[CWG-Stewardship] Additional Bylaws Issues

[Seun Ojedeji]

Sent from my LG G4
Kindly excuse brevity and typos
On 13 Apr 2016 12:00 a.m., "Gomes, Chuck" <cgomes at verisign.com> wrote:

>
> ICANN Bylaws input from Chuck Gomes 12 April 2016
>
>
>
> In my personal review of the Bylaws I noted the following issues that I
don’t think were covered in the CWG Bylaws Review meeting today:
>
> ·         There are several acronyms or terms that are used before they
are defined:
>
SO: Observed that as well, but considering that their explanations are
quite long and detail I wonder to what extent they could reorganise things.

>
> ·         Unless I missed it somewhere, as far as I can tell the
‘Decisional Participants’ are not named anywhere in the Bylaws even though
they are referenced dozens of times.
>
SO: That seem to be attributed(defined) in Section 6.1a

> ·         Section 8.2 on page 54 of the redlined version (page 56
overall) says that one member of the NomCom will be selected by the NCUC.
>
SO: While I think this is particularly within the scope of the CCWG, I
don't think nomcom composition was even discussed in that group and I am
quite surprised that there has been edits that exceeds just renumbering on
that section.

> o   I have no problem with that but I do wonder if it should say NCSG
instead of NCUC.
>
> o   I am pretty sure that the original version of this language was
before there was a NCSG and before the NPOC existed.
>
SO: While my concern above still stand, the version I am looking at that
compares the current bylaw with proposed version seem to indicate that it's
been NCUC all along.

> ·         Section 16.2(a) on page 86 of the redline version (page 89
overall) says: “ICANN, in its capacity as the sole Member of PTI, shall
elect the directors of PTI in accordance with the articles of incorporation
and bylaws of PTI and . . .”
>
> o   It is my understanding that ICANN shall elect three of the five
directors, not all five.
>
> o   Shouldn’t this be corrected?
>
SO: Oops that's a good catch and somehow I thought I saw where the
composition was indicated early now I can't seem to find it. Thanks for
noting that

> ·         Section 18.7(c) on page 97 of the redline version (page 100
overall) says that the IFRT will contain two (2) representatives from the
RySG.
>
> o   Note that it also says that there will be three ccTLD members (two
from the ccNSO and one not from the ccNSO).
>
> o   Note also that Section 19.5(iii) says that the SCWG will have three
(3) RySG representatives, the same number as for ccTLDs, two from the ccNSO
and one not from the ccNSO.
>
> o   Was this just an inadvertent oversight?
>
> o   It seems to me that the IFRT should have three (3) representatives
from the RySG.
>
SO: For IFRT, one could say that the Rysg having 2 is because Registrar
stakeholder group has one which makes 3 in total and perhaps that of the
SCWG needs to be updated to 2 RySG.

On a sightly related note, the more I look at the compositions on the
review teams the more I wonder how this skipped us during the proposal
development. There are 8/9 votes (counting the NCSG and CSG) already from
the SO related groups and just 4 from the AC. It's a huge imbalance that
makes me still wonder what went wrong during the discussion that made us
not to pay attention to that. This is the more reason why I will always be
against anything with majority in it as a way of making decisions within
the groups!

Regards

> ·         Section 22.4(b), IANA Budget, says: “At least 45 days prior to
the commencement of each fiscal year, ICANN shall prepare and submit to the
Board a proposed annual budget of ICANN for direct costs for ICANN’s IANA
department, all costs for PTI, direct costs for shared resources between
ICANN and PTI and support functions provided by ICANN to PTI and ICANN’s
IANA department for the next fiscal year (the “IANA Budget”), which shall
be posted on the Website.”
>
> o   The recommendation of DT-O regarding the IANA Budget was that it be
approved prior to approval of the ICANN Budget.
>
> o   DT-O’s recommendation was made prior to any knowledge that a change
to the Bylaws would be proposed to require submission of an ICANN Budget to
the Board 45 days prior to the start of the applicable fiscal year.
>
> o   I support the requirement for submission of an ICANN Budget to the
Board 45 days prior to the start of the applicable fiscal year but believe
that there are advantages to the IANA Budget being approved earlier than
the ICANN Budget; having the IANA Budget approved prior to consideration of
the final ICANN Budget will:
>
> §  Remove any dependency of IANA services funding from approval or veto
of the ICANN Budget
>
> §  Allow more time for resolution of a veto of the IANA Budget
>
> §  Provide increased confidence that IANA services will continue without
interruption.
>
> o   My personal recommendation would be that the IANA budget be submitted
for Board approval with sufficient time to be approved prior to submission
of the ICANN Budget for Board approval.
>
> o   Note that DT-O plans to discuss this issue in its meeting on 13 April
2016.
>
> ·         Paragraph (e) in Section 3.2 (SO/AC Director removal process)
on page 187 of the redline version (overall page 190) requires “a
three-quarters majority of an applicable Decisional Participant as
determined pursuant to the internal procedures of the Applicable Decisional
Participant for the SO/AC Director Removal Petition.
>
> o   If the GNSO is the applicable Decisional Participant, the GNSO does
not presently define what a ‘three-quarters majority’ is.
>
> o   Presumably, following current threshold definitions for the GNSO
Council, a three-quarters majority would be defined as a three-quarters
majority of each house.
>
> o   Is the addition of this definition considered to be an implementation
action item for the GNSO?
>
> ·         Paragraph 1.f in Annex E, The ICANN Caretaker Budget, on page
208 of the redline version (overall page 211) says: “Notwithstanding any
other principle listed above, prevents ICANN from initiating activities
that are subject to community consideration (or for which that community
consideration has not concluded), including without limitation, preventing
implementation of the expenditures or undertaking the actions that were the
subject of the ICANN Budget that was rejected by the EC and that triggered
the need for the Caretaker ICANN Budget.”
>
> o   This clause seems appropriate in a case where the EC rejects the
budget because it does not support funding certain actions or thinks that
too many funds are allocated to those actions.
>
> o   But what about a situation in which the EC rejects the budget because
it believes that insufficient funds are budgeted for certain actions?  In a
case like that, it might not be necessary to prevent funding of the actions
while the dispute is resolved; in other words, it might be fine if the
actions proceeded at the reduced funding level until a decision is made on
increased funding, especially if taking the actions at the reduced funding
level would not negatively impact the actions if increased funding was
provided later.
>
> o   I wonder whether this clause should be reworded to accommodate such
situations; if so, then a change may also need to be made in section 2.b.v,
Examples of expenditures that would be excluded from a Caretaker Budget:
“the proposed expenditure that was the basis for the rejection by the EC
that triggered the need for the Caretaker ICANN Budget.”
>
> ·         Paragraph 1.f in Annex F, IANA Caretaker Budget Principles, on
page 211 of the redline version (overall page 214) says:  “Notwithstanding
any other principle listed above, prevents ICANN, in its responsibility to
fund the operations of the IANA functions, from initiating activities that
are subject to community consideration (or for which that community
consultation has not concluded), including without limitation, preventing
implementation of the expenditures or undertaking the actions that were the
subject of the IANA Budget that was rejected by the EC and triggered the
need for the Caretaker IANA Budget.”
>
> o   This clause seems appropriate in a case where the EC rejects the
budget because it does not support funding certain actions or thinks that
too many funds are allocated to those actions.
>
> o   But what about a situation in which the EC rejects the budget because
it believes that insufficient funds are budgeted for certain actions?  In a
case like that, it might not be necessary to prevent funding of the actions
while the dispute is resolved; in other words, it might be fine if the
actions proceeded at the reduced funding level until a decision is made on
increased funding, especially if taking the actions at the reduced funding
level would not negatively impact the actions if increased funding was
provided later.
>
> o   I wonder whether this clause should be reworded to accommodate such
situations; if so, then a change may also need to be made in section 2.b.v,
Examples of expenditures that would be excluded from a Caretaker Budget:
“the proposed expenditure that was the basis for the rejection by the EC
that triggered the need for the Caretaker ICANN Budget.”  (Note that a
minor edit is needed: it should say Caretaker IANA Budget, not Caretaker
ICANN Budget.)
>
> o   Note that DT-O plans to discuss this issue in its meeting on 13 April
2016.
>
> ·         Note that a glossary of acronyms and key terms would be a very
useful aid for community members.
>
>
>
>
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