[CWG-Stewardship] PTI Board Composition

Mon May 25 15:43:44 UTC 2015

Greg:
Without necessarily agreeing with your assumption that the PTI board needs to be “insider” in the extreme sense you describe, I wonder whether legally the same result could be obtained if the GNSO and CCNSO nominated PTI directors subject to the approval of the ICANN board.

--MM

From: cwg-stewardship-bounces at icann.org [mailto:cwg-stewardship-bounces at icann.org] On Behalf Of Greg Shatan
Sent: Monday, May 25, 2015 1:11 AM
To: Seun Ojedeji
Cc: avri; cwg-stewardship at icann.org
Subject: Re: [CWG-Stewardship] PTI Board Composition

All,

I assume that we want ICANN-the-corporation (ICANN) to be accountable for the actions of PTI, and in turn ICANN-the-community (the Community) will hold ICANN accountable for any failures.

If that is the case, I think we are really limited to an "insider" board for PTI.  By that I mean an "insider" board in the sense used by counsel -- a majority of board members appointed at the discretion of ICANN (most likely by ICANN as the sole member of PTI).  (Not insiders in the sense of active and experienced members of the community, though ICANN could choose to appoint such people.)  For ICANN to be in charge of and accountable for the actions of PTI, the board really needs to be in ICANN's hands.  (There could still be a minority of "outsiders" on the board, but only a minority.)

If the board is an outsider board (again, in the sense used by counsel -- a majority not appointed by ICANN), then PTI is really no longer part of the ICANN business.  This is particularly true if PTI is a non profit (e.g., a California public benefit corporation), since the non profit cannot be owned by ICANN.  Thus, "control" of PTI is really the prime (and essentially only) indicia of ownership.  And without an inside board, ICANN really cannot be said to "control" PTI.

Greg

On Mon, May 25, 2015 at 12:36 AM, Greg Shatan <gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>> wrote:
Seun,

It's a basic and unwaivable element of a corporation (non-profit or for profit) to have a board of directors.  The relevant section of the California Corporate Code reads (emphasis added):

5210.  Each corporation shall have a board of directors. Subject to

the provisions of this part and any limitations in the articles or

bylaws relating to action required to be approved by the members

(Section 5034), or by a majority of all members (Section 5033), the

activities and affairs of a corporation shall be conducted and all

corporate powers shall be exercised by or under the direction of the

board. The board may delegate the management of the activities of the

corporation to any person or persons, management company, or

committee however composed, provided that the activities and affairs

of the corporation shall be managed and all corporate powers shall be

exercised under the ultimate direction of the board.

On Sun, May 24, 2015 at 1:44 PM, Seun Ojedeji <seun.ojedeji at gmail.com<mailto:seun.ojedeji at gmail.com>> wrote:

sent from Google nexus 4
kindly excuse brevity and typos.
On 24 May 2015 15:53, "Seun Ojedeji" <seun.ojedeji at gmail.com<mailto:seun.ojedeji at gmail.com>> wrote:
>
> Hi Avri,
>
> Thanks for the attempt, I don't think the noncom option would work especially as they would be selecting within stakeholders that are more than 3. I would have love to have an MS PTI board, but the possibility of it not becoming a large one may not be realistic.
> I see 3 options going forward:
>
> - PTI gets filled with a committee of ICANN board and IANA most senior staff
>
> - PTI gets filled with 2 ICANN global leaders, 1 ICANN board liaison and IANA most senior staff
>
> - We ask legal if it's compulsory to have a for PTI and if it isn't then the most senior IANA staff should just manage PTI and report to ICANN board/community
>
SO:
Edit:

- We ask legal if it's compulsory to have a *board* for PTI and if it isn't then the most senior IANA staff should just manage PTI and report to ICANN board/community

Cheers!

> Regards
> sent from Google nexus 4
> kindly excuse brevity and typos.
>
> On 24 May 2015 13:50, "Avri Doria" <avri at acm.org<mailto:avri at acm.org>> wrote:
>>
>> Hi,
>>
>> I would like to put a proposal on the table on the composition of the
>> PTI Board.
>>
>> Specifically
>>
>> On 22-May-15 18:32, Avri Doria wrote:
>> > * On the PTI Board, I believe it should be minimal, so instead of having
>> > a balanced multstakeholder set of individuals, it should have a majority
>> > of representatives (s)elected by a multistakeholder modality.   e.g 1
>> > ICANN Staff, 1 PTI Staff, 3 selected by ICANN Nomcom.
>>
>> Personally, I propose:
>>
>> 1 ICANN Staff as selected by ICANN President and endorsed by ICANN Board
>> 1 PTI Staff, typically the Sr. Officer of the PTI, i.e its President or
>> Executive Director or their designee
>> 3 Nomcom Selections
>> various liaisons as agreed after cross operational community discussions
>>
>> This PTI Board would have fewer people in it than the PTI staff has, but
>> would be large enough for some degree of diversity.
>>
>> While in a formal sense, this would seem to be an outside Board, given
>> that the majority is picked by the ICANN community instead of the ICANN
>> staff, it is an insider board when considered from the perspective of
>> ICANN as a multistakeholder run organization.
>>
>> It avoids the problem of deciding that one stakeholder type is more
>> appropriate that another, but allows the community on an annual basis to
>> decide which skills and knowledge are most important using a well
>> established ICANN method.  The skills and knowledge may vary over time,
>> including considerations such as operational experience,  financial
>> skill, international legal knowledge,  security capability, root zone
>> operator perspective, community policy perspective, DNS protocol or
>> system design expertise.  Those selected by the ICANN Nomcom could be
>> community insiders or outside experts, as decided by each Nomcom
>> according to the perceived needs at that time. The set of considerations
>> and needs would be decided on by the ICANN Nomcom in consultation with
>> ICANN Board & Staff, the multistakeholder community and PTI staff,
>> according to Nomcom's normal current and future practices.
>>
>> In terms of the current discussions, it allows us to defer certain
>> decisions, such as which skill and knowledge categories are most
>> appropriate until they can address future understandings.  It avoid
>> having the CWG micromanage the future of the PTI Board, yet leaves it
>> under the community's control.
>>
>>
>> thanks
>> avri
>>
>> ---
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