[council] Request from Kristina Rosette Re: Solicitation of Outside Advisors

[Margie Milam]

Dear All,

This is in response to Kristina Rosette's request at the Council's 23 June meeting regarding Staff's interpretation of Bylaws Section 10(b) of Annex A pertaining to the solicitation of outside advisors.

After reviewing this internally, I learned that there is no established procedure to seek outside opinions under Section 10(b) and that this Section has not been invoked in the past by the GNSO Council.

Section 10 (Council Deliberation) describes the process to be followed by the GNSO Council upon receipt of a PDP Final Report.   Note that this section is largely out-of-date, since the GNSO Council's practice differs from that described in Section 10, and Annex A is being updated through the GNSO restructuring work currently underway.    Section 10 states:

"10a.   Upon receipt of a Final Report, whether as the result of a task force or otherwise, the Council chair will (i) distribute the Final Report to all Council members; and (ii) call for a Council meeting within ten (10) calendar days thereafter. The Council may commence its deliberation on the issue prior to the formal meeting, including via in-person meetings, conference calls, e-mail discussions or any other means the Council may choose. The deliberation process shall culminate in a formal Council meeting either in person or via teleconference, wherein the Council will work towards achieving a Successful GNSO Vote to present to the Board.

10b.     The Council may, if it so chooses, solicit the opinions of outside advisors at its final meeting. The opinions of these advisors, if relied upon by the Council, shall be (i) embodied in the Council's report to the Board, (ii) specifically identified as coming from an outside advisor; and (iii) be accompanied by a detailed statement of the advisor's (x) qualifications and relevant experience; and (y) potential conflicts of interest."
Staff's view is that outside opinions are an important part of the PDP process to enable the development of fact-based, thoroughly researched policies.   This view is consistent with the Board-approved BGC GNSO Improvements Report which noted that working groups should engage in fact finding, research, and should seek expert opinions where necessary when developing new policies.   Given the Council's new strategic role as a manager and supervisor of the policy development process, Kristina's inquiry raises the question of whether these opinions should be sought by the working group during its deliberations, rather than by the Council after the Final Report (per Section 10(b)).    In our view, it may be more efficient to seek the opinion during the working group deliberations in order for the opinions to be considered by the working group and reflected in the recommendations of the Working Group's Final Report.

Seeking an outside opinion raises important issues for the Council and ICANN to consider.   There may be budgetary implications in the event that an outside advisor is unwilling to provide its opinion at no charge.   If it were necessary for ICANN to contract with the outside advisor to retain an outside advisor to give advice to ICANN's GNSO Council,  ICANN would need to follow its normal contracting procedures (including e.g., conducting conflicts checks, issuing RFPs, and performing vendor due diligence).   Any costs associated with the retaining the services of the outside advisor would need to be properly budgeted and allocated.    These are just a few examples of the types of issues to be addressed when seeking outside opinions.

We recommend that the issue of outside opinions be evaluated by one of the GNSO restructuring work teams so that standard procedures can be developed for future requests.   However, if the GNSO desires to seek the opinions of outside advisers in the interim, we recommend that the Council adopt a resolution to that effect, and provide sufficient information of the scope/nature of the opinion sought so that we can evaluate how to best meet the GNSO's timeframe and needs.

Best regards,

Margie

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Margie Milam
Senior Policy Counselor
ICANN
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