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

Wed Jan 28 05:29:53 UTC 2015

I have been thinking about this too for the last days, and I am wondering if we are not just adding another layer? 

Which eventually as Kieran says will lead to the same jockeying, same power relationships and no significant changes?

Should we not perhaps better reform the Board, which from what I read is seen as evil?

My own view is that all very reasonable people turn into very unreasonable people when appointed to the Board, and so far, only one, who I asked when he was appointed to promise that this would not happen to him has not. On the other director appointed at the same time, sitting in the same bar with is, the jury is still somewhat out.

el

Sent from Dr Lisse's iPad mini

> On Jan 27, 2015, at 22:12, Kieren McCarthy <kieren at kierenmccarthy.com> wrote:
> 
> Nice to see some firm details on this.
> 
> The optics of 11 people overseeing a Board of 20 is a little odd. 
> 
> That said, I think one area where the "multistakeholder model" is veering off into the impossible is this habit of creating massive committees every time there is an issue ("ALAC wants 4 people; the GAC wants 5; the GNSO wants 9").
> 
> What I do like is the idea of the members being obliged to represent their groups rather than this abused concept of acting in the organization's overall best interests - which for a decade has been shorthand for "what the legal department says".
> 
> On the other hand, ICANN is so status driven and so many posts are seen as stepping stones to being on the Board rather than standing on their own terms, that I worry the reality of this member group would be yet more politics, self-promotion and behind-the-scenes deals. 
> 
> If you could find members or introduce rules that meant they would genuinely represent their group's overall view, then I think this approach could be a good approach. 
> 
> Rules I would consider:
> 
> * Members cannot have been on the ICANN Board previously
> * Members are barred from sitting on the ICANN Board for 5 years after their term is up
> 
> 
> 
> Kieren
> 
> 
> 
>> On Tue, Jan 27, 2015 at 10:05 AM, 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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> 
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