[CWG-RFP3] On Directors requirements Re: Revised Survey

[Steve Crocker]

Bertrand,

Thanks for your note.  The point I was responding to was the converse of the point you’re making.  Yes, indeed, Directors should be able to speak their mind.  The wording in the point I was responding to, "1. If it is the formal position of an ICANN SO or AC. If so, this should be given greater weight and considered heavily because it is the position of an arm of ICANN and so should also represent the view of the relevant Board member(s),” instructs Directors to be in synchrony with the SO or AC that appointed him.  This puts the Director in the inappropriate position of having to represent his constituency and thus interferes with his independence.

Steve




On Jan 7, 2015, at 6:26 PM, Bertrand de La Chapelle <bdelachapelle at gmail.com> wrote:

> Steve,
> 
> (As a side note, I have trouble following the flurry of exchanges. As usual in ICANN - and many multi-stakeholder processes unfortunately - some people can dedicate their time more consistently to the discussion than others and the latter run the risk of being overwhelmed and therefore less heard.) 
> 
> But in skimming the exchanges, I noticed your response to Kieren below:
> 
> You wrote: 
> 
> Board members are obliged to act on behalf of ICANN as a whole and not necessarily as representatives of the constituency that appointed them.  This is a fundamental requirement for Board members.
> 
> I believe it is important to make a distinction here and I hope you will agree. 
> 
> Your statement addresses the independent or representative nature of the Board members. Even if I agree with you in principle, in practice there is a big ambiguity due to the current structure of ICANN and the hybrid status of Directors. This worth a lengthy discussion. 
> 
> But this is not the place here. Because your comment applies to Board members in the exercise of their functions as Directors in the activities of the organization, not in the process we are conducting here. 
> 
> In the discussions within this CWG, under the ICG, which is a process "facilitated" by ICANN but not an ICANN activity per se, even Board members should be able in my view to contribute in their personal capacity or as representatives of any group if they are so designated. You demonstrate this very point by mentioning yourself that you speak here in your personal capacity, which I personally find perfectly OK and very good.
> 
> And in doing so, Directors should not be bound by any constraint regarding fiduciary duty to the organization. Should for instance a Director sincerely believe for whatever reason that ICANN should not remain the IANA operator (which I do not), I believe he should be free to say it. Maybe I am not familiar enough with US corporate rules, but I suspect that for instance a company Director in the business sector is allowed to say that he believes personally that the company should be sold or get out of a particular business. 
> 
> It would be a different if he/she breaches confidentiality regarding the corresponding discussions within the Board or maybe if he/she were to base his/her arguments on badmouthing the company. 
> 
> My point, in other words, is that the duty of Directors to the organization is not unlimited and should be balanced with their perception of the global interest, certainly in the exercise of an exercise like this one. 
> 
> Best
> 
> Bertrand
>   
> 
> On Mon, Jan 5, 2015 at 6:21 PM, Steve Crocker <steve.crocker at icann.org> wrote:
> 
> On Jan 5, 2015, at 11:53 AM, Kieren McCarthy <kierenmccarthy at gmail.com> wrote:
> 
>> Hi Chuck, all
>> 
>> Like I said I think this survey is useful. But as the discussion on this thread has made clear, there are differing views on how to view and treat the public comment period. 
>> 
>> I fear people will cherry-pick examples to the extent that the public comment will end up being just one small part of CWG discussion based on personal biases. But a public comment period should really be the final benchmark. 
>> 
>> I have seen and analyzed more than a few ICANN public comment periods in my time and I would say there are several aspects that need to be taken into account:
>> 
>> 1. If it is the formal position of an ICANN SO or AC. If so, this should be given greater weight and considered heavily because it is the position of an arm of ICANN and so should also represent the view of the relevant Board member(s).
> 
> Board members are obliged to act on behalf of ICANN as a whole and not necessarily as representatives of the constituency that appointed them.  This is a fundamental requirement for Board members.
> 
> 
> 

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