[bc-gnso] Ballot for a new BC Charter

[Phil Corwin]

The ICA is concerned that BC members are being asked to vote within one week upon a very modestly revised proposed charter that has just been made available for review.

However, without substantial further change the potential of proposed Section 3.4.2 to stifle free speech and the ability of individual BC members to pursue and protect their interests where they have a legitimate disagreement with a BC position on an ICANN policy issue is unacceptable and would require that we cast a vote against the Charter. Based upon comments made during the Constituency call to discuss the proposed Charter we expected to see far more sweeping changes to this Section than have been made. While members of trade and other professional organizations sometimes voluntarily resign from an organization when it takes a position that is unacceptable to them it is highly unusual to have members threatened with involuntary expulsion when they disagree with an organization's position on a given issue and pursue their own interests independently. If a conscientious effort is made to enforce this provision it will likely result in either a substantial diminution of BC members or a push toward vague and mushy positions on key policy issues. If any provision like this remains in the Charter we would advocate setting the bar for adopting positions on Policy issues at a much higher threshold than 51% of a 50% of total votes quorum, since that would allow for adoption of a Policy position by a mere 26% of total BC votes yet would subject members to potential discipline or expulsion for public disagreement with the adopted policy position.

I have set forth some specific questions regarding the provisions of Section 3.4.2 below.


3.4.2 Review

Membership may be reviewed by the Credentials Committee at any time, if there is a change in the circumstances of the member that may impact on its qualification for membership or if the member engages in inappropriate behaviour. A review may be done upon request by any member at the discretion of the Executive Committee. A review must include a thorough examination and may include a review of supporting documentation. A review is not limited to but may be indicated when:

*

a member takes action, beyond mere internal communication of dissent, that contravenes an adopted position of the Constituency and thus would be pursuing interests that may not be aligned with the Constituency; What is "mere internal communication of dissent"? Does this term solely cover dissent voiced within the confines of the BC or does it allow for communication of dissent within internal ICANN processes (which, by its nature, whether written or oral, becomes public and therefore could be regarded as external)?

*

a member by their action leads directly or indirectly to another member resigning from the Constituency; Why should a member be subject to discipline if their legitimate activities cause another member to depart from the BC - especially if it is only an indirect cause of the action?

*

a member acts as a spokesperson for another organisation whose interests are not aligned with the Constituency; As members are all corporations, trade association, or consultancies - that is, businesses - how could a business act as a spokesperson for another business?

*

a member acts in conflict to this Charter, or in particular acts in conflict with Articles 8 - 10 of this Charter; Without getting into the merits of Section 8-10, much of which seem vague and subjective, since a member can already be subject to 14 day suspension under Section 8 for such conduct as making a comment about a BC employee or contractor (and where else but within the BC would one make such comment?) or posting more than ten e-mails in a month (that is, 2.5 per week) even when the BC may be involved in vigorous internal debate on a policy issue, why is it necessary to have additional penalties, including expulsion, available? Also, as Section 9.5 states:
9.5 Listen to the views of all stakeholders when considering policy issues. ICANN is a unique multi-stakeholder environment. Those who take part in the ICANN process must acknowledge the importance of all stakeholders and seek to understand their points of view;
Does that mean that members on the losing side of a BC policy debate can seek disciplinary action against members of the majority if they believe that such members did not sincerely seek to understand their POV? (I realize that some of these comments may seem divorced from probable reality - but the reality is that we are being asked to vote on a Charter that literally says that a member can be disciplined for failing to see to understand another member's viewpoint.)



*

a member engages in acts which appear to be inappropriate for the stability, functionality or bona fide reputation of the Constituency; No question -- but "inappropriate" conduct damaging to the BC's "reputation" is an awfully subjective basis for discipline.

*

a member is or threatens to be a vexatious litigant; What is a "vexatious" litigant, as opposed to an ordinary litigant? And litigant against whom or what?

*

a member's circumstances are such that would be grounds for a refusal of an initial application.



After such review the Credentials Committee by simple majority may apply the following depending on the circumstances:

*

a formal written warning;

*

a period of suspension of all Constituency privileges;

*

termination of membership in the Constituency. Such termination must be endorsed by the Executive Committee. Except for instances where the member would no longer qualify for membership, termination must be preceded by at least one other disciplinary action.



Before any disciplinary action may take effect the member subject to the action will have:

*

an opportunity to review the complaint

*

an opportunity to provide a response to the Committee.



Credentials and Executive Committee members who are affected by the disputed behavior will recuse themselves from the discipline process.

Since a member's freedom of speech and ability to protect its interests are put at risk by this disciplinary process under rather vague and subjective standards, why is there no appeals process by which a member can seek review of what it considers inappropriate disciplinary action -- perhaps by the overall membership of the BC?



All that said, I think our starting point should be an assumption that members of the BC, who have chosen to pay dues and expend time on BC activities, in a belief that such participation improves the overall functioning of ICANN and business community interests broadly defined,   should be assumed to be represented by responsible adults who know how to conduct themselves in a civil manner and will generally work toward consensus. I simply don't see how subjecting members or potential BC members to significant disciple under vague and subjective standards, and by threatening members with expulsion when they are on the losing end of a BC policy debate and continue, as any business would, to pursue their own interest, can possibly help expand the membership ranks or reputation of the BC.

Involuntary suspension or expulsion of a duly admitted BC member should be reserved for only the most extreme and clearly defined circumstances - that the nature of its business has changed to the extent where it would no longer be eligible for admission, it has been convicted of a criminal offense, has made undocumented charges against another member that appear libelous, etc. Trying to enforce standards of behavior of professionals over policy disagreements really goes too far and threatens to saddle the BC with a reputation that will marginalize it..






Philip S. Corwin
Partner
Butera & Andrews
1301 Pennsylvania Ave., NW
Suite 500
Washington, DC 20004

202-347-6875 (office)

202-347-6876 (fax)

202-255-6172 (cell)

"Luck is the residue of design." -- Branch Rickey

________________________________
From: owner-bc-gnso at icann.org [mailto:owner-bc-gnso at icann.org] On Behalf Of BC Secretariat
Sent: Tuesday, October 13, 2009 8:09 AM
To: bc-gnso at icann.org
Subject: [bc-gnso] Ballot for a new BC Charter

Dear Members

Ballot on revised BC Charter

At the request of the BC Officers and with reference to the message below, I have today opened a 7-day voting period for the newly revised BC Charter.

A majority approval vote means the new Charter will be adopted. A majority non-approval vote means the Charter will not be adopted.

A ballot form is attached. Each member organisation has one vote. The vote should be placed by the principle BC contact for the membership organsiation or by notified proxy. I will apply weighted voting when I receive your ballot form. All ballots will be acknowledged.

The voting period closes at midnight in your time zone on Monday 19 October 2009. Ballots cannot be accepted after this time.

Best wishes
Gary
----------------------------------------------------

We would like to ask all members to cast their vote in favour of the attached revised BC Charter.
A definitive PDF version is attached.
A Word version showing recent track changes is also provided for information.

The Charter accommodates necessary changes for the re-structured GNSO in which the stakeholder groups provide representatives to the GNSO council.
As such the BC will move from a situation in which its three GNSO representatives were also BC Officers, to a separation of these roles.
There will be a new executive committee with a chair and two vice-chairs in addition to the two representatives to the GNSO Council.
The Charter also includes other changes recommended by members and ICANN staff based on learning since the last Charter.
The officers have done their best to accommodate all member perspectives given the diversity of those perspectives.
The Board has requested Constituencies complete work on Charter revision by Seoul.

Zahid Jamil
Mike Rodenbaugh
Philip Sheppard

BC Officers
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