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

Jordan Carter jordan at internetnz.net.nz
Tue Feb 23 20:14:17 UTC 2016


Phil,

I believe all this is correct.

It is one of the many reasons I didn't mind which fork was taken.

Jordan

On Wednesday, 24 February 2016, 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/Direct*
>
> *202-559-8750/Fax*
>
> *202-255-6172/cell*
>
>
>
> *Twitter: @VlawDC*
>
>
>
> *"Luck is the residue of design" -- Branch Rickey*
>
>
>


-- 
Jordan Carter
Chief Executive, InternetNZ

+64-21-442-649 | jordan at internetnz.net.nz

Sent on the run, apologies for brevity
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