[liaison6c] Re: [council] Draft Revisions to the ICANN Bylaws Relating to GNSO Restructure

[Gomes, Chuck]

Avri,

I agree with everything you said with one exception: I did not think that Staff was "presenting us with what (they) felt was the only 
possible interpretation."  As I think I have made clear in my comments, I like others was very surprised that they suggested the approach of one Council seat per constituency but I did not think like some do that they are suggesting that this is the only way to go or that they are trying to drive the train on this.  As I have stated, I think it is clearly the wrong way to go.

Chuck

> -----Original Message-----
> From: owner-liaison6c at gnso.icann.org 
> [mailto:owner-liaison6c at gnso.icann.org] On Behalf Of Avri Doria
> Sent: Saturday, April 04, 2009 11:48 PM
> To: council at gnso.icann.org; policy-staff at icann.org
> Cc: liaison6c at gnso.icann.org
> Subject: [liaison6c] Re: [council] Draft Revisions to the 
> ICANN Bylaws Relating to GNSO Restructure
> 
> 
> Denise,
> 
> Thank you for the detailed note on the Staff's position on 
> these issues.
> 
> In this not I want tomake a few points on the issue 
> concerning the changes to X.3.1
> 
> 1.  From the full report of the board (which is curiously difficult to
> find on line: for those who need to get  new copy it can be 
> found at:   
> http://www.icann.org/topics/gnso-improvements/gnso-improvement
> s-report-03feb08.pdf
> )
>                              The Board requests the Council, with
>         support from Staff, to prepare suggested changes to 
> the Bylaws,
>         within six months, regarding the Council's structure on the
>         basis of four broad stakeholder groups and voting practices
>         consistent with the principles outlined above.
> 
> Thus unless the council agrees to the proposed amendments, 
> they will not constitute changes prepared by the council with 
> the support of the staff.  In the case of the one council 
> seat per constituency, I believe the staff is advocating an 
> position that can neither be warranted by the Board 
> recommendations nor by council decisions at this point.  
> While the recommendations made by the staff are appreciated 
> as a starting point, it is the GNSO council that must make 
> the decisions.  In reading your discussion, I had the feeling 
> you were presenting us with what you felt was the only 
> possible interpretation.  I wish to take issue with this assumption.
> 
> 2. I certainly see no language in the Board/BCG 
> recommendations requiring that each new constituency get a 
> seat on the council.  In fact all of the discussions on 
> seating in the council is at the SG level.
> And my reading of the recommendations, as well as the length 
> discussions the council had with the BCG indicate the 
> intention to de-link the seats in the council from the 
> constituency structure.  Perhaps we will need to get a ruling 
> from the Board on this as it is difficult to proceed with 
> such diametrically opposed understandings on the board's 
> decision.  My reading says that there is no direct linkage 
> between the existence of a constituency and a seat on the 
> Council, though of course the SG has to show that is is 
> giving fair representation to all in the SG group - whatever 
> constituency they may be a member of or however many 
> constituencies they may be a member of.
> 
> 3. There was certainly no language indicating that once we 
> got to more then 6 constituencies in a non-contracted house 
> or more then 3 constituencies in the contracted house that we 
> would need to restructure
> yet again.    I hope that we are successful in bringing new
> constituencies into the process, and I think that a well 
> defined WG process will aid in doing so.  But if the by-law 
> change you and your staff advocate were to be advanced, I 
> believe that pain of an additional restructuring as well as 
> the waste of time and effort it would constitute would work 
> as a disincentive to the acceptance on new constituencies.  
> It would be as hard to add the 4th constituency to one of the 
> contracted house as it was to add new constituencies before 
> the reorg we are suffering through at the moment.  I believe 
> that creating disincentives for the creation on new 
> constituency was definitely not something the Board was 
> intending in its decision.
> 
> 4. While it is true that the reason for constituting new 
> constituencies is to allow greater voice, given the function 
> of the future council as a management group, and given that 
> voice is dependent on WG participation and not council 
> membership, the subject of voice and a council seat are 
> orthogonal to each other.  Thus I do not believe that a 
> requirement for one council  seat for each new constituency 
> can be backed up by an interpretation of the requirements for 
> change made by the Board. 
> 
> 5. Finally it is up to the stakeholders charters, as approved 
> by the board to determine the process by which seats are 
> allocated - this is explicit in the BCG recommendation.  Each 
> of the SG has been given the opportunity to design a fair and 
> comprehensive system for doing so. The Board will review each 
> of these SGs in order to determine whether they do or not. It 
> seems to me that the right of self determination by the SGs 
> with the advice and consent of the Board must not be 
> abrogated by Policy Staff fiat.
> 
> thanks
> 
> a.
> 
> 
> 
> On Tue, 2009-03-31 at 11:31 -0700, Denise Michel wrote:
> > Many thanks to all of you who have already commented on the draft 
> > revisions to the ICANN Bylaws relating to GNSO 
> restructuring that were 
> > circulated late last week to start community discussion (also 
> > attached).  Your emails were particularly useful in getting 
> everyone 
> > to focus quickly on several specific issues.  In this 
> message, we'll 
> > attempt to address a number of the specific comments made 
> Friday and 
> > over the weekend to give you some background on our 
> drafting thoughts 
> > to help further the dialogue.
> > 
> > Article X:
> > 
> > §3.1     Issue:  This proposed Bylaws amendment assigns the
> > responsibility for selecting Council representatives to the four 
> > Stakeholder Groups with the stipulation that each Board-recognized 
> > Constituency shall be allocated a minimum of one seat on the GNSO 
> > Council.
> > 
> > This article seems to have garnered the most immediate 
> attention and 
> > questions.  Rather than prejudging this issue, Staff's view 
> was that 
> > this revision was entirely consistent with the GNSO Improvements 
> > Report, the Board's resolution, and various Board 
> discussions to-date.  
> > Existing constituency Council seats are currently 
> hard-wired into the 
> > Bylaws and no Board member or Board committee has suggested 
> to us that 
> > this be changed. As discussed in greater detail below, 
> elements in the 
> > Board-approved GNSO Improvements Report and in Board resolutions 
> > suggest that the role of Constituencies within the GNSO 
> continues to 
> > be significant and merits ongoing support in the Bylaws.
> >  
> > 1.   The GNSO Improvements Report produced by the Board Governance
> > Committee (BGC) and endorsed by the Board last June emphasized the 
> > continued primacy of the Constituency structure as a fundamental 
> > building block of the GNSO.  The Report did not attempt to 
> change the 
> > existing Bylaws mechanisms by which the Board evaluates and 
> approves 
> > GNSO Constituencies, but instead recommended that the 
> process be more 
> > fluid, open, and accessible.
> >  
> > In fact, the Report contains many references to expanding 
> Constituency 
> > involvement in the GNSO by (a) encouraging new groups to form, (b) 
> > providing those structures with standard "tool kits" of 
> administrative 
> > services, (c) evening "the playing field" among constituencies, (d) 
> > creating general best-practice guidelines to ensure consistent 
> > operational practices across different groups, and (e) assuring the 
> > community that transparency, openness and fairness remain 
> fundamental 
> > ICANN principles.  The Report specifically states that:
> > "It should be noted that we view the new stakeholder structure 
> > primarily as a way to organize the Council.  While it will also 
> > encourage the constituencies to maximize their common interests, it 
> > does not on its own change the constituency structure 
> itself." (Board 
> > GNSO Improvements Report, page 42).
> > 
> > The ICANN Board, in its 1 October 2008 resolutions, reinforced its 
> > support for the following principles pertaining to the formation of 
> > the new Stakeholder Groups.  The Board specifically 
> requested that, in 
> > establishing the newly formed structures, all constituency 
> members and 
> > other relevant parties comply with the Board's principles 
> including, 
> > "The inclusion of new actors/participants, where 
> applicable, and the 
> > expansion of constituencies (emphasis added) within Stakeholder 
> > Groups, where applicable."
> >  
> > The GNSO Improvements Report anticipated the creation of a lightly 
> > structured Stakeholder Group (SG) organizational layer to 
> be inserted 
> > between Constituencies and the GNSO Council with a primary 
> > responsibility to select/allocate/apportion GNSO Council 
> seats among 
> > its Constituency members.  It did not anticipate the elimination of 
> > Constituencies in favor of Stakeholder Groups, although some in the 
> > community now suggest that Constituencies may no longer be 
> necessary.
> >  
> >  
> > Staff's position is not new and, at the Board's direction, 
> Staff has 
> > made every effort to share its understanding with the 
> community over 
> > the past six months through informal discussions with Constituency 
> > leaders and by providing sample organizational templates 
> designed to:
> >  (a) help the community assess existing Constituency charters; (b) 
> > guide the development of potential new Constituency 
> charters; and (c) 
> > assist community leaders as they fashioned new Stakeholder 
> Group (SG) 
> > charters.
> >  
> > 2.  Second, among the stated goals of restructuring is to encourage 
> > the formation of new Constituencies to enhance the diversity of 
> > viewpoints in ICANN.  As is true in the current Bylaws, Staff's 
> > proposed amendment in this section continues to place the 
> > responsibility with the Board to determine if the viewpoint 
> > represented by the Constituency applicant is significant 
> enough to be 
> > entitled to recognition and, thereby, a minimum of one Council seat.
> >  
> > Based upon a few of the Stakeholder Group voting systems that have 
> > been submitted thus far, a newly approved Constituency may 
> not gain a 
> > Council seat, which raises concerns about depriving the 
> GNSO Council 
> > of the new voices that the Board formally recognizes.  It is 
> > conceivable that, without the GNSO seat requirement, an incumbent 
> > interest group could control a Stakeholder Group and potentially 
> > prevent these new viewpoints from fully participating in the GNSO.
> > Without the promise of being able to participate 
> meaningfully at the 
> > Council level, Staff is concerned that prospective new 
> organizations 
> > may not pursue the arduous tasks of organizing, 
> petitioning, drafting 
> > a charter, and defending their viability in being formally 
> recognized
> > as a Constituency within the GNSO.   Without Board 
> protection in this
> > potentially volatile and delicate vetting process, 
> Constituencies in 
> > formation may cease to make the effort.  If that reality should be 
> > allowed to unfold, the GNSO will have failed to achieve a vital 
> > element of the Board's vision.
> >  
> > It has been suggested that there should not be a hard-wiring of 
> > Constituencies to Council seats and seat allocation should be a 
> > Stakeholder Group responsibility.  We agree that SGs should 
> have that 
> > responsibility, although not without any constraints, and this is 
> > reflected in these proposed Bylaws to spur consideration and 
> > discussion.  The current allocation of Council seats to 
> Constituencies 
> > has been hard-wired since 2003.  It does not seem inconsistent to 
> > accord a similar right to each prospective new Constituency that is 
> > Board-approved.  (See Article XX below for discussion of 
> what happens 
> > in the future should we reach a point where the number of 
> > Constituencies exceeds the number of Council seats.)
> >  
> > 3.  Third, as it relates to the non-contracted party house, 
> the GNSO 
> > restructuring removed three seats (collectively) from the 
> Commercial 
> > Constituencies and provided a new Non-Commercial Stakeholder Group 
> > with six seats.  The rationale for this shift was that this was 
> > appropriate because, with the proper outreach and recruitment 
> > activities, additional non-commercial Constituencies would 
> be formed 
> > that would hold seats to represent different viewpoints on the GNSO 
> > Council.
> > "...a new non-commercial Stakeholders Group must go far beyond the 
> > membership of the current Non-Commercial Users Constituency (NCUC).
> >  We must consider educational, research, and philanthropic 
> > organizations, foundations, think tanks, members of academia, 
> > individual registrant groups and other non- commercial 
> organizations, 
> > as well as individual registrants, as part of a non-commercial 
> > registrants Stakeholders Group." (Board GNSO Improvements 
> Report, page
> > 32)
> >  
> > Guaranteeing a Council seat to new Constituencies in this SG, which 
> > will have half of the Council's non-contracted party seats, 
> provides 
> > assurance that diverse viewpoints will be represented and 
> heard on the 
> > Council.
> >  
> >  
> > §3.3     Issue:  Procedures and voting threshold for 
> removal of an NCA
> > for cause.  
> > 
> > The language concerning removal of a Nominating Committee Appointee
> > (NCA) for cause was included for completeness, but Staff is 
> > recommending that it (along with all non-PDP thresholds) be 
> relocated 
> > to the GNSO Council's Operating Rules.  The provision and voting 
> > thresholds, as specified for each house, were taken from 
> the Working 
> > Group on GNSO Council Restructure (WG-GCR) Report approved by the 
> > Board in its 1 October 2008 meeting (see below).
> >  
> > It is, Resolved (2008.10.01.09), the Board adopts all voting 
> > thresholds proposed in the WG-GCR Report.  The Board 
> requests that the 
> > GNSO develop any additional voting thresholds or categories 
> that may 
> > be needed as part of its proposed GNSO Improvements Implementation 
> > Plan to be submitted to the Board for approval.
> > 
> > This issue could conceivably be revisited in the context of the 
> > Council Operating Rules effort since it is anticipated that those 
> > rules would need to be approved by the Board before becoming 
> > effective.
> >  
> >  
> > §3.6:    Issue:  Board Seats #13 and #14
> > 
> > As explained in the footnote to this section, the language 
> presented 
> > in yellow highlight was recommended in the WG-GCR Report; 
> however, it 
> > has not been approved by the Board.  Staff is hoping to 
> collect some 
> > final additional community feedback on the matter again 
> this month and 
> > expects final Board action on this matter at it's 23 April meeting.
> >  Once the Board has acted, this section will be amended to 
> reflect the 
> > Board's decision as to the methodology and any other rules 
> pertaining 
> > to these selections.  I have asked Rob to make a final request to 
> > constituency leaders for feedback on the Board Seat issue 
> and he will 
> > follow up on that mater this week.
> >  
> >  
> > §3.8     Issue:  Confusion as to whether the NCAs are appointed to
> > each voting house by the Nominating Committee.  
> > 
> > Staff acknowledges that the original wording in (a) and (b) 
> could be 
> > interpreted in a way that was not intended by the drafters.  Staff 
> > recommends the following amendment to this section to avoid 
> ambiguity 
> > as to how the NCAs are actually selected/appointed to each voting
> > house: 
> >  
> > a.  The Contracted Party House includes the Registry 
> Stakeholder Group 
> > (three members), the Registrar Stakeholder Group (three 
> members), and 
> > one Nominating Committee Appointee (NCA) for a total of 
> seven voting 
> > members; and b.  The Non-Contracted Party House includes the 
> > Commercial Stakeholder Group (six members), the Non-Commercial 
> > Stakeholder Group (six members), and one Nominating Committee 
> > Appointee (NCA) for a total of thirteen voting members.
> > The assignment of each Nominating Committee Appointee to a voting 
> > house is determined by the GNSO Council Operating Rules and 
> > Procedures.
> >  
> >  
> > Article XX
> > 
> > §5.1     Issue:  Provision that the Board resolves any condition in
> > which the number of Constituencies exceeds the available 
> Council seats 
> > in a Stakeholder Group.
> > 
> > Staff refers to the explanation provided above in response 
> to Article 
> > X, §3.1.
> >  
> > Arguably, this language may not need to be expressed in the Bylaws; 
> > however, Staff believes that it is important to recognize formally 
> > that this potential condition (i.e. Constituencies exceeding the 
> > number of SG Council seats) could have the effect of causing 
> > prospective new Constituencies to wonder how they can 
> become involved 
> > if there are no remaining positions available.  While the 
> circumstance 
> > appears to be remote in today's environment, there should be a 
> > provision to address it before it occurs.  If the Board elects to 
> > change the Council organization or voting structure then the Bylaws 
> > would have to be modified in any case.  One alternative might be to 
> > move the language from this section to Article XX-Transition.
> >  
> >  
> > §5.5     Issue:  Transition language to map the existing 
> Constituency
> > seats to the new Stakeholder Groups.  
> > 
> > Staff emphasizes that this section of the transition 
> article is only 
> > intended to map the existing Constituency seats (SGs do not yet 
> > formally exist) to the new Stakeholder Groups.
> >  
> >  
> > §5.11      Issue:  Voting thresholds for Policy Development Process
> >  
> > As explained in an email sent to the Council list on 
> Friday, 27 March 
> > by Ken Bour, the voting thresholds originally prescribed by the 
> > Working Group on GNSO Council Restructuring (WG-GCR) contained both 
> > PDP and non-PDP elements.  In this re-drafting exercise, Staff 
> > recommended that the thresholds be parsed out as follows:  
> the non-PDP 
> > voting thresholds will be contained in Council OR&P while the PDP 
> > thresholds will be included in Article XX-Transition until 
> such time 
> > as the Policy Process Steering Committee (PPSC) and Policy 
> Development 
> > Process (PDP) Work Team (Jeff Neumann, Chair) have completed 
> > deliberations and are prepared to recommend a formal 
> revision to Annex 
> > A of the Bylaws.  Since the PDP thresholds are currently 
> specified in 
> > Annex A, which is not being revised as part of the Council 
> > restructuring effort, Staff recommends that the new PDP thresholds 
> > should be included in Article XX vs. Council OR&P.  Article XX is a 
> > "transition" document only and, once the PDP voting thresholds are 
> > successfully relocated from Annex A to the Council OR&P (Staff's 
> > recommendation), Article XX can be removed from the Bylaws in its 
> > entirety (assuming all other transition matters are 
> completed). Below 
> > are the voting thresholds recast into the two groupings:
> >  
> > Non-PDP: 
> > a)    Elect Council Chair:  requires 60% of both houses. 
> > b)    Remove NCA for Cause: requires 75% of both houses 
> (excluding the
> > NCA subject to removal); subject to Board approval.
> > c)    All other GNSO Council Business (default): requires 
> majority of
> > both houses. 
> > 
> > PDP:
> > a)    Create an Issues Report:  requires more than 25% vote of both
> > houses or majority of one house. 
> > b)    Initiate a PDP within Scope:  requires more than 33% vote of
> > both houses or more than 66% vote of one house. 
> > c)    Initiate a PDP not within Scope:  requires a vote of more than
> > 75% of one house and a majority of the other house ("Super 
> Majority").
> > d)    Approve a PDP without a Super Majority:  requires a 
> majority of
> > both houses and further requires that one representative of 
> at least 3 
> > of the 4 Stakeholder Groups supports.
> > e)    Approve a PDP with a Super Majority:  requires 
> greater than 75%
> > majority in one house and majority in the other house.
> >  
> > The PDP thresholds (above) were taken from the consensus 
> > recommendation of the WG-GCR and have been approved by the Board.
> >  
> > Staff recommends that, while the thresholds themselves are 
> not subject 
> > to Council or community rewrite, the PPSC and PDP Work Team do have 
> > the goal of reengineering the entire PDP.  If, in the 
> course of those 
> > deliberations, it appears that some or all of the above thresholds 
> > need to be modified or recast, the Board will need to take those 
> > recommendations under advisement.
> >  
> > Staff also notes that the Operations Steering Committee 
> (OSC) and the 
> > GNSO Council Operations Team are working on developing the methods, 
> > procedures, administration, and tools (to become part of the Council
> > OR&P) that will need to be in place when the Council takes 
> its first 
> > bicameral vote, which could be as early as its June meeting 
> in Sydney.
> >  
> >  
> > General Comments
> > 
> > Finally, contrary to a recent comment, Staff would like to clarify 
> > that it has not prejudged or "made up its mind" on any of these 
> > issues.  As the GNSO Improvements Report noted:
> >  
> > "Many details, of course, remain to be worked out 
> concerning the new 
> > stakeholder structure for the Council, including the role of 
> > constituencies and/or interest groups within them.  As 
> noted earlier, 
> > we welcome the GNSO working with Staff to develop the appropriate 
> > Implementation Plan."  (Board GNSO Improvements Report at page 33).
> > 
> > In preparing the draft Bylaws, Staff has tried to track the 
> > implementation of GNSO Improvements and Restructuring to specific 
> > directions from the Board.  We hope that this exercise serves to 
> > facilitate discussions on these important topics in order 
> to resolve 
> > them in a timely manner.  We welcome further conversation about how 
> > these elements might be achieved with different language.  
> All Policy 
> > Staff involved can be reached via policy-staff at icann.org and
> > +1-310-823-9358.
> >  
> > Regards,
> >  
> > Denise Michel
> > Vice President, Policy
> 
>