[CCWG-ACCT] Deck for Meeting #75 Mission Statement discussion

Andrew Sullivan ajs at anvilwalrusden.com
Thu Jan 7 16:36:07 UTC 2016

On Thu, Jan 07, 2016 at 04:12:24PM +0000, Phil Corwin wrote:
> But what if the Board cannot muster a 2/3 vote against GAC advice that goes beyond ICANN’s Mission and Core Values?
> Then we have the equivalent of a Constitutional crisis, with the GAC in a position as a member of the empowered community to object to accountability escalation attempts related to the situation.

I have three responses to this.  First, it seems to me that the GAC
can object but can't act alone in such a case, because if the rest of
the empowered community think the GAC's advice is outside the mission
and core values then the community can force the board to do the right
thing anyway, whatever the GAC says.  (It's "no more than one", not
"no more than 0" objections, last I checked.)

But second, the scenario imagines a case in which there is GAC advice
that goes beyond the legal responsibilities of the board members
(because of the bylaws) but where fewer than 2/3 of the board is
willing to say, "No."  This is of course a logical possibility, but it
seems to me that at some point we have to admit that board members
have power, judgement, and discretion.  The empowered community can
hold the board to account; but if you're going to have a corporation
with a board it's still going to need to be able to act.  Presumably,
the point of the board member selection process is to try to select
people who won't suddenly take leave of their senses and start doing
things outside their legal scope.

Third, I'm struggling a little to come up with a plausible example
where this would really happen.  This scenario is easy to construct in
the abstract yet rather hard to imagine in concrete terms, and I
suspect if we get to the point where such a concrete problem happened
it would indicate that things had gone awry rather earlier.  Given all
the accountability measures that are being created, how do we get to
the situation hereby imagined?  It's true that one needs to write
constitutions so that they cover hard cases.  But they also need to be
practical, and I'm not sure I see the practical concern here.

Best regards,


Andrew Sullivan
ajs at anvilwalrusden.com

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