The
However,
without substantial further change the potential of proposed Section 3.4.2 to
stifle free speech and the ability of individual BC members to pursue and protect
their interests where they have a legitimate disagreement with a BC position on
an ICANN policy issue is unacceptable and would require that we cast a vote
against the Charter. Based upon comments made
during the Constituency call to discuss the proposed Charter we expected to see
far more sweeping changes to this Section than have been made. While members of
trade and other professional organizations sometimes voluntarily resign from an
organization when it takes a position that is unacceptable to them it is highly
unusual to have members threatened with involuntary expulsion when they disagree
with an organization’s position on a given issue and pursue their own
interests independently. If a conscientious effort is made to enforce this
provision it will likely result in either a substantial diminution of BC members
or a push toward vague and mushy positions on key policy issues. If any
provision like this remains in the Charter we would advocate setting the bar
for adopting positions on Policy issues at a much higher threshold than 51% of
a 50% of total votes quorum, since that would allow for adoption of a Policy
position by a mere 26% of total BC votes yet would subject members to potential
discipline or expulsion for public disagreement with the adopted policy
position.
I have set forth some specific questions
regarding the provisions of Section 3.4.2 below.
3.4.2 Review
Membership may be reviewed by the
Credentials Committee at any time, if there is a change in the circumstances of
the member that may impact on its qualification for membership or if the member
engages in inappropriate behaviour. A review may be done upon request by any
member at the discretion of the Executive Committee. A review must include a
thorough examination and may include a review of supporting documentation. A
review is not limited to but may be indicated when:
§
a member takes action, beyond mere internal communication of dissent,
that contravenes an adopted position of the Constituency and thus would be
pursuing interests that may not be aligned with the Constituency; What is “mere internal communication of dissent”?
Does this term solely cover dissent voiced within the confines of the BC or
does it allow for communication of dissent within internal ICANN processes
(which, by its nature, whether written or oral, becomes public and therefore could
be regarded as external)?
§
a member by their action leads directly or indirectly to another member
resigning from the Constituency; Why should a
member be subject to discipline if their legitimate activities cause another
member to depart from the BC – especially if it is only an indirect cause
of the action?
§
a member acts as a spokesperson for another organisation whose
interests are not aligned with the Constituency; As members are all corporations, trade association, or consultancies –
that is, businesses – how could a business act as a spokesperson for
another business?
§
a member acts in conflict to this Charter, or in particular acts in
conflict with Articles 8 - 10 of this Charter; Without getting into the merits of Section 8-10, much of which seem vague
and subjective, since a member can already be subject to 14 day suspension under
Section 8 for such conduct as making a comment about a BC employee or
contractor (and where else but within the BC would one make such comment?) or
posting more than ten e-mails in a month (that is, 2.5 per week) even when the
BC may be involved in vigorous internal debate on a policy issue, why is it
necessary to have additional penalties, including expulsion, available? Also,
as Section 9.5 states:
9.5 Listen to the views of all stakeholders when considering policy
issues. ICANN is a unique multi-stakeholder environment. Those who take part in
the ICANN process must acknowledge the importance of all stakeholders and seek
to understand their points of view;
Does that mean that members on the
losing side of a BC policy debate can seek disciplinary action against members of
the majority if they believe that such members did not sincerely seek to
understand their POV? (I realize that some of these comments may seem divorced
from probable reality – but the reality is that we are being asked to
vote on a Charter that literally says that a member can be disciplined for
failing to see to understand another member’s viewpoint.)
§
a member engages in acts which appear to be inappropriate for the
stability, functionality or bona fide reputation of the Constituency; No question -- but “inappropriate”
conduct damaging to the BC’s “reputation” is an awfully
subjective basis for discipline.
§
a member is or threatens to be a vexatious litigant; What is a “vexatious” litigant, as opposed
to an ordinary litigant? And litigant against whom or what?
§
a member’s circumstances are such that would be grounds for a
refusal of an initial application.
After such review the Credentials
Committee by simple majority may apply the following depending on the
circumstances:
§
a formal written warning;
§
a period of suspension of all Constituency privileges;
§
termination of membership in the Constituency. Such termination must be
endorsed by the Executive Committee. Except for instances where the member
would no longer qualify for membership, termination must be preceded by at
least one other disciplinary action.
Before any disciplinary action may
take effect the member subject to the action will have:
§
an opportunity to review the complaint
§
an opportunity to provide a response to the Committee.
Credentials and Executive Committee
members who are affected by the disputed behavior will recuse themselves from
the discipline process.
Since a member’s
freedom of speech and ability to protect its interests are put at risk by this
disciplinary process under rather vague and subjective standards, why is there
no appeals process by which a member can seek review of what it considers inappropriate
disciplinary action -- perhaps by the overall membership of the BC?
All that said, I think our starting point should be an
assumption that members of the BC, who have chosen to pay dues and expend time
on BC activities, in a belief that such participation improves the overall functioning
of ICANN and business community interests broadly defined, should
be assumed to be represented by responsible adults who know how
to conduct themselves in a civil manner and will generally work toward
consensus. I simply don’t see how subjecting members or potential BC
members to significant disciple under vague and subjective standards, and by threatening
members with expulsion when they are on the losing end of a BC policy debate
and continue, as any business would, to pursue their own interest, can possibly
help expand the membership ranks or reputation of the BC.
Involuntary suspension or expulsion of a duly admitted
BC member should be reserved for only the most extreme and clearly defined
circumstances – that the nature of its business has changed to the extent
where it would no longer be eligible for admission, it has been convicted of a
criminal offense, has made undocumented charges against another member that
appear libelous, etc. Trying to enforce standards of behavior of professionals
over policy disagreements really goes too far and threatens to saddle the BC
with a reputation that will marginalize it..
Philip S. Corwin
Partner
Butera & Andrews
Suite 500
202-347-6875
(office)
202-347-6876 (fax)
202-255-6172
(cell)
"Luck is the
residue of design." -- Branch Rickey
From:
owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of BC Secretariat
Sent: Tuesday, October 13, 2009
8:09 AM
To: bc-gnso@icann.org
Subject: [bc-gnso] Ballot for a
new BC Charter
Dear Members
Ballot on revised BC Charter
At the request of the BC Officers and with reference to the
message below, I have today opened a 7-day voting period for the newly
revised BC Charter.
A majority approval vote means the new Charter will
be adopted. A majority non-approval vote means the Charter will not be
adopted.
A ballot form is attached. Each member organisation has one
vote. The vote should be placed by the principle BC contact for the membership
organsiation or by notified proxy. I will apply weighted voting when I receive
your ballot form. All ballots will be acknowledged.
The voting period closes at midnight in your time zone on
Monday 19 October 2009. Ballots cannot be accepted after this time.
Best wishes
----------------------------------------------------
We would like to ask all members to cast their vote in
favour of the attached revised BC Charter.
A definitive PDF version is attached.
A Word version showing recent track changes is also provided
for information.
The Charter accommodates necessary changes for the
re-structured GNSO in which the stakeholder groups provide representatives to
the GNSO council.
As such the BC will move from a situation in which its three
GNSO representatives were also BC Officers, to a separation of these roles.
There will be a new executive committee with a chair and two
vice-chairs in addition to the two representatives to the GNSO Council.
The Charter also includes other changes recommended by
members and ICANN staff based on learning since the last Charter.
The officers have done their best to accommodate all member
perspectives given the diversity of those perspectives.
The Board has requested Constituencies complete work on
Charter revision by
Zahid Jamil
Mike Rodenbaugh
Philip Sheppard
BC Officers