[CCWG-Accountability] Regarding role of Board directors
Edward Morris
emorris at milk.toast.net
Mon Jan 12 08:24:43 UTC 2015
I would like to strongly support Keith's proposal that we 1) request the
ability to consult legal expert in California corporate law (as opposed to
strictly nonprofit corporate law, as the new Benefits Corporation is a
vehicle we may want to consider) and 2) we ensure the expert is not
affiliated in any way with ICANN legal or any legal contractor, such as
Jones Day, which has a a historical relationship with ICANN. To the extent
any participant can or would be allowed to be involved in the process by
which such an expert is selected, I certainly would like to be part of any
such effort.
-----Original Message-----
From: "Drazek, Keith" <kdrazek at verisign.com>
To: Adebunmi AKINBO <akinbo.adebunmi at gmail.com>
Cc: "accountability-cross-community at icann.org"
<accountability-cross-community at icann.org>
Date: Mon, 12 Jan 2015 04:57:27 +0000
Subject: Re: [CCWG-Accountability] Regarding role of Board directors
In response to Akinbo's question below, I would like to ask the Co-Chairs to
add a discussion of expert legal advice to Tuesday's agenda.
I believe the CCWG will likely need our own subject matter expert in
California not-for-profit corporate law.
It's probably time we discuss how best to secure these services and to
ensure that individual is in the service of the CCWG and the community, so
we are not relying only on ICANN's interpretations.
Thanks,
Keith
On Jan 11, 2015, at 3:32 AM, "Adebunmi AKINBO" <akinbo.adebunmi at gmail.com>
wrote:
+1 DelBianco = So, when the Board is confronting a community consensus to
take an action that could put the corporation at risk of a lawsuit … how
do you believe a board member is obliged to react?
On the above, can we seek a legal opinion?
Its important to address this scenario.
This can happen at anytime in the lifetime of ICANN.
-Akinbo.
On Sun, Jan 11, 2015 at 4:33 AM, Alan Greenberg <alan.greenberg at mcgill.ca>
wrote:
I am not an ICANN Board Member. I am not a lawyer. I am not a California law
expert.
But I "hope" that the answer is "it depends". I would like to think that
the risk of being sued and the potential liabilities (and the chances of
losing!) would be weighed against the ICANN Mission, Core Values and its
Articles of Incorporation which includes the phrase "The Corporation shall
operate for the benefit of the Internet community as a whole".
Alan
At 10/01/2015 08:40 PM, Steve DelBianco wrote:
Thanks for the larger context around that bylaws provision, Bruce. But if
we are considering whether the bylaws refer to ‘ICANN’ as the
corporation or the community, see ICANN’s own Management Operating
Principles (2008 link, p. 5):
"The third and perhaps most critical point of tension is between the
accountability to the participating community to perform functions in
keeping with the expectations of the community and the corporate and legal
responsibilities of the Board to meet its fiduciary obligations. The
ultimate legal accountability of the organization lies with the Board, not
with the individuals and entities that make up the ICANN community.â€
So, when the Board is confronting a community consensus to take an action
that could put the corporation at risk of a lawsuit … how do you bellieve
a board member is obliged to react?
From: Robin Gross <robin at ipjustice.org>
Date: Saturday, January 10, 2015 at 8:10 PM
To: Bruce Tonkin < Bruce.Tonkin at melbourneit.com.au>
Cc: " accountability-cross-community at icann.org" <
accountability-cross-community at icann.org>
Subject: Re: [CCWG-Accountability] Regarding role of Board directors
Thanks for the info, Bruce. It is worth pointing out that regardless of how
those bylaws are interpreted, under California law, nonprofit board members
owe a legal duty of loyalty to the corporation and there isn't anything that
this working group can do change California corporations law and the legal
duty of loyalty each board member owes to the corporation (as a corporation,
yes, not staff). This is where a tension comes in for trying to do public
governance via a private corporation - the two concepts weren't "built" for
the other, so there are gaps and some issues as a result. I think this is
an issue our group should explore.
Best,
Robin
On Jan 10, 2015, at 4:43 PM, Bruce Tonkin wrote:
Hello Steve,
ICANN Bylaws Article 6 Section 7 defines the duty of directors to ICANN the
Corporation:
Directors shall serve as individuals who have the duty to act in what they
reasonably believe are the best interests of ICANN and not as
representatives of the entity that selected them, their employers, or any
other organizations or constituencies.
I have often heard you refer to that specific clause in the bylaws over the
past year.
I think it is worth understanding it a little more. I personally believe
that the intent of putting this clause in the bylaws is that several Board
members are appointed to the Board from a specific stakeholder group, and
this makes it clear that Board members need to act on behalf of all
stakeholders not just the stakeholder group that appointed them. So from
my perspective it is a higher level of accountability than simply being
accountable to the group that appointed them. We certainly make that clear
as new directors join the Board.
The clause does not mean that somehow a Board director is now accountable
to the staff in the organization rather than the "ICANN community".
For those appointed to the Board by the nominating committee - I think it is
already clear to them that they represent stakeholders as a whole, as they
go through a rigorous interview process in front of the whole nominating
committee.
In my experience as Board director, Boards in general operate on behalf of
their stakeholders - these stakeholders could be the general public,
shareholders, or members. Under its articles of incorporation, ICANN is
structured to act on behalf of the global public interest - i.e. the general
public.
In addition to acting on behalf of stakeholders, a board is also accountable
to govern an organization in accordance with the law. This to me is the
"corporate" obligation that you often refer. This includes ensuring that
the organization can meet its financial commitments, ensure the staff have a
safe workplace, ensure there are financial controls to stop fraud, ensure
the organization complies with any contracts it has entered into etc.
Directors of ICANN can be held personally liable under law if they are
negligent.
After the ATRT1 review, a set of governance guidelines were established to
make this clearer:
https://www.icann.org/resources/pages/guidelines-2012-05-15-en
>From the section on the role of directors:
"The fundamental responsibility of Directors (as defined below) is to
exercise their business judgment to act in what they reasonably believe to
be the best interests of ICANN and in the global public interest, taking
account of the interests of the Internet community as a whole rather than
any individual group or interest"
"It is the duty of the Board to oversee management's performance to ensure
that ICANN operates in an effective, efficient and ethical manner. The Board
will also be responsible for overseeing the development of ICANN's short,
medium and long-term strategic plans, ensuring that they will result in
sustainable outcomes, and taking account of the critical interdependencies
of financial, human, natural, manufactured, social and intellectual
capitals."
"Some of the Board's key responsibilities are to ensure that ICANN's ethics
are managed effectively, that ICANN as a whole (as well as individual Board
and staff members) operates pursuant to the highest ethical standards, that
ICANN complies with applicable laws, and that ICANN considers adherence to
best practices in all areas of operation."
The bylaws could certainly be enhanced to incorporate the notion in the
Governance Guidelines that Board directors are accountable to the Internet
community as a whole.
Regards,
Bruce Tonkin
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--
Evang. Akinbo A. A. Cornerstone, Nigeria.
+2348064464545, +2348089118151 | 2BAC511D.
www.akinbo.ng
Member, Executive Board of Directors,
Nigeria Internet Registration Association (NiRA)
www.nira.org.ng | akinbo at nira.org.ng
@niraworks
Acting Chief Operating Officer,
DNS Africa Magazine
www.dnsafrica.org | akinbo at dnsafrica.org
@dnsafrica
National Convener,
Nigerian Youth Coalition on Internet Governance (NG-YCIG)
www.ycig.org.ng
President,
Young Internet Professionals (YiPS)
www.yips.gnbo.com.ng | akinbo at yips.org.ng
The RedHub.
12, Afonka Odebunmi Street, Lagos State.
http://www.theredhub.org/
National Focal Point ( Nigeria ) 2009-2011.
Global Youth Coalition on HIV/AIDS (a program of TakingITGlobal)
www.youthaidscoalition.org www.takingitglobal.com
www.iaids.org
About me: http://profiles.tigweb.org/pscornerstone
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