Independent Examiner’s Final Recommendation
At-Large should adopt a simpler and more transparent electoral procedure for the selection of the At-Large-appointed member of the Board of Directors. Two alternative mechanisms are proposed (Section 10.5.3) both of which would be an improvement over the current process.
Election processes are excessively complex and have been open to allegations of unfairness.
Does ALAC Support Recommendation?
If Not, Please Provide Reasoning.
The ALAC strongly objects to this recommendation which overall disenfranchises the At-Large Community from selecting its own Board Director. The concept that the “Director nominated by the At-Large Community” (a quote from the ICANN Bylaws) should be even partially selected by the Nominating Committee and then by random selection cannot be taken seriously if ICANN considers the multi-stakeholder bottom-up, consensus-driven decision-making process as the cornerstone of its governance methods. Moreover, this process was arrived at after an extensive bottom-up design process.
By transferring this very organic selection process to the NomCom, the At-Large Community would be isolated from the process (and consequently, the Board member), making the appointee just another NomCom appointee, and reducing community ownership. It has been noted that this recommendation would expand the number of Board Directors that the NomCom would be entitled to select and therefore goes against the recommendation of the Board Governance Committee.
There is no question that the process followed by the At-Large Community (ALAC and RALO Chairs) to select the occupant of Board seat #15 is more rigorous and complex than the processes used by the Supporting Organisations for their selections. The procedure to select the Director selected by the At-Large Community was designed in a bottom-up method by the community it serves. The procedure will no doubt evolve going forward. It is patterned closely on the process used by the NomCom itself to select its own directors. The NomCom already appoints half of the Board, and two/thirds of its voting members are from the ICANN Supporting Organizations and the IETF. Furthermore, turning the designation into an exercise of random selection presumes that all candidates are identical. Random selection is not an acceptable way to select a Board Director from among a slate of candidates, although it can currently be used as a last resort in order to break repeated ties between two final candidates, both of whom have strong support among the electorate.
The other alternative suggested by the Review Team (but not recommended) is to revert to a selection process akin to the 2000 At-Large Board selection process. This is a process explicitly rejected by the bottom-up group that designed the current process and was rejected by the ICANN Board when ICANN was re-designed in 2002. It is not the place of an external At-Large reviewer to override these processes.
Lastly, any Review Team recommendations that are to be implemented will have to be formally approved by the Board. It would be a direct conflict of interest for the Board to instruct At-Large on how to select its Director.
It is unclear where the "allegations of unfairness" arose, but the ALAC is not aware of any for which there is any basis.
If ALAC Does Not Support Recommendation, Does It Suggest an Alternative Recommendation?
If so, please provide a suggested alternative Recommendation.
The Review also commented on whether At-Large should have two DIrectors instead of the one it currently has. The Review Team rejected this for four reasons. The ALAC notes these reasons with some amusement.
1. The ALAC has significant - and sufficient - power with one voting seat. “Sufficient” is clearly a judgement call and not a rational argument.
2. The ALAC has more Board voting power than the GAC, the RSSAC or the SSAC. The Bylaws forbid government representatives from sitting as voting Board members, so the GAC is not even a question. The RSSAC and SSAC have made it clear through their decision not to participate in the Empowered Community that they wish to stay purely advisory. We note that the other ACs have always been in a different position relative to the ALAC in that they have only non-voting Liaisons to the NomCom while the ALAC has always had decisional responsibility on the NomCom.
3. An increase would not sit well with other stakeholder groups. This is intuitively obvious and not a reason to not take action. Those same groups did not want the ALAC or the GAC to participate in the Empowered Community, preserving all power for themselves.
4. At-Large has 5 of the 15 voting delegates on the NomCom. The GNSO has 7 of the 15 delegates on the NomCom (2 more than the ALAC) but still has 2 voting Directors.
Who Will Implement?
Budget Effects impact?
Proposed Implementation Steps