[Acct-Legal] Fwd: XPLANE update - please review

Sun May 3 05:00:36 UTC 2015

Copying this to the rest of the Legal Sub Team.

Greg
---------- Forwarded message ----------
From: Greg Shatan <gregshatanipc at gmail.com>
Date: Sun, May 3, 2015 at 12:25 AM
Subject: Re: XPLANE update - please review
To: "Gregory, Holly" <holly.gregory at sidley.com>
Cc: "Rosemary E. Fei" <rfei at adlercolvin.com>, Adam Peake <
adam.peake at icann.org>, "Hofheimer, Joshua T." <jhofheimer at sidley.com>, Leon
Sanchez <leonfelipe at sanchez.mx>, Sidley ICANN CCWG <
sidleyicannccwg at sidley.com>, ICANN-Adler <ICANN at adlercolvin.com>

I think there is some confusion -- or at least, disconnection -- across the
board here.  The XPLANE slides really need to align with the draft
proposal.  I have not yet tried to do that -- I've been out today and need
to pack and get ready for an early flight tomorrow.  I should be able to
look at this more carefully on the flight (NY - San Diego, so I'll have
some time....).  I'm not sure how to align this with everyone else's
schedule and our publication schedule.

I think confusion centers on the different current and proposed community
groupings -- their composition and what their powers, and how they relate
to each other.

There are 3 groupings at play:

1.  The "Current Selectors": the 5 organizations that currently choose
Board Members.
2.  The proposed Members or Designators.
3.  The "Empowered Community" (shown on each XPlane slide).

The problem is that we have not figured out the connection between these 3
groupings, because the composition of these 3 groupings is inconsistent.

The "Current Selectors" are:

GNSO: 2 board seats
ccNSO: 2 board seats
ASO: 2 board seats
ALAC: 1 board seat
NomCom: 8 board seats*
GAC, RSSAC, SSAC: 0 Board seats (each has one non-voting liaison)
----
*NomCom composition: GNSO (7), ALAC (5), ccNSO (1), ASO (1), IAB (for IETF)
(1), GAC, RSSAC, SSAC (each 1 non-voting liaison)

If we follow directly from the "Current Selectors" the "Members" or
"Designators" of ICANN would be the GNSO, the ccNSO, the ASO, ALAC. and the
NomCom. The GAC, RSSAC and SSAC would not be Members or Designators
(whether directly or through voting membership on the NomCom), because they
have no voting role in choosing Directors.

This does not align with our ongoing discussion of who the Members or
Designators would be.  Instead, we have discussed having Members or
Designators that align with all 8 of these groups (although only 5 can
choose Directors).

This in turn does not align with the "Empowered Community" that we seem to
think should control the 5 community powers.  That would be the 7 groups
shown on the Xplane slides, which excludes the NomCom, and gives seats (or
at least "weights") to these 7 groups in a manner that does not relate to
their power to appoint Directors.  Specifically, the GNSO, ccNSO, ASO, ALAC
and GAC are given equal weight, the RSSAC and SSAC are given lesser weight,
and the NomCom is disregarded.

We have not contemplated the linkage between "Current Selectors"; the
organizations with the *right to appoint board members*
(GNSO/ccNSO/ASO/ALAC/NomCom)
and the *Empowered Community* (GNSO/ccNSO/ASO/ALAC/GAC/RSSAC/SSAC).  If the
Current Selectors are the Members/Designators, how does the Empowered
Community have the rights we want to give it?  If the Empowered Community
are the Members/Designators, how do we deal with the fact that 3
Members/Designators have no right to appoint Directors, while the group
that can appoint 8 Directors (i.e., the NomCom) is not a Member or
Designator?  Would this be dealt with by an agreement among the 7 (or maybe
8) organizations (or more precisely, UAs aligned with these organizations)?

This needs to be figured out, and quickly....

Aside from this, there are more specific problems with the slides.  Slide 4
is particularly troublesome -- the right to remove individual directors
should not be a right of the "Empowered Community." Instead it is a right
that belongs to the GNSO, ccNSO, ASO and ALAC (but only as to each
organization's own appointments), plus the unsolved case of the NomCom.
The "Who Can Initiate A Petition" and "Things Required to Initiate"
sections seems particularly off-target.

Some of the slides have decision thresholds to "approve," while others have
thresholds to "reject," making them confusing -- this is particularly true
of the Bylaw and Fundamental Bylaw slides.  These rights appear to work in
opposite ways -- Bylaws will be changed unless 75% vote to reject, while
Fundamental Bylaws will not be changed unless 83% vote to accept.  Maybe
this is what we intended, but it looks odd when expressed this way.

On Slide 1, the title refers to "Strategy Operating Plans" -- obviously
there is no such thing.  ICANN has a Strategic Plan updated every 5 years,
a 5 Year Operating Plan updated annually, and an annual Operating Plan and
Budget derived from the 5 Year Operating Plan.  These should be referred to
accurately.

Greg

On Sat, May 2, 2015 at 9:10 PM, Gregory, Holly <holly.gregory at sidley.com>
wrote:

>  Hi Adam, perhaps we should plan on a quick call for the Legal Subteam to
> clarify to us what the intent is. We found the draft proposal and the
> slides somewhat confused in the earlier draft and tried to clarify but
> apparently without success.
>
>
>
> Sent with Good (www.good.com)
>
> ------------------------------
> *From:* Rosemary E. Fei
> *Sent:* Saturday, May 02, 2015 06:33:03 PM
> *To:* 'Adam Peake'; Gregory, Holly; Hofheimer, Joshua T.
> *Cc:* Leon Sanchez; Greg Shatan; Sidley ICANN CCWG; ICANN-Adler
> *Subject:* RE: XPLANE update - please review
>
>   Dear Adam, we will review.
>
> However, I'm not available for the next several hours, and I believe most
> if not all legal counsel team members are similarly engaged at this point
> in the weekend, so I'm not sure how quickly this review can be accomplished.
>
> More importantly, I'm unclear what the current member reference model is,
> since we thought it involved the two groups (a broader community, including
> both member and non-member groups, and a smaller membership group)
> described in our prior edits  I'm not sure how to review the slides based
> on a model I'm not familiar with.  Perhaps there's just a misunderstanding
> about what the two groups can do, and how the broader community/larger
> group can influence decisions, as opposed to the rights of the smaller
> member group.  We sent our revisions to the CCWG Draft Proposal a little
> while ago which attempted to clarify this, so we hope the concerns will be
> resolved by that.
>
> Rosemary
>
> -----Original Message-----
> From: Adam Peake [mailto:adam.peake at icann.org <adam.peake at icann.org>]
> Sent: Saturday, May 02, 2015 4:22 PM
> To: Holly Gregory; Rosemary E. Fei; Joshua Hofheimer
> Cc: Leon Sanchez; Greg Shatan
> Subject: XPLANE update - please review
>
> Dear Rosemary, Holly, Josh:
>
> Attached is an update from XPLANE of the presentation they gave on the
> CCWG call last Thursday (IRP not included, they are taking your comments
> onboard).
>
> Could you please review in light of the current member reference model,
> not the A/B approach of the last memo.  This is urgent please, we lost a
> bit of time while XPLANE looked at the approach described in your memo
>
> Leon is having a few email problems at the moment and he's not sure if he
> can find a connection robust enough to handle these large PDF files, but
> he will send a note as soon as he's able to confirm this request.  I am
> also cc¹ing Greg for consistency.
>
> All comments on how the graphics usefully represent the "empowered
> community" and the powers and mechanisms much appreciated.  Individual
> board removal/board recall is lacking.
>
> Jordan, Thomas and others have proposed a few changes.  These include:
>
> Slide "The Community Mechanism: SO/AC Membership Model" there is no (c) in
> how does it work.  The text under "Influence in the Community Mechanism"
> change to "the votes come from ICANNs SOs, ACs and the NomCom. Each SO and
> AC has a number of votes in the community mechanism, deciding on the
> powers established for the community".
>
> Slide power 1 should be "Reconsider/Reject Budget, or Strategic /
> Operating Plans"
>
> Slide power 3 (fundamental bylaws) should be 75%.
>
> Slide power 5  (board recall) should show a petition of 3 SO and AC and at
> least one of each.  Notion of quorum matters in the sense that every vote
> counts.
>
> And a comment on the IRP (but this before you updates on these slides
> which are very clear), but they were:  on IRP Slide 7 does the binding
> nature need to be modified to mention fiduciary responsibilities?
>
> Leon will write soon.
>
> Best,
>
> Adam
>
> Adam Peake
> ICANN
>
>
>
>
>
>
> ****************************************************************************************************
> This e-mail is sent by a law firm and may contain information that is
> privileged or confidential.
> If you are not the intended recipient, please delete the e-mail and any
> attachments and notify us
> immediately.
>
>
> ****************************************************************************************************
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/ccwg-accountability5/attachments/20150503/a1e43716/attachment.html>