[CWG-Stewardship] [client com] CWG Comment Letter - PTI Bylaws

Thu Aug 11 15:08:26 UTC 2016

Matthew,

I agree with your point, generically.  However, I think the analysis is
different with regard to subsidiaries and affiliates.  It's much more
common (if not expected) for chairs of controlled entities' boards to be
"non-independent."  That said, PTI is not a typical affiliate, and there is
a tension between its "affiliated-ness" and its independence.  As such, I
would leave it to the Board to appoint the most qualified Chair.  We could
consider term limits for chairs, as a check on your concern (though, of
course, the ICANN directors could play round-robin with the Chair should
they choose to do so).

I don't really have a problem with suggestion 2.  It's certainly preferable
that the Chair have broad support.

I also think the NomCom should be asked to put forward candidates with the
potential to be Chair, but I would not give the NomCom any role in
designating whether a nominee could or should be Chair.

Greg

On Thu, Aug 11, 2016 at 8:39 AM, matthew shears <mshears at cdt.org> wrote:

> Thanks Jonathan
>
> I agree - I don't think we have discussed this as fully as we should
> have.  Chair independence is plain and simple best practice in corporate
> governance and it would be mistake not to structure PTI in a way that best
> practice is followed.  There are ways of addressing this:
>
> 1.  Go back to the language in the version of the bylaws that are out for
> comment: "be selected from among the Nominating Committee Directors by a
> majority of the Directors then in office".  The concerns with this seemed
> to be whether either of the Nomcom directors would be qualified to be
> Chair.  This could be solved through the NomCom requiring Board chair
> skills of the candidates (or at least one) and/or through the Nomcom
> differentiating between the two roles they are filling.
>
> 2.  Stay with the current approach but structure the selection of the
> Chair in a manner that ensures the best possible "balance" by adding a
> qualifer to the majority such as "with at least one ICANN director
> (non-President) and one NomCom director voting in favor" for example.
>
> (My personal preference is for option 1.)
>
> I would note that this issue of independence is all the more important
> given that in the current draft ICANN Directors are not limited in the
> number of consecutive terms they can sit (which by the way should not be
> the case and I would argue the CWG should require that the Board
> consecutive term limits are identical for Nomcom and ICANN Directors (2 x 3
> years)) and as a consequence a Chair that is an ICANN Director could be in
> situ for a considerable period of time.
>
> Matthew
>
>
>
>
> On 11/08/2016 11:02, Jonathan Robinson wrote:
>
> All,
>
>
>
> At the previous meeting of the CWG, Christopher Wilkinson raised his
> significant concern about the (CWG) proposed change in the bylaws to
> reflect that the PTI chair need not be selected from the Nom Com appointees.
>
>
>
> A chairperson of the Board (the “*Chairperson*”) shall be elected
> annually and should be selected from among the Nominating Committee
> Directors by a majority of the Directors then in office.  The President
> shall not be the Chairperson.
>
>
>
> Lise & I looked back into this point and we note that this change was
> introduced recently to the CWG (meetings 82 & 83), reflecting a concern
> with limiting the slate of potential chairs to only the Nom Com nominated
> directors, when there could be better qualified candidates from the ICANN
> nominated directors. Note further that the CWG proposal does not specify
> this point, Sidley did not oppose it and, unlike other similar points, CWG
> participants did not raise any objection or support at either meeting 82 or
> 83. It seemed to go un-noticed by CWG participants. Furthermore, a key
> point for the CWG co-chairs, as proposed initial directors, is that we
> could be seen to have a conflict of interest (motivation to limit the slate
> for chair to ourselves), and so we need to be sensitive to this aspect of
> the discussion.
>
>
>
> Therefore, if anyone else feels strongly about this, and assuming so,
> particularly if they are able to rapidly suggest any pragmatic alternatives
> which potentially balance the concerns, that may be helpful.
>
>
>
> Please be acutely aware that our comments on the PTI Bylaws are due in
> today.
>
>
>
> Thank-you,
>
>
>
>
>
> Lise & Jonathan
>
>
>
>
>
>
>
> *From:* Jonathan Robinson [mailto:jrobinson at afilias.info
> <jrobinson at afilias.info>]
> *Sent:* 11 August 2016 09:09
> *To:* cwg-stewardship at icann.org
> *Subject:* FW: [client com] CWG Comment Letter - PTI Bylaws
>
>
>
> All,
>
>
>
> Please be  aware of the latest version of the CWG comment letter.
>
>
>
> Please note Sharon Flannigan’s comments below including that the Public
> Comment period closes later today.
>
>
>
> Thank-you.
>
>
>
>
>
> Jonathan
>
>
>
> *From:* Flanagan, Sharon [mailto:sflanagan at sidley.com
> <sflanagan at sidley.com>]
> *Sent:* 10 August 2016 07:21
> *To:* 'Client Committee' <cwg-client at icann.org>
> *Subject:* [client com] CWG Comment Letter - PTI Bylaws
>
>
>
> Dear Client Committee,
>
>
>
> Attached is a revised draft of the CWG comment letter on the PTI bylaws.
> As noted previously, we have updated the letter to address the appointment
> of the initial independent PTI directors.  We also understand that the
> Nominating Committee will be prepared to begin nominating the two
> independent PTI directors in 2017 (rather than waiting until 2018 or 2019).
> These changes are reflected in Sections 4 and 5 of the draft comment letter
> and in Sections 5.2.2 and 5.5.1 of the revised bylaws.
>
>
>
> We note that strategy/budget still needs to be finalized in the letter and
> the draft bylaws.
>
>
>
> As a reminder, the comment letter is due Thursday, August 11.
>
>
>
> Best regards,
>
> Sharon
>
>
>
>
>
>
>
>
>
>
> *SHARON R. FLANAGAN *
> *SIDLEY AUSTIN LLP *+1 415 772 1271
> sflanagan at sidley.com
>
>
>
>
>
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> --------------
> Matthew Shears
> Global Internet Policy and Human Rights
> Center for Democracy & Technology (CDT)+ 44 771 2472987
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