[gnso-ppsc-pdp] Your input requested - recommendation 9 - the role of ICANN Staff

[Marika Konings <marika.konings@xxxxxxxxx>]

For discussion / consideration:


 *   Should further guidance be included on the role of staff in the by-laws or 
PDP rules of procedure? (Please note that the draft GNSO Working Group 
Guidelines already includes an overview of the different roles ICANN staff can 
perform in relation to WGs – see 
https://st.icann.org/icann-ppsc/index.cgi?working_group_team for the latest 
draft). If the WT is comfortable with the description in the draft GNSO Working 
Group Guidelines, it could consider recommending that a reference is made to 
that particular section in the PDP rules of procedure.
 *   There seemed to be support to maintain the opinion of the ICANN General 
Counsel as part of the staff recommendation in the Issues Report. A 
recommendation could be to continue to require the opinion of the ICANN General 
Counsel as part of the staff recommendation in the Issues Report, while the 
details of what needs to be examined as part of this opinion could be moved to 
the PDP rules of procedure.

________________________________
>From PDP-WT – Draft Conclusions and Recommendations – Updated 11 May

6. The role of ICANN staff

Recommendation 9.

§  To be decided

The role of ICANN staff

Current rules and practices

>From the ICANN by-laws:
Each Staff Recommendation shall include the opinion of the ICANN General 
Counsel regarding whether the issue proposed to initiate the PDP is properly 
within the scope of the ICANN policy process and within the scope of the GNSO. 
In determining whether the issue is properly within the scope of the ICANN 
policy process, the General Counsel shall examine whether such issue:
1. is within the scope of ICANN's mission statement;
2. is broadly applicable to multiple situations or organizations;
3. is likely to have lasting value or applicability, albeit with the need for 
occasional updates;
4. will establish a guide or framework for future decision-making; or
5. implicates or affects an existing ICANN policy.

Questions / Concerns

6.a          On paper, the role of ICANN’s General Counsel is limited to 
providing input for the staff recommendation which is part of the Issues 
Report. Should other consultations be foreseen e.g. at the request stage?
6.b          Should there be a possibility to request a 'second opinion' if 
there is disagreement with the opinion of the General Counsel's office?
6.c          Should the role of ICANN staff in the planning and initiation 
phase be clarified?

PDP WT Response

6.a          The PDP WT discussed who and how the initial determination on GNSO 
scope should be delivered. Two alternatives were suggested:
1. Policy Staff to solicit input from the Office of the General Counsel and 
produce for the GNSO the initial determination on whether policy work is within 
GNSO scope; or
2. Formal Opinion of the Office of the General Counsel on GNSO Scope to be 
required at the commencement of a PDP inquiry.
It was also proposed that legal input should be solicited later in the PDP when 
specific policy determinations are to be explored for the purpose of: 1) 
confirming that the policy work is within GNSO scope and 2) if the policy is 
expected to be binding on contracted parties, whether such policy can be 
binding on such parties as a Consensus Policy or through other contract terms.
6.b          Some suggested that there is a need to build in a procedure to get 
a second opinion if the GNSO disagrees with the Staff/OGC opinion on scope, but 
no further suggestions where provided as to whom could deliver such a second 
opinion or how such a procedure would work.
6.c          Discussions have identified at least four different roles for 
ICANN Staff:
·      Expertise (can be technical, legal, economic, etc... and can also make 
use of external resources such as consultants)
·      Secretariat (fundamentally a support function, covering both logistics 
and drafting assistance in a totally neutral manner reflecting faithfully the 
work of working groups)
·      Operational / implementation (day-to-day operations in the framework of 
existing policies and rules)
·      Gate-keeping / Scoping (internal role of the General Counsel, but 
possibly distinct, guaranteeing respect of the procedures and competences of 
the different structures)
It was suggested that the PDP reform could lead to justify corresponding 
improvements in the structure of the ICANN staff. A clearer distinction by 
function could also correspond to specific rights and responsibilities, as the 
neutrality of the staff in decision-shaping was mentioned by some as a concern.