Page History

Transcript

Recording

The Adobe Connect recording is available here: https://icann.adobeconnect.com/p8ers04yvwu/ 

The audio recording is available here:  

Proposed Agenda

Notes

Action Items

Documents Presented

• Draft Answers to questions on 17-Apr .pdf
• Legal Assessment_ Governance Chart (1).pdf
• Legal Assessment_ Governance Chart.pdf

Chat Transcript

 Alice Jansen: (4/22/2015 16:57) Welcome to the legal sub team call #12 ! Please note that chat sessions are being archived and follow the ICANN Expected Standards of Behavior: http://www.icann.org/en/news/in-focus/accountability/expected-standards  

  Pär Brumark (GAC Niue): (17:00) Hi! Can not connectCan not connect to Adobe Connect Sound via Computer?

  Holly Gregory (Sidley): (17:00) hello all!

  arasteh: (17:00) Hi every body,

  Leon Sanchez: (17:00) Hi Holly!

  Leon Sanchez: (17:00) Hello Kavouss!

  Holly Gregory (Sidley): (17:01) Hi Leon!

  arasteh: (17:01) hi evrybodyC

  David McAuley: (17:01) Hello all

  Grace Abuhamad: (17:01) Done Par!

  arasteh: (17:01) Leon

  Thomas Rickert: (17:01) Hello all!

  Pär Brumark (GAC Niue): (17:01) Thx Grace!

  arasteh: (17:01) Does the hand rasing system working

  Grace Abuhamad: (17:02) Yes

  Greg Shatan: (17:02) Hello all.

  Robin Gross [GNSO - NCSG]: (17:02) Hello again!

  Grace Abuhamad: (17:02) Kavouss -- we are dialing out to you again

  Grace Abuhamad: (17:04) I have Alice Munyua on the phone bridge

  David McAuley: (17:06) so many documents, feel like a paper hanger in a high wind

  David McAuley: (17:07) appreciate greg including some of my suggestions in the doc on screen

  David McAuley: (17:07) Greg, that is

  arasteh: (17:07) Tks Alice

  arasteh: (17:07)  I am connected

  David McAuley: (17:07) I think they are in there Leon

  arasteh: (17:07) Lean

  Alan Greenberg: (17:07) What is the passcode for bridge access?

  Alice Jansen: (17:07) please mute your lines (typing in the background)

  arasteh: (17:07) I have a humble suggestion

  arasteh: (17:08) May I Rise it

  Robin Gross [GNSO - NCSG]: (17:08) Alan: "legal"

  Alice Jansen: (17:08) Alan - see private chat - for security reasons, we cannot reveal it on public chat

  David McAuley: (17:08) That's right leon, we need some enforceability - If the status quo were to be deemed adequate then we should not have the accountability issues that we have identified

  Grace Abuhamad: (17:08) @Robin -- please note we will need to strike your passcode from the record :)

  Robin Gross [GNSO - NCSG]: (17:09) oops, :-)

  arasteh: (17:09) LEAON

  Grace Abuhamad: (17:09) it's ok. We will remove it from Chat Transcript.

  arasteh: (17:09) PLS REPLY

  Robin Gross [GNSO - NCSG]: (17:11) what is meant by "reconsideration" in the answer to 2A?

  Greg Shatan: (17:12) I think Agenda item 3 will answer Kavouss's question.

  Greg Shatan: (17:13) I suggest we finish discussion of this agenda item first.

  Robin Gross [GNSO - NCSG]: (17:14) can the community have control over what budgets get put before the board for approval?  So the community essentially approves it before the board makes its decision on it?  If so, isn't that an option worth exploring?

  Thomas Rickert: (17:16) By when can we have these?

  Greg Shatan: (17:16) You can "blame" some of the length of the comparison chart on yours truly, since I was one of the pre-counsel drafters....

  Holly Gregory (Sidley): (17:17) we will try to have it by this time tomorrow.

  Edward McNicholas, Sidley Austin LLP: (17:17) Good morning; Ed from Sidley joining in.

  Leon Sanchez: (17:19) Welcom Ed!

  Leon Sanchez: (17:19) I mean Welcome :-)

  Greg Shatan: (17:23) Reconsideration does not give the power to veto.  Separately, it is worth considering whether a reconsideration should precede a veto.

  Greg Shatan: (17:24) If in fact, the community (in some form) has the power to veto.

  Holly Gregory (Sidley): (17:26) +1 Robin

  Samantha Eisner: (17:26) +1 to Robin.

  Samantha Eisner: (17:29) I agree that there are many opportunities to build in formal processes (including budget/strat plans) formal  public comment requirements and how those should be dealt with (which don't exist today) and could include some form of consultation process as well, so there's not a build in of reference to teh formal reconsideration in the middle of the budget approval process, while it would still remain one of the accountability mechanisms available if the bd continues to not follow the community's guidance

  Mathieu Weill, ccNSO, co-chair: (17:34) We would also need to systematically recall what the question was, so staff can manage a wiki page with all questions and answers

  Robin Gross [GNSO - NCSG]: (17:35) Do we talk about the answer in 4A?  I don't agree with the answer.

  Thomas Rickert: (17:37) Can you substantiate that, Robin?

  Izumi Okutani (ASO): (17:37) It would help to have more explanation on why it is more preferable.

  Greg Shatan: (17:37) This is really a very narrow question based on two variables.  It's not a general question.

  Holly Gregory (Sidley): (17:39) Robin, the member model is far clearer.  the designator model my not be able to give you what you want in terms of enforceability re budget and strategy.  o lack of clarity no risk re enforceability

  David McAuley: (17:39) I agree with much of Robin’s positions, but not this one. On membership vs designator models maybe another way to tale a legal look would be to ask for a “complexity” vs. “powers” comparison – to me it seems clear based on what we have seen so far that membership gives us additional powers under Cal law

  David McAuley: (17:39) "take a legal look" that is

  Holly Gregory (Sidley): (17:40) so lack of clarity re enforcement and greater risk re lack of enforcement.  

  Mathieu Weill, ccNSO, co-chair: (17:42) Maybe the question is not answerable by this group ? defining CCWG preferences on models is not possible yet

  Holly Gregory (Sidley): (17:42) this discussion is very very helpful for lawyers.  

  Mathieu Weill, ccNSO, co-chair: (17:42) Answer shoudl be : we don't know. Keep things open at this stage please

  David McAuley: (17:43) Good point Mathieu

  Izumi Okutani (ASO): (17:43) I like the suggestion Mathieu

  Thomas Rickert: (17:43) Me, too!

  Thomas Rickert: (17:43) This is a debate the CCWG needs to have

  Robin Gross [GNSO - NCSG]: (17:43) we have those processes, but they have no teeth.

  David McAuley: (17:44) agree this is a ccwg issue

  Alan Greenberg: (17:44) They have no teeth, but moreover there is nothing that compells ICANN to continue with the kind of dialogue that is going on now.

  Mathieu Weill, ccNSO, co-chair: (17:44) @Thomas but we need more concrete grasp about consequences of various models

  Samantha Eisner: (17:44)  and they are not in the bylaws nor required by the bylaws

  Greg Shatan: (17:45) The basic question is whether we prefer a model where the community has the power to bind the board on budgets and strategic plans. Is our answer to this "I  don't know?"

  David McAuley: (17:45) answer to 4.A is a placeholder as it mentions discussions - maybe we can make ot more emphatic

  Holly Gregory (Sidley): (17:45) we can bind ICANN to continue community input on budget and strategy through bylaws that ICANN board cannot change -- "fundamental bylaw concept"

  Greg Shatan: (17:50)  I must disagree with our colleague Kavouss on this point.   Going out to the public with no preference would be a mistake.

  David McAuley: (17:51) agree need to look at single membership model, questions has been posed

  Thomas Rickert: (17:51) We need information on the 4 models for discussion by the CCWG for the intense work days

  Robin Gross [GNSO - NCSG]: (17:51) Greg, I disagree, we need to hear from the community before we make a recommendation.

  Greg Shatan: (17:51) I think we need to criticize every model, and try to improve every model.  We can't dance around the need to come to a decision.  But I agree that those decisions need to be made by the CCWG.

  Holly Gregory (Sidley): (17:51) could speaker explain 3rd model he mentioned?

  Robin Gross [GNSO - NCSG]: (17:51) what are the communities priorities on these powers, for example.

  Izumi Okutani (ASO): (17:52) Yes, Greg, I'm with you that we would want to  provide preference for public comment.  Then again, when we do,  I suggest we  clearly explain why and provide comarison with other possibilities so people can review whether they agree with preference presented by CCWG.

  Greg Shatan: (17:53) The sole membership construction, is a possibility described in the legal document in several places: the comments by the legal experts on the PCCWG mechanism template (page 64) and the Community Council mechanism template (page 69). I sent several emails about it to the WP1 list, suggesting to look in the possibility as indeed it would not necessitate every SO and AC to become a legal entity. And, as you do, suggesting: "make the „Community Council” the sole member of ICANN (and thus a formal legal entity), consisting of either the SO and AC chairs or SO/AC elected representatives” (from an email of 14 April).

  David McAuley: (17:53) Holly, the thrid option was single member option where all sos/acs exost under one member entity (I think)

  Holly Gregory (Sidley): (17:53) so model 3 is really a variation on the member model?

  Mathieu Weill, ccNSO, co-chair: (17:53) Thks Greg

  Leon Sanchez: (17:54) I'm back

  Adam Peake: (17:54) See http://mm.icann.org/pipermail/accountability-cross-community/2015-April/002453.html

  Leon Sanchez: (17:54) sorry for the hiccup

  David McAuley: (17:54) yes, that;s right Holly

  Robin Gross [GNSO - NCSG]: (17:54) could portions of the member (for example the GNSO) act under this 3rd model without the agreement of the other segments of the member?

  Rosemary Fei: (17:55) Yes, you can, Holly

  Rosemary Fei: (17:55) Have a single member

  Rosemary Fei: (17:55) We use it a lot

  Greg Shatan: (17:55) Correct -- this is an implementation issue.  Trying to get around some of the perceived issues with the regular member model.

  Holly Gregory (Sidley): (17:56) thanks Rosemary !  glad I got it right ...

  Rosemary Fei: (17:56) Until this AM, I never saw anything about a single member model in CCWG emails.  Were they shared earlier?

  Greg Shatan: (17:56) But does the single member solve the problem of turning SOACs into separate members?

  David McAuley: (17:56) Good question @Robin, and I think Ed asked as well on list

  Rosemary Fei: (17:57) Rights vest in the member, or members.  Unless you're a member, you don't get them.  You must be a legal person to be a member.

  Greg Shatan: (17:57) Under the single member model, how could an SO recall "its" board member.

  Edward Morris: (17:58) +1 Greg

  Rosemary Fei: (17:58) It couldn't, because it doesn't have "its" board member.  There would be one member, and only that member would have statutory rights of a member.

  Robin Gross [GNSO - NCSG]: (17:58) any way to draft around that?

  Rosemary Fei: (17:58) That's the question -- I'm unclear what the single member would look like.

  Holly Gregory (Sidley): (17:59) the member could be a human person who takes direction from a non legal entity/community on how to vote -- is that correct Rosemary?

  arasteh: (17:59) gREG

  David McAuley: (17:59) I think we need legal advice on a preferred approach ultimately delivered to the ccwg

  arasteh: (18:00) May you pls provide examples for single and group members pls

  David McAuley: (18:00) what i earlier called the holistic approach

  arasteh: (18:00) KA

  Rosemary Fei: (18:00) Yes, certainly, Holly, members can be live people., and you can come up with a process for choosing that person in the bylaws (i.e., admission of members)

  Greg Shatan: (18:00) David, I think we have had that answer.

  Mathieu Weill, ccNSO, co-chair: (18:00) @david : I think WHEN we have a preferred approach, we'll need detailed legal advice on this option. Until then we need to explore options

  David McAuley: (18:02) I agree @Mathieu but hope in picking our preferred option we weigh legal "holistic" advice - I think that is possible w/out compromising us being at the helm

  Greg Shatan: (18:02) I think Leon is back....

  Rosemary Fei: (18:02) There are not necessarily "members" of the single member -- the single member is an entity.  There is no equivalent to the single member in ICANN's current structure.

  Josh Hofheimer (Sidley): (18:02) Hello, I am online.

  arasteh: (18:04) are so and AC a group members ?

  Mathieu Weill, ccNSO, co-chair: (18:05) Agreed David. But that's two different types of input : a pros and cons on all options 1st, then a more traditional legal advice

  David McAuley: (18:05) Fair point Mathieu

  Edward Morris: (18:05) Go on Leon - phone trouble

  Grace Abuhamad: (18:06) Ed -- do you want a dial out?

  Edward Morris: (18:06) Grace. That would be great. Keep getting dropped. +44 7472687857

  Greg Shatan: (18:07) We have been exploring options for quite some time....

  Grace Abuhamad: (18:09) ok dialing

  Edward Morris: (18:09) Thanks :)

  Leon Sanchez: (18:14) So, so far it comes down to how much we want to influence the SP and Budget because the other 4 powers are achevable by either structure

  Ingrid Mittermaier: (18:16) Leon, yes, that is correct.

  Leon Sanchez: (18:16) Thanks @Ingrid

  Steve DelBianco   [GNSO - CSG]: (18:20) THanks for being clear about the advantages of Member over Designators.  

  Mathieu Weill 2: (18:21) this is very good. the notes will be very useful. we'd need very concrete FAQs on the concrete steps towards a member or designator model, including the how to create a unincorporated association

  Greg Shatan: (18:23) Keeping in mind the advice that unincorporated associations are required under either the designator or the member model.

  Robin Gross [GNSO - NCSG]: (18:23) Bylaws could require a budget process where the community (designators) pre-approves a budget and then it goes to the board for ultimate approval.

  Greg Shatan: (18:23) As per the legal advice received to date.

  Mathieu Weill: (18:24) agreed Greg

  Greg Shatan: (18:24) Robin -- what keeps the board from changing the budget after the community approves it?

  Robin Gross [GNSO - NCSG]: (18:25) this is where we need to have enforceable bylaws.

  Greg Shatan: (18:25) We also need to have valid bylaws.

  Greg Shatan: (18:25) A bylaw that doesn't allow a board member to exercise fiduciary duty would be dead in the water.

  Josh Hofheimer (Sidley): (18:25) @Robin, I disagree with that assertion, and will articulate if it comes around to me

  Robin Gross [GNSO - NCSG]: (18:26) please do.  I'd like to hear about this point.

  Rosemary Fei: (18:26) It's in the chart in the slide deck we presented last Tuesday.

  Leon Sanchez: (18:27) @Josh I will go to you after we listen to Alan and David

  David McAuley: (18:27) Leon, you can put Josh ahead of me

  Holly Gregory (Sidley): (18:27) we will provide a summary of what Josh and Rosemary said when we provide the redraft of the chart including the "headline conclusions"

  David McAuley: (18:27) Thanks Holly - this is very important

  Leon Sanchez: (18:27) Thanks @Holly

  Leon Sanchez: (18:28) Will do @David. Thanks for that

  Holly Gregory (Sidley): (18:28) Robin, the bylaw you seek would likely be in lid in a designator model

  Rosemary Fei: (18:29) Slide #15 in the last Tuesday presentation

  Robin Gross [GNSO - NCSG]: (18:30) thanks.

  Greg Shatan: (18:31) Holly -- does "in lid" = "invalid"?

  Rosemary Fei: (18:31) Nominating Committee could be an unincorporated association, just like the other members/designators

  Holly Gregory (Sidley): (18:32) yes. my typing stinks!

  Greg Shatan: (18:32) Typing lessons before law school turned out to be one of the best things I ever did.

  Alan Greenberg: (18:32) @Rosemary, yes, I know that would be technically possible, but I do not beleive that itis somethng that we could bind them to.

  Samantha Eisner: (18:33) Josh, the NomCom has representation on it from grops taht do not select voting members of the Board

  Rosemary Fei: (18:33) @Alan, legally, I don't understand how the Nom Com would be different from any other uninc assoc

  Robin Gross [GNSO - NCSG]: (18:34) perhaps we can't build a 100% enforcement on budget/stat plan, but can we build a process that gives us signficiantly more power in that process?

  Alan Greenberg: (18:34) People put on the NomCom are put there in their individual capacity and I think we would have VERY significant problem saying that they would be BOUND to follow the orders of the ACs and SOs

  David McAuley: (18:34) my question answered leon

  Leon Sanchez: (18:34) @Greg I never followed too much advice from my dad when younger. But one thing I did followed was his advice on typing lessons.

  David McAuley: (18:34) Leon

  Leon Sanchez: (18:34) Thanks David

  Greg Shatan: (18:35) Maybe we need to help demystify the uninconrporated association a bit.

  Robin Gross [GNSO - NCSG]: (18:35) Leon, my mom made me take typing in high school "so I could always find work"

  Thomas Rickert: (18:35) That would be the idea of conditional advance resignation?

  Alan Greenberg: (18:35) Binding the NomCom delegates would being into question why they exist.

  David McAuley: (18:35) but new question occurs, hand up

  Leon Sanchez: (18:35) @Robin your mom is a wise woman who inherited her wisdom to you!

  Mathieu Weill: (18:36) @greg yes to demystify unincorporated. assoc. I have started a list of concrete questions

  Samantha Eisner: (18:36) Could Board members agree through a pre-service letter to resign if there is a vote of x% of the community?

  Rosemary Fei: (18:36) We've raised both the possibility of constituting the Nom Com just like the other appointing bodies, and we've also raised the possibiity of looking again at the NomCom, and give its appointments to other bodies.  And there may be other approaches we haven't discussed yet; our analysis to date has been at a high level.

  Greg Shatan: (18:37) I have lowered my hand to allow us to move on.  Enough of what I wanted to say has been said.

  Josh Hofheimer (Sidley): (18:37) @sam, yes.  resignation letters can be deployed.

  Rosemary Fei: (18:38) @Sam, yes, we mentioned that as an option -- directors would provide a resignation conditioned on threshold vote to recall

  Alan Greenberg: (18:39) Presumably the Board Member pre-service letter in irrevocable?

  Leon Sanchez: (18:40) yes @Alan, being a requirement to become a Director I think it would be irrevocable

  Holly Gregory (Sidley): (18:41) yes, the letter is irrevocable -- and such letters are already common in corporate law contexts

  David McAuley: (18:41) Thanks @Rosemary

  Holly Gregory (Sidley): (18:42) this is an excellent discussion

  Rosemary Fei: (18:43) I don't understand why the Nom Com would insist on ignoring a community high threshold vote to recall.

  Samantha Eisner: (18:43) One of the issues I see on the NomCom is seeing it as a separate member of the group when it is actually a collection of groups across the ICANN community.  

  Robin Gross [GNSO - NCSG]: (18:44) I agree, Samantha.

  Rosemary Fei: (18:44) @sam, then the solution might be to pull the Nom Com apart, and reallocate its seats.

  Robin Gross [GNSO - NCSG]: (18:44) it is not a distinct separate interest

  Samantha Eisner: (18:44) What are the specific powers that are granted to individual members?  Could the nomcom itself if it were a member take something to court to enforce?

  Rosemary Fei: (18:45) There's no rule that you can't form an entity with divergent interests within it

  Greg Shatan: (18:45) Isn't it more accurate to say that the NomCom is  a collection of individuals across the ICANN community?

  Mathieu Weill: (18:45) don't mean to confuse but why not submit NomCom board nominations to community approval ? that s a regular process for directors in many orgs right ?

  Samantha Eisner: (18:45) Could the nomcom's operating procedures be developed in a way that it acts based on community inputs (i.e., the same community threshold?)

  Josh Hofheimer (Sidley): (18:45) @Alan +1

  Robin Gross [GNSO - NCSG]: (18:45) yes, Mathieu.

  Alan Greenberg: (18:46) @Sam, yes, the NomCom *COULD* be changed to do that, but I think that there wouldbe significan philosophical push-back.

  Alan Greenberg: (18:46) But I could be wrong.

  Samantha Eisner: (18:47) yes

  Samantha Eisner: (18:47) one second

  Rosemary Fei: (18:48) Individuals are able to participate in multiple organizations, if that's what you want.  So someone could be on an SO, and also on NomCom

  Josh Hofheimer (Sidley): (18:49) @Sam, the NomCom could still be a "designator" under a member organized model.  That would give the NomCom the powere to select and remove directors, but not the other powers reserved to members

  Edward Morris: (18:49) +1 Josh

  David McAuley: (18:50) Intereesting point from Josh

  Pär Brumark (GAC Niue): (18:50) +1 Mathieu

  Rosemary Fei: (18:50) Josh is right, but the whole community could still not remove the NomCom directors.  The pre-service resignation works, though.

  Greg Shatan: (18:50) I think the question goes to the peculiarity of the NomCom concept....

  Samantha Eisner: (18:50) @Mathieu, not commenting on teh value of pre-approval, but how does that impact the removal requirement?

  Mathieu Weill: (18:51) if it is done every year for every director ?

  Steve DelBianco   [GNSO - CSG]: (18:54) So how about we flesh-out the Member model first?

  David McAuley: (18:54) +1 Steve

  Samantha Eisner: (18:54) For the CCWG, if there is a solution through which the recall issue can be achieved, do we need to address teh composition and operations of the NomCom  in WS2?  There will be a NomCom review within the next year.

  Leon Sanchez: (18:54) Agreed Rosemary

  Robin Gross [GNSO - NCSG]: (18:54) the easier model from a legal perspective, might not be one that will fly geo-politically.

  Holly Gregory (Sidley): (18:55) every time a director is up for potential re up. ( election or selection) , they would submit letter of resignation as. condition to be seated on the board and the letter would be irrevocable

  Adam Peake: (18:56) NomComs only exist for 1 year, the are reconstituted for for each annual cycle.  Perhaps something to consider?

  Holly Gregory (Sidley): (18:56) my hand is up

  Steve DelBianco   [GNSO - CSG]: (18:57) Have to drop now, but thank you for being clearer about your recommendations

  David McAuley: (18:58) sounds reasonable Holly

  Greg Shatan: (18:58) Maybe the lawyers can supply flash cards to the CCWG....

  Holly Gregory (Sidley): (18:58) flash cards or Tarot cards

  Greg Shatan: (18:59) I would appreciate lunch.

  Leon Sanchez: (18:59) You're one minute away from luch @Greg :-)

  Alan Greenberg: (19:01) I think that this may well have been a very productive meeting.

  David McAuley: (19:01) +1 @Alan

  Leon Sanchez: (19:02) I think we've has a very good meeting today

  Leon Sanchez: (19:02) Thanks to all for your participation and contributions

  Samantha Eisner: (19:02) I've been thinking that pre-service letters could also be a way to address some of the potentiality for the Board to not follow IRP declarations, etc.

  David McAuley: (19:02) Agree, thank you Leon (and Thomas while Leon was away)

  Alan Greenberg: (19:02) I can answer very briefly if you wish

  Robin Gross [GNSO - NCSG]: (19:02) I think so too, Sam.

  Josh Hofheimer (Sidley): (19:02) I have another call and have to depart.  By all

  Robin Gross [GNSO - NCSG]: (19:03) thanks to the lawyers for this discussion!

  David McAuley: (19:03) Thanks Josh

  Alan Greenberg: (19:03) Each yer's nomcom is a different one from the last. I am not worried about insulting a past nomcom. They would all admit they sometimes make mistakes.

  Rosemary Fei: (19:03) @Alan, perhaps you can send an email to the list?

  David McAuley: (19:03) This was very productive, does that mean we need more calls?

  Holly Gregory (Sidley): (19:03) thanks all.  this was a very helpful meeting.  

  Rosemary Fei: (19:04) Bye, everyone.  Yes, very helpful.

  Michael Clark (Sidley): (19:04) Agree with Holly

  Pär Brumark (GAC Niue): (19:04) Thx all!

  Robin Gross [GNSO - NCSG]: (19:04) thanks, Leon!

  Izumi Okutani (ASO): (19:04) Thank you all, and the lawers

  Adam Peake: (19:04) thank you

  Athina Fragkouli (ASO): (19:04) thank you

  Leon Sanchez: (19:04) Have a great day everyone!