RE: [gnso-policyimpl-dt] For final review - proposed WG Charter

["Aikman-Scalese, Anne" <AAikman@xxxxxxxxx>]

Greg et al,
Just a note that it is very clear under the current GNSO Operating Procedures 
that if the GNSO Council disagrees with manner of IMPLEMENTATION by staff, its 
recourse is to notify the Board.   my recollection is Jeff Neuman and Marika 
led this PDP Manual effort and first presented it in San Francisco.   Please 
see  Paragraph 14 of the PDP Manual adopted by the Board and annexed to GNSO 
Operating Procedures.  This paragraph provides as follows:

ICANN Staff should inform the GNSO of its proposed implementation of a new GNSO 
recommended policy. If the proposed implementation is considered inconsistent 
with the GNSO Council’s recommendations, the GNSO Council may notify the Board 
and request that the Board review the proposed implementation. Until the Board 
has considered the GNSO Council request, ICANN Staff should refrain from 
implementing the policy, although it may continue developing the details of the 
proposed implementation while the Board considers the GNSO Council request.

Anne Aikman-Scalese
Of Counsel
Lewis and Roca LLP • Suite 700
One South Church Avenue • Tucson, Arizona 85701-1611
Tel (520) 629-4428 • Fax (520) 879-4725
AAikman@xxxxxxxxx<mailto:AAikman@xxxxxxxxx> • 
www.LewisandRoca.com/Aikman<http://www.lewisandroca.com/Aikman>
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________________________________
From: owner-gnso-policyimpl-dt@xxxxxxxxx 
[mailto:owner-gnso-policyimpl-dt@xxxxxxxxx] On Behalf Of Shatan, Gregory S.
Sent: Tuesday, July 02, 2013 7:46 AM
To: 'Gomes, Chuck'; 'David Cake'; Mike O'Connor
Cc: Tim Ruiz; Marika Konings; gnso-policyimpl-dt@xxxxxxxxx
Subject: RE: [gnso-policyimpl-dt] For final review - proposed WG Charter

Chuck,

I see your point.  If we keep the question in, I think we need to ground the 
question in the policy and implementation context.  Otherwise, it looks like a 
question about the powers and process of the GNSO Council generally, which goes 
beyond the WG’s scope.  It may also help to “unpack” the question somewhat to 
get at its constituent parts.

I would suggest the following:

“Under what circumstances, if any, may  the GNSO Council make recommendations 
or state positions on matters of either (a) policy or (b) implementation to the 
Board?  Under what circumstances does the GNSO Council speak as a 
representative of the GNSO as a whole when making these recommendations or 
statements?”

I also think we need ask the following questions as part of this line of 
inquiry:

“What status (or statuses) should these GNSO Council recommendations or 
statements have in the eyes of the Board (e.g., when, if ever, should these 
recommendations or statements be considered as formal “advice” or “policy 
recommendations” of the GNSO)? If the Board decides to take action that is not 
consistent with a GNSO Council recommendation or statement, under what 
circumstances, if any, should the Board be required to state the reasons why 
and to consult with the GNSO Council to attempt to find a mutually acceptable 
solution?”

Greg
From: Gomes, Chuck [mailto:cgomes@xxxxxxxxxxxx]
Sent: Tuesday, July 02, 2013 9:08 AM
To: Shatan, Gregory S.; 'David Cake'; Mike O'Connor
Cc: Tim Ruiz; Marika Konings; gnso-policyimpl-dt@xxxxxxxxx
Subject: RE: [gnso-policyimpl-dt] For final review - proposed WG Charter

Greg,

I don’t want us to get far afield either; in fact, my first suggestion was to 
delete the question and I could still live with that.  But I have come around 
to the position that, if worded acceptably, it deals with a critical issue that 
has come up recently in the policy & implementation debate.  As one example, 
the Board asked the Council for advice on the TM+50 issue and the Council gave 
it.  In my opinion, the Council did a pretty good job of vetting the issue in 
the Council and some cases outside the Council.  So I believe that asking the 
WG to consider the question could result in some guidance going forward that 
applies to the core of the policy & implementation topic.

Chuck

From: Shatan, Gregory S. [mailto:GShatan@xxxxxxxxxxxxx]
Sent: Tuesday, July 02, 2013 1:28 AM
To: 'David Cake'; Mike O'Connor
Cc: Tim Ruiz; Gomes, Chuck; Marika Konings; 
gnso-policyimpl-dt@xxxxxxxxx<mailto:gnso-policyimpl-dt@xxxxxxxxx>
Subject: RE: [gnso-policyimpl-dt] For final review - proposed WG Charter

I think we are starting to get far afield from the issues of policy and 
implementation.  I don’t think that statements made by the GNSO Council (or 
some subset of the GNSO Council) on issues other than policy or implementation 
are germane to this WG.  (There are some fascinating issues around when and how 
the GNSO Council may make statements and whether they should be consensus or 
majority rule and whether they should go through some multistakeholder process 
other than within the GNSO Council, and what weight, credence or deference 
should be given to such statements, but I don’t think they are issues for this 
WG.  A GNSO governance WG or study maybe….)

Getting back to Tim’s original re-working of the language, he said:

Got it. So what I meant was recommend - Under what circumstances, if any, may 
the GNSO recommend policy?" keeping in mind that it is policy in the general 
sense so may include but is not necessarily limited to Consensus Policy. At any 
rate, I do agree that we aren't missing anything if we delete the question 
altogether.

I think this touches on the “alternatives to PDP” question we were discussing 
today.  Maybe the question should be “Under what circumstances, if any, other 
than as a result of a PDP, may the GNSO recommend policy?”  Right now, I think 
the answer is “none” (at least as to Consensus Policy, and at least as to 
“recommendations” of other types of policy).  I suppose the way to change that 
answer is to have alternatives to the full PDP process.  This comes back to 
another theme – what is “policy” and how many flavors (consensus, rocky road, 
cow pie) does it come in?

Greg

From: 
owner-gnso-policyimpl-dt@xxxxxxxxx<mailto:owner-gnso-policyimpl-dt@xxxxxxxxx> 
[mailto:owner-gnso-policyimpl-dt@xxxxxxxxx]<mailto:[mailto:owner-gnso-policyimpl-dt@xxxxxxxxx]>
 On Behalf Of David Cake
Sent: Tuesday, July 02, 2013 12:15 AM
To: Mike O'Connor
Cc: Tim Ruiz; Gomes, Chuck; Marika Konings; 
gnso-policyimpl-dt@xxxxxxxxx<mailto:gnso-policyimpl-dt@xxxxxxxxx>
Subject: Re: [gnso-policyimpl-dt] For final review - proposed WG Charter

That wording seems unclear to me. The GNSO council may state positions to the 
board on things other than policy or implementation (such as procedure, or 
anything the board asks it to weigh in on), and while the GNSO Council does 
strive for consensus where possible, it certainly sometimes does state a 
position quite explicitly not representing the GNSO as a whole (such as stating 
a majority council opinion but noting dissent of a particular constituency).

David
On 02/07/2013, at 11:11 AM, "Mike O'Connor" 
<mike@xxxxxxxxxx<mailto:mike@xxxxxxxxxx>> wrote:

sorry to come in so late -- but i agree as well.  Chuck's points about the role 
of the Council are great, and i think this wording is much better.

m

On Jul 1, 2013, at 6:06 PM, Tim Ruiz <tim@xxxxxxxxxxx<mailto:tim@xxxxxxxxxxx>> 
wrote:

Yes, that is much better.

On Jul 1, 2013, at 7:03 PM, "Gomes, Chuck" 
<cgomes@xxxxxxxxxxxx<mailto:cgomes@xxxxxxxxxxxx>> wrote:
Got it.  Thanks Tim.  Maybe we could word it something like this:  “Under what 
circumstances, if any, may  the GNSO Council make recommendations or state 
positions to the Board as a representative of the GNSO as a whole?”

Chuck

From: Tim Ruiz [mailto:tim@xxxxxxxxxxx]
Sent: Monday, July 01, 2013 6:56 PM
To: Gomes, Chuck
Cc: Tim Ruiz; Marika Konings; 
gnso-policyimpl-dt@xxxxxxxxx<mailto:gnso-policyimpl-dt@xxxxxxxxx>
Subject: Re: [gnso-policyimpl-dt] RE: For final review - proposed WG Charter

Got it. So what I meant was recommend - Under what circumstances, if any, may 
the GNSO recommend policy?" keeping in mind that it is policy in the general 
sense so may include but is not necessarily limited to Consensus Policy. At any 
rate, I do agree that we aren't missing anything if we delete the question 
altogether.

Tim


On Jul 1, 2013, at 6:50 PM, "Gomes, Chuck" 
<cgomes@xxxxxxxxxxxx<mailto:cgomes@xxxxxxxxxxxx>> wrote:
I like that wording better Tim but I think the answer is still the same.  At 
the same time, maybe there is some value in the WG finding this out for 
themselves.

Chuck

From: Tim Ruiz [mailto:tim@xxxxxxxxxxx]
Sent: Monday, July 01, 2013 6:48 PM
To: Gomes, Chuck
Cc: Marika Konings; 
gnso-policyimpl-dt@xxxxxxxxx<mailto:gnso-policyimpl-dt@xxxxxxxxx>
Subject: Re: [gnso-policyimpl-dt] RE: For final review - proposed WG Charter

I am ok with both of those changes, but I wonder if the intent of the 4.c 
question was "Under what circumstances, if any, may the GNSO establish policy?"

Tim

On Jul 1, 2013, at 6:41 PM, "Gomes, Chuck" 
<cgomes@xxxxxxxxxxxx<mailto:cgomes@xxxxxxxxxxxx>> wrote:
Thanks Marika for the quick delivery of these documents.  And thanks to 
everyone for the excellent work.

I think the proposed charter looks really good but I did come up with one 
possible issue and one minor edit.

Under ‘The WG may find the following questions helpful for completing the 
work:’ on page 3 of the clean version, where did question 4.c come from:  
“Under what circumstances, if any, may the GNSO Council establish policy?”  It 
seems to me that we already know the answer to this: None.  The Bylaws are 
clear that the Council is a policy management body and not a policy making 
body.  It is the Council’s role to 1) manage PDPs, ensuring that applicable 
process is followed and that all impacted stakeholders have opportunity to 
contribute according to the GNSO WG Guidelines; 2) make recommendations to the 
Board regarding consensus policies and/or other policies or best practices.  
The Bylaws make it clear that it is only the Board that may establish policy.  
I see no usefulness in asking the WG to answer this question because the answer 
is already known, so I suggest deleting it.

I also think a minor edit is needed in Deliverable 4 on page 5 of the clean 
version: “WG conclusions with regard to how ICANN Core Values relate to policy 
and implementation efforts and whether the identified core values apply 
differently to policy development work than to implementation of policy”

Chuck

From: 
owner-gnso-policyimpl-dt@xxxxxxxxx<mailto:owner-gnso-policyimpl-dt@xxxxxxxxx> 
[mailto:owner-gnso-policyimpl-dt@xxxxxxxxx] On Behalf Of Marika Konings
Sent: Monday, July 01, 2013 4:32 PM
To: gnso-policyimpl-dt@xxxxxxxxx<mailto:gnso-policyimpl-dt@xxxxxxxxx>
Subject: [gnso-policyimpl-dt] For final review - proposed WG Charter

Dear All,

Please find attached for final review the latest version of the WG Charter 
which includes the edits discussed today. To facilitate your review, you'll 
find attached a clean as well as a redline version.

Please share any comments / edits you may have with the mailing list at the 
latest by 23.59 UTC on Tuesday 2 July.

Based on the feedback received at that point, we'll decide whether or not to go 
ahead with the meeting on Wednesday 3 July at 19.00 UTC.

The proposed motion will follow tomorrow.

Best regards,

Marika


PHONE: 651-647-6109, FAX: 866-280-2356, WEB: 
www.haven2.com<http://www.haven2.com/>, HANDLE: OConnorStP (ID for Twitter, 
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