[CCWG-ACCT] Request for Clarification on Threshold Issue
psc at vlaw-dc.com
Mon Feb 29 18:07:38 UTC 2016
+1. The GAC needs to decide whether they want to be in or out of the EC, and the decision time is now.
If the GAC can’t reach a consensus on something that basic then trying to use the accountability measures with them in the EC will be like trying to drive a car with the parking brake engaged.
Philip S. Corwin, Founding Principal
1155 F Street, NW
Washington, DC 20004
"Luck is the residue of design" -- Branch Rickey
From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Mueller, Milton L
Sent: Monday, February 29, 2016 10:12 AM
To: Martin Boyle; Kavouss Arasteh; Bruce Tonkin
Cc: accountability-cross-community at icann.org
Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
This discussion is an example of the absurdity of making participation in the empowered community (EC) optional. You were all warned about this months ago. The boundaries of the EC need to be fixed and completely unambiguous. You must be either in or out. There should be no “oh, today I think I am part of it but tomorrow I may not be.” It should not be determined on a case-by-case basis.
My understanding is that all 3 SOs are part of the empowered community, as is ALAC. My understanding is that GAC has not decided whether it is in or out. But once it does decide, it should be in or out, full stop, for all cases except the narrow carve out related to GAC advice.
If the individual entities who are in the EC (ACs and SOs) do not support a vote to spill the board, reject an IANA review decision, etc. they are voting against it, full stop. They are not “unable to cast a vote.” So a lower threshold never means that there is a chance that one SO or AC can make the decision. The threshold only changes based on whether GAC is in or out.
From: accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org> [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Martin Boyle
Sent: Sunday, February 28, 2016 3:09 PM
Kavouss makes a good point: if views are so divided in the SO/ACs that many are not able to cast a vote, there is an indication that something is wrong.
From: accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org> [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Kavouss Arasteh
Sent: 28 February 2016 17:32
To: Bruce Tonkin <Bruce.Tonkin at melbourneit.com.au<mailto:Bruce.Tonkin at melbourneit.com.au>>
Cc: accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>
Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
Accruing to some established rule ,out if seven SO/AC, the minimum would be simple majority ( 4) bellow that the process does have no longer any legal validity
Sent from my iPhone
On 28 Feb 2016, at 00:02, Bruce Tonkin <Bruce.Tonkin at melbourneit.com.au<mailto:Bruce.Tonkin at melbourneit.com.au>> wrote:
I assume there also needs to be some lower limit of participants that applies to the concept of “preventing the need for unanimous support”.
Taking an extreme case, what if only one SO or AC “chooses” to be part of the decisional process? Every decision taken would be unanimous by default.
How many participants of the 7 SOs and ACs makes a viable Empowered Community? Should it be 2, 3, or 4. I hope we get at least 4 out of 7 for it to genuinely represent a significant portion of the community.
So rather than “If fewer than 5”, it could be “If at least 4”
From: accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org> [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Drazek, Keith
Sent: Sunday, 28 February 2016 7:04 AM
To: accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>
Subject: [CCWG-ACCT] Request for Clarification on Threshold Issue
Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO:
Dear CCWG-Accountability Chairs,
We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
In our view, there is no question that the thresholds must be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to:
• Reject a proposed Operating Plan/Strategic Plan/Budget;
• Recall the entire Board of Directors; and
• Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process.
These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.”
Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC choosing to not participate, and an SO or AC being blocked from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC elects, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld.
However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase.
Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support shall be adjusted to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
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