Re: [wg-d] NC Elections. Was: ga] DNSO General Assembly - Revised Agenda

[Kent Crispin <kent@songbird.com>]

On Sun, Aug 15, 1999 at 06:56:18PM -0700, Karl Auerbach wrote:
>> Karl, I haven't forgotten anything.  I am just refuting the utter
>> nonsense you have been spreading that the NC "can't change a single
>> comma". 
> 
> Please cite your authority, with precision, with specificity, by chapter
> and verse of the ICANN bylaws.

Sure.  Here's precisely how the NC would rewrite something:

1) NC charters a WG on some topic:

  VI-B,2(b): It [the NC] shall adopt such procedures and policies as
  it sees fit to carry out that responsibility, including the
  designation of such research or drafting committees, working groups
  and other bodies of the GA as it determines are appropriate to
  carry out the substantive work of the DNSO. 

  2) WG submits report.  NC posts it for review by the
  constituencies, as required in 2(c).  Comments are returned by the
  constituencies.  NC feels that some commas need to be fixed, and
  that the WG did not take into account the input from the ISP
  constituency.  NC votes on the proposal; it is rejected.  So NC
  forms an editing committee to repair the flaws, based on the
  authority in 2(d): "Any proposed recommendation that is not
  supported by an affirmative vote of one-half (1/2) of the members
  of the NC may be returned to the body from which it originated, or
  may be assigned to a new body, for further work." This editing
  committee is composed of 3 NC members.  Note that this section,
  2(d), does NOT require that there be 1 member from each
  constituency, and in fact says nothing about the composition of the
  "new body".  And, as discussed below, the language in 2(c) actually
  gives a great deal of leeway in the formation of alternate means of
  doing things. (*)

  3) Editing committee fixes the commas, adds language dealing with
  the ISP constituencies concerns, submits report to NC. 

  4) NC votes to accept the report and pass it on to ICANN. 

> As you will find when you undertake your futile effort is that the NC is
> there merely to manage the process of creating a consensus. The
> substantive work occurs in other elements of the DNSO.  It says so right
> there in Article VI-B, Section 2(b).

Actually, section 2(b) says that the NC can do "as it sees fit". 
Another interesting wrinkle is that the consensus of interest is the
"community consensus", not the "DNSO consensus".  Thus, the NC is
duty bound to consider outside input, if it feels it is relevant. 

[...]

> > The populist oversight in this structure comes from the members of 
> > ICANN, not the GA.
> 
> So you say.
> 
> The ICANN bylaws say the contrary.

Cite?

> This is one of the reaons we need formalized process.  The memory of the
> pariticpants is too conviently flexible.

I am reading precisely what the bylaws say.  I do have the advantage
that I participated in a large part of the DNSO formation process, so
I know what was intended, in large part.  But everything I have been 
saying is precisely from the bylaws.

>>> As is very clear from the bylaws the NC is merely there to measure whether
>>> a consensus exists, not to create or fabricate one of their own liking.
>> 
>> No, it's not clear at all
> 
> Read Article VI-B, Section 2(b).  If you think there is other language
> that is relevant, you have the opportunity to cite it, an opportunity that
> I might add, of which you have never availed yourself despite repeated
> requests.

???

I outlined the precise process above for how the NC could add 
language it saw fit.  Every step is grounded in the bylaws. 

Moreover, they are grounded in common sense: the NC is charged with 
"managing" the consensus building process of the DNSO, and it is 
given fairly broad leeway in how it does so.

> Per Article VI-B, Section 2(b), the function of the NC is merely to manage
> the consensus building process and to let "research or drafting
> committees, working groups and other bodies of the GA...carry out the
> substantive work of the DNSO".
> 
> One can quibble about whether "research or drafting committees" are part
> of the NC or the GA; that language is ambiguous, the draftsman was sloppy.

Personally, I don't think the draftsman was sloppy, I think your
interpretation is sloppy.  You left out a critical bit of language --
the primary clause of the sentence: "It [the NC] shall adopt such
procedures and policies AS IT SEES FIT to carry out that
responsibility, including research etc..."

[emphasis added]

Whether the committees or WGs are part of the GA is really a
secondary point, since the entire phrase is a set of *examples* for
the "as it sees fit" primary clause. 

> But there is no doubt whatsoever about the language "working groups and
> other bodies of the GA".  Those are certainly part of the GA, not the NC.

Sure.  WGs of the GA were *one* example.  In addition, the NC could
hold independent hearings; it could contact experts on a subject; it
could consult with government officials; it could request the
constituencies to poll their membership.  The NC can do "as it sees 
fit" to find a consensus position, which means it gets to use *its* 
definition of "consensus position", not yours.

In practical terms, of course, it won't go wildly out of whack, 
because the ICANN Board has, ultimately, decision authority over the 
policy recommendations of the NC and the DNSO, and can make an 
independent judgement of whether the NC has fulfilled its 
obligations.  Also, the constituencies can get rid of their NC reps, 
if the NC reps go crazy.  But the GA has no power in this matter.

Incidentally, as a matter of history, the lack of power in the GA is
a compromise between those who didn't want a GA at all, and those who
wanted a powerful GA (or something like it, an "at large"
constituency). 

If you look, for example, at Dennis Jennings' statement of CENTRE's
principles (conveniently available at
http://songbird.com/dnso/jennings.txt), you will see that the CENTRE
proposal has a more fleshed out GA, with substantially more structure
than appeared in the bylaws. 

The BMW draft (at some stage or another) had the notion of an
"at-large" constituency.  However, other groups rejected anything
like an at-large constituency or a powerful GA, because, as explained
to me, they felt they lost badly on the issue of individual
membership in ICANN.  So in order to get these players to sign on to
the compromise, the GA is a considerably weakened version of what had
existed previously.

So yes, the GA that is described in the current bylaws has almost no 
power.  The current bylaws are a compromise, but they do give 
considerable leeway to the NC.
[...]
> You are suggesting that a Names Council member throw aside the clear
> duties in the ICANN bylaws in favor of advocating a private agenda.

No, you are suggesting that.  I am suggesting that the bylaws give 
the NC that power, which is quite a different thing.  That is, the 
GA doesn't provide any structural oversight over the NC -- that 
oversight comes from the ICANN board.  (When I use the term 
"structural" in this message, I mean "codified in the bylaws".)

> Under your logic we don't need a General Assembly at all as it would have
> no power.

It is a foundation of your logic, apparently, that structural power
is everything.  In fact, the GA has very little structural power, by
design.  (That it is "by design" comes from my knowledge of the
formation process of the DNSO, I admit.  I explained some of that
history above.  But whether by design or not, that's the way it
*is*.)

However, the fact that the GA has little or no structural power does 
not mean that it is useless -- not by any means.  The people who 
participate in the IETF are critical to the success of the IETF, 
even though as individuals they have essentially no power.

> Fortunately, the clear language of the ICANN bylaws, which I have
> mentioned several times is against you.

You apparently have fixated on the first sentence of VI-B, 2(b): "The
NC is responsible for the management of the consensus building
process of the DNSO", and are twisting the meaning of the word
"management" (from "to manage": "to direct, control, or handle") into
a pale weak ghost.  You ignore the very next sentence in the bylaws,
which says "It shall adopt such procedures and policies AS IT SEES
FIT to carry out that responsibility...".

================================================================

  (*) Interesting enough, a justification for this can be found in
  Roberts Rules.  The NC fits the (very general) definition in RR for
  a "board", or "executive committee" (section 48, "Boards and
  Committees").  (Of course, we have to be fairly general here,
  because the NC is described in the ICANN bylaws, and ICANN already
  has a board...) Here's what RRs says about such an entities ability
  to create committees:

  "As a general principle, a board cannot delegate its authority -- 
  that is, it cannot empower a subordinate group to act 
  independently in its name -- except as may be authorized by the 
  bylaws (of the *society*) or other instrument under which the 
  board is constitued; but ANY BOARD CAN APPOINT COMMITTEES TO WORK 
  UNDER ITS SUPERVISION OR ACCORDING TO ITS SPECIFIC INSTRUCTIONS; 
  such *committees of the board* always report *to the board*." (pp475)

  That is, according to Roberts Rules, the default understanding is 
  that a board can *always* form committees to operate under its 
  direction -- this is standard parliamentary practice.  And indeed, 
  the NC has already formed subcommittees -- this WG came out of one.

-- 
Kent Crispin                               "Do good, and you'll be
kent@songbird.com                           lonesome." -- Mark Twain