[CCWG-ACCT] Board comments on Recommendation 4 – Board Removal Liability Mitigation

[Bruce Tonkin]

Hello All,

Following the last CCWG call that discussed the topic of indemnification for community members that participate in developing a written rationale for Board removal, the Board has modified its position to support indemnification for public statements made in the initiation of the Community Forum and in the Community Forum process.

The Board previously identified to the CCWG-Accountability that it would not support the requirement that Board members would have to, as a condition of serving on the Board, sign a waiver of rights to file suit against community members for statements made in the Board removal process.   However, the Board also indicated its willingness to explore the possibility of indemnifying community members for suits based on participation in the Board removal process.

The Board then agreed that it would support indemnification for statements made in the written rationale supporting Board member removal, so long as those statements were made in good faith and with due diligence as to their veracity.   On the CCWG’s 26 January 2016 call, we heard the concerns of some on the CCWG that the limitation to written rationale was not far enough, and that to make this a meaningful provision the indemnification had to also cover statements made within the process leading up to the Board removal.

Hearing the CCWG’s concern, the Board has modified its position to support indemnification for public statements made in the initiation of the Community Forum and in the Community Forum process, as well as in the written rationale.  The Board remains in objection to a waiver.  We believe that this compromise provides the community with flexibility for good faith participation in the removal discussions with sufficient protection if their participation was challenged.  ICANN staff has provided the CCWG with proposed Bylaws language to give effect to the indemnification.  Particularly with the extension of indemnification to a broader set of actions, it is essential that the community be given tools to assess, from the outset, how to demonstrate that contributions are made in good faith.  We expect that guidelines for the running of the Board removal processes will be developed as part of the implementation of the CCWG recommendations.  ICANN provided the CCWG with some initial ideas on what those guidelines could look like.

Regards,

Bruce Tonkin

ICANN Board Liaison to the CCWG