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

[Margie Milam <Margie.Milam@xxxxxxxxx>]

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largely out-of-date, since the GNSO Council's practice differs from that 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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