Attendees:
Participants: Anne Aikman-Scalese, Avri Doria, Boyoung Kim, Cherine Chalaby, Chris Disspain, Christopher Wilkinson, David McAuley, Erika Mann, Farzaneh Badii, Finn Petersen, George Sadowsky, Guru Acharya, James Gannon, Jorge Cancio, Kavouss Arasteh, Keith Drazek, Malcolm Hutty, Mark Carvell, Markus Kummer, Mary Uduma, Matthew Shears, Milton Mueller, Paul Szyndler, Pedro Ivo Silva, Phil Buckingham, Rinalia Adbul Rahim, Rory Conaty, Sabine Meyer, Seun Ojedeji, Sivasubramanian Muthusamy, Suzanne Woolf, Tom Dale, Wolfgang Kleinwaechter (33)
Legal Counsel: Ed McNicholas, Holly Gregory, Rosemary Fei, Steve Chiodini (4)
Staff: Alice Jansen, Bernie Turcotte, Berry Cobb, Brenda Brewer, Emily Pimentel, Grace Abuhamad, Hillary Jett, Laena Rahim, Trang Nguyen, Yuko Green
Apologies:
**Please let Brenda know if your name has been left off the list (attendees or apologies).**
Transcript
Recording
The Adobe Connect recording is available here: https://icann.adobeconnect.com/p4cqckcvyco/
The audio recording is available here: http://audio.icann.org/gnso/gnso-ccwg-acct-17oct15-en.mp3
Agenda
09:00 Initial Breakout Groups
09:40 Change Groups (if you want to)
10:00 Coffee Break
10:15 Readout – Decision Model
11:00 Readout – Enforcement Model
11:20 Readout – Remove Board Member
11:40 Readout – Budget Veto / Activity
12:00 End
Notes
Goal of break-out session will be to investigate on process side so an informed decision can be made.
Refer to Terms of Reference.
Community decision-making – describe a way of reaching decisions that is inspired by consensus and that would replace voting system. We need to avoid single SO or AC capturing decision-making through a veto right or through lack of broad support participation. We need flexibility for SO/ACs and need to recognize that two of ACs are Board appointed. Goal of break out session is to set rules for certain of powers.
Enforcement model – Group should focus on mapping two of most difficult issues to enforce: a) what happens if there is a recommendation to separate PTI and the Board does not and to follow this recommendation; b) what happens if Board refuses to enforce decision of an IRP. Enforcement would take place after all escalation steps. Test enforceability of single member and single designator with goals of simplicity and efficiency in mind.
Individual Board Director removal – Describe the step-by-step process including mitigation measures bearing in mind requirements and escalation process.
Budget, Operating Plan & Strategic Plan – Discuss risks association with idea of vetoing operating plan and budget. Consider what are the consequences intented and what can be done.
Feedback:
- Subgroups should be asked to provide a rationale.
- It is important as we proceed forward to recognize that designators is a legal term under California law related to appointing board members. We have several ACs that are not designators but we are probably planning to empower them and give them some of the other rights.
- Concerns that we are setting the stage for single designator.
Break out sessions – Group conclusions
Community decision-making - The conversation ranged about participation levels and quorum but in the end determined that we need an indication of support and no more than one objection. In all cases it only takes two AC and SOs to indicate enough interest and support to say we need to have a pre-call. Pre-call is where you air the grievances about why we want to block this bylaws change or why we want to block the budget. Board, staff and ICANN legal staff would be on this pre-call. Calling of community forum implies staff and travel support. If urgent matter, we may need a special intersessional meeting. Presence of ICANN legal would be needed. Community forum would last a day. Decision would be made in weeks that follow. We may need legal support for the community that’s independent. On consensus for budget, strategic plan/operating plan for instance, consensus would be for three AC/SOs to support it and no more than one would object. You need to have both a show of support and the absence of significant objection. Numbers have to be at least at a level that half of the ACs and SOs were participating - half of the seven. No one SO/AC would block rule. Group raised the threshold of PTI and removal of entire Board. On IRP, there is an idea to move to mediation.
Feedback:
- If process starts with two there will be need for coordination. It raises question on when/where does that happen.
à Mailing lists and phone calls.
- Do they require no more than one objection?
à Majority of our group said one objection would not be enough to kill a community power. We only had a difference in one case and it's on Board removal where something less than 1/3 of our group said one objection would be enough to kill Board removal.
- Quid of individual Board removal?
à It would take three to support the resolution because we'll not get in the way of an individual Board Member removal by the AC or SO that appointed them.
- Ultimate capture is Board capture. There should be a no objection rule.
- The community forum should be more or a process although there may be events physical or ritual events in that process, but that process is needed in order to really arrive at the mutual understanding of the facts
CONCLUSION: take this for refinement. There is consensus on general notion of these steps. It needs to more detail.
Budget, strategic/operating Plan
There was consensus that operating plan and budget should be treated as single unit. We discussed setting a threshold about which people could object and the state in which organization would be left as this process was going on. What would impact be on operations? As a result we looked into notion of targeted veto including discretionary/non-discretionary. CFO has taken assignment to identify non-discretionary budget as a baseline. We also discussed crystalizing consultation process. It was observed that ICANN has recently reached a level of financial sophistication that it does fairly comprehensive quarterly reporting, and that a full-on budget freeze would be disruptive to that quarterly reporting. It might not work with system we are proposing. CFO has assignment to find an alternate to quarterly reporting approach in case of veto.
Enforcement model
Looking at enforceability of IRP, process is the same whether single designator or single member. Both are a legal person. The only time when fiduciary duties are suspended or less relevant is in a member model for the powers that are reserved to do that member. Difference is that scope of IRP can be wider in member because dealing with reserved powers.
Feedback:
- In the majority of cases when there is binding arbitration, the court will enforce that arbitration.
- Need to explore really cases that the community would bring in front of this IRP and look at each one of those in our deeper dive to decide how differently they would perform under the two models. The general cases may be different. Community cases are really quite specific and they all go the issue of whether the Board is exercising its discretion appropriately. In a single-designator model, the Board has a much greater discretion. It really makes the IRP and the enforcement of it operate quite differently.
- At the end of the day, one argument prevails and it is either the argument of members or the argument of the Board. It is a large difference even if the process looks incredibly similar all the way through.
- Uncomfortable with situation where the fiduciary duty claim untested can simply be written straight over the top of by the community in its current form where there is no set of accountability mechanisms
- We should take into account other implications in this discussion with regards to deadlines and timelines.
Removal of Individual Board Director
We came to conclusion that there needs to be an added step of due process. In the case where Board member doesn't want to go and he has support, we would add the community forum which would mostly be for the dissemination of information i.e. both parties explaining their case. A formal call for comments and recommendations from community especially SO/ACs would follow. After SO/AC discuss what their position is, they submit comments formally back to the petitioning SOAC who then has to consider those comments. And after considering those comments and providing a written explanation showing that they had considered the comments, then they would be free to make their decision after that additional step with the same threshold of 75%. Situation is unchanged for NomCom appointees.
Feedback:
- Solution is set in a high quorum. There is fairness in this process.
- Quiet resignation should be added as a pre-step.
- It does not address concern that it creates different representatives within the Board.
Documents Presented
- Terms of Ref for CCWG Breakouts.pdf
- Decision Model pic.pdf
- Enforcement Model pic.pdf
- Removal of Individual Board Member.pdf
- Budget pic.pdf
