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

[Alan Greenberg]

My presumption is that the AC/SO/or whatever would be the "member" 
and that the Chair (or delegate) would be the representative of the member.

I understand that members may be individuals, incorporated bodies or 
unincorporated bodies, but I question whether a Member can be an 
organization that owes its existence to the body in which is it a 
member. That seems to be circular definition.

Alan

At 27/01/2015 01:05 PM, Jonathan Zuck 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 | <mailto:jzuck at actonline.org>jzuck at actonline.org 
>| Skype: jvzuck
>
>ACT | The App Association
>
>
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