Re: [NA-Discuss] More information on Proposed Bylaw Changes to Improve Accountability public comment period
To be clear, my question is not "about the provision of more translated documents or the extension of a comment period to meet the stated needs of the community." Translation is an ongoing issue, but I have not seen any such publicly stated "need" with respect to this issue in particular, any more than dozens or hundreds of other issues. More importantly, my question is *not* about the substance of the decision, which I would not oppose were a proposal properly made to the Board to open a second comment period, but solely about the identity of the decision-maker and the process and authority for their decision. An ongoing problem with ICANN's process has been the confusion of substantive and procedural issues, and the erroneous assumption that a good-faith belief in the merits of the outcome is sufficient to justify any defects in the process by which that outcome was or is reached. Sincerely, Edward Hasbrouck On 29 Sep 2009 at 11:31, "Maria Farrell" <Maria Farrell <maria.farrell@icann.org>> wrote:
Dear Edward,
The decision to extend the comment period was taken with the agreement of our legal counsel. I will refer your question to the Office of the General Counsel since you believe this issue to be primarily about legal authority.
I must admit this is the first complaint I've had about the provision of more translated documents or the extension of a comment period to meet the stated needs of the community.
Yours sincerely, Maria Farrell
On 9/29/09 2:12 PM, "Edward Hasbrouck" <edward@hasbrouck.org> wrote:
While these seem like reasonable grounds for a proposal to the Board for a second comment period (or for re-opening comment on an almost infinite number of previous decisions), I'm puzzled as to which member of staff had this authority, and on what basis. Could you please send me the URL of the minutes of the Board decision delegating to a member of the staff the authority to overrule the decision of the Board setting the comment period at 60 days, or of the provision of the Bylaws you believe gives that member of the staff the authority to overrule such a Board decision?
Sincerely,
Edward Hasbrouck
On 29 Sep 2009 at 10:47, "Maria Farrell" <Maria Farrell <maria.farrell@icann.org>> wrote:
Dear Edward,
The Board has not voted to extend the comment period. The comment period has been extended by staff because translations of the proposed bylaws were finalised too late to allow non-English language users to participate fully in the consultation. The translated versions will be posted this week in five other languages, and a further two months of consultation time allowed to ensure everyone has the same chance to take part.
Yours sincerely, Maria Farrell
On 9/29/09 12:52 PM, "Edward Hasbrouck" <edward@hasbrouck.org> wrote:
According to an announcement posted 28 september 2009:
http://www.icann.org/en/announcements/announcement-27jul09-en.htm
"Update, September 25, 2009: The public comment period on this proposed bylaw change has been extended by two months, to 27 October 2009, to allow users of the translated versions to prepare and submit their views."
The comment period which expired 25 September 2009 was set by the Board:
http://www.icann.org/en/minutes/resolutions-26jun09.htm#8
"Resolved (2009.06.26.24), that the following proposals, including the possible Bylaws amendments proposed in the "Improving Institutional Confidence: The Way Forward" report, be posted for 60 days for public comment:..."
I can't find any record of a vote of the Board re-opening this comment period, or delegating authority to do so.
Could you please send me the URL of the minutes recording that vote?
Many thanks,
Edward Hasbrouck
---------------- Edward Hasbrouck <edward@hasbrouck.org> <http://hasbrouck.org> +1-415-824-0214
Just to clarify what the Board decides, and what is left to staff to deal with, the Board does deliberate in order to put a document forward for public comments. This is exclusively to make sure that the Board is aware of the contents of the document, that it does not contain affirmations that are in conflict with Board statements, and so on. Being this the purpose of the Board's involvment, it should be clear why a mere extension of the comment period would not require a Board decision, as the nature and purpose of the documents put forward for public comments does not change. You are about to see, or have just seen, other examples of extension of public comment periods, see http://www.icann.org/en/announcements/announcement-07oct09-en.htm. In this latter case, I have been contacted by staff before releasing the announcement, but simply because, being the Chair of the SIC, a change in the deadline for comments will affect the planning of the committee's work. I hope that this clarifies the matter. Roberto
-----Original Message----- From: owner-ga@gnso.icann.org [mailto:owner-ga@gnso.icann.org] On Behalf Of Edward Hasbrouck Sent: Tuesday, 29 September 2009 20:52 To: Maria Farrell Cc: Ga@gnso.icann.org; Na-discuss@atlarge-lists.icann.org Subject: [ga] Re: More information on Proposed Bylaw Changes to Improve Accountability public comment period
To be clear, my question is not "about the provision of more translated documents or the extension of a comment period to meet the stated needs of the community." Translation is an ongoing issue, but I have not seen any such publicly stated "need" with respect to this issue in particular, any more than dozens or hundreds of other issues.
More importantly, my question is *not* about the substance of the decision, which I would not oppose were a proposal properly made to the Board to open a second comment period, but solely about the identity of the decision-maker and the process and authority for their decision.
An ongoing problem with ICANN's process has been the confusion of substantive and procedural issues, and the erroneous assumption that a good-faith belief in the merits of the outcome is sufficient to justify any defects in the process by which that outcome was or is reached.
Sincerely,
Edward Hasbrouck
On 29 Sep 2009 at 11:31, "Maria Farrell" <Maria Farrell <maria.farrell@icann.org>> wrote:
Dear Edward,
The decision to extend the comment period was taken with the agreement of our legal counsel. I will refer your question to the Office of the General Counsel since you believe this issue to be primarily about legal authority.
I must admit this is the first complaint I've had about the provision of more translated documents or the extension of a comment period to meet the stated needs of the community.
Yours sincerely, Maria Farrell
On 9/29/09 2:12 PM, "Edward Hasbrouck" <edward@hasbrouck.org> wrote:
While these seem like reasonable grounds for a proposal to the Board for a second comment period (or for re-opening comment on an almost infinite number of previous decisions), I'm puzzled as to which member of staff had this authority, and on what basis. Could you please send me the URL of the minutes of the Board decision delegating to a member of the staff the authority to overrule the decision of the Board setting the comment period at 60 days, or of the provision of the Bylaws you believe gives that member of the staff the authority to overrule such a Board decision?
Sincerely,
Edward Hasbrouck
On 29 Sep 2009 at 10:47, "Maria Farrell" <Maria Farrell <maria.farrell@icann.org>> wrote:
Dear Edward,
The Board has not voted to extend the comment period. The comment period has been extended by staff because translations of the proposed bylaws were finalised too late to allow non-English language users to participate fully in the consultation. The translated versions will be posted this week in five other languages, and a further two months of consultation time allowed to ensure everyone has the same chance to take part.
Yours sincerely, Maria Farrell
On 9/29/09 12:52 PM, "Edward Hasbrouck" <edward@hasbrouck.org> wrote:
According to an announcement posted 28 september 2009:
http://www.icann.org/en/announcements/announcement-27jul09-en.htm
"Update, September 25, 2009: The public comment period on this proposed bylaw change has been extended by two months, to 27 October 2009, to allow users of the translated versions to prepare and submit their views."
The comment period which expired 25 September 2009 was set by the Board:
http://www.icann.org/en/minutes/resolutions-26jun09.htm#8
"Resolved (2009.06.26.24), that the following proposals, including the possible Bylaws amendments proposed in the "Improving Institutional Confidence: The Way Forward" report, be posted for 60 days for public comment:..."
I can't find any record of a vote of the Board re-opening this comment period, or delegating authority to do so.
Could you please send me the URL of the minutes recording that vote?
Many thanks,
Edward Hasbrouck
---------------- Edward Hasbrouck <edward@hasbrouck.org> <http://hasbrouck.org> +1-415-824-0214
On 8 Oct 2009 at 12:36, "Roberto Gaetano" <Roberto Gaetano <roberto@icann.org>> wrote:
a mere extension of the comment period would not require a Board decision
This was not "mere" extension of a comment period. It was a decision to override a previous vote of the Board fixing a specific comment period. if the original comment period had not been set by the Board, your argument might have some merit. But my question is not about comment periods in general, or whether they always need to be set by the Board, but about staff unilaterally overriding a specific directive voted by the Board. In this case, the Board had already decided (for what reasons we don't know, since the Board met in secret, in violation of the Bylaws, but hopefully for good and sufficient reasons) to specify a comment period. My question, to which I have received no answer and which I reiterate, is which member of the staff believed they had the authority to override the Board resolution on the comment period, and what resolution of the Board or provision of the Bylaws they believe delegated to them, or gives them in general, authority to override such a resolution of the Board. The underlying specific matter may seem in some ways minor, if you think about it solely as a change of date (rather than as part of a process of revision of ICANN's procedural safeguards and principles). But the *manner* in which the date was changed raises very fundamental questions about the relationship of staff and Board, and the locus of actual authority. If members of ICANN's staff believe that they have inherent authority, without the need for formal delegation, to disregard or override specific and explicit directives voted by the Board, that should be of concern to all ICANN stakeholders, including the board. If ICANN's Board is *not* concerned that staff take for granted their authority to revise or revoke directives of the Board (or, perhaps, that the Board can override its own publicly-disclosed and voted decisions by some other informal and secret process), that should be of even more concern to the community. Both of these go to the heart of ICANN's structure of authority, accountability (to the Board and, through procedural requirements for Board decision-making, to the community), and above all transparency. It is ironic, of course, that the policy proposal for the Affirmation of Commitments was not posted for public comment prior to being signed and announced as a fait accompli. Nor were any of the other procedural prerequisites in the Bylaws for such a policy proposal complied with. The AoC has now been posted for comments, after the fact, but only supportive comments are being solicited or posted: ""If you have a comment or message of support for ICANN, please feel free to use the box below..." http://www.icann.org/en/affirmation/affirmation-reaction.htm Critical comments and questions, when they have been submitted through this form, have not been posted. A "public forum" for messages only of congratulations and praise for what the Great Leaders have done -- advertised as "what others are saying" (a wide range of groups and individuals sent responses and messages of support.... In order to retain the community's reaction to the Affirmation, we have therefore set up this webpage to act as an archive and a repository" -- reeks of the hypocrisy of tyrants, and exposes the hypocrisy of the putative "Commitments" themselves. I continue to await any official response as to the staff decision to override the Board resolution on the comment period, the failure to post the policy proposal for the AoC or comply with any of the other procedural rules in the Bylaws *before* it was approved, the solicitation only of supportive comments on the AoC, and the censorship of the responses falsely identified as representing "the community's reaction to the Affirmation", when in fact they represent only those reactions with which ICANN was sufficiently pleased to select them for publication. Sincerely, Edward Hasbrouck ---------------- Edward Hasbrouck <edward@hasbrouck.org> <http://hasbrouck.org> +1-415-824-0214
participants (2)
-
Edward Hasbrouck -
Roberto Gaetano