[council] Request to General Counsel, ICANN, for clarification on GNSO quorum for council actions

["Cade,Marilyn S - LGCRP" <mcade@att.com>]

To: 	 Louis Touton, General Counsel, ICANN
From:	 Marilyn Cade, Officer of the CBUC, and elected member of the Council

The CC's of this email are sent to the Chair and President of ICANN, to the Chair of the ERC, and to Philip Sheppard because he is presently not on the Council list since he is a candidate for the board elections.  This communication is regarding quorum, not election, and is therefore cc'd to him as an officer of the CBUC.  This email can be distributed to other ERC members, or to the Board, as appropriate.  A copy of this email will be posted to the CBUC to inform them of my actions, as an elected officer.


Subject: Clarification of interpretation of "equalized voting"  in regard to determining "quorum" of the GNSO Council

In an informal discussion between some members of the GNSO Council and the General Council on Friday, the topic of ratification of a vote was discussed, and in this regard, the topic of "quorum" of the Council was the subject of a short discussion between the General Counsel and myself.  I had a question of how quorum is determined, based on votes or based on numbers of members of the Council.

This is a request for clarification of that topic. It is focused on the topic of quorum specifically. It is not a commentary on the outcome of the present election, nor
my earlier request sent to you, and to the Board chair and President, and council which is relevant to the election outcome itself.  It is pertinent, however, to all work of the Council, since it asks what the criteria is on which quorum is determined.

It is intended as a separate action. While it may result in a request by me to the Board for a reconsideration of existing policy, any such request will be separately submitted. 

The clarification I seek is related to the determination of how quorum of the GNSO is determined. The discussion during the call on Friday with Council was not specifically focused in any detail on a question related to this which I asked, and my present understanding of the interpretation by the Council, and by the General Counsel of ICANN is simply not clear. Therefore, I seek a written determination by the General Counsel of this issue, and its implications.

First, my understanding is that the bylaws establish "equalized voting" between the "provider constitunencies--e.g., those under direct contract to ICANN [registries and registrars] and the "user constituencies [which today are the CBUC; the IPC; the NCC; and the ISPC]. The bylaws further provide for three voting members to be appointed to Council by the Nominating Committee. These three seats are vacant at present, and there is no set date for their appointment.  These three seats are not considered in the determination of the "equalized voting". 

The purpose of the equalized voting, as I understand it, is to create balance between two categories of kinds of constituencies in Council. Since it is possible that further "user" constituencies, or even that further "provider" constituencies might emerge at some time,  the approach was to provide for "equalized" voting, rather than to grant a fixed vote per person.  There is a second process whereby there will be an evaluation of whether to lower the number of seats or votes on the Council per constituency.  Therefore the concept of equalized voting provides for a process whereby such changes can be dealt with.  I will not dwell on the merits of this approach in this communication, now its pros or cons, nor my own constituency's perspective that in order to ensure geographic diversity, maintaining three seats per constituency are critical. Those debates are reserved for future times. There is a matter much more urgent to deal with now.

Having established the above as my understanding of the purpose of "equalized voting", I will note that I did not understand that the equalized voting regime was intended to establish the determination of quorum.  I did pay close attention to this process throughout, as all are aware from my active participation in discussions on the lists, and at the public forum. 

At present, in  my view, given that there are 18 members of Council, quorum would be reached at 10 people participating.  NOTE: my interpretation is people, NOT votes.  When the three additional participants are added, quorum would appear to be 11.   In the first scenario, you would have to have attendance from multiple constituencies, e.g. at least 4. In the second, at least 4. While I might consider it very troublesome that quorum can be called without any representation from all constituencies, I leave that discussion to later.

There may be a different view held by some: Counting quorum based on votes, not people. 

Should quorum be established instead by counting " votes", taking into account the equalization of votes, a quorum could be called with all 6 attendees of the Registry and Registrars present, adding in one representative from one other constituency, but resulting in the ability to enact policy, ratify elections, etc. Example: 6 members of Registry and Registrar Constituency x 2 votes each = 12; add in one  for a total of 13. With the total number of equalized votes, this might appear to be a quorum of votes. This would mean that two constituencies, plus one participant from another constituency, or the nom-Committee members, could make up quorum. 

It is totally non representative of the Council composition.  

I do not believe it the intent of the ERC or the Board to create such an unbalanced situation for the Council's functioning.

In practice, the Council has operated over its life, with the expectation of all constituencies participating. In fact, in looking at the record of the Council, and its predecessor, the DNSO Council, council chairs, as noted above, have routinely waited to start meetings until as many constituencies as possible are represented on the Council calls, which is  where the majority of Councils deliberations are undertaken.  

To move to a situation where it is possible to have an occurrence -- even one -- where only 2 constituencies PLUS one representative from another constituency considered, or took action on behalf of Council is wrong. Even deliberations should not be undertaken in this situation. 

It is critical for the success of the Evolution and Reform Process that this Supporting Organization and its constituencies, like other Supporting Organizations and their participants, have respect and faith in the processes they work within.  The understanding I had, in accepting the "equalized voting" and in encouraging my own constituency and other constituencies to accept this, in no way foresaw that the Council could undertake work in these circumstances. 

We should all be absolutely committed to ensuring that the broadest possible representation of Council is present for discussion, participation, any voting or ratification needed in council's work.

I am confident that is the intent of the ICANN Staff, the ERC, the Board, and the broad set of concerned and committed stakeholders who care about ICANN's success. 

I ask the General Counsel for an interpretation of the by-laws of relevance to determining how to establish Council quorum, and I ask that be based on the number of members of council, not on the number of votes held.  While I know that time is very limited before the upcoming meeting, given that Council has policy decisions before it for consideration  and action, I ask for a response on the interpretation before the ICANN meetings begin. 



Contact information: 
Marilyn Cade
202-255-7348c
mcade@att.com