[CCWG-ACCT] Board comments relating to GAC Advice

[Greg Shatan]

Bruce,

Thank you.  This first point succinctly and clearly makes a point I have
been alluding to, but without the documentary back-up or perspective to
adequately explain it.

Greg

On Wednesday, February 3, 2016, Bruce Tonkin <
Bruce.Tonkin at melbourneit.com.au> wrote:

> Hello All,
>
> The Board met in Singapore yesterday and discussed several of the CCWG
> recommendations.   We will be providing a full set of comments later today.
>
> Given that there is a call starting in about 10 hours I thought it might
> be helpful to provide the Board's current thinking on the general topic of
> the Board's treatment of GAC advice.   Note the Board has not had a
> discussion or formed a position about the thresholds of 51%, 60%, 66% etc,
> which are currently being debated in the CCWG.
>
>
> Requirement for Formal Decision
>
> The Board understands the concern that the language in the current bylaws
> relating to the Board making an initial determination that it intends to
> act inconsistently with GAC advice might be subject to interpretation.  As
> a matter of clarification, the Board recommends that the current practice
> of the Board, which allows flexibility, be used when revising the language
> of this section, so that the Board is not subject to a changed process or
> new affirmative voting requirements.
>
> The current practice was  established and developed after the first
> Accountability and Transparency Review.  At that time, the Board and the
> GAC, through the Board/GAC Recommendations Implementation Working Group
> (BGRI), developed a process to lead to consultations between the Board and
> GAC, if ever necessary.  This process document is available at
> https://gacweb.icann.org/download/attachments/27132063/2013-04-07-Process%20forConsultations%20between%20ICANN%20and%20GAC.doc?version=1&modificationDate=1376102118000&api=v2
> .  The Board is provided flexibility:  "In the event that the Board
> determines, through a preliminary or interim recommendation or decision, to
> take an action that is not consistent with GAC advice, the ensuing
> consultations will be considered "Bylaws Consultations".  The Board will
> provide written notice to the GAC (the "Board Notice") stating, in
> reasonable detail, the GAC advice the Board determines not to follow, and
> the reasons why such GAC advice may not
>   be followed."   The Board recommends that, to the extent the Bylaws
> language needs to be clarified on this issue, that it is clarified to align
> with the current practice that has been discussed, agreed to, and is not
> problematic in regards to accountability.
>
> Similarly, while the Board is required to take GAC advice into account,
> the Board understands that recommendation is not intended to impose any new
> requirements for the Board to take decisions on GAC advice.  This issue can
> be addressed in the Bylaws drafting notes by indicating that the Board
> should not be obligated to act on all GAC advice through a vote.
>
>
> Considering Rationale
>
> The Board agrees that all Advisory Committees should be required to
> provide rationale to accompany advice.  The Board understands the CCWG
> recommendation to place an obligation on the Board, when taking a decision
> on a piece of advice, to consider whether the Board found the rationale
> sufficient.  The Board would always be in a position to indicate if
> additional information is needed prior to completing consideration of any
> piece of advice.  The Board does not consider this recommendation to impose
> a requirement that - separate from when the Board is considering advice -
> that the Board must provide a specific determination for each piece of
> advice received regarding whether the Board felt the rationale was
> sufficient.  The Board urges the CCWG to clarify this issue for Bylaws
> drafting.
>
>
> Uniform Treatment of Advisory Committee Advice
>
> The Board agrees with the CCWG-Accountability's clarification that, if the
> Board takes action inconsistent with the Bylaws - even if that action is
> based upon following the advice of an Advisory Committee - the Board can be
> subject to an IRP.  To the extent that the CCWG believes that it is
> important to specifically identify this in the Bylaws, the text used should
> apply to all Advisory Committees, and not solely refer to the GAC.
>
> Regards,
>
> Bruce Tonkin
>
> ICANN Board Liaison to the CCWG
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