[CCWG-ACCT] Notes-Recordings-Transcript links for CCWG ACCT Session #14 24 February

Sun Mar 1 16:24:19 UTC 2015

Bruce and Alan:

There are parallels / analogs to both of your positions in the US, where some states provide judges a lifetime appointment, and others require them to stand for election.  Life (or exceptionally long) terms of office do not ensure that the official is responsive to the wishes of the public/Community, while subjecting judges to election raises criticisms of "politicizing" the judiciary.

Example:  In Iowa, judges are appointed, but periodically must pass a public referendum ("Do you believe (justice X) should be retained on the court?").  In most elections, this is just a formality, but a few years ago our State Supreme Court unanimously overturned a ban on same-sex marriage.  The court did so stating that, politics aside, the prohibition was clearly unconstitutional.  But later these judges were subject to an active campaign to use the referendum mechanism to remove them from office, and several were.  Were they serving the public interest?  And in doing so did they lose their jobs?

It is admirable to want to insulate Board members from the shifting political climate at ICANN, but I think that ship has already sailed. Whether we like it or not, Board members (and their votes) will always be lightning rods for controversy.  Recognizing this, we should probably err on the side of ensuring individual members to be responsive to their segment of the community.  First, the large number of NomCom appointees probably protects the Board/organization from significant disruption (who recalls them, btw?)  Second, Board members should be in regular communication with their community to explain/defend their votes. And finally, as Alan noted, very few issues would ever be decided by such a slim margin.  If any vote is cutting it that close, that should be an indication to the Board to keep working towards furthering a compromise.

Thank you,

J.
____________
James Bladel
GoDaddy

> On Feb 28, 2015, at 20:08, Alan Greenberg <alan.greenberg at mcgill.ca> wrote:
> 
> Bruce, I have several problems with your rationale. First, decisison of the ICANN Board which hinge on how a particular (or even two) Board Members vote are few and far between, so the concept of an AC/SO turfing their Board member(s) because they did n't get something is rather hypothetical. Moreover, at least in the case, of travel budget requests, I didn't think that the Board voted on items at that level (perhaps if they did some of our requests would be looked at more kindly!).
> 
> But on a higher level, do you really think that this kind of action would happen? I cannot imagine the GNSO doing something of that sort when you were Chair, nor in any time since. Nor do I think that ANY of the groups that appoint Board members would.
> 
> If a Board member selected by an AC or SO is really and consistently acting in a way that the AC/SO does not appropriate, they certainly would not have selected them if they could have foreseen it, so why should they not be able to rectify the situation. Some political jurisdiction allow that with their duly elected appointees, so why not here.
> 
> Although I see the attraction in having a formal set of standards to identify the more egregious sins, I believe that in reality, in the very few cases where either the Board itself or an AC/SO would be likely to recall, the reasons may well be outside of that class of problem.
> 
> Alan
> 
> 
> 
> At 28/02/2015 08:01 PM, Bruce Tonkin wrote:
>> Hello Roelof,
>> 
>> 
>> >>  - Recall Board members if not acting in global public interest rather than if not acting in segmented interest of a community. Consider community capture (especially a segment of community).
>> 
>> My comment on the call was about a concern that allowing segments of the community to recall "their" Board member may move away from the objective of ensuring that Board members primarily focus on the global public interest in their decision making.
>> 
>> I noted that under law the directors of ICANN owe a fiduciary (http://en.wikipedia.org/wiki/Fiduciary)  duty to the organization, but I also noted that the organization was established to act in the global public interest.    When new Board members join the Board we make clear that they have a fiduciary duty under law and must understand the organization's financials etc, but we also make clear that they need to act on behalf of the community as a whole, not just the part of the community that appointed the director/s.
>> 
>> The Board currently does have the power to remove a director with a 3/4 majority vote.   In practice the Board sets clear expectations for the conduct of directors through its code of conduct: https://www.icann.org/resources/pages/code-of-conduct-2012-05-15-en .    Also Board members must annually certify that they have read this code, and acknowledge in writing that they understand it.      The code notes that "Board Members should not be, or appear to be, subject to influences, interests or relationships that conflict with the interests of ICANN or ICANN's ability to operate for the benefit of the Internet community as a whole."
>> 
>> Under the enforcement of the code of conduct - it notes that "Serious breaches of this Code may be cause for dismissal of the Board Member committing the infraction in accordance with ICANN's Bylaws and applicable law."
>> 
>> 
>> I don't have a problem in principle with a segment of the ICANN community that appoints a director having the ability to recall that director, but would prefer that they use the same standard -ie the Board Directors' Code of Conduct.       I also don't have a problem with the Board having the same restriction in the bylaws.
>> 
>> I think we need to avoid situations where one part of the community withdraws a Board member because a Board decision was not particularly favourable to their part of the community - even though the decision is in the global public  interest.   e.g. If one group didn't get their budget request for travel approved, or one group didn't like an increase in registry or registrar fees in a particular year.   This has the risk of making the board behave in a political manner rather than focussing on the global public interest.    The Board meets with each stakeholder group at ICANN and that is the forum where each stakeholder group can put their case for a particular decision.   Generally Board members appointed by a particular part of a community listen to all the parts of the community and make a decision in the interests of the community as a whole, and don't play an active role on the Board pushing the agenda of their part of the community.   Board members from a particular par
>> t of the community do however help explain to other Board members  the nuances of the concerns from their part of the community where that is not clear.
>> 
>> Regards,
>> Bruce Tonkin
>> 
>> 
>> 
>> 
>> 
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> 
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