[council] fw: [CCWG-ACCT] Request for Clarification on Threshold Issue

["Edward Morris" <egmorris1@xxxxxxxxx>]

 Fellow Councillors,

 I am forwarding an e-mail Keith has just submitted on behalf of a few of us in 
the GNSO  to the CCWG-Accountability list. Thanks Keith for your proactive 
leadership on this very important issues.

 Kind Regards,

 Ed Morris



----------------------------------------
 From: "Drazek, Keith" <kdrazek@xxxxxxxxxxxx>
Sent: Saturday, February 27, 2016 8:06 PM
To: "accountability-cross-community@xxxxxxxxx" 
<accountability-cross-community@xxxxxxxxx>
Subject: [CCWG-ACCT] Request for Clarification on Threshold Issue

Hi Thomas, Mathieu and Leon. I'm submitting the following on behalf of the 
undersigned members/participants from the GNSO:



---------------------------------------------

Dear CCWG-Accountability Chairs,



We are very concerned with the response of the Board to the request for 
clarification regarding the need to adjust the thresholds for the Empowered 
Community to exercise its powers if the number of decisional participants is 
less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this 
possibility is ambiguous:



"The thresholds presented in this document were determined based on this 
assessment. If fewer than five of ICANN's SOs and ACs agree to be decisional 
Participants, these thresholds for consensus support may be adjusted. 
Thresholds may also have to be adjusted if ICANN changes to have more SOs or 
ACs."



In our view, there is no question that the thresholds must be adjusted if there 
are fewer than five decisional participants. We have acknowledged repeatedly 
and operated under the assumption that there should not be a requirement of 
unanimous support for the Empowered Community to exercise its powers. Yet, if 
there are less than five decisional participants, unless the thresholds are 
adjusted it would require unanimous support for the Empowered Community to:



·         Reject a proposed Operating Plan/Strategic Plan/Budget;

·         Recall the entire Board of Directors; and

·         Reject an ICANN Board decision relating to reviews of IANA functions, 
including the triggering of any PTI separation process.



These powers are central to ensuring that ICANN remains accountable to the 
Empowered Community. This matter is too critical to the primary purpose of the 
CCWG-Accountability proposal to remain unclear. As the Board has noted in its 
own formal comments, "Leaving this issue for future consideration raises the 
potential for renegotiation of the community thresholds.  This potential for 
renegotiation adds a level of instability and a lack of predictability."



Although it has a superficial resemblance to the recent debate over thresholds 
in the GAC carve-out, we believe it is fundamentally different. There is a 
great distinction between an SO or AC choosing to not participate, and an SO or 
AC being blocked from participation in a specific instance, as was the case in 
the case of the GAC carve-out. We were willing to accept a unanimous threshold 
for Board recall in the unique circumstances of the GAC carve-out, where the 
GAC was blocked from participation, but we believe firmly that if any SO or AC 
elects, whether through a conscious decision or an inability to decide, to not 
participate, then the non-unanimity principle must be upheld.



However, as we saw with the debate over the thresholds in the GAC carve-out, 
this could be a contentious issue. It is far better to resolve this matter now 
(and during the drafting of bylaws), prior to the official transfer of the 
proposal to NTIA, than to delay it when it could have significant negative 
ramifications on the transition through a failure to resolve it during the 
implementation phase.



Therefore, we respectfully request that the current text in Annex 1 and Annex 2 
be edited to replace "may" with "shall" and add an additional explanatory 
clause:



"The thresholds presented in this document were determined based on this 
assessment. If fewer than five of ICANN's SOs and ACs agree to be decisional 
Participants, these thresholds for consensus support shall be adjusted to 
prevent the need for unanimous support among the decisional Participants to 
exercise any of the seven Community powers. Thresholds may also have to be 
adjusted if ICANN changes to have more SOs or ACs."



Signed,



Phil Corwin

Steve DelBianco

Keith Drazek

James Gannon

Robin Gross

Ed Morris

Brett Schaefer

Greg Shatan

Matthew Shears