<div dir="ltr"><div class="gmail_default"><p style="margin:0px 0px 1.5em;padding:0px;text-align:justify;color:rgb(0,0,0);line-height:18px"><font face="verdana, sans-serif">This and similar discussions have gotten a little unmoored from the legal underpinnings relevant to this particular case. Talking about "fiduciary duty" as a monolithic concept is not all that helpful.</font></p><p style="margin:0px 0px 1.5em;padding:0px;text-align:justify;color:rgb(0,0,0);line-height:18px"><span style="font-family:verdana,sans-serif">For the members of a board of a U.S. non-profit, "fiduciary duty" is not an amorphous or singular concept. It really breaks down to three specific duties to the corporation: </span><br></p><p style="margin:0px 0px 1.5em;padding:0px;text-align:justify;color:rgb(0,0,0);line-height:18px"></p><ul><li><font face="verdana, sans-serif">the duty of care, </font></li><li><font face="verdana, sans-serif">the duty of loyalty, and</font></li><li><font face="verdana, sans-serif">the duty of obedience. This last duty is unique to non-profit boards, while the first two apply to all boards (for-profit and not-for-profit).</font></li></ul><font face="verdana, sans-serif">Board members are required to carry out these duties “in good faith,” meaning honestly, openly, and faithfully in all organizational actions.<br></font><p></p><p style="margin:0px 0px 1.5em;padding:0px;text-align:justify;color:rgb(0,0,0);line-height:18px"><font face="verdana, sans-serif"><span id="more-512"></span></font></p><p style="margin:0px 0px 1.5em;padding:0px;text-align:justify;color:rgb(0,0,0);line-height:18px"><font face="verdana, sans-serif">More specifically, these duties can be defined as follows:</font></p><p style="margin:0px 0px 1.5em;padding:0px;text-align:justify;color:rgb(0,0,0);line-height:18px"><font face="verdana, sans-serif"><strong style="font-style:inherit">Duty of Care</strong>: This is a duty to use at least the same level of care when attending to the non-profit's business as would a reasonably prudent person would use in conducting their own personal affairs. In the board context, this means attending board meetings and getting to be knowledgeable and informed about the matters the board deals with. It also means using well-informed independent judgment to make objective decisions that are in the best interest of the corporation.</font></p><p style="margin:0px 0px 1.5em;padding:0px;text-align:justify;color:rgb(0,0,0);line-height:18px"><font face="verdana, sans-serif"><strong style="font-style:inherit">Duty of Loyalty</strong>: This is a duty to act in the best interests of the corporation and not for their own advantage. Directors must put the corporation’s interest in any decision ahead of their own personal interest (including personal business interests). Directors need to expressly attempt to avoid or resolve any potential conflict of interest related to any transaction. Clear conflict of interest policies are a key part of making sure that board members act consistently with this duty. (These policies cover disclosure of potential conflicts and include a process for handling conflicts when they occur.) While this may not be relevant in the ICANN context, the duty of loyalty requires that corporation have the opportunity to take advantage of an opportunity that comes before the corporation before a director can take that opportunity privately.</font></p><p style="margin:0px 0px 1.5em;padding:0px;text-align:justify;color:rgb(0,0,0);line-height:18px"><font face="verdana, sans-serif"><strong style="font-style:inherit">Duty of Obedience</strong>: Board members of a nonprofit must be true to the organization’s purposes and goals, as stated in the articles and bylaws. Each board member must be faithful to the organization’s mission. Members need to make sure that any action taken by the non-profit is consistent with the corporation’s articles of incorporation and bylaws, as well as its status as a not-for-profit, tax-exempt corporation (note this is not the same thing as being a charitable or non-revenue generating entity, it relates to the purposes and uses of revenue). </font></p><p style="margin:0px 0px 1.5em;padding:0px;text-align:justify;color:rgb(0,0,0);line-height:18px"><font face="verdana, sans-serif">Board member's Duty of Care and Duty of Loyalty are owed to the corporation and not to "amorphous" others. <b>That is why the Duty of Obedience is critical here.</b> This requires the board to be "obedient" to the mission and purpose and goals of the corporation, as set forth in the Articles of Incorporation and the Bylaws. This distinguishes the non-profit Board from the for-profit Board, which only has duties to the corporate body itself. While in a sense the duty of obedience is a duty to the corporation, it is really a duty to the underlying <i>raison d'etre</i> of the corporation, and not to the current corporate body as it stands.</font></p><p style="margin:0px 0px 1.5em;padding:0px;text-align:justify;color:rgb(0,0,0);line-height:18px"><font face="verdana, sans-serif">There is clearly a balancing act that needs to take place here -- in particular, the duty of obedience can sometimes conflict with the duty of loyalty and with the corporation-centric aspects of the duty of care. It means looking beyond the immediate needs of the corporation and staying true to the public benefit reasons the corporation exists.</font></p><p style="margin:0px 0px 1.5em;padding:0px;text-align:justify;color:rgb(0,0,0);line-height:18px"><font face="verdana, sans-serif">In the posts above, I would say that Bruce is emphasizing the Board's Duty of Obedience, while Nigel is emphasizing the Board's Duty of Loyalty and Duty of Care. It is not an "either/or" situation. In truth, an ICANN Board member needs to act consistently with all three duties, and I would say a key difficulty is in balancing the duty of obedience against the other two less altruistic duties. Clearly there is a reason why non-profit board members have a duty of obedience and for-profit board members don't -- it is because the duty of obedience is powerfully linked to the public benefit that the corporation provides. Without appropriate attention to the duty of obedience (i.e., attention to the mission, purposes and goals, to the Articles and Bylaws, and to the broader public good for which a non-profit exists), a non-profit is essentially a failure as such.</font></p><p style="margin:0px 0px 1.5em;padding:0px;text-align:justify;color:rgb(0,0,0);line-height:18px"><font face="verdana, sans-serif">Greg</font></p></div></div><div class="gmail_extra"><br><div class="gmail_quote">On Sun, Oct 4, 2015 at 3:43 AM, Nigel Roberts <span dir="ltr"><<a href="mailto:nigel@channelisles.net" target="_blank">nigel@channelisles.net</a>></span> wrote:<br><blockquote class="gmail_quote" style="margin:0 0 0 .8ex;border-left:1px #ccc solid;padding-left:1ex">Bruce:<br>
<br>
This is helpful, but, I think, your answer confirms my reservations regarding the careless use of the fiduciary terminology.<br>
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Directors have a fiduciary duty to the Corporation, not to an amorphous 'internet community'.<br>
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In fact, under trust law and Equity, one cannot hold something on trust for such a beneficiary as the "internet community as a whole" since the object towards which one has the fiduciary duty (that is to say, the owner of the ultimate property) cannot be identified with sufficient precision.<br>
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This was discussed in the English case of The Queen -v- District Auditor (on the application of West Yorkshire MCC).<br>
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As an English case, this would persuasive precedent in California only to the extent that there are no California case or statutory provisions, so I do not submit this as being decisive of the question.<br>
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But it's certainly on on point, and remains influential precedent throughout those countries whose legal systems have have equitable jurisdictions (such as the USA, Canada, UK, and former British colonies) and include trusts and fiduciaries.<br>
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The differences between a fiduciary duty and an ordinary duty of care are reasonably well understood. Indeed, my home jurisdiction, as it is a global financial centre has chosen to regulate, at a fairly detailed level, the activities of professional fiduciaries.<br>
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As a former Board member of a similar (national) organisation to ICANN, of course, I understand the need for, and the nature of the training you refer to. But I sumbit the nature of the Directors' duty you refer to, is towards the corporation, in the pursuit of the goals set out in the Articles, and NOT towards the internet community, as such a duty would be regarded as legally unworkable.<br>
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Thus a director should act in the best interest of the corporation. If a director proposed the corporation become a promoter of the next Kylie Minogue tour, or a producer of a Hollywood movie, he or she would be acting ultra vires their fiduciary duty -- as this is not in accordance with Arts. 3 or 4.<br>
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But hiring Ms Minogue to perform at the next ICANN Gala in London or New York in pursuit of the corporations normal goals, might not be ultra vires, depending on a number of factors specific to the occasion, including price, and whether it advanced the goals in Arts 3/4.<span class="HOEnZb"><font color="#888888"><br>
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Nigel<br>
</font></span><br>
PS: An ICANN Director's fiduciary duty to the corporation should not override the reason he or she was seated by an SO or AC -- which is, IN THE PURSUIT of the corporation's public benefit role, to provide the perspective of the section of the community that seated them.<br>
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So while a Director has a fiduciary duty to the corporation this does not extend to a prohibition on representing the views of their particular section of the community, and voting accordingly, so long as they do not so capriciously or ultra vires the Articles.<span class="im HOEnZb"><br>
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On 03/10/15 23:54, Bruce Tonkin wrote:<br>
<blockquote class="gmail_quote" style="margin:0 0 0 .8ex;border-left:1px #ccc solid;padding-left:1ex">
Hello Nigel,<br>
<br>
<blockquote class="gmail_quote" style="margin:0 0 0 .8ex;border-left:1px #ccc solid;padding-left:1ex">
>From the link you have provided:<br>
</blockquote>
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</blockquote></span><div class="HOEnZb"><div class="h5">
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