Re: [council] RE: Draft Motion - GNSO Validation of CCWG-Accountability Budget Request
- To: "egmorris1@xxxxxxxxx" <egmorris1@xxxxxxxxx>, GNSO Council List <council@xxxxxxxxxxxxxx>, Phil Corwin <psc@xxxxxxxxxxx>
- Subject: Re: [council] RE: Draft Motion - GNSO Validation of CCWG-Accountability Budget Request
- From: "James M. Bladel" <jbladel@xxxxxxxxxxx>
- Date: Tue, 20 Sep 2016 05:29:58 +0000
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- Thread-topic: [council] RE: Draft Motion - GNSO Validation of CCWG-Accountability Budget Request
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As always, thanks Phil & Ed for contributing to this motion.
Marika/Mary - Are we tracking changes to the language in a centralized place
or doc? I expect we’ll be working this one on the table during our next call.
From: Edward Morris <egmorris1@xxxxxxxxx<mailto:egmorris1@xxxxxxxxx>>
Reply-To: Edward Morris <egmorris1@xxxxxxxxx<mailto:egmorris1@xxxxxxxxx>>
Date: Tuesday, September 20, 2016 at 1:57
To: James Bladel <jbladel@xxxxxxxxxxx<mailto:jbladel@xxxxxxxxxxx>>, GNSO
Council List <council@xxxxxxxxxxxxxx<mailto:council@xxxxxxxxxxxxxx>>, Phil
Subject: re: [council] RE: Draft Motion - GNSO Validation of
CCWG-Accountability Budget Request
James, Phil, all:
I share Phil's concerns with the Draft Motion and support his modification
? As rapporteur for the CEP subgroup and a participant in three other CCWG
WS2 subgroups I'm encountering situations concerning staff support and
expenses that border on the ridiculous. For example, in the Ombudsman subgroup
staff refused to set up a doodle poll at the request of the rapporteur that had
in turn requested by a Board member. Staff is not allowed to do doodles,
budgetary concerns, we were told. Staff papers have been weeks late, and in
some cases have been of low quality and of little use. Volunteers have been
deserting some groups in droves and momentum from the successful completion of
work stream one has been lost. I'm very concerned about the direction of WS2
and the low level of funding is increasingly a focus of that concern.
? As a rapporteur for one of the subgroups:
1. I certainly would not want to have to tell my group that we could not
go in a direction we felt was necessary because the budget would allow us to
make only certain choices,
2. I would not want to be precluded from requesting that the CCWG
reexamine it's budget assumptions short of extraordinary circumstances if
additional funds were needed to adequately complete this project.
With regards to budgeting I can relay a conversation I had with Xavier
during a recent webinar kicking off the FY18 budget consultation. There is
documentation suggesting that, for example, the $1.4 million budgeted for WS2
legal expenses is an amount that is the total approved for the entire WS2
project, even if it were to extend into FY18. Xavier now claims that is not
true, that the budget amounts are coming from the reserve fund and are
expressly targeted for use in FY17. FY18 requests would have to be made
separately. Again, this rather confused state would also auger against
including the language that requests "for additional funding will only be
requested in extraordinary circumstances". Merely going into a new fiscal year
would likely not be considered an exceptional circumstance.
1. I would delete or otherwise modify Whereas clause 4 to temper the suggestion
that exploration of jurisdiction or any other subtopic should be restricted by
budgetary concerns. I should note we have a WS2 subgroup entitled
"jurisdiction" for a reason: the community in WS1 did feel an examination of
jurisdiction was an essential part of our accountability discussions.
Jurisdiction has many aspects. Whether the location of ICANN headquarters is an
appropriate topic of consideration, something that would cause a number of
difficulties budgetary and otherwise, is something the subgroup is currently
discussing. Other aspects of jurisdiction, for example the site of arbitration
of contractual disputes, are also matters being looked at by this subgroup and
would not raise many of the same budgetary concerns. A blanket statement
concerning the budgetary aspect of "revisiting the topic of the jurisdiction of
ICANN's organisation" would not be appropriate.
2. I would delete or change Resolved clause three to recognise that additional
funding may be needed due to : 1. inadequate preliminary budgeting or 2.
unforeseen circumstances that are less than extraordinary (i.e. seepage of WS2
into FY 18).
?3. I share Phil's concerns regarding the amount budgeted for independent legal
counsel. As a member of the legal committee I'll do my best to constrain costs
but certainly if additional funds are needed I would like to feel requests for
additional funding would be considered short of "extraordinary circumstances"
(again, another reason to modify or eliminate Resolved clause 3).
Thanks for considering,
From: "Phil Corwin" <psc@xxxxxxxxxxx<mailto:psc@xxxxxxxxxxx>>
Sent: Monday, September 19, 2016 11:41 PM
To: "James M. Bladel" <jbladel@xxxxxxxxxxx<mailto:jbladel@xxxxxxxxxxx>>, "GNSO
Council List" <council@xxxxxxxxxxxxxx<mailto:council@xxxxxxxxxxxxxx>>
Subject: [council] RE: Draft Motion - GNSO Validation of CCWG-Accountability
The following remarks are my personal views, and I will share them with the BC
Executive Committee and BC members prior to our September 29th meeting to
assure that any statement I make/position I take at that meeting is consistent
with the consensus within the BC.
That said, I have some significant concerns about the wording of the draft
Resolution, and shall now set them forth.
Use of Budget Constraints to limit range of discussion within WGs_-
Your cover note states, “I would like to draw your attention to WHEREAS #4 and
RESOLVED #4, in which I attempted to capture the concerns raised by Phil and
Paul and others regarding revisiting the subject of ICANN Jurisdiction in WS2”.
My comments on this draft resolution are solely my own and I will let Paul
chime in, or not, as he sees fit.
Whereas #4 states -- “The GNSO Council notes that many members of the GNSO
community have expressed the view that the projected budget does not support
revisiting the topic of the jurisdiction of ICANN”s organization.”
Resolved #4 states – “It is the position of the GNSO Council that revisiting
the jurisdiction or organization of the ICANN legal entity, as established by
CCWG-Accountability Work Stream 1, is not supported by this projected budget.”
My very public personal position on ICANN’s organizational jurisdiction is that
it was a mistake not to resolve this matter during WS1 (and the failure to do
so is now being cited by Congressional critics of the IANA Transition), and
that ICANN’s U.S. incorporation should be enshrined in a Fundamental Bylaw as
an expedited outcome of WS2.
Notwithstanding that clear personal view, I have concerns about the proposed
language cited above. For one thing, it is presently ambiguous – it is not
clear whether the import of the language is that:
· The projected budget should be increased so that “the topic of the
jurisdiction of ICANN”s organization” can be revisited or addressed (the word
“revisited” is also problematic, as it implies that some conclusive decision
was made on this matter during WS2, whereas the record is to the contrary), or
· The topic of organizational jurisdiction should be off-limits in WS2
due to budget constraints
Again, my personal view is that this topic of ICANN’s organizational
jurisdiction should be further addressed in WS2 – and should be definitively
resolved through the adoption of a Fundamental Bylaw enshrining US
Notwithstanding that personal view, I am opposed to any Resolution which takes
the position that budget considerations should limit the scope of inquiry and
discussion of any WS2 subgroup. The budget, and especially that for impartial
outside legal expertise on accountability matters on which ICANN Legal may have
an inherent bias (such as transparency or staff accountability) should be
adequate to support the necessary work, rather than suggesting that the work
should be constrained to fit within the scope of the budget.
Adequacy of the budget for outside legal expertise
The other problem I have with the draft Resolution is that it does not speak at
all to the general concerns I and others have expressed about the adequacy of
the budget for outside legal expertise for WS2 activities, as well as the
proposed process for obtaining authorization of additional funding.
My recollection is that the WS2 legal budget is just one-tenth of the amounts
expended for WS1 -- $1.4M compared to $14M. I would certainly anticipate that
WS2 outside legal expenses will be substantially less than in WS1 because major
revisions and drafting of Bylaws and Articles of Incorporation will not be
required. Yet there is still reason to believe that a 90% reduction is
excessively severe and likely to fall short of requirements for a quality and
fully considered work product.
It is also my recollection that under the proposed budget and accompanying
procedures, even if the Legal Committee agrees that additional funding is
required at some point in the process, the Board has unbridled discretion and
decisional authority to accept, reject, or modify such a request for additional
funds. This is very troubling given that WS2 addresses such matters as
organizational transparency, and Board and staff accountability.
Therefore, at this time I cannot personally support the proposed language in
Resolved clause #3 – “The GNSO Council expects the CCWG-Accountability and
staff to work within the constraints of this approved budget, and that excess
costs or request for additional funding will be considered only in
extraordinary circumstances.” (Emphasis added)
An “extraordinary circumstances” standard for authorizing additional funds is,
in my opinion, far too high given that the budget for WS2 was set by a small
group and only put out for public reaction after the fact. Further, it is
absolutely unacceptance as a standard for consideration of additional funding
requests – every such request should be considered without bias on its own
separate merits, and not face a high hurdle simply because it exceeds a legal
assistance budget that some Council and community members already fear may be
inadequate to support the necessary work delegated to WS2.
Summing up, my personal view is that this Resolution should be modified to:
1. Eliminate any suggestion that discussion of ICANN’s organizational
locus of incorporation is off-limits for the Jurisdiction subgroup based upon
2. Express general concern about the adequacy of the funds budgeted for
outside legal assistance, as well as the proposed process for deciding whether
additional funds should be allocated at a future point of time.
I thank you and my fellow Councilors for considering these views, and look
forward to further discussion of this matter.
Philip S. Corwin, Founding Principal
1155 F Street, NW
Washington, DC 20004
"Luck is the residue of design" -- Branch Rickey
[mailto:owner-council@xxxxxxxxxxxxxx] On Behalf Of James M. Bladel
Sent: Monday, September 19, 2016 4:02 PM
To: GNSO Council List
Subject: [council] Draft Motion - GNSO Validation of CCWG-Accountability Budget
Council Colleagues -
Attached and copied below, please find a draft motion for consideration during
our next GNSO Council call (29 SEP), that examines the subject of the proposed
budget & cost control mechanisms for CCWG-ACCT and Work Stream 2.
In particular, I would like to draw your attention to WHEREAS #4 and RESOLVED
#4, in which I attempted to capture the concerns raised by Phil and Paul and
others regarding revisiting the subject of ICANN Jurisdiction in WS2. Please
review these provisions closely, and make sure that they accurately reflect
Draft Motion - GNSO Validation of CCWG-Accountability Budget Request
1. Per its Charter, the Project Cost Support Team (PCST) has supported the
CCWG-Accountability in developing a draft budget and cost-control processes for
the CCWG-Accountability activities for FY17, and has also developed a
historical analysis of all the transition costs to date (see
2. The CCWG-Accountability FY17 budget was presented at its plenary
meeting of June 21st and approved for transmission to the Chartering
Organizations for validation as per the process agreed with the PCST. This
request for validation was received on 23 June.
3. Following review and discussion during ICANN56, the GNSO Council
a webinar on this topic which was held on 23 August (see transcript at
AC recording at https://icann.adobeconnect.com/p8fu99qpt7d/).
4. The GNSO Council notes that many members of the GNSO community have
expressed the view that the projected budget does not support revisiting the
topic of the jurisdiction of ICANN”s organization.
5. The GNSO Council has discussed and reviewed all the relevant materials.
1. The GNSO Council hereby accepts the proposed CCWG-Accountability FY17
budget, as well as the cost-control processes presented in conjunction with the
CCWG budget (see
2. The GNSO Council expects to receive regular updates on actual
expenditures as tracked against this adopted budget, and reserves the right to
provide further input on the budget allocation in relation to the
CCWG-Accountability related activities.
3. The GNSO Council expects the CCWG-Accountability and staff to work
within the constraints of this approved budget, and that excess costs or
request for additional funding will be considered only in extraordinary
4. It is the position of the GNSO Council that revisiting the jurisdiction
or organization of the ICANN legal entity, as established by
CCWG-Accountability Work Stream 1, is not supported by this projected budget.
5. The GNSO Council requests the GNSO Secretariat to communicate this
resolution to the CCWG-Accountability Chairs, and to the office of the ICANN
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