thing," which is then defined as "listening to all parts of the community before making major decisions, and acting for the benefit of the Internet community as a whole." It's clear that the Board does not do the same thing as the community, and the member is supposed to be the tool the membership uses when it feels that the Board has not listened to the community and when it feels that the actions of the Board do not reflect the community's view of what need to be done for the benefit of the Internet community as a whole. We know that there have been such times in the past. However, even if there had never been a time when this had occurred, it would still be appropriate to put in place a robust and independent accountability mechanism, since that is the essence of our task.
>
> Finally, in response to Bruce's preference order:
>
> - leverage the governance model we have and refine to have additional powers for the SOs and ACs in the bylaws, have a binding IRP mechanism if any SO or AC feels that board is not following the bylaws, and set up a mechanism to ensure that IRP decision is legally enforceable. This is broadly the current Board proposal.
>
> Concerns about the MEM model have been stated by others, and this is not the place to go into a full response. My critical problem with this statement of the Board proposal is the reliance on bylaws based rights rather than membership based rights.
>
> - move to a full membership model with appropriate diversification and participation of members that include infrastructure operators and users, with appropriate culture and geographical diversity
>
> I'm not exactly sure what a "full membership model" is. If it is based around the SO/ACs, I would contend that the Single Member Model is in substance such a thing. If we are talking about direct membership for thousands (or millions or even billions) of people, that would be a truly radical shift in the structure of ICANN. If this is an issue about whether the SO/ACs are good enough to represent the community, I've commented on that elsewhere and I think it's misplaced. As for the specific cited shortcomings, we have infrastructure operators participating in the ISPCP and in the ASO among other places, and we have business users in the BC (and IPC), non-commercial users in tne NCUC, non-profit users in the NPOC,and all kinds of users in the ALAC. I am all for encouraging cultural and geographical diversity but insisting that the community we havve cannot act as a responsible steward for accountability seems quite sad.
>
> - use a sole member model - with a fully incorporated member and clear fiduciary responsibilities. Set up the board of the sole member with an equivalent level of governance as we have with the Board of ICANN.
>
> I don't have a particular problem with this and would be happy to explore further, as long as we don't make it as heavyweight as ICANN. Trying to find a balance between the perhaps too-light version in the UA form and ICANN Part Deux is a challenge but hardly the biggest one we face.
> Greg
>
> On Sun, Oct 4, 2015 at 1:04 PM, Jordan Carter <jordan at internetnz.net.nz <mailto:jordan at internetnz.net.nz>> wrote:
> Thank you to Bruce for sharing your thoughts candidly and openly once again, and to Tijani for this excellent reply.
>
> I want to +1 Tijani's comments.
>
> Bruce, we came at this from a 'how do we avoid fracturing the community, and make sure that decisions in exercising the membership powers are done responsibly and by some measure of cross-community consensus?'
>
> That is why we evolved from SO/AC membership to the community exercising membership powers together through one "entity" (really, a decision-counter - by votes or by consensus doesn't matter).
>
> The SOs and ACs will be and do participate in ICANN as themselves, if we correctly recognise that those 'selves' are just forums for ICANN's **actual** stakeholders to involve themselves in the policy process ICANN exists to serve.
>
> They would participate in the accountability powers in the same way.
>
> Your alternative route summons up all the things the CCWG's first proposal was rightly criticised for - the need for legal personality for each SO and AC; the fact this would require a complete rewrite of each of their rules in the bylaws to allow for that and for relevant decision making, and so on.
>
>
> My personal preference remains the SMM for the reason that it deals with this set of problems in a way that supports and upholds the multistakeholder model. I've tried to get my head around the Board's contention that it would undermine that model, but I simply can't grasp the core concern, other than it's founded on a different vision of what the SOs and ACs are and their role as routes in / bridges to the global multistakeholder community.
>
> If they aren't such bridges, then the model is broken either way.
>
> If they are, then they are the right groupings to be exercising the narrow and constrained set of accountability powers the CCWG has been concerning itself with.
>
>
> best
> Jordan
>
>
>
> On 5 October 2015 at 00:50, Tijani BEN JEMAA <tijani.benjemaa at planet.tn <mailto:tijani.benjemaa at planet.tn>> wrote:
> Bruce,
>
>
>
> You say you prefer a full membership model where each SO and AC becomes a member rather than a sole membership model because it concentrates all the powers in the hands of a single entity.
>
>
>
> I don’t think it is the best way to avoid capture: In case we have each SO and AC becoming a member, all those members will have the full statutory rights and can at anytime exercise them including before the Californian courts. The SOs or ACs that have a big interest (financial, political, etc.) may use their member right to force the board to act for their own narrow interest.
>
>
>
> In the sole membership model, no power is allowed to a single SO or AC; they can’t act separately. Any power exercise would be the result of the community consensus (any form of consensus including voting). So no capture is possible.
>
>
>
> The only risk would be if all the community is not represented in the sole member decision making, but this is the same risk for the full membership model where you would have only some SO/AC becoming members of ICANN.
>
>
>
> I don’t say that the sole membership model is the best, but if I compare it to the full membership model, I would prefer it.
>
>
>
> --------------------------------------------------------------------------------
>
> Tijani BEN JEMAA
>
> Executive Director
>
> Mediterranean Federation of Internet Associations (FMAI)
>
> Phone: + 216 41 649 605 <tel:%2B%20216%2041%20649%20605>
> Mobile: + 216 98 330 114 <tel:%2B%20216%2098%20330%20114>
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>
> -----Message d'origine-----
> De : accountability-cross-community-bounces at icann.org <mailto:accountability-cross-community-bounces at icann.org> [mailto:accountability-cross-community-bounces at icann.org <mailto:accountability-cross-community-bounces at icann.org>] De la part de Bruce Tonkin
> Envoyé : samedi 3 octobre 2015 08:32
> À : accountability-cross-community at icann.org <mailto:accountability-cross-community at icann.org>
> Objet : [CCWG-ACCT] Personal thoughts on sole member
>
>
>
> Hello All,
>
>
>
> The following is NOT a Board view.
>
>
>
> My personal thoughts on sole member is that I prefer a broader membership structure to a sole membership structure.
>
>
>
> For me - a sole member concentrates all the responsibilities of membership into a single legal entity. I much prefer more distributed membership structures that are more likely to represent the broader Internet community.
>
>
>
> I am not aware of any similar Internet based body that operates under this model. I have been on the Board of several non-profit organizations over the past 20 years in a range of areas from sport to research to business, and I have never personally had any experience in this model. I have also done several company director courses and I have never had this model come up in presentations or discussions.
>
>
>
> The sole member model also doesn't seem to particularly fit the current SOs and ACs that often have different interests and areas of focus For example SSAC and RRSAC have quite narrow mandates to look at particular technical issues. They do not generally get involved in ICANN strategic plans, operating plans, budgets, and naming policies.
>
>
>
> I think it is far better that SOs and ACs participate in the ICANN model as themselves. I think we can empower each of these groups in our bylaws in appropriate ways.
>
>
>
> If the CCWG really wants to go down the single member model, then I would prefer a much more formal structure.
>
>
>
> - make the single member an incorporated entity
>
>
>
> - set the articles of incorporation up to ensure that the single member has a fiduciary responsibility to the Internet community as a whole. I.e. align its fiduciary responsibility to ICANN's fiduciary responsibility
>
>
>
> - have a board of the single member with the same structure as ICANN - with SOs and ALAC appointing directors, set up a nominating committee (or use the one we have) to select 8 directors, and have liaisons from GAC, SSAC, RSSAC and IETF.
>
>
>
> - include in its bylaws its mission (to be a member of ICANN), and processes it will use to reach decisions and consult with the community
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>
>
>
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> If this is sounding like what we already have - then that is not surprising.
>
>
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> I feel that it is certainly legally possible to create a sole member - but it is practically highly unusual, and also seems completely unnecessary in that we already have a Board that does much the same thing. The Board listens to all parts of the community before making major decisions, and acts for the benefit of the Internet community as a whole.
>
>
>
>
>
> So vmy preference order is:
>
>
>
> - leverage the governance model we have and refine to have additional powers for the SOs and ACs in the bylaws, have a binding IRP mechanism if any SO or AC feels that board is not following the bylaws, and set up a mechanism to ensure that IRP decision is legally enforceable. This is broadly the current Board proposal.
>
>
>
> - move to a full membership model with appropriate diversification and participation of members that include infrastructure operators and users, with appropriate culture and geographical diversity
>
>
>
> - use a sole member model - with a fully incorporated member and clear fiduciary responsibilities. Set up the board of the sole member with an equivalent level of governance as we have with the Board of ICANN.
>
>
>
> Regards,
>
> Bruce Tonkin
>
>
>
>
>
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