[WP1] Caretaker Board background & what WP1 needs (was Re: Legal advice on caretaker board issue)

Adam Peake adam.peake at icann.org
Sun Jul 12 09:52:18 UTC 2015


Notes, call between Jordan Carter and Mathieu Weill with Legal Counsel, 0900
UTC on Sunday 12 July, to discuss issues of a replacement/ caretaker Board
after a Board recall process.

See Jordan Carter's email
http://mm.icann.org/pipermail/wp1/2015-July/000457.html

Jordan: Don't want a problem with the power so that it might be rejected if
the community were concerned that workable governance of the community
failed with the absence of any Board.  How would a caretaker arrangement
work.  Can the Lawyers provide a document by around July 21-22?  And be able
to have some discussion in Paris.

Holly: Focus in on past research, yes doable.
Speaking of a caretaker board, one response is when the recall mechanism
happens, there would be a fully functioning board ready to be implemented at
the same time.  Is there a reason for not going that route?

Reason for that not happening, either use the same selection process as used
by the standard process of SO/AC and next NomCom process, just not
considered.  But within the recall process it hadn't been consider that a
new selection process would be included.  More interest has been in how to
propose an interim Board with limited powers.

Holly: Concern with a caretaker model is whether there is any construct in
law that can put limits on a Board.  Other option would be how to expedite
putting the full board in place.  Want lawyer to look at broader solutions?

Understand the caretaker model as a v short term version with potentially
full powers if powers can't be limited, or a short-term basis with limited
powers if that's possible.

Lawyers as advisors to work on high-level options for discussion.

And at a high-level a review of the two approaches and what is possible.

Overall requirement is continuity of operations.  Can the high level
discussions take place at the Paris meetings.

Holly, yes.  1 or 2 slides to sketch out the concepts on what we think
doable, but without all details. For Paris, or before depending on the work
flow of the next few days:  6pm EA Tuesday freeze, not possible.

Implications of recalling the Board would include the SO/AC restricting them
from reappointing the person removed. They would be free to re-appoint a
person removed?

MW: See the power as the way for the community to signal a major change in
approach and strategy, rather than the removal of persons.  Need a new team,
new direction. 

A vote taken to recall the Board, but the change happens in the future when
the election/selection of replacement process has been concluded.  Possible
if told they were being recalled, then they might step-down.  Concept in law
that can't force a person to stay in that position.

Some thought of having the chairs of the SO/AC serve on the interim board.
How would the fiduciary responsibilities affect the incentive problem for
those people.  Also a suggestion that these are the same people who would be
leading the process of removing the board.

If not that kind of a group stepping up to take the Director position, then
who else might be identified as stepping up to take the caretaker position.
This is a question for the whole group to consider.

Lawyers: The NomCom, IRP panel, could they be a source of the caretaker
members?  

Wouldn't hurt if the lawyers continued to consider questions like this.

Mathieu: Timeline and question clarified and some idea of how to get to the
outcome.

Jordan: don't introduce mechanisms and processes would be the best approach.

END


From:  <wp1-bounces at icann.org> on behalf of Jordan Carter
<jordan at internetnz.net.nz>
Date:  Sunday, July 12, 2015 at 18:32
To:  "wp1 at icann.org" <wp1 at icann.org>
Subject:  Re: [WP1] Caretaker Board background & what WP1 needs (was Re:
Legal advice on caretaker board issue)

Dear all 

This call has just concluded - pretty uneventful. Our counsel have already
done some research on these issues, and will be ready to speak with us about
the caretaker matter in Paris.

There were a couple of questions from counsel about suggestions made in
public comments and reflected in Keith's document.

The most significant question they asked was whether to restrict their
thinking to the simple caretaker model that we have developed (if only at a
high level), or whether they could look at other ways to solve the problem
(the problem being, making sure ICANN has a board if the board is recalled).

My reply on our behalf was that I had no mandate to close options off, and
so they should think creatively on this, and be able to discuss them with us
at a high level in Paris. Once we have chosen a direction, they can then
help us develop the relevant detail.

Staff notes of the call will be coming, and the usual other follow up
material too.

best
Jordan




On 12 July 2015 at 15:15, Jordan Carter <jordan at internetnz.net.nz> wrote:
> Dear WP1 colleagues
> 
> As agreed on our call on 10 July, I approached the CoChairs to find out how to
> get the lawyers looking at the caretaker board framework that would be needed
> if the community exercised the power to recall the entire ICANN Board.
> 
> This exchange led to Mathieu suggesting a quick call with the lawyers to set
> out what work needs to be done.
> 
> That call will happen Sunday 12 July at 0900 UTC and should last ten or
> fifteen minutes.
> 
> So I have written the background information below, and copied the note Keith
> Drazek took us through on the 10 July call.
> 
> The purpose of the phone call is not to hear the lawyers' proposals about how
> to do the caretaker issue - it is to make sure they are clear about what the
> issue of the caretaker board is, and when we need some material in writing
> from them on the subject.
> 
> I regret the late notice of this call. We are only going ahead with it to get
> the lawyers to start thinking on these matters, so they have done some of that
> thinking before we meet with them in Paris.
> 
> None of the discussion we have with them on this call on 12 July will close
> any options or pre-judge any solutions.
> 
> best,
> Jordan
> 
> 
> 
> 
> 
> ---------- Forwarded message ----------
> From: Jordan Carter <jordan at internetnz.net.nz>
> Date: 12 July 2015 at 15:09
> Subject: Caretaker Board background & what WP1 needs (was Re: Legal advice on
> caretaker board issue)
> To: Mathieu Weill <Mathieu.Weill at afnic.fr>
> Cc: "Rosemary E. Fei" <rfei at adlercolvin.com>, Holly Gregory
> <holly.gregory at sidley.com>, León Felipe Sánchez Ambía <leonfelipe at sanchez.mx>,
> Thomas Rickert <rickert at anwaelte.de>, Cheryl Langdon-Orr
> <langdonorr at gmail.com>, stevedelbianco <sdelbianco at netchoice.org>, Becky Burr
> <Becky.Burr at neustar.biz>, ICANN-Adler <ICANN at adlercolvin.com>, ACCT-Staff
> <acct-staff at icann.org>
> 
> 
> Thank you Mathieu, all.
> 
> I believe this call is set for 0900 UTC on Sunday 12 July. I look forward to,
> hopefully, a brief conversation then. I'll forward this to WP1.
> 
> By way of background, noting this is content I am writing for this email and
> may not reflect consensus in WP1:
> * One of the proposed community powers is to recall the entire ICANN Board.
> * Our First Public Comment Report noted some issues that need to be solved to
> deal with the follow-on requirements caused by such an action by the
> community.
> * Where a Board is removed through such a process, there is a need to know who
> will hold office as Directors.
> * This could be the outgoing Board, or an agreed immediate appointment of some
> group of people to act as Directors to govern the corporation.
> * In either case it is likely that this Board should/must have a "caretaker"
> ethos - it should be a short term governing group whose role is to govern in a
> status quo fashion insofar as is possible until new directors are appointed.
> * There will need to be an expedited process to appoint new directors
> following the recall of the whole Board - the usual processes take too long in
> some cases.
> When we discussed these matters in Istanbul in March, I recall verbal comments
> from counsel that developing a caretaker Board framework would not be
> complicated.
> 
> Some of the comments received in response to our PC1 report relate to this
> issue, and WP1 members have started to take these into account in the attached
> redline document. Page 2 para 246 starts the discussion.
> 
> 
> What WP1 needs help with
> 
> We need counsel's help to draft text for the Second Public Comment Report that
> sets out an effective, lightweight caretaker board proposal, broadly
> consistent with what was in our PC1 report and with the attached draft
> (subject to tweaks agreed in Paris).
> 
> It should deal, in my view and at a high level, with the following:
> * Who takes over as directors if the entire board is recalled
> * What happens to the President and CEO
> * What high level process leads to re/appointments of longer term directors
> * What the "caretaker" responsibilities or limits on Board authorities are,
> and how these are described/enforced
> * Any other related matters
> 
> It does not have to be done in great detail but it needs to be of sufficient
> extent and quality that it is persuasive for the CCWG that there is a
> workable, reliable governance of ICANN in place if this power is exercised,
> until appointment of longer term directors occurs.
> 
> 
> When do we need it by
> 
> We need it in time to review, change and incorporate in the Public Comment
> Report 2, -- so realistically we need to see draft material no later than
> about 22 July.
> 
> 
> What should we discuss on the call on 12 July at 0900 UTC?
> 
> I think this is a very short call, to take any questions you may have about
> what I have set out above.
> 
> 
> Look forward to the discussion.
> 
> best
> Jordan
> 
> 
> On 11 July 2015 at 18:37, Mathieu Weill <mathieu.weill at afnic.fr> wrote:
>> Hi Jordan, 
>> 
>> Do set a time and date as you see fit, you know the question, you are
>> necessary. 
>> 
>> Leon and/or I will try to accomadate, even over the WE for me. I'm copying
>> Icann staff so that we can organize support.
>> 
>> We'll need to inform WP1 of the upcoming call.
>> 
>> Mathieu 
>>>> [snip]
>>>> 
>>>> On Saturday, 11 July 2015, Mathieu Weill
>>>> <mathieu.weill at afnic.fr<mailto:mathieu.weill at afnic.fr>> wrote:
>>>> Hi Jordan,
>>>> 
>>>> The topic does need further research indeed.
>>>> 
>>>> Ideally, we would set up a quick call with holly and/or Rosemary to clarify
>>>> the issues to investigate. Anything you can start in terms of clarifying
>>>> the request upfront is of course useful.
>>>> 
>>>> Is Monday still feasible ?
>>>> 
>>>> Mathieu Weill
>>>> ---------------
>>>> Depuis mon mobile, désolé pour le style
>>>> 
>>>> Le 10 juil. 2015 à 22:17, Jordan Carter <jordan at internetnz.net.nz> a écrit
>>>> :
>>>> 
>>>> Dear Leon
>>>> 
>>>> On the WP1 call this morning, we recognised the need to seek assistance
>>>> from our counsel regarding the matter of a caretaker board where a
>>>> community power to recall the whole ICANN Board is exercised.
>>>> 
>>>> Can you advise whether this can be passed to them, or whether you would
>>>> like me to specify the question more clearly?
>>>> 
>>>> thanks
>>>> Jordan
>>>> 
>>>> --
>>>> Jordan Carter
>>>> 
>>>> Chief Executive
>>>> InternetNZ
>>>> 
>>>> 04 495 2118 <tel:04%20495%202118>  (office) | +64 21 442 649
>>>> <tel:%2B64%2021%20442%20649>  (mob)
>>>> jordan at internetnz.net.nz
>>>> Skype: jordancarter
>>>> 
>>>> A better world through a better Internet
>> -- 
>> *****************************
>> Mathieu WEILL
>> AFNIC - directeur général
>> Tél: +33 1 39 30 83 06 <tel:%2B33%201%2039%2030%2083%2006>
>> mathieu.weill at afnic.fr
>> Twitter : @mathieuweill
>> *****************************
> 
> 
> 
> 
> -- 
> Jordan Carter
> 
> Chief Executive 
> InternetNZ
> 
> 04 495 2118 <tel:04%20495%202118>  (office) | +64 21 442 649
> <tel:%2B64%2021%20442%20649>  (mob)
> jordan at internetnz.net.nz
> Skype: jordancarter
> 
> A better world through a better Internet
> 



-- 
Jordan Carter

Chief Executive 
InternetNZ

04 495 2118 (office) | +64 21 442 649 (mob)
jordan at internetnz.net.nz
Skype: jordancarter

A better world through a better Internet



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