[council] Board Review

[DannyYounger@cs.com]

Dear members of the Board:

Since the early days of the formation of the DNSO, there has been an ongoing 
debate regarding the respective roles of the General Assembly and the Names 
Council.  This debate first took shape at the Berlin informal meeting of the 
provisional Names Council:   
http://www.dnso.org/dnso/notes/19990527.NCberlin.html

     "Robert Hall - The work of the DNSO is done in the General Assembly

     Javier Sola - No, the Names Council does the work

     Antony Van Couvering - The Singapore meeting came up with a set of 
principles that reflects a    compromise between the DNSO group and the Paris 
Draft group - and the compromise is that the General Assembly does the work 
through research groups and the Names Council manages and facilitates 
consensus.

     Jon Englund - [Goes over history of the bylaws]

     Rob Hall - Is it appropriate to ask the ICANN Board to talk about the 
intent of the bylaws?"


Mr. Hall's question remains as valid today as when it was first posed over 
three years ago.  

When we look back at the bylaws, we note that the original bylaws stated:  
"The Domain Name Supporting Organization shall create a Names Council to make 
recommendations regarding TLDs, including operation, assignment and 
management of the domain name system and other related subjects." 
http://www.icann.org/general/archive-bylaws/bylaws-06nov98.htm

The role of the Council was defined as that of a body that would forward 
recommendations (which ostensibly were based upon the work-product of the 
General Assembly as per the above-cited compromise).

After a period of time, the bylaws were amended to include the following:    
"(The NC) shall adopt such procedures and policies as it sees fit to carry 
out that responsibility (the management of the consensus building process), 
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.  Such bodies shall include at least one 
representative nominated by each recognized Constituency..."  
http://www.icann.org/general/archive-bylaws/bylaws-31mar99.htm#VI-B 

The clear intent of this amendment was to designate the Assembly as the home 
for all research and DNSO-related consensus-building work, and to make sure 
that such bodies in the spirit of fairness included (at a bare minimum) one 
nominated representative from each constituency.

This language was modified six months later to state:  "Each recognized 
Constituency shall be invited to participate in each of such bodies."  This 
change was suggested by ICANN staff who provided the following commentary:  
"Eliminates the possibility that one constituency would try to veto the 
creation of a working group by simply refusing to participate".  
http://www.icann.org/general/bylaws-amend-redline-8oct99.htm

At that point in time it was understood that working groups of the GA would 
handle the substantive work of the DNSO, that constituencies would be 
cordially invited to participate in those GA bodies (and could decline should 
they choose to exercise that option), and that based on the work of those GA 
bodies, the Council would tender recommendations.  The overriding concern of 
the Board was that any one group might act to veto the creation of an open 
working group.

At the same time that this change in the bylaws was effected, another change 
simultaneously occured.  There was a clause in the bylaws that was 
eliminated.  That clause stated:  "(j) The NC shall establish, subject to 
review and approval by the Board, an appropriate mechanism for review of 
grievances and/or reconsideration."  In eliminating this clause, the staff 
commented:  "deleted reconsideration language because Board review is 
sufficient protection."

We have now reached the point where the General Assembly requires the 
protection that can be afforded by Board Review.   The creation of open 
working groups is repeatedly being vetoed by the Names Council to the 
detriment of the General Assembly.  The very activity that this Board chose 
to guard against is now routinely being flaunted by the Names Council.

Instead of constituencies being invited to participate in the bodies of the 
GA, the Council has manipulated procedures so that the GA is now only allowed 
one representative on a body of the NC (task force), and no GA bodies are 
ever "designated" by the Council.

This perversion of the intent of the bylaws has led to acrimony, 
divisiveness, and has greatly contributed to the dysfunctional state of the 
DNSO.  The General Assembly is cognizant of the fact that the current 
state-of-affairs in the DNSO is less-than-ideal, and yet has abided by 
processes stipulated and has submitted well over 3500 comments pertaining to 
review-related issues.  We have also put forth a proposal regarding a 
possible restructuring of the DNSO:  
http://www.dnso.org/dnso/notes/2001.GA-DNSO-Motion-Reorg-vote.html  

We note that in response to our concerns, the Council has submitted to the 
Board a Review task force report that instead paints the picture that all is 
rosy, and that (after a year-long review) no changes in the DNSO are 
required.  We strongly disagree.

The General Assembly needs the benefit of a Board review of this matter as 
the future of working groups and the intent of the bylaws remains at issue.

Your assistance in this matter will be highly appreciated.

Best regards,
Danny Younger