[CCWG-ACCT] Notes-Recordings-Transcript links for CCWG ACCT Session #14 24 February

Thu Feb 26 10:04:30 UTC 2015

Thanks, Alan, that helps me understand.
However, don’t you think that „If there is evidence that this [shared set of values] had changed, or perhaps that the person is simply not doing the job (ie not showing up or never talking to the AC/SO)” that it would be relatively easy to have also the other stakeholders’ representatives vote in favor of recalling that particular board member?

Best,

Roelof

From: Alan Greenberg <alan.greenberg at mcgill.ca<mailto:alan.greenberg at mcgill.ca>>
Date: donderdag 26 februari 2015 02:45
To: Roelof Meijer <roelof.meijer at sidn.nl<mailto:roelof.meijer at sidn.nl>>, "accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>" <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>
Subject: Re: [CCWG-ACCT] Notes-Recordings-Transcript links for CCWG ACCT Session #14 24 February

Hi Roelof,

First, a contradiction is quite possible, since the two bulleted statements were from different people. The first, I believe was Bruce Tonkin, and the second was me. I was also the one quoted earlier starting with  "Board members are appointed because they share a mindset..."

I will let Bruce explain his comment if he wishes, but here is my rationale.

The Board currently has the ability to remove any Member or Liaison (with the exception of the GAC Liaison). According to the Bylaws, they do not need a reason to do so. To my knowledge, they have never taken such an action (although there are rumours that the threat of doing so has caused 1 or 2 Board members to resign). So to date, we do not seem to take the ability to remove Board members frivolously.

I believe that an AC/SO should be able to remove their appointee if they so choose. The Board member is not their "representative", but is appointed because of a presumed shared set of values. If there is evidence that this had changed, or perhaps that the person is simply not doing the job (ie not showing up or never talking to the AC/SO), they should have recourse (Larry Strickling used the term "lose confidence in them" I think). Yes, it is possible that this could be used as a pay-back for voting the "wrong" way, but I think it highly unlikely. If a Board member from an AC/SO is going to vote against the interests of their AC/SO, presumably they will talk to the AC/SO and explain their rationale. I do agree that such a recall should require something like a supermajority.

I know of only one case in the history of ICANN where an AC/SO was *SO* upset with their appointee that they *might* have recalled the person if they had the ability. I just cannot see the capability being used frivolously, and if it was, they would probably have a difficult time re-filling the position.

Any Board member, even without the threat of recall, may choose to act in their community's interest even if they believe it is against the public interest. I'm not sure how we can prevent that, and I would hope that the majority of people we appoint will understand their mandate.

The bullet said that the other AC/SOs should not be able to gang up on someone else's Board member without their support, and remove him/her. That would allow the silencing of a Board member by those who did not like what they were saying.

I to believe that the community (by large consensus) should be able to remove NomCom appointees (who have no AC/SO) or the entire Board.

Alan

At 25/02/2015 09:20 AM, Roelof Meijer wrote:
All,

Regrettably, I had to leave yesterday’s call before the end.

Reading the meeting notes that Brenda sent us, there seems to be a kind of contradiction in the end part with:

- Recall Board members if not acting in global public interest rather than if not acting in segmented interest of a community. Consider community capture (especially a segment of community).

- We should not allow community removal of one Board member in particular – must come from the concerned community.

I think that giving (only) the concerned community the possibility to recall a particular board member, is asking for a situation in which a board member is recalled for not adequately serving the interests of that particular community (while very possibly adequately serving the public interest). Not where we want to end up, as under those circumstances board members will be stimulated to serve their community's interests primarily, instead of the public interest.

In my opinion, the power to recall the board (or part there of) can only be effectively given to representatives of the community (as opposed to the community as a whole), as discussed e.g. through a membership structure, a permanent CCWG, delegates, supervisory board etc. The power should be implemented through vote and the motion should require a supermajority to pass.

Best,

Roelof

From: Brenda Brewer <brenda.brewer at icann.org<mailto:brenda.brewer at icann.org> >
Date: woensdag 25 februari 2015 14:40
To: " accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>" < accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>
Subject: [CCWG-ACCT] Notes-Recordings-Transcript links for CCWG ACCT Session #14 24 February

[[]]
Dear all,

The notes, recordings and transcripts for the CCWG ACCT Session #14 call on 24 February will be available here: https://community.icann.org/pages/viewpage.action?pageId=52889476

Action Items

ACTION ITEM: Becky Burr and Kavouss Arasteh to further discuss offline
ACTION ITEM: Jonathan Zuck to suggest how we could change format
ACTION ITEM: Legal subteam to review and refine questions and determine whether WS1/WS2

Notes

1. Statement of interest to be uploaded/updated - contact staff if help needed

2.  Activity report from Work Parties

WP 1

- WP1 has developed a draft work plan, has agreed on working methods, is working with an aggressive deadline and plans to deliver WP output by March 11.

- Volunteers are developing templates for each power and mechanism. Current gaps will be picked up. Editors will review content.

- Triggered and non triggered categorization has been applied to items in paper, resulting in an initial allocation between two Working parties. WP1 is awaiting WP2 feedback to allocate tasks.

- WP1 has structured mechanisms around powers and finds the accountability mechanism template challenging in some ways: some questions are more relevant to mechanisms and vice-versa. It envisions to produce recommendations on how to improve it. It was commented that questions would not have same relevance to both categorizations and will be reviewed and addressed as progress is made.

- It was observed that a mechanism gives structure to power and there is need for a procedure and vehicle to support the power. Threshold (consensus/full consensus) also comes into play.

- The recommendation is to commence with the analysis of powers and to attach them with mechanisms.

- The WP1 walked the CCWG through proposed Bylaws additions on amending ICANN Bylaws to incorporate AOC reviews. The text is merged with periodic structural reviews text that currently exists in Bylaws. Edits to the AoC review process were also suggested. Feedback to suggestions included: should Bylaws give a prescriptive headcount? Stakeholder Groups being subordinates to a structure, is it really necessary to include them? ; It is important to reflect diversity and balance; While support for selections made by SO/ACs, lack of diversity was flagged as a downside and an aspect that could be preserved through selectors; Specifics may change in the future. With the objective of stable Bylaws, consider high level principles that can be included in the Bylaws instead, along with a reference to an external document where specifics would be given. In this approach a very high threshold on ability to change that document would be added; A Bylaws categorization  was proposed: 1) fundamental and constitutional provisions (stable); 2 functional and operation (less stable); 3) rules relations to elections etc; consider more lengthy timelines.

- No decision will be made on the call.

---

WP2

- WP2 has produced a revised scoping document to reflect changes and results of WP 1 work on triggered and non-triggered. Scoping documents for WP1 and WP2 are harmonized.

- Close coordination with WP 1 is needed.

- A work plan and working methods (based on WP1 modus operandi) has been circulated. Standards of work will be discussed.

- WP2 plans to have a document available by face-to-face meeting (17 March tentatively)

---

ST-WP

- ST-WP wrapped up presentation of  stress test 18 (If GAC changes operating procedures from consensus to majority voting). A contributor suggested looking into the preliminary injunction (IRP) regarding delegation of Persian and noted absence of GAC advice and a group of GAC members invoking IRP. Objections were raised by another contributor i.e. outside CCWG mandate and references made to the South Africa communiqué.

ACTION ITEM: Becky Burr and Kavouss Arasteh to further discuss offline

- ST-WP walked the group through  stress test 17 (ICANN adds a new TLD in spite of SSR concerns). Feedback included: What is our definition of success within context of stress tests?; Stress tests are going to be measures of degrees -t say yes/no answers will be rare.

- No decision will be made on the call.

ACTION ITEM: Jonathan Zuck to suggest how we could change format

3. Legal Subteam Update

- Questions have been suggested and the Subteam is awaiting questions from WP1 and WP2.

- Robin is working on framing questions into a letter that can be delivered to law firm that will be selected. Background and context will be included.

- Call with final list of law firms will be held.  Update on final candidate that will be put forward for hiring by ICANN will be shared asap.

- Questions are divided into 3 categories: 1) corporate governance; 2)jurisdictional matters; 3) protection of ICANN, antitrust and other law suits.

- Given concerns about ccTLD delegation and redelegations remedies (e.g. dispute resolution), feedback is needed.

- Feedback included: formulate questions to be list of powers and ask for mechanisms that can accomplish powers as opposed to putting mechanisms up; frame questions using how to trigger response (as opposed to yes/no); lawyers need to know what our requirements are so that can advise what empowerment can be implemented. In context of jurisdictional: global survey of jurisdiction can take ages and cost a fortune; changing jurisdiction will make transition impossible: the group needs to decide if these questions are for WS1; Keep jurisdictional issues open: are there any arbitration or international panel can go to for jurisdictional issues, is there a way to get step into resolution with something simpler to begin with; Jurisdiction might be too complicated, keep it simple (recall Board, Independent Appeals mechanism etc).

ACTION ITEM: Legal subteam to review and refine questions and determine whether WS1/WS2

4. F2F meeting

- Confirmed for 23-24 March 2015 at Hilton Istanbul Bomonti Hotel & Conference Center.

- Agenda will be circulated in time.

- Discussing May F2F meeting in coordination with CWG-stewardship leadership.

5. A.O.B

The CCWG discussed removal of individual Board members with a note that architecture needs to be revisited if allowing for entire Board or individual Board. Feedback includes:

- Current Bylaws allow that Board can dismiss individual board members if CoI. Individual removal might lead to unhealthy environment, create a witch hunt.

- Be careful to not penalize whole group if one group is concerned.

- Spilling of Board is a nuclear option and disruptive step. We are seeking incremental, implementable ways to challenge Board decision. The community does not have anybody that represents their interest. We need ability to override and challenge decision.

- Board members are appointed because they share a mindset – if not in line with mindset, should be able to remove this Board member.  There is also the case of NomCom appointed members: ability to remove them is needed.  Significant consensus among SO/ACs would be needed – the member would be removed for serious reasons. On the other hand, removal of entire Board is a whole set of issues (interim etc).

- A mechanism is needed for the three above: spilling entire board is not disruptive as long as there is a defined method; spilling an individual Board members is a SG/C decision, not a community decision to make. Recall mechanism within process defined for NomCom would take a lot more time. Vote of non-confidence on the Board or all the other need to be in WS1.

- Predictability and stability is important: recall of Board members will undermine predictability/stability. Consider reducing term and don't reelect.

- Recall Board members if not acting in global public interest rather than if not acting in segmented interest of a community. Consider community capture (especially a segment of community).

- We should not allow community removal of one Board member in particular – must come from the concerned community.

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