[ALAC] CCWG-Accountability Issues

[Eduardo Diaz]

This is another idea:
Keep the organization the same way they are now and, when there is a need
to activate any of the enforcing mechanisms, at that time SOs/ACs will
become members, unincorporated, designators or whatever. Once the whole
enforceability process ends SOs/ACs can then remove themself as members (or
designator, etc) and continue as they are now until the next time it is
required for this to happen again.

-ed

On Mon, Jun 22, 2015 at 1:49 PM, Alan Greenberg <alan.greenberg at mcgill.ca>
wrote:

> As I mentioned in the ALAC meeting yesterday, I had made a proposal which
> does not include the ability of the community to "enforce" its rights other
> than by the threat or reality of Board member removal. This matches the
> position taken by most At-Large people involved in the process, as opposed
> to the stronger Member or even designator model. A copy of my message to
> the CCWG is appended to this e-mail.
>
> At the moment, the "Empowered AC/SO" model is being discussed by the CCWG,
> which by simply stating that the AC/SO wants to use its rights as a Member,
> the AC/SO effectively has the same powers (as a legal person) as the
> Unincorporated Association would have in the previous proposals (but with
> the "alter ego" structure confusion). This mechanism would also work for
> Designators instead of Members.
>
> In our formal reply to the CCWG Public Comment, we said that if we had to
> choose between a Member or Designator model, we would select Member,
> because it was easier to explain that Designators. I now believe that we
> forgot a major consideration in this choice, and if I had it to do over
> again, I would choose differently. The reason is that we can start using
> Designators without changing ICANN into a Membership organization (by
> altering its Articles of Incorporation), and that I think is a major
> consideration.
>
> Alan
>
>
>
>  Date: Thu, 18 Jun 2015 21:17:00 -0400
>> To: CCWG Accountability <accountability-cross-community at icann.org>
>> From: Alan Greenberg <alan.greenberg at mcgill.ca>
>> Subject: Plan B
>>
>> Given the spread between those who believe that we need ultimate
>> accountability, and those who are willing to trust that the community
>> wishes will be honoured, allow me to put a new variation on the table. We
>> have talked about all of the parts before, but perhaps the combination is
>> new.
>>
>> This proposal involves no Unincorporated Associates, no Designators and
>> no Members.
>>
>> Up to now, we have been working with Bylaws that we are now told have no
>> real basis in law, but which so far, have worked. I specifically refer to
>> things like the SOs, ALAC and the NomCom appointing Board members, powers
>> that under California law are only given to Members or Designators, but our
>> less formal entities are granted these powers under the ICANN Bylaws and
>> for whatever reasons, it works.
>>
>> I propose that we do the same with all of the community powers that we
>> want (including the requirement that Bylaws and certainly fundamental
>> Bylaws be approved), with the exception of formal budget approval (which
>> impinges on Board fiduciary responsibility). In lieu of the latter, we
>> could have a process by which and AC/SO lodges a formal objection to a
>> budget or budget item, and the Board has an obligation to follow-up (I am
>> not going to go into any further details here).
>>
>> Every Director, as a requirement of being seated signs an irrevocable
>> letter saying that if by specified procedure, they are requested to step
>> down, they will. The procedure might include the formal action of the AC/SO
>> that appointed them, or a more widespread community request passing a
>> specified level of AC/SO support - the details would need to be defined,
>> but do not alter this proposal. The letter would also make reference to an
>> enforcement mechanism that could be invoked. The enforcement mechanism
>> might be to give the ICANN Ombudsman (or some other trustworthy and trusted
>> individual) the right to take court action to require the requested
>> resignation be honoured, or could give that right to the people occupying
>> the AC/SO Chairs. Any such action would be funded by ICANN and funds held
>> in escrow to ensure that this can be carried out.
>>
>> In unlikely event that a removal included the entire Board, or some
>> number such that the remaining Board members do not meet minimum quorum
>> requirements, the AC/SO Chairs will on an interim basis be added to the
>> Board on an interim basis. This augmented interim Board would have
>> caretaker responsibilities and have only limited rights (to be specified).
>>
>> Board member removals would be unconditional and not appealable.
>>
>> I believe that the threat of invoking removal will likely be sufficient
>> to ensure that the community is given good control. And should that fail,
>> the actual removal of the Board member(s) who do not support the community
>> position can actually be removed.
>>
>> There are many details to be determined but I believe that this is
>> workable. It allows for the most of the powers that have been requested
>> with a minimum number of changes and does not create significant new
>> potential vulnerabilities.
>>
>> Alan
>>
>>
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