Re: [wg-review] Clarifications requested from BoD, Staff, NC, TC, Chair prior to co-Chair elections

[Jefsey Morfin <jefsey@wanadoo.fr>]

Dear Karl,
We have an obvious important disagreement in reading the bylaws,
which in fact leads you yourself to oppose what you want.

Frankly, I do not understand .:-) !!!

On 18:36 08/01/01, Karl Auerbach said:
> > You certainly realize that what you say calls for a lot of comments
> > and leads to the dissolution of the ICANN. So I prefer to cross check
> > with you first.
>
>The existing ICANN bylaws mandate - the word "shall" is used" - that the
>Board of Directors shall accept the policy decisions of the DNSO unless
>certain very limited conditions exist or the board makes a specific
>finding that there is some overriding need.
>
>Take a look at http://www.icann.org/general/bylaws.htm#VI particularly at
>Section 2 and all of its subsections.
>
>In other words, under the existing ICANN bylaws, the DNSO *is* the
>authority for DNS policy.

I am in total disagreement on this. Unless californian las is to apply
the countrary of what is written. I do not like the constitutional vsision
of Joe Sims but I must agree that he is clear and consistent.

1. you oppose one "shall" one lne to ten other "shall" in thirty lines
     limitating or abolishing that shall. Anyone can read.

2. the entire paragraph is about all the conditions for this shall to
     apply and all of this is of very common sense and perfectly
     consistent with

     "
     VI.2.(b) The Supporting Organizations shall serve as advisory
     bodies to the Board.
     "

     I have not invented anything. I know the bylaws may change
     but this is table. Published all over all the sites of the ICANN?
     explained in the press, etc....

What you describe as "current practice" is exactoly what is in
the bylaws. And you fully support that practice when you explain
that the DNSO inputs are so poor that the Staff as to rewrite them
and call upon eternal help. This is spelled out in the bylaws.

I accept that English is not my mother tongue. So I may have
some misreading. I accept you are a lawyer: I have enough
records in that field not to be feel incompetent. So, we have a
have a disagreement. It is important only because it blocks you:
it odes not hampers me.

And I certainly use that bylaws as a clear reference to demand
we apply what you plead for.

My reading is that history you built and historic choices and mistakes
- as Dennis Jennings' Irish Plan if I understand well - made you build
an historic image of the ICANN I do not see when looking at the existing
ICANN.  So I feel you still fight for what you already won. I oberved that
you are not alone.

> >Actually I prefer the word "decisions".  I'd like to be able to sit in my
> > >comfy board-of-directors chair and ask only whether the DNSO policy
> > >decision was reached via well defined processes in which every who wants
> > >to participate had the opportunity to do so on par with everyone else.
> >
> > We may read the things in two ways:
>..
> > - or you actually want to say that the DNSO (a non exclusive consulting
> >    group) would actually conduct the ICANN policy and the BoD would
> >    only check if it performed properly. In other words, the entire DNS
> >    policy would be the responsibility of Ken Stubbs.
>
>Yup.  As long as the DNSO operates so that everybody who is interested in
>participating has the opportunity to do so and if the procedures are fair
>and we can measure the degree of agreement by something better than
>uncounted humms then yes indeed the board ought to accept it absent some
>very strong counterveiling concerns.
>
>In your description however, you seem to say that Ken S. would establish
>the DNSO policy.  That situation would not be in accord with the
>requirement that such policy be created by the fair interaction of all
>interested parties.

As you know it is untrue that Ken Stubbs has the right to do what you say.
The outputs of the DNSO must be a consensus (what ytou object as
impossible), must be reviewed by the other SOs, be reviewed by the BoD,
approved by the BoD non DNSO Members, etc... With possibilties for
alternative entries by external compeences or internal interested parties
etc, etc...

But in prctice, Ken Stubbs (as Philip Sheppard shown it here) has the
power to block a good working force...BTW, since Philip S. obviously
wanted to do well, it shows the system is rotten.

> >For the most part, I'd prefer it if the board rarely, if ever, exercised
> > >its power to make DNS policy but rather left it up to well run ICANN
> > >public policymaking processes.
> >
> > That you prefer the world to be so smooth you do not have to exercise
> > your power and you may rely on NC generalities as perfect policy
> > statements is pure Utopia but does not removes the power of decision
> > from the BoD.
>
>You seem to expect more wisdom from the board of directors than from the
>DNSO.  Don't.

No. I expect any orgnization working on broken feet to go firther than the
once working on his head.

>Better to fix the DNSO than to rely on the board of directors to correct
>ill-DNSO decisions.

Better to help the BoD to make sure that the DNSO inputs are relevant.
This may include a total review of the Board and of the ICANN constitution.
This is exactly what I say, explain and document.

> > >Of course, if one reads the ICANN bylaws as they exist today that is what
> > >they very clearly say - but as we have seen from the rejection of my
> > >"request for reconsideration" on that point, ICANN's official policy makes
> > >that bylaw language nothing more than meaningless surplussage.
> >
> > I am not clear if you want to say the existing bylaws say what you say
> > or what I say? (from my reading, they say what I say, but that seems to
> > contradict the rest of your phrase?) could you clarify please?
>
>The existing bylaws are very, very explicit about the obligation of the
>board to accept the ouput from the supporting organizations.  Those
>sections of the bylaws are, however, ignorred in practice.

There is only one part of a sentence correponding to that:

* VI.2.(e) Subject to the provisions of Article III, Section 3, *
the Board shall accept the recommendations of a Supporting Organization
*if the Board finds that the recommended policy ....*
follows ten lines of lilitation, plus 2 paragraphs of additional limitations.

Again. Anyone can read it to forge his own opinion.
http://www.icann.org/general/bylaws.htm#VI


> > PS. I wish also to underline a few constitutional oriented aspects:
> >
> > 1. The @large Study Group which is to be a parallel effort
>
>No it isn't.  The at-large is a matter distinct from DNSO reform and to
>mix the two is to damage both efforts.

Here we totally disagree. You support position which are hose of Kent
Crispin Dennis Jennings, SAIC/ATT/IBM, Hans Kraaijenbrink's etc...

The DSNO reform IS to get rid of the @large aspects the DNSO has
been made to host. Event Joe Sims testified about that confusion.

> >      You seem to want drastic changes.
>
>Following the existing bylaws with regard to the adoption of DNSO policy
>by the board is not drastic.

The Board I am sure will accept the DNSO propositions if they are sound
and not generalities resultinng from a compromise between @large
interests. Only because as you say it would be simpler and more
confortable.

>Getting rid of rotten burough "constituencies" that give voting rights,
>often multiple voting rights, to special groups is not drastic.

No it is not. And we are goingto implement it simply, as you suggested
through GA Centers of Interests as started through the WG-review. We
only need recognition to proceed faster and to help in getting rid of the
NC. Obsiouly an entire consistency review of the ICANN bylaws by
a professionnal international team as the new USG admin may carry
would be the best...

>Creating structures that allow people to form coalitions with those they
>believe have a common point of view on an issue is not drastic.

No it is not. And at works. This is a working group, a task force, a
center of interests. The only problem is not to have it started on Dec
19th to report before Jan 9th or even 15th. Well Rome has not been
built in one day: may be next time the NC will only give us that day?

>Having procedures through which all who are interested may have rational
>organized discussions is not drastic.

No it is not, but complex. This is the task of Subject 14. [BY CONSENSU]
  of Greg. A difficult an very interesting task. We discussed that earlier.

>Allowing any member to call for a counted vote whenever that memeber
>disagrees with the chair's assessment is not drastic.

Here we disagree. Having one vote more or less to support something
objected by 350.000.000 of non present people, what is the interest.
Ken is right; there are superior veto powers. This is why vote has
nothing to do with DNSO consensus. Vote has onlyto do with
@large stakeholders priorities, and it must invove enough diverse
origin people not to be hi-jacked.

>Retention of the status quo - that is drastic.

I happy we may share a final bug YES !

Jefsey

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