[council] RE: Draft Motion - GNSO Validation of CCWG-Accountability Budget Request

[Drazek, Keith]

Thanks Paul. I agree.

Regards,
Keith


On Sep 21, 2016, at 2:14 PM, Paul McGrady <policy at paulmcgrady.com<mailto:policy at paulmcgrady.com>> wrote:

Thanks Keith.

I share your concern and that of the RySG about the reopening discussions on ICANN's  incorporation and/or physical headquarters.  As the instructions from the CCWG make clear, the work of the Jurisdiction Subgroup can be done without necessarily revisiting the issue.  I asked for a consensus call on whether or not we should add this “elective” back in to the work of the Jurisdiction Subteam on our call today (there appears to be a presumption that it is in, unless it is out, and it’s not clear to me how that little bit of orthodox evolved).  A consensus call was not taken and it appears that there are several within that subgroup that are going to push to have this discussed.  Speaking personally, I think that would be a waste of time and money and would be very hard to explain in the press.

Speaking personally again, I hope that the Council will consider – regardless of the language we come up with on the expenditure issue, that the GNSO Council at least does not believe that reopening discussions on ICANN's  incorporation and/or physical headquarters is a good idea for WS2 and that we encourage the CCWG to make that clear to WS2 participants and ask them to get on with the real work of the Subgroup, namely, an analysis of how ICANN’s current jurisdiction effects the outcomes of the WS1 accountability mechanisms and a proposal on how to patch any gaps (short of leaving for other pastures outside of California).

Best,
Paul



From: owner-council at gnso.icann.org<mailto:owner-council at gnso.icann.org> [mailto:owner-council at gnso.icann.org] On Behalf Of Drazek, Keith
Sent: Wednesday, September 21, 2016 4:09 AM
To: Phil Corwin <psc at vlaw-dc.com<mailto:psc at vlaw-dc.com>>
Cc: Paul McGrady <policy at paulmcgrady.com<mailto:policy at paulmcgrady.com>>; James M. Bladel <jbladel at godaddy.com<mailto:jbladel at godaddy.com>>; GNSO Council List <council at gnso.icann.org<mailto:council at gnso.icann.org>>
Subject: Re: [council] RE: Draft Motion - GNSO Validation of CCWG-Accountability Budget Request

Thanks Phil and Paul for the input.

The RySG has significant concerns about any increase/expansion of the proposed WS2 budget and would likely oppose language suggesting (a) reopening discussions on ICANN's  incorporation and/or physical headquarters, and (b) the need for additional funds to support that effort. All the reforms we developed in WS1 assume California not-for-profit law and that simply isn't going to change in WS2. I also do not believe the RySG would agree to lowering the threshold for additional funds to be solely a determination of the Legal Committee.

Regards,
Keith

On Sep 20, 2016, at 4:44 PM, Phil Corwin <psc at vlaw-dc.com<mailto:psc at vlaw-dc.com>> wrote:
Appreciate the thoughts, Paul.

In his role as rapporteur for the Jurisdiction subgroup, Greg Shatan has circulated thoughts this week on whether and how deeply the Jurisdiction subgroup should explore the subject of ICANN’s organizational jurisdiction, and that will be the focus of the next subgroup call at 1300 UTC tomorrow. So its intent in that regard may be clearer within the next 24 hours.

Setting aside the jurisdiction issue, I would like to see the GNSO statement on this express some concern that the amount budgeted for impartial outside legal assistance may be inadequate, and to endorse  a lower threshold for making additional funds available if recommended by the Legal Committee – and certainly not the “extraordinary circumstances” standard proposed in the current draft.

One thought I have is that the expenditure ceiling might be loosened somewhat by advocating that up to an additional $700,000 be available to be allocated (a 50% increase beyond the $1.4M now budgeted) solely upon a finding by the Legal Committee that such expenditure is justified, with a higher standard in place for requests that would take spending beyond that. That might prove a reasonable balance between wanting to assure adequate resources while  keeping spending under control.

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

From: Paul McGrady [mailto:policy at paulmcgrady.com]
Sent: Tuesday, September 20, 2016 4:34 PM
To: Phil Corwin; 'James M. Bladel'; 'GNSO Council List'
Subject: RE: [council] RE: Draft Motion - GNSO Validation of CCWG-Accountability Budget Request

Thanks Phil.  I’ll need to run this past the IPC of course, but my initial thoughts are:

I guess I read James’ rather artful language as a means of pointing out the lack of adequate funding rather than an instruction that WS2 shouldn’t look at the formation jurisdiction issue.  Perhaps we can strengthen the language a bit to make that clear.  How about:

“It is the position of the GNSO Council that any choice by WS2 participants to revisit the formation jurisdiction or nature of organization of the ICANN legal entity, as established by CCWG-Accountability Work Stream 1, namely California, would not be adequately supported by this projected budget as any change in formation jurisdiction or nature of organization of the ICANN legal entity would necessarily lead to undoing much of the work of Workstream 1.  In the event that WS@ participants open up this topic, additional funding for legal advice will become necessary.”

Does that work?

In a related thought, I’m of the opposite view that formation jurisdiction or nature of organization of the ICANN legal entity should not be reopened in WS2 as it is not inevitable that it turn out the way you hope, with a fundamental bylaw making California permanent (or as permanent as possible).

Best,
Paul


From: owner-council at gnso.icann.org<mailto:owner-council at gnso.icann.org> [mailto:owner-council at gnso.icann.org] On Behalf Of Phil Corwin
Sent: Monday, September 19, 2016 5:40 PM
To: James M. Bladel <jbladel at godaddy.com<mailto:jbladel at godaddy.com>>; GNSO Council List <council at gnso.icann.org<mailto:council at gnso.icann.org>>
Subject: [council] RE: Draft Motion - GNSO Validation of CCWG-Accountability Budget Request
Importance: High

James:

The following remarks are my personal views, and I will share them with the BC Executive Committee and BC members prior to our September 29th meeting to assure that any statement I make/position I take at that meeting is consistent with the consensus within the BC.

That said, I have some significant concerns about the wording of the draft Resolution, and shall now set them forth.

Use of Budget Constraints to limit range of discussion within WGs_-

Your cover note states, “I would like to draw your attention to WHEREAS #4 and RESOLVED #4, in which I attempted to capture the concerns raised by Phil and Paul and others regarding revisiting the subject of ICANN Jurisdiction in WS2”. My comments on this draft resolution are solely my own and I will let Paul chime in, or not, as he sees fit.

Whereas #4 states --  “The GNSO Council notes that many members of the GNSO community have expressed the view that the projected budget does not support revisiting the topic of the jurisdiction of ICANN”s organization.”

Resolved #4 states – “It is the position of the GNSO Council that revisiting the jurisdiction or organization of the ICANN legal entity, as established by CCWG-Accountability Work Stream 1, is not supported by this projected budget.”

My very public personal position on ICANN’s organizational jurisdiction is that it was a mistake not to resolve this matter during WS1 (and the failure to do so is now being cited by Congressional critics of the IANA Transition), and that ICANN’s U.S. incorporation should be enshrined in a Fundamental Bylaw as an expedited outcome of WS2.

Notwithstanding that clear personal view, I have concerns about the proposed language cited above. For one thing, it is presently ambiguous – it is not clear whether the import of the language is that:

•         The projected budget should be increased so that “the topic of the jurisdiction of ICANN”s organization” can be revisited or addressed (the word “revisited” is also problematic, as it implies that some conclusive decision was made on this matter during WS2, whereas the record is to the contrary), or

•         The topic of organizational jurisdiction should be off-limits in WS2 due to budget constraints

Again, my personal view is that this topic of ICANN’s organizational jurisdiction should be further addressed in WS2 – and should be definitively resolved through the adoption of a Fundamental Bylaw enshrining US incorporation.

Notwithstanding that personal view, I am opposed to any Resolution which takes the position that budget considerations should limit the scope of inquiry and discussion of any WS2 subgroup. The budget, and especially that for impartial outside legal expertise on accountability matters on which ICANN Legal may have an inherent bias (such as transparency or staff accountability) should be adequate to support the necessary work, rather than suggesting that the work should be constrained to fit within the scope of the budget.

Adequacy of the budget for outside legal expertise

The other problem I have with the draft Resolution is that it does not speak at all to the general concerns I and others have expressed about the adequacy of the budget for outside legal expertise for WS2 activities, as well as the proposed process for obtaining authorization of additional funding.

My recollection is that the WS2 legal budget is just one-tenth of the amounts expended for WS1 -- $1.4M compared to $14M. I would certainly anticipate that WS2 outside legal expenses will be substantially less than in WS1 because major revisions and drafting of Bylaws and Articles of Incorporation will not be required. Yet there is still reason to believe that a 90% reduction is excessively severe and likely to fall short of requirements for a quality and fully considered work product.

It is also my recollection that under the proposed budget and accompanying procedures, even if the Legal Committee agrees that additional funding is required at some point in the process, the Board has unbridled discretion and decisional authority to accept, reject, or modify such a request for additional funds. This is very troubling given that WS2 addresses such matters as organizational transparency, and Board and staff accountability.

Therefore, at this time I cannot personally support the proposed language in Resolved clause #3 – “The GNSO Council expects the CCWG-Accountability and staff to work within the constraints of this approved budget, and that excess costs or request for additional funding will be considered only in extraordinary circumstances.” (Emphasis added)

An “extraordinary circumstances” standard for authorizing additional funds is, in my opinion, far too high given that the budget for WS2 was set by a small group and only put out for public reaction after the fact. Further, it is absolutely unacceptance as a standard for consideration of additional funding requests – every such request should be considered without bias on its own separate merits, and not face a high hurdle simply because it exceeds a legal assistance budget that some Council and community members already fear may be inadequate to support the necessary work delegated to WS2.

Summing up, my personal view is that this Resolution should be modified to:

1.       Eliminate any suggestion that discussion of ICANN’s organizational locus of incorporation is off-limits for the Jurisdiction subgroup based upon budget considerations

2.       Express general concern about the adequacy of the funds budgeted for outside legal assistance, as well as the proposed process for deciding whether additional funds should be allocated at a future point of time.

I thank you and my fellow Councilors for considering these views, and look forward to further discussion of this matter.

Regards, 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

From: owner-council at gnso.icann.org<mailto:owner-council at gnso.icann.org> [mailto:owner-council at gnso.icann.org] On Behalf Of James M. Bladel
Sent: Monday, September 19, 2016 4:02 PM
To: GNSO Council List
Subject: [council] Draft Motion - GNSO Validation of CCWG-Accountability Budget Request

Council Colleagues -

Attached and copied below, please find a draft motion for consideration during our next GNSO Council call (29 SEP), that examines the subject of the proposed budget & cost control mechanisms for CCWG-ACCT and Work Stream 2.

In particular, I would like to draw your attention to WHEREAS #4 and RESOLVED #4, in which I attempted to capture the concerns raised by Phil and Paul and others regarding revisiting the subject of ICANN Jurisdiction in WS2.  Please review these provisions closely, and make sure that they accurately reflect these points.

Thank you,

J.



Draft Motion - GNSO Validation of CCWG-Accountability Budget Request

WHEREAS,


1.      Per its Charter, the Project Cost Support Team (PCST) has supported the CCWG-Accountability in developing a draft budget and cost-control processes for the CCWG-Accountability activities for FY17, and has also developed a historical analysis of all the transition costs to date (see https://gnso.icann.org/mailing-lists/archives/council/pdfpklU5q6Ojg.pdf).


2.      The CCWG-Accountability FY17 budget was presented at its plenary meeting of June 21st and approved for transmission to the Chartering Organizations for validation as per the process agreed with the PCST. This request for validation was received on 23 June.


3.      Following review and discussion during ICANN56, the GNSO Council requested<https://gnso.icann.org/en/correspondence/bladel-to-bfc-ccwg-accountability-chairs-10jul16-en.pdf> a webinar on this topic which was held on 23 August (see transcript at https://gnso.icann.org/en/meetings/transcript-ccwg-accountability-webinar-23aug16-en.pdf, recording at http://audio.icann.org/gnso/gnso-ccwg-accountability-webinar-23aug16-en.mp3 and AC recording at https://icann.adobeconnect.com/p8fu99qpt7d/).


4.      The GNSO Council notes that many members of the GNSO community have expressed the view that the projected budget does not support revisiting the topic of the jurisdiction of ICANN”s organization.


5.      The GNSO Council has discussed and reviewed all the relevant materials.

RESOLVED,


1.      The GNSO Council hereby accepts the proposed CCWG-Accountability FY17 budget, as well as the cost-control processes presented in conjunction with the CCWG budget (see https://gnso.icann.org/mailing-lists/archives/council/pdfpklU5q6Ojg.pdf).


2.      The GNSO Council expects to receive regular updates on actual expenditures as tracked against this adopted budget, and reserves the right to provide further input on the budget allocation in relation to the CCWG-Accountability related activities.


3.      The GNSO Council expects the CCWG-Accountability and staff to work within the constraints of this approved budget, and that excess costs or request for additional funding will be considered only in extraordinary circumstances.


4.      It is the position of the GNSO Council that revisiting the jurisdiction or organization of the ICANN legal entity, as established by CCWG-Accountability Work Stream 1, is not supported by this projected budget.


5.      The GNSO Council requests the GNSO Secretariat to communicate this resolution to the CCWG-Accountability Chairs, and to the office of the ICANN CFO.


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