[CCWG-ACCT] Understanding of Amended Paragraph 72 of Annex 2

Tue Feb 23 20:01:45 UTC 2016

Seun,

It could still be about the GAC (or more accurately, about the Board's
implementation of GAC advice) -- it's just that the grounds for spilling
the Board would have to be something other than a Bylaws violation.  You
are correct that the threshold would be 4 (based on the decision just put
forward by the Chairs).

Greg

On Tue, Feb 23, 2016 at 2:59 PM, Greg Shatan <gregshatanipc at gmail.com>
wrote:

> Phil,
>
> Your analysis looks correct to me.
>
> Greg Shatan
>
> On Tue, Feb 23, 2016 at 2:43 PM, Seun Ojedeji <seun.ojedeji at gmail.com>
> wrote:
>
>> Hello,
>>
>> If removal on other grounds happen; I presume that would be in a
>> situation where IRP outcome was in favour of the board but the community
>> still wants to spill the board anyway (perhaps by vote of no confidence).
>> In that case, I would expect that it's no longer about GAC and a threshold
>> of 4 would be applicable.
>>
>> Regards
>> On 23 Feb 2016 20:24, "Phil Corwin" <psc at vlaw-dc.com> wrote:
>>
>>> Now that the Co-Chairs have just issued their decision on how to
>>> proceed, I want to return to a subject that I first raised in the chat room
>>> on the call held twelve hours ago.
>>>
>>>
>>>
>>> *Section 72 of Annex 2 will now read [bracketed text in red to be
>>> deleted]:*
>>>
>>>
>>>
>>>                 The CCWG-Accountability also recommends that in a
>>> situation where the GAC may not
>>>
>>> participate as a Decisional Participant because the Community Power is
>>> proposed to be used to
>>>
>>> challenge the Board’s implementation of GAC consensus advice and the
>>> threshold is set at four
>>>
>>> in support, the power will still be validly exercised if three are in
>>> support and no more than one
>>>
>>> objects, with the following exception:
>>>
>>>
>>>
>>> ·         Where the power to be exercised is recalling the entire Board
>>> for implementing GAC
>>>
>>> advice, the reduced threshold would apply only [either (1)] after an
>>> IRP has found that, in
>>>
>>> implementing GAC advice, the Board acted inconsistently with the ICANN
>>> Bylaws[, or (2) if
>>>
>>> the IRP is not available to challenge the Board action in question]. If
>>> the Empowered
>>>
>>> Community has brought such an IRP and does not prevail, the Empowered
>>> Community
>>>
>>> may not exercise its power to recall the entire the Board solely on the
>>> basis of the matter
>>>
>>> decided by the IRP. It may, however, exercise that power based on other
>>> grounds.
>>>
>>>
>>>
>>> As I read the remaining text, the first paragraph establishes the
>>> general principle that in any situation where the Empowered Community
>>> proposes to challenge the Board’s implementation of GAC consensus advice,
>>> using any of the available community powers, the GAC would be barred from
>>> being a decisional participant, and that where the threshold for taking
>>> action is four SO/Ac votes it would drop to three.
>>>
>>>
>>>
>>> *I would note in passing that the voting threshold for exercise of a
>>> community power is set at four (per items 46-70) for only three community
>>> powers:*
>>>
>>> 1.       Reject a proposed Operating Plan/Strategic Plan/Budget
>>>
>>> *2.       **Recall the entire Board of Directors*
>>>
>>> 3.       Reject an ICANN Board decision relating to reviews of IANA
>>> functions, including the triggering of any PTI separation process
>>>
>>>
>>>
>>> Paragraph 2 then goes on to create an exception for that reduced
>>> threshold situation -- applicable only to removal of the Board in its
>>> entirety,  and not to rejection of an operating plan/budget or a review of
>>> IANA functions where the Board has acted pursuant to GAC consensus advice.
>>> For Board removal in its entirety the EC would first be required to pursue
>>> an IRP – and if the IRP determined that the Board implementation of GAC
>>> consensus advice had not violated the Bylaws the reduced voting threshold
>>> would not apply, and the matter could not be further pursued unless there
>>> were other, non-Bylaws grounds for pursuing it. In the latter instance
>>> (non-Bylaws ground), the threshold for full Board removal would be four
>>> votes (unanimity of all SOs and ACs other than the GAC, which would remain
>>> non-decisional).
>>>
>>>
>>>
>>> *Are we agreed on that view so far?*
>>>
>>>
>>>
>>> Now here is where it gets interesting, in regard to matters of Board
>>> implementation of GAC consensus advice about which the community was
>>> aggrieved, and regardless of whether such implementation involved an
>>> alleged Bylaws violation and was therefore subject to an IRP ---
>>>
>>>
>>>
>>> If the community sought to exercise power 4a contained at section 55 –
>>> “Remove an individual Board Director nominated by an SO or AC (and
>>> appointed by the Empowered Community)” – none of the above in para 72 would
>>> be relevant because the majority of the nominating SO/AC could do that on
>>> its own by an internal ¾ majority vote after inviting and considering
>>> comments from all SOs/ACs (noting that it’s not entirely clear whether the
>>> GAC would be barred from commenting, although it’s of little relevance
>>> since the electing SO/AC is in no way bound by the opinions of the others).
>>> That removal could include the Chairman of the Board if he/she was the
>>> nominee of a particular SO or AC.
>>>
>>>
>>>
>>> If the community sought to exercise power 4b contained at section 58 –
>>> “Remove an individual Board Director nominated by the Nominating Committee
>>> (and appointed by the Empowered Community)” – the lowered threshold
>>> requirement in para 72 would not be relevant because the required threshold
>>> support is “Three support, and no more than one objection”, and the GAC
>>> would be barred as a decisional participant if the challenge pertained to
>>> the Board member voting to implement GAC consensus advice. Again, this
>>> power is available to remove the Chair if he/she was a NomCom appointee
>>> (Note: I have checked the ICANN Bylaws and any Board member other the
>>> President/CEO, regardless of how they were placed on the Board, can be
>>> elected to the Chair or Vice Chair position).
>>>
>>>
>>>
>>> *Putting this all together, even after the CCWG’s Co-Chairs decision to
>>> proceed with striking clause 2 of the second paragraph of section 72, the
>>> Empowered Community could still remove the Board Chairman and Vice Chair
>>> (and sequentially chosen replacement Chairs and Vice Chairs, if they failed
>>> to lead the Board to reverse its decision implementing GAC advice), and
>>> could remove one or more additional members of the Board, whether placed on
>>> the Board by an SO/AC or by the NomCom, so long as such actions were taken
>>> individually and not collectively. And the community, if the aggrieved view
>>> was sufficiently widespread, could collectively remove (and then replace)
>>> sufficient numbers of Board members to compel a reversal of the
>>> implementation of GAC consensus advice. Indeed, there is no limitation
>>> placed  on the number of Board members who may be removed via community
>>> powers 4a and 4b so long as each is a discrete assertion of those powers
>>> pertaining to a particular Board member.*
>>>
>>>
>>>
>>> If I am correct on this interpretation then, the removal of clause 2 may
>>> not be all that significant.
>>>
>>>
>>>
>>> *If anyone believes that my interpretation of any or all of this is
>>> incorrect – especially Board or GAC members – I would urge them to voice
>>> disagreement now. I would also welcome expressions of support for this
>>> interpretation.*
>>>
>>>
>>>
>>> If you have read this far, thanks.
>>>
>>>
>>>
>>> Best to all, Philip
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>> *Philip S. Corwin, Founding Principal*
>>>
>>> *Virtualaw LLC*
>>>
>>> *1155 F Street, NW*
>>>
>>> *Suite 1050*
>>>
>>> *Washington, DC 20004*
>>>
>>> *202-559-8597 <202-559-8597>/Direct*
>>>
>>> *202-559-8750 <202-559-8750>/Fax*
>>>
>>> *202-255-6172 <202-255-6172>/cell*
>>>
>>>
>>>
>>> *Twitter: @VlawDC*
>>>
>>>
>>>
>>> *"Luck is the residue of design" -- Branch Rickey*
>>>
>>>
>>>
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>>>
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