[CCWG-ACCT] got some lawyerly answers on membership structure

[Jordan Carter]

Thanks Jonathan, interesting and useful assistance.

cheers
Jordan

On 28 January 2015 at 07:05, Jonathan Zuck <JZuck at actonline.org> wrote:

>  The idea of ICANN membership has come up as a means to anchor the
> organization in the existing bottom-up, multi-stakeholder community,
> thereby ensuring its continued legitimacy. The very essence of work stream
> 1 is that ICANN's Board of Directors would become accountable to the
> community, in much the same way that the Boards of publicly-traded
> companies are ultimately accountable to their shareholders.
>
> Some good and reasonable questions have been raised on the list about the
> legality and complexity of a possible membership structure under California
> not-for-profit corporate law. I tasked my in-house counsel with researching
> some of these questions and, while recognizing that the CCWG still needs
> independent expert advice, here's what she's been able to determine:
>
>
>
> *Q: What would this look like?*
>
> *Briefly, the idea is that the head of each of the 11 current ICANN groups
> (*supporting organizations, advisory committees, and stakeholder groups) *would
> become one of the members of ICANN, and would continue to serve as an ICANN
> member until someone else took over the leadership of that group*.
>
>
>
> *Q: Is the proposed membership structure legal?*
>
> *A: Under California non-profit law, a tax-exempt organization may be
> comprised of members.  A tax-exempt organization has broad leeway to create
> a membership structure that best suits its particular needs. It's clear
> under California law that individuals may be members. Cal. Corp. Code
> 5310(a). Moreover, California law does not restrict membership to legally
> organized groups. Cal. Corp. Code 5313. Thus, it is appropriate for an
> individual, identified by a group (whether incorporated or unincorporated)
> to be a member. Alternately, membership can be granted to a group, which
> can then authorize a person to vote on its behalf. Cal. Corp. Code 5056(c).*
>
>
>
> *Q: Will the Government Advisory Committee have a member?  Can a
> government representative be a member of a non-profit organization?*
>
> *A: Yes.  As an Advisory Committee, the GAC would have one member on
> ICANN.  California non-profit law permits a government representative
> (including a representative of a foreign government) to be a member of a
> non-profit organization. However, if the GAC determines that it prefers to
> remain only an advisory body and not take on this new membership role, the
> model is still viable.*
>
>
>
> *Q: Will the new membership structure be flexible enough to accommodate
> future changes to ICANN?*
>
> *A: Yes.  Future changes to ICANN membership status would be approved by
> the members.  For example, if a new stakeholder group, supporting
> organization or advisory committee is created under the bylaws, the current
> members could offer membership to that entity by a 3/4 vote.  Similarly,
> the current members could remove a current member by a 3/4 vote.  The
> required flexibility would just need to be incorporated into the updated
> bylaws. *
>
>
>
> *Q: How would the members remain accountable?*
>
> *To ensure full accountability, the 11 members would serve on behalf of
> their respective memberships and could be recalled or replaced by their
> group at any time.*
>
>
>
> *Q: How to prevent membership from being GNSO-heavy?*
>
> *Any concerns about the 11 members being too GNSO-heavy could be addressed
> via a weighted voting structure or similar mechanism. *
>
>
>
> *Q: How will the new membership structure prevent organizational capture?
> Will each member be treated the same?*
>
> *A: The new membership structure prevents organizational capture by giving
> each stakeholder group only one representative member to ICANN and
> requiring a 3/4 vote for significant decisions, thereby ensuring
> significant consensus.  Each member receives one vote of equal weight to
> the other members.  For instance, governments are represented by the GAC
> Chair, and have only one collective voice out of 11 in the accountability
> process.*
>
>
>
> *Q: Will the membership process preclude those unable or unwilling to pay
> membership dues?*
>
> *A: Membership would be free to all eligible members.  Participation in
> the existing group of supporting organizations and advisory committees will
> not be altered, and will remain free of charge.*
>
>
>
> I hope this helps to inform our discussions while we wait for the
> independent legal experts to give us their views.
>
>
>
>
>
> Jonathan Zuck
>
> *President*
>
> 202-331-2130 X 101 | jzuck at actonline.org | Skype: jvzuck
>
>
>
> ACT | The App Association
>
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-- 
Jordan Carter

Chief Executive
*InternetNZ*

04 495 2118 (office) | +64 21 442 649 (mob)
jordan at internetnz.net.nz
Skype: jordancarter

*To promote the Internet's benefits and uses, and protect its potential.*
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