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

Burr, Becky Becky.Burr at neustar.biz
Tue Feb 23 20:04:53 UTC 2016


I believe this is correct.  As I said, phrase (2) deals with a corner case.


J. Beckwith Burr
Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington D.C. 20006
Office: +1.202.533.2932  Mobile: +1.202.352.6367 / neustar.biz<http://www.neustar.biz>

From: Phil Corwin <psc at vlaw-dc.com<mailto:psc at vlaw-dc.com>>
Date: Tuesday, February 23, 2016 at 2:24 PM
To: Accountability Community <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>
Subject: [CCWG-ACCT] Understanding of Amended Paragraph 72 of Annex 2

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 3Ž4 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

Twitter: @VlawDC

"Luck is the residue of design" -- Branch Rickey

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