Avri pointed out to me an email exchange she and I had on 11 October in which she was confirming: "Unless there is a 4 way full consensus of the SGs , the lottery results as announced on the 8th stand." And I answered yes. Sorry for not remembering that. Chuck

-----Original Message----- From: owner-council@gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Gomes, Chuck Sent: Thursday, October 15, 2009 8:56 AM To: Avri Doria; Council GNSO Subject: RE: [council] Appointment of NCA to Houses

I have a point of clarification. Did "negotiate to a common acceptable position on the placement of the NCA appointees" mean getting unanimous support from all SGs? As it stands, three of four SGs supported the alternative seating arrangement proposed by the RySG. That is very strong support. Are we going to let one SG block a solution that has support from all other SGs? I know that we do not yet come under the new voting thresholds, but when we developed those one of the objectives we tried to accomplish was to minimize situations where one SG would have veto power by itself.

The idea of taking another week as I view it was to try to come up with a seating plan that did a better job of honoring the NCA wishes. The RySG alternative proposal results in honoring the original choices of two of the NCA's choices compared to the random plan, which only honors one. It seems unwise to rule out a solution that has very strong support and honors more of the NCA preferences strictly on procedural or process grounds especially considering it was essentially an ad hoc process and not a Bylaws or Council Rules defined process.

The RySG said that the random selection was acceptable but I need to emphasize that there was strong preference for the alternative solution that we proposed.

Chuck

...

-----Original Message----- From: owner-council@gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Avri Doria Sent: Thursday, October 15, 2009 3:33 AM To: Council GNSO Subject: [council] Appointment of NCA to Houses

Hi,

Since it does not appear that the 4 SGs managed to negotiate to a common acceptable position on the placement of the NCA appointees, and given that a week has passed since the meeting and the decision to give the council a week to try and find another acceptable solution to the lottery, I believe that we are now in the position of accepting the results of the lottery and allowing the 3 NCAs to start participating with their houses on the decisions concerning candidates for the chair position.

Thus, the NCA are allocated according to the following list as determined by the lottery:

Terry Davis - Contracted Parties House Olga Cavalli - Non Contracted Parties House Andrei Kolesnikov - Non Voting Seat

I will be writing up the process followed and notifying the Board and the Nomcom leadership of these results later today.

Thank you.

a.

Hi, I understand that it would have better to have satisfied the NCAs and my original hope had been that this is what would happen. The SGs had a week in which to agree to NCAs preferences. For various reasons the SGs did not come to and agreement on that or any agreement for that matter. We then had a lottery as agreed to before hand. Due to dissatisfaction with the results we then opened it for a revision on the consideration that all SGs agree to a compromise solution on placement. I do not know if there were discussions and negotiations in the background, but all I saw was each of the SGs in turn stating its preferences. In the end only 3 SGs, not 4 SGs, agreed to a solution that would have satisfied the request of 2/3 of the NCAs. At this point, I really believe that this issue should be closed and the NCAs should be assigned according to the lottery results. a. On 15 Oct 2009, at 15:34, Stéphane Van Gelder wrote:

This means that, despite the overall support of the SGs for a solution which was also inline with what the NCAs wanted themselves, we opt for the solution that suits only one SG. Hardly seems fair.

I really think we should try and honour the NCAs' wishes if we can, and the proposed option 1 did that.

There is majority support for this. Does it have to be unanimous support?

Stéphane

Le 15/10/09 09:32, « Avri Doria » <avri@acm.org> a écrit :

...

Hi,

Since it does not appear that the 4 SGs managed to negotiate to a common acceptable position on the placement of the NCA appointees, and given that a week has passed since the meeting and the decision to give the council a week to try and find another acceptable solution to the lottery, I believe that we are now in the position of accepting the results of the lottery and allowing the 3 NCAs to start participating with their houses on the decisions concerning candidates for the chair position.

Thus, the NCA are allocated according to the following list as determined by the lottery:

Terry Davis - Contracted Parties House Olga Cavalli - Non Contracted Parties House Andrei Kolesnikov - Non Voting Seat

I will be writing up the process followed and notifying the Board and the Nomcom leadership of these results later today.

Thank you.

a.

Stephane Just for clarity, on this which I should have clarified earlier:

Terry indicated he was only willing to be placed the Non-contracted parties house

That was my preference (most interested in), I was (and am) more than willing take whichever position the Council selected me for. See you in Seoul. Take care Terry -----Original Message----- From: owner-council@gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of William Drake Sent: Thursday, October 15, 2009 8:58 AM To: Stéphane Van Gelder Cc: Council GNSO Subject: Re: [council] Appointment of NCA to Houses Hi Stéphane, The agreed process has played out and there's not much to be gained by challenging each other's preferences, or the value of consensus processes. However, I would simply like to understand FMI what you're saying here. May I pose four questions, please: On Oct 15, 2009, at 3:34 PM, Stéphane Van Gelder wrote:

This means that, despite the overall support of the SGs for a solution which was also inline with what the NCAs wanted themselves, we opt for the solution that suits only one SG. Hardly seems fair.

I really think we should try and honour the NCAs' wishes if we can, and the proposed option 1 did that.

First, the NCA's wishes, as recounted by Avri on Sept. 29, were as follows:

Olga and Andrey were both interested in the Contracted Parties House

All three of them were willing to be placed in the Non-Contracted parties house. Terry indicated he was only willing to be placed the Non-contracted parties house

Olga was the only one indicating willingness to take the Independent non voting role

So Olga was willing to take any of the three, and made clear on the last council call that she'd be perfectly happy with non-contracted. And under the RySG option 1, Andrei was to be given the non-voting seat, which he clearly did not want. So on what basis can it be said that RySG option 1 was uniquely in line with the NCAs' wishes? Second, if satisfying the NCAs was your overarching concern (and again, your preferred solution did not in fact do this), then why did the RrSG wait from Sept. 29 to Oct. 14 to express a preference? You had two full weeks to take a stand for that principle, but said nothing until after NCSG stated the horridly unjust view that we should do what we agreed to do. Third, since you're running for chair, I'd much appreciate it if you could share your views on whether, as a general matter, the council is obliged to abide by the rules and procedures it agrees for itself. Are these binding, or can they be tossed aside or worked around (e.g. through external lobbying) whenever they prove inconvenient to someone? Fourth, in terms of substantive outcomes, do you feel it would have been much better signaling to the ICANN community and the larger world if all three candidates for chair had been from the contracted house? Sorry to be slow, I'm just trying to understand your thinking. Thanks much, Bill

I should copy / paste Terry's statement.

...

...

Olga and Andrey were both interested in the Contracted Parties House

I was, but follow any Council verdict with pleasure. This is a short version of what I said during the call. See you, --andrei

-----Original Message----- From: owner-council@gnso.icann.org [mailto:owner- council@gnso.icann.org] On Behalf Of Stephane Van Gelder Sent: Thursday, October 15, 2009 10:17 PM To: Terry L Davis, P.E.; 'William Drake' Cc: 'Council GNSO' Subject: Re: [council] Appointment of NCA to Houses

Thanks Terry, that is very helpful.

Stéphane

Le 15/10/09 18:42, « Terry L Davis, P.E. » <tdavis2@speakeasy.net> a écrit :

...

Stephane

Just for clarity, on this which I should have clarified earlier:

...

Terry indicated he was only willing to be placed the Non-contracted parties house

That was my preference (most interested in), I was (and am) more than willing take whichever position the Council selected me for.

See you in Seoul.

Take care Terry

-----Original Message----- From: owner-council@gnso.icann.org [mailto:owner-

council@gnso.icann.org] On

...

Behalf Of William Drake Sent: Thursday, October 15, 2009 8:58 AM To: Stéphane Van Gelder Cc: Council GNSO Subject: Re: [council] Appointment of NCA to Houses

Hi Stéphane,

The agreed process has played out and there's not much to be gained by challenging each other's preferences, or the value of consensus processes. However, I would simply like to understand FMI what you're saying here. May I pose four questions, please:

On Oct 15, 2009, at 3:34 PM, Stéphane Van Gelder wrote:

...

This means that, despite the overall support of the SGs for a solution which was also inline with what the NCAs wanted themselves, we opt for the solution that suits only one SG. Hardly seems fair.

I really think we should try and honour the NCAs' wishes if we can, and the proposed option 1 did that.

First, the NCA's wishes, as recounted by Avri on Sept. 29, were as follows:

...

Olga and Andrey were both interested in the Contracted Parties House

All three of them were willing to be placed in the Non-Contracted parties house. Terry indicated he was only willing to be placed the Non-contracted parties house

Olga was the only one indicating willingness to take the Independent non voting role

So Olga was willing to take any of the three, and made clear on the last council call that she'd be perfectly happy with non-contracted. And under the RySG option 1, Andrei was to be given the non-voting seat, which he clearly did not want. So on what basis can it be said that RySG option 1 was uniquely in line with the NCAs' wishes?

Second, if satisfying the NCAs was your overarching concern (and again, your preferred solution did not in fact do this), then why did the RrSG wait from Sept. 29 to Oct. 14 to express a preference? You had two full weeks to take a stand for that principle, but said nothing until after NCSG stated the horridly unjust view that we should do what we agreed to do.

Third, since you're running for chair, I'd much appreciate it if you could share your views on whether, as a general matter, the council is obliged to abide by the rules and procedures it agrees for itself. Are these binding, or can they be tossed aside or worked around (e.g. through external lobbying) whenever they prove inconvenient to someone?

Fourth, in terms of substantive outcomes, do you feel it would have been much better signaling to the ICANN community and the larger world if all three candidates for chair had been from the contracted house?

Sorry to be slow, I'm just trying to understand your thinking.

Thanks much,

Bill

Hi Bill, I do not feel, unless I have misunderstood, that you are right in saying that Andrei did not want the non-voting seat. Quite the contrary if I recall what he said during the meeting. Also, Terry has been very adamant about his wish to be in the NC house, which is also the opposite of the lottery result. On satisfying the NCAs, that is a concern I have raised. But it doesn't mean that the RrSG should not be given sufficient time to consult internally (which as you know isn't always a quick process) and that the SG has to share my concern. In the end, I think the position reached by the RrSG does actually reflect a strong concern for satisfying the NCAs' wishes. And I can tell you that during the internal discussions we had, that concern was often voiced. On your third point, I spoke to that during our last meeting. I do feel that process should be followed. I actually suggested that we accept the result of the lottery on that basis. However, others suggested we give ourselves an extra week to discuss. As a compromise I think that was a sensible way to go. But it does mean the situation has now changed and we have a strong majority of the SGs for option 1. Since the process issue you speak of, the holding of a lottery, only came about because the Council basically ran out of time to confer, in this particular instance I think allowing ourselves a short week to further discuss was the right thing to do. Sorry Bill, my turn to be slow :) I just don't understand your final question... Thanks, Stéphane Le 15/10/09 17:57, « William Drake » <william.drake@graduateinstitute.ch> a écrit :

Hi Stéphane,

The agreed process has played out and there's not much to be gained by challenging each other's preferences, or the value of consensus processes. However, I would simply like to understand FMI what you're saying here. May I pose four questions, please:

On Oct 15, 2009, at 3:34 PM, Stéphane Van Gelder wrote:

...

This means that, despite the overall support of the SGs for a solution which was also inline with what the NCAs wanted themselves, we opt for the solution that suits only one SG. Hardly seems fair.

I really think we should try and honour the NCAs' wishes if we can, and the proposed option 1 did that.

First, the NCA's wishes, as recounted by Avri on Sept. 29, were as follows:

...

Olga and Andrey were both interested in the Contracted Parties House

All three of them were willing to be placed in the Non-Contracted parties house. Terry indicated he was only willing to be placed the Non-contracted parties house

Olga was the only one indicating willingness to take the Independent non voting role

So Olga was willing to take any of the three, and made clear on the last council call that she'd be perfectly happy with non-contracted. And under the RySG option 1, Andrei was to be given the non-voting seat, which he clearly did not want. So on what basis can it be said that RySG option 1 was uniquely in line with the NCAs' wishes?

Second, if satisfying the NCAs was your overarching concern (and again, your preferred solution did not in fact do this), then why did the RrSG wait from Sept. 29 to Oct. 14 to express a preference? You had two full weeks to take a stand for that principle, but said nothing until after NCSG stated the horridly unjust view that we should do what we agreed to do.

Third, since you're running for chair, I'd much appreciate it if you could share your views on whether, as a general matter, the council is obliged to abide by the rules and procedures it agrees for itself. Are these binding, or can they be tossed aside or worked around (e.g. through external lobbying) whenever they prove inconvenient to someone?

Fourth, in terms of substantive outcomes, do you feel it would have been much better signaling to the ICANN community and the larger world if all three candidates for chair had been from the contracted house?

Sorry to be slow, I'm just trying to understand your thinking.

Thanks much,

Bill