[CCWG-ACCT] Understanding of Amended Paragraph 72 of Annex 2

Tue Feb 23 19:59:02 UTC 2016

Phil,

Your analysis looks correct to me.

Greg Shatan

On Tue, Feb 23, 2016 at 2:43 PM, Seun Ojedeji <seun.ojedeji at gmail.com>
wrote:

> Hello,
>
> If removal on other grounds happen; I presume that would be in a situation
> where IRP outcome was in favour of the board but the community still wants
> to spill the board anyway (perhaps by vote of no confidence). In that case,
> I would expect that it's no longer about GAC and a threshold of 4 would be
> applicable.
>
> Regards
> On 23 Feb 2016 20:24, "Phil Corwin" <psc at vlaw-dc.com> wrote:
>
>> Now that the Co-Chairs have just issued their decision on how to proceed,
>> I want to return to a subject that I first raised in the chat room on the
>> call held twelve hours ago.
>>
>>
>>
>> *Section 72 of Annex 2 will now read [bracketed text in red to be
>> deleted]:*
>>
>>
>>
>>                 The CCWG-Accountability also recommends that in a
>> situation where the GAC may not
>>
>> participate as a Decisional Participant because the Community Power is
>> proposed to be used to
>>
>> challenge the Board’s implementation of GAC consensus advice and the
>> threshold is set at four
>>
>> in support, the power will still be validly exercised if three are in
>> support and no more than one
>>
>> objects, with the following exception:
>>
>>
>>
>> ·         Where the power to be exercised is recalling the entire Board
>> for implementing GAC
>>
>> advice, the reduced threshold would apply only [either (1)] after an IRP
>> has found that, in
>>
>> implementing GAC advice, the Board acted inconsistently with the ICANN
>> Bylaws[, or (2) if
>>
>> the IRP is not available to challenge the Board action in question]. If
>> the Empowered
>>
>> Community has brought such an IRP and does not prevail, the Empowered
>> Community
>>
>> may not exercise its power to recall the entire the Board solely on the
>> basis of the matter
>>
>> decided by the IRP. It may, however, exercise that power based on other
>> grounds.
>>
>>
>>
>> As I read the remaining text, the first paragraph establishes the general
>> principle that in any situation where the Empowered Community proposes to
>> challenge the Board’s implementation of GAC consensus advice, using any of
>> the available community powers, the GAC would be barred from being a
>> decisional participant, and that where the threshold for taking action is
>> four SO/Ac votes it would drop to three.
>>
>>
>>
>> *I would note in passing that the voting threshold for exercise of a
>> community power is set at four (per items 46-70) for only three community
>> powers:*
>>
>> 1.       Reject a proposed Operating Plan/Strategic Plan/Budget
>>
>> *2.       **Recall the entire Board of Directors*
>>
>> 3.       Reject an ICANN Board decision relating to reviews of IANA
>> functions, including the triggering of any PTI separation process
>>
>>
>>
>> Paragraph 2 then goes on to create an exception for that reduced
>> threshold situation -- applicable only to removal of the Board in its
>> entirety,  and not to rejection of an operating plan/budget or a review of
>> IANA functions where the Board has acted pursuant to GAC consensus advice.
>> For Board removal in its entirety the EC would first be required to pursue
>> an IRP – and if the IRP determined that the Board implementation of GAC
>> consensus advice had not violated the Bylaws the reduced voting threshold
>> would not apply, and the matter could not be further pursued unless there
>> were other, non-Bylaws grounds for pursuing it. In the latter instance
>> (non-Bylaws ground), the threshold for full Board removal would be four
>> votes (unanimity of all SOs and ACs other than the GAC, which would remain
>> non-decisional).
>>
>>
>>
>> *Are we agreed on that view so far?*
>>
>>
>>
>> Now here is where it gets interesting, in regard to matters of Board
>> implementation of GAC consensus advice about which the community was
>> aggrieved, and regardless of whether such implementation involved an
>> alleged Bylaws violation and was therefore subject to an IRP ---
>>
>>
>>
>> If the community sought to exercise power 4a contained at section 55 –
>> “Remove an individual Board Director nominated by an SO or AC (and
>> appointed by the Empowered Community)” – none of the above in para 72 would
>> be relevant because the majority of the nominating SO/AC could do that on
>> its own by an internal ¾ majority vote after inviting and considering
>> comments from all SOs/ACs (noting that it’s not entirely clear whether the
>> GAC would be barred from commenting, although it’s of little relevance
>> since the electing SO/AC is in no way bound by the opinions of the others).
>> That removal could include the Chairman of the Board if he/she was the
>> nominee of a particular SO or AC.
>>
>>
>>
>> If the community sought to exercise power 4b contained at section 58 –
>> “Remove an individual Board Director nominated by the Nominating Committee
>> (and appointed by the Empowered Community)” – the lowered threshold
>> requirement in para 72 would not be relevant because the required threshold
>> support is “Three support, and no more than one objection”, and the GAC
>> would be barred as a decisional participant if the challenge pertained to
>> the Board member voting to implement GAC consensus advice. Again, this
>> power is available to remove the Chair if he/she was a NomCom appointee
>> (Note: I have checked the ICANN Bylaws and any Board member other the
>> President/CEO, regardless of how they were placed on the Board, can be
>> elected to the Chair or Vice Chair position).
>>
>>
>>
>> *Putting this all together, even after the CCWG’s Co-Chairs decision to
>> proceed with striking clause 2 of the second paragraph of section 72, the
>> Empowered Community could still remove the Board Chairman and Vice Chair
>> (and sequentially chosen replacement Chairs and Vice Chairs, if they failed
>> to lead the Board to reverse its decision implementing GAC advice), and
>> could remove one or more additional members of the Board, whether placed on
>> the Board by an SO/AC or by the NomCom, so long as such actions were taken
>> individually and not collectively. And the community, if the aggrieved view
>> was sufficiently widespread, could collectively remove (and then replace)
>> sufficient numbers of Board members to compel a reversal of the
>> implementation of GAC consensus advice. Indeed, there is no limitation
>> placed  on the number of Board members who may be removed via community
>> powers 4a and 4b so long as each is a discrete assertion of those powers
>> pertaining to a particular Board member.*
>>
>>
>>
>> If I am correct on this interpretation then, the removal of clause 2 may
>> not be all that significant.
>>
>>
>>
>> *If anyone believes that my interpretation of any or all of this is
>> incorrect – especially Board or GAC members – I would urge them to voice
>> disagreement now. I would also welcome expressions of support for this
>> interpretation.*
>>
>>
>>
>> If you have read this far, thanks.
>>
>>
>>
>> Best to all, Philip
>>
>>
>>
>>
>>
>>
>>
>>
>>
>> *Philip S. Corwin, Founding Principal*
>>
>> *Virtualaw LLC*
>>
>> *1155 F Street, NW*
>>
>> *Suite 1050*
>>
>> *Washington, DC 20004*
>>
>> *202-559-8597 <202-559-8597>/Direct*
>>
>> *202-559-8750 <202-559-8750>/Fax*
>>
>> *202-255-6172 <202-255-6172>/cell*
>>
>>
>>
>> *Twitter: @VlawDC*
>>
>>
>>
>> *"Luck is the residue of design" -- Branch Rickey*
>>
>>
>>
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>>
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