[council] Draft Revisions to the ICANN Bylaws Relating to GNSO Restructure
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@xxxxxxxxx
and +1-310-823-9358.
Regards,
Denise Michel
Vice President, Policy
Attachment:
GNSO Council Restructure-Bylaws Changes (DRAFT).doc
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