ExCom Directors Selection 2010-2-02 282825
Cheryl Langdon-Orr: Thanks, Heidi. What we might do is just do – get Gisella to do a quick roll call so we know who's here, or whoever has access to the panel, who can actually see whose line is connected.
Gisella Gruber-White: Cheryl, I can't see whose line is connected, but I have so far made note of the following participants on the call: Cheryl Langdon-Orr, Alan Greenberg, Sebastien Bachollet, Evan Leibovitch, Dave Kissoondoyal, Vanda Scartezini. We also have as guests today John Jeffrey – and I don't believe Samantha Eisner's joined. From staff we have Heidi Ullrich, Gisella Gruber-White and Marco Lorenzi. Thank you.
Unidentified Participant: (Inaudible.)
Cheryl Langdon-Orr: (Inaudible) yourselves being here. Okay. If not, we'll hope that Carlton and Tijani's dial-outs were successful and we'll get started.
A very, very light agenda. It's called (inaudible). We've written a white paper. We need now to make it happen. There's also assuming that the community do put forward names and we do have a successful process. And an appointment is to be made. Undoubtedly a number of operational issues.
And to that effect, I'm very thankful that John has made time to join us today because we would like to be able to have this whole event happen on our proposed timeline. And I'm gathering and making the assumption that, John, you've had time to look at the white paper and that you and Samantha have digested it and that Marco has done the same.
So, perhaps just before we go into any particular Q&A on the white paper, if we can just ask for any specific feedback, some comments, from first of all John and then Marco. And then I guess we should probably just dive straight into the milestones part of it.
Alan, are you happy with that way forward?
Alan Greenberg: With the added thing that I would really like to hear from our legal counsels whether there's anything either in the options or in the recommendations that in fact would be deemed not appropriate.
Cheryl Langdon-Orr: Problematic, of course. Yeah. Well, and if there's a legal issue and the legal people haven't found it, you know.
Alan Greenberg: Well, I'm just asking that it be highlighted, that's all.
Cheryl Langdon-Orr: Thanks for that. Okay. John, are you willing to have that ball batted across to you to begin with?
John Jeffrey: Well, yes, but I didn't quite know that that was the ball that was going to get batted.
Cheryl Langdon-Orr: Fine. Okay, well--.
John Jeffrey: -So, let me start with-.
Cheryl Langdon-Orr: -What ball-. Well, you see, we're on a fast track here, John.
John Jeffrey: Absolutely. And I appreciate that. So, let me tell you what I've done. I've looked at – I've skimmed through your white paper and seen that it is very consistent with the way that other groups of select board members do so. I did not look at it with as critical an eye as – as giving it an editor's pen.
Cheryl Langdon-Orr: Sure.
John Jeffrey: Because I assumed that there's still some process that you'll follow relating to how you would present it for public comment. And so, I didn't see anything that was outright objectionable, but I didn't review it with that purpose.
Cheryl Langdon-Orr: Well, that's (inaudible)--.
John Jeffrey: --That would be the intent, I would certainly – if that's the intent, I could certainly do that and get back to the group about whether we see anything that we would suggest be changed.
Cheryl Langdon-Orr: Okay. If you just hold that thought.
Heidi, we discussed at really great detail, almost ad nauseam, how it goes through Public Comment within the ICANN system, that some of us were pushing for that to have already happened. Where are we in terms of time course and things on making that go ahead?
Heidi Ullrich: Yes. I think that John is going to say more on that.
Cheryl Langdon-Orr: Oh, okay.
Heidi Ullrich: For next steps. That's part of the next steps.
Cheryl Langdon-Orr: Okay. I shall try and be patient. Sorry, John, back to you.
John Jeffrey: So, I guess – so as an introductory point, I believe that that's exactly what I would encourage you to do. And I'm sorry that I've not been privy to your previous discussions. But the question came to me about whether it was appropriate to publish it at this point, with the Board having not formalized that there will be a board member on X date. And my thinking is that, the further along that you take the process, the better it is. Because you're demonstrating that you are taking the appropriate steps to be in the position to select the director. So, I would encourage you to post it and post it as soon as possible.
Cheryl Langdon-Orr: Good to hear, John.
Marco, is there anything from your perspective, seeing as that you're wrangling the Structural Improvements Committee on this matter as well? I don't want – and let me make it real clear on the record. I don't want as Chair, and the community will not want or desire, and certainly this design team for the process is not going to be keen on having it happen, for we to end up in some sort of loop or chasing our tail activity. As far as the At-Large community is concerned, the time course and milestones we have in our white paper having been gone through I think a very extensive process within our community, unless the wheels really fall off something for some reason, should be achievable.
So, as we sort of dive into that set of milestones now, Marco, is there a good reason why we can't just get on with the job? The SIC wrote back to me saying it's up to the community to organize itself and work out what it wants to do. That's the short version and nowhere near as elegant as the letter. But is there more than we should be putting into that time course? In other words, we're pushing. Is anyone going to push back?
Alan Greenberg: Cheryl, could I ask – add a specific focus part to that.
Cheryl Langdon-Orr: Go ahead.
Alan Greenberg: Assuming we go out for comment on the white paper soon, and also assuming when the Board finally approves bylaws they will have to go out for comment, are there any other mandated comment periods along the way that are foreseen?
Cheryl Langdon-Orr: Yep. That's right. I mean, we need now to really make that milestone. I see the majority of the white paper all very nice for discussion and some dotting of I's, crossing of T's, some tweaking and some to and fro. And possibly even some healthy debate in the Public Comment process and various forms of discussion will happen. But today's meeting I'd like to get right on to the what's happening in terms of process and how realistic and what changes, if any, need to be made to timelines and what we might need to have added to it.
Marco Lorenzoni: Okay. May I?
Cheryl Langdon-Orr: Please.
Marco Lorenzoni: Very briefly. Unfortunately, I'm not an expert in election mechanisms, so I can't really comment on the--.
Cheryl Langdon-Orr: -We have experts in election mechanisms-.
Marco Lorenzoni: --Yeah, I'm sure. I'm sure, because it's so articulated, your white paper, that I'm sure you have very good experts in election mechanisms to have written that. What's going on at the SIC.? As you have seen, the SIC first of all underlined the fact that ALAC, in consultation with the At-Large Community, is free to devise its selection mechanism for the elector that would be expressed by the At-Large Community and he or she will become a normal board director. So, there is the recognition, I think, which is pretty important of the autonomy of the Community in this sense.
The implementation steps to pass from the in principle decision to the full implementation of the At-Large express directors in the Board is at the attention of the SIC. There's been already a discussion last call over to SIC and now staff is preparing a report to the Structural Improvements Committee identifying the steps required to achieve the implementation of the Board director.
So, the other preliminary activity that was to be done was the release of the Board Review Working Group final report. It has been published a few days ago. So, we are perfectly on track fortunately for this. And to date there is from – from the staff there is the full commitment to release as soon as possible this report of the Structural Improvements Committee in order then to have the full report on these steps before Nairobi.
Cheryl Langdon-Orr: Okay. So, that certainly makes no pushing out of the proposed milestones within our white paper. Might I ask, without you releasing anything that's so pre-publication you don't know yet, is there anything in our processes that are going to be flagged or mismatched in milestone and processing with what we have after Nairobi? In other words, I'm assuming that the SIC is getting a report from staff which has to do with what ICANN needs to do to make all this magic happen, correct?
Marco Lorenzoni: Well, basically, we have to understand what are the steps that ICANN has to undertake in order to pass the implementation, yes. So – and the SIC then has to take a decision based on that. In preparing this paper, of course, we have to take into consideration the timeline that you draw on the white paper and the expectations of the At-Large Community to pass the implementation of the end principle decision, yeah.
Cheryl Langdon-Orr: So, we really now need to know – and I guess this is batting back out to John Jeffrey again – are our timelines, are our milestones achievable?
John Jeffrey: Well, so that's a hard question to answer because it's unclear to me what processes the SIC, or any other group within the Board, might take in order to get to the point where the bylaws changes are to be published. So, from the standpoint of seating the board member, the act which must occur is the Board approving proposed changes to the bylaws and those bylaws going out for public comment, as they always would, and then that public comment resulting in a ratification of those bylaw changes.
I mean, so that's actually not a very long period, but all the steps leading to that are less clear in terms of what will result from the review of the Board Working Group report and will it match up to the SIC – the other SIC work and (inaudible) work and will it match up to your timeline. And I think that's what I heard Marco expressing, that there are a number of things that would need to match up in order to determine if your timeline is exactly correct.
Cheryl Langdon-Orr: Sure. Absolutely. But one of those very first questions, I guess John Jeffrey, is – Marco, when is said staff report likely to be in the hands of the SIC? Because until it's there, none of our poor blokes have a snowball's chance in hell of knowing what's likely to be achievable or not.
Marco Lorenzoni: Yeah. As I said, there is our commitment to give it to the SIC really as soon as possible. We are working with Heidi to prepare this report and to carry it really quickly to the Structural Improvements Committee for their consideration.
Cheryl Langdon-Orr: Okay.
John Jeffrey: So, I think that the one thing that I can think of that might be useful, certainly on top of your paper, would be a communication from this group back to the Board, perhaps the committee or however you deem it to be useful, to point out that you've continued this work along, that you're going through all of the processes, that you've proposed a timeline and that you're hoping that timeline will match up. I think it's useful – we certainly on the staff side can point it out and we encourage you to point out that that timeline's very important to the At-Large Community and the At-Large Community being able to select a board member.
Alan Greenberg: I've got three questions, Cheryl, whenever--.
Cheryl Langdon-Orr: Yes. Thank you. I was just going to, first of all, toss it to Vanda who, as our liaison to the Board, I'd see that particular role that John Jeffrey just outlined as one of the reasons she's in existence as that liaison. Vanda? Go ahead and then back to Alan with those questions.
Vanda Scartezini: Hello, everyone.
Cheryl Langdon-Orr: Yes. Please go head, Vanda.
Vanda Scartezini: (Inaudible.)
Cheryl Langdon-Orr: Yes. Just speak up a little bit.
Vanda Scartezini: Okay. What I'm – since you talk about this, first priority inside the SIC is the Board Review. And talking inside the Board, I'm not seeing people with a clear (inaudible) timeline to finish this, which is one point that I get a little worried about that is the Board Review.
Second, I do believe that after the reaction, positive or negative from many, many Board members, I believe we should continue our process from ALAC's point of view since there is no real process to follow because it's quite new. But after we collect all the information that we need to collect from the Community, this is done. Once it's done, it's time to – I believe that we'll be parallel with the ends of Board Review.
So certainly, we'll need some change of bylaws and so on and then a new process will enter. And what we need to do as ALAC is working with the group, with the staff and so on, to make sure that we enter into this process before we need to change all the things that maybe come from the Board Review. If we don't do that, we're going to say two years to finish this.
So, it's in my point of view we need to find a real local process for ALAC and propose this process, working with the staff to be proposed to the Committee and to the Board to follow that. I don't believe that we should keep sitting, waiting for someone propose some process to enter our ideas into the reality inside the Board because it will be necessary anyway to finalize the Board Review. Because it may change dates and something – a lot of things. But if – anyway, we need to have a proposal or process to be followed after – just after this end of Board Review, or we're going to lose one year or more.
Cheryl Langdon-Orr: That's certainly something I think all of us are fearing. Alan has a few questions, but I wondered if John Jeffrey or Marco wanted to respond to that.
Marco Lorenzoni: Well, very briefly, if I may. I think Vanda is absolutely right. And the release of the Board Review Working Group report was the prerequisite for staff to prepare this paper on implementation steps to pass to implement the principle of the At-Large nominated director. So, it has been released really a few days ago. I think today we published the translations in the other languages, so it's really something that has been published very recently.
The principles that are contained in the report are the same that you already know, because they were contained also in the draft final report. So, one director to be expressed by the At-Large Community in substitution of the present liaison. No reduction of Nom-Com members to compensate this new director in the Board. So, the principles that were already contained in the final report. The only difference with the draft final report is that, in the draft final, there was a mention of the need for an explicit approval of the election mechanism of the director. This was dropped in the final report in order to recognize that ALAC and At-Large are autonomous in devising their election mechanisms.
Cheryl Langdon-Orr: Our mechanism.
Marco Lorenzoni: Yeah. So, this was the prerequisite. So, Vanda is absolutely right when she say that the process for passing to implementation of this in principle decision we have to find an accounting for that because it's terribly long to refer always to this, is to run in parallel with the process of implementation of recommendation of the Board Review Working Group.
Cheryl Langdon-Orr: Okay. John Jeffrey, I think all that's saying is it reinforces your opening gambit about us getting our white paper out for Public Comment, as in capital P, capital C, ICANN Public Comment, as soon as possible is more important, not less. Because in fact, with the final report, the one impediment that we fear we might have, which is an extra loop, has in fact gone.
John Jeffrey: I think that's right. I think everything that you can do to positively move the process forward is just adding the correct pressure to have it happen.
Cheryl Langdon-Orr: Well, as some people who've worked with me know, some of us are very, very good at working pressure points, aren't we Vanda?
Alan?
Alan Greenberg: Okay. Part of what I was going to say has already been preempted. I was going to say that I hadn't looked at the Board Review Report yet, but I'm assuming that, unless it vetoes the concept, there's not really much in the report that is likely to affect us in the process. It will affect, you know, things in the longer term and there's no reason not to go in parallel.
A related question is, if we are to achieve the timeline we're suggesting, we are going to have to – and we already are – taking actions in parallel with the approvals of those actions.
Cheryl Langdon-Orr: Yes.
Alan Greenberg: In other words, we are working on the assumption that various bodies will approve the basic things that we're recommending. And we are starting along the process of implementing them on the – with the knowledge we could always stop if things change radically. And I guess I'm asking a question is there anything wrong with that process?
John Jeffrey: This is John. Can I respond?
Alan Greenberg: Sure.
Cheryl Langdon-Orr: Please.
John Jeffrey: So, the – I think in fact that the August Board resolution clearly provided you a path to be able to take the steps that you're taking. And so, I think that when you are publishing something like this white paper, it is important to note as a preface that it is still dependent on bylaws, changes and other steps that need to occur before this election could occur, but that you are just acting positively in order to further the efforts by so many to have this board seat move forward.
Alan Greenberg: Right. So, as long as we don't do anything irrevocable, and it's not within our power to do anything irrevocable anyway, then we can work on the assumption that these things will ultimately be approved in a timely manner and start the process rolling.
John Jeffrey: And in fact, what you don't want to do is have the bylaw change occur and then it take another six months or a year before the step could be taken. So, you're just – you're doing exactly what you should do, you're showing that you are capable of doing what is going to happen and taking appropriate steps to be there.
Alan Greenberg: Okay. Related to the bylaws, although it's conceivable that there'd be some specifics related to the appointment process in the bylaws, I would envision that, in general, they are going to change a number of things which are not what we're specifying here. Is there any reason that we cannot – or you cannot or whoever – start drafting what the changes need to be so we don't get taken by surprise – you know, sort of surprise as we were in the GNSO environment where the actual wording of the bylaws came in very late in the process without a real strong reason for that being needed.
John Jeffrey: Yeah. So, I don't think the actual changes to the bylaws in this case are that complicated in this specific instance. But what we don't know yet is how – whether there would be other bylaws changes resulting from the Board Working Group work or the SIC work that might also be pending at the same time. So, in terms of saying that there would be a board member appointed by ALAC, if that is what the process would propose, then there's very little difficulty in drafting that set of bylaws changes. How it balances against other bylaws changes and whatever else might occur simultaneously I think is still in question.
Alan Greenberg: But is there any real reason to delay putting in the At-Large bylaws change prior to the other one? I mean, the other Board Directors still exist, also. And whatever Board Review changes are recommended will have to impact all of the directors at the time.
Cheryl Langdon-Orr: Yeah. Like, why are they all tethered is, I think, the way I'd ask that question.
John Jeffrey: So, without trying to summarize or go into any detail of the Board Review Working Group or the previous analysis that's gone on relating to the Board, there are, of course, issues of number, there are issues of quorum, there are issues of changing the number of Board members that all have to be considered before there's a structural change to the Board. And that's been part of what the Board Review Working Group's been looking at and is certainly part of the larger consideration. So, there's – I think your presumption or assumption going in is that there would be a 16th voting member added, but I don't think there's been a formal pronouncement of that.
Cheryl Langdon-Orr: Okay. Evan has a question. Go ahead, Evan. You might be on mute.
Evan Leibovitch: Okay. I had a quick question about I believe there are some bylaws that deal with the diversity of the Board, that there has to be taken into account where people are from and there are certain guidelines regarding the makeup and the composition of the Board in that way. I just want to confirm that that's not going to impact At-Large's ability to select the best possible candidate globally without having to be impacted by the other diversity rules.
John Jeffrey: Yeah. So, my recollection of that – and I'll go back and check the facts to make sure I'm correct after I say it, but my recollection is that those requirements specifically impinge on the nominating committee's selection.
Cheryl Langdon-Orr: Correct.
John Jeffrey: So, the statement that you made about not affecting the ALAC decision, I think that's generally accurate, although certainly ALAC would want to consider the location and diversity of the Board as part of its consideration, although it may not be bylaws required. So, I wouldn't direct you how you should select and then part of what your white paper goes to, but certainly making sure that there's a diverse Board that meets the wide interests of ICANN is a very important tenet for any advisory committee or supporting organization who would be selecting a board member.
Evan Leibovitch: John, I don't think that's correct.
John Jeffrey: Well--.
Evan Leibovitch: --In terms of the diversity applying to supporting organizations.
John Jeffrey: That's not what I said.
Evan Leibovitch: Okay.
John Jeffrey: So, let's be really careful about telling me I'm not correct.
Evan Leibovitch: Okay.
John Jeffrey: What I said very specifically--.
Cheryl Langdon-Orr: (Inaudible.)
John Jeffrey: Yeah. So, what I said very specifically is that I do not believe the bylaws requirements apply to any selection other than Nominating Committee, and I'll go back and check that. However, I do think that generally there has been, and certainly stated by supporting organization and others, concerns that that be part of the broader consideration. So, if that's not contemplated by ALAC, that's certainly within your ability and your selection process to set that. But I think we would all probably encourage you to make sure you're picking the best selector in light of – best director in terms of all of the possible considerations about ICANN's values.
Evan Leibovitch: Yeah. I mean, I wasn't saying that At-Large wasn't going to have its own diversity guidelines and things like that. I just want to make sure that we weren't constrained by anything in the bylaws.
John Jeffrey: Yeah. So, I think in terms of that, we're in agreement, although the bylaws have a very – they're sort of – the way I've explained it before is the bylaws both have very specific restrictions, but they also have a lot of principles upon which we all seek to be guided by. And so, I think that at the larger point there's principles, even if there's not restrictions.
Evan Leibovitch: Okay. Asked and answered.
Cheryl Langdon-Orr: Okay. Thanks very much for that, John Jeffrey. And the other thing I guess, when we were considering these matters, and we certainly have considered them in fair depth, was in our initial application and selection process for an At-Large appointed board director, we felt having the timeline so that our outcomes were clear and public before the NomCom needed to run through its processes was the best way of doing that. In other words, that what they are mandated to do can reflect on what we have already done in any given cycle. Now, what's your comfort level on that as an approach, at least in this first round. John Jeffrey?
John Jeffrey: Do you mind saying it a different way? I'm not sure I captured--.
Cheryl Langdon-Orr: --Okay. Basically, if the NomCom has the requirement to look at the issues of diversity, gender, regional and otherwise, it would be a whole lot easier for them if we've already got our appointment made before they have to make their final selections.
John Jeffrey: Before the--.
Cheryl Langdon-Orr: -In other words, you know we're going to put a Black African versus a Taiwanese female onto the Board before the NomCom is looking at the Board (inaudible)-.
John Jeffrey: -So, certainly in terms of – without speaking to the specific examples that you stated-.
Cheryl Langdon-Orr: --Yes, but I'm more of a bull in a china shop than you are.
John Jeffrey: Well, and I have to be very cautious about that for a variety of reasons. But without speaking to that specifically, I think it is relevant that the Nominating Committee is going through their annual process now and that, if you selected a director, if there was a bylaw change and you selected a director before their appointments, it would impact the restrictions on them.
Cheryl Langdon-Orr: Yes, indeed.
John Jeffrey: So, in terms of coordinating that, it's a very important point.
Cheryl Langdon-Orr: And to that end, we've ensured that – so far at least on this design team, that we've invited at least two current visiting ALAC-appointed NomCom appointees so that there is a wind, if not a direct conduit, between the activities of the two things so that they're not running in isolation.
John Jeffrey: Right. Good. So, I know that you're well aware of it and it's in your white paper and it's discussed very eloquently. But I always use these discussions as an opportunity to point out a very important thing about Board membership and appointment to it. And you say it very well, that an appointment to the Board is not representative of an organization, but I think it's just useful to restate that once more.
For example, every year I go in front of the NomCom and I explain that very carefully. When you select the Board member, if you select that Board member, that Board member comes to the Board and then represents ICANN as a whole, rather than having a representative capacity as your liaison would, for example to the Board. So, I just think that's very relevant and important in thinking about the selection and how that impacts that processes.
Cheryl Langdon-Orr: Indeed. Alan, you had a follow-up?
Alan Greenberg: Yeah, a follow-up and something slightly different, but a little bit related to it. In terms of the regional diversity, as I read it, there's two places in the bylaws where it's mentioned. One is under NomCom. But the other's under Section V of the Board bylaws, which talk about international representation, I think, something like that, which does explicitly refer to the supporting organizations, although it's never been clear how several appointments which operate in parallel can actually do that. So, it would be interesting, you know, as I said – it probably applies to us as much as everyone, but probably not implementable.
And in terms of one other – not representation, but issue, it has been suggested recently that a director seated in the At-Large seat cannot be – or that we should put a rule in saying the person cannot be an employee or similar status for a registrar or a registry. That is, they could not work with a contracted party and be representing At-Large, representing the user. And even to the extent of should we appoint someone and they change jobs, they would then have to resign.
Any thoughts off the cuff on whether these – such rules are appropriate? Whether we could put them in if we wanted to? And the issue of a board member being forced to resign because they change employment.
Cheryl Landon-Orr: And I guess before that, John Jeffrey, if you need to, that's a matter that North America has discussed in specifically great detail and did come also from one member of Asia-Pacific and some of the Latin American and Caribbean members. So, if you want more information before you respond to that in any detail, you've got people on this call who can give you that information. I'd talk to Evan, if that was the case.
Evan Leibovitch: Actually, in that particular case, Cheryl, the issue of the conflict of interest with contracted parties, that actually came out of Latin America. That wasn't--.
Cheryl Landon-Orr: -Yes-.
Evan Leibovitch: --I can't claim credit for that one.
Cheryl Landon-Orr: But you did use the specific example in the last Community call of the North American experience.
Evan Leibovitch: Yes.
Cheryl Landon-Orr: So, if John Jeffrey wanted something to mull over in a greater detail, we could provide him with that.
Evan Leibovitch: Got it.
Cheryl Landon-Orr: Okay.
John Jeffrey: That would certainly be interesting and useful to see. The one thing that I would point out is, of course, one of the reasons that members of the Community that do have those sorts of relationships end up on the Board is because they're so knowledgeable about ICANN issues. So, it's a natural tendency.
I think there is – speaking as the General Counsel, that of course is of great concern to me, because it's very important that Board members have the ability to be independent in their actions and without conflict. And that's become more and more important for non-profits in the United States (inaudible) ICANN as the reporting requirements relating to independence of directors is in fact enhanced. And there's additional reporting that will be required within 990 that will be prepared this year by ICANN for the past tax year. So, it is a very relevant point. In fact, I've made a presentation at the Nominating Committee about it for the past two years. And so, it is of good import.
The issue that you raised about deselecting or removing a director is a bigger concern, though. Because once the director is placed on the board, there is no mechanism for the community that appointed them to remove them.
Cheryl Landon-Orr: Yes.
John Jeffrey: In fact, it's quite the contrary. That would create much more of a representational type role than would normally be contemplated on a board of directors.
Alan Greenberg: Just for clarity, this wasn't that the community removes them. The question was they must resign because they no longer fit one of the criteria.
John Jeffrey: Yeah. So, the conflicts of interesting policy that ICANN's Board adopted does not call for that. It does say that, where – there are annual statements of interest required. And there's a requirement that, on any specific issue, directors note their conflict and identify it to the Board Governance Committee. The Board Governance Committee could effectively make a recommendation to the Board that the Board remove a director through its processes because of so deep a conflict that the director would not be able to perform his or her duties. But that's a – but there's no automatic mechanism. And that would be a very hard thing to maintain anyway because of the nature of conflicts and how different they are on different sets of issues.
Alan Greenberg: Okay. You said you've talked to the NomCom about this. Could you give us a one-minute briefing? Does that say don't appoint someone with strong potential conflict or, if you pick someone like that, be really careful that it's someone who can wear different hats?
John Jeffrey: Yes. So, that's worth spending a minute on. And I can--.
Cheryl Landon-Orr: -And J.J.-?
John Jeffrey: -And I'd be happy toyes, sorry-.
Cheryl Landon-Orr: -Not only could you-sorry, J.J. Cheryl here. Not only could you spend a minute with us, is it possible for such a presentation to be linked to our Community Discussion space for this so that our wider community is also able to take themselves through some of these issues?
John Jeffrey: We could certainly find some writings on it that would be more eloquent than my speaking on it.
Cheryl Landon-Orr: No, that would be hugely useful. And again, I'm trying to preempt going through loops once we go out for Public Comment. If the information is there already, that makes things a lot more streamlined. Thanks for that, J.J. Go ahead.
John Jeffrey: So, the only thing – and to take a minute on it, the one thing that's important is that the Board has to be able to take actions. So, there has to be a majority of the Board that's not conflicted on any issue in order for the Board to take action. And when you think about some of the complex issues in front of the Board coming up, like new gTLDs, where much of the community might be involved in aspects of it, it's really important that there's enough independent, truly independent directors to be able to make those decisions effectively for the benefit of the public and for the benefit of the organization. So, I think that's a – so it's an important consideration.
So, I don't tell the Nominating Committee or any organization that appoints to the Board that they should not appoint a conflicted director, somebody that has a contractual relationship. But, I do encourage them to think about the impact of that and to think about how many directors have conflicts and what the impression to the world that looks at ICANN making decisions is when you appoint a conflicted director. So, somebody like some of our sitting Board members who have some of those natural conflicts are very valuable to the Board because they bring community expertise and detailed expertise of the registries and registrars, but it is important as a consideration.
Evan Leibovitch: What about the possibility, since we have an appointment process that is going to in some ways have an election component, a voting component, as well as sort of a betting component where a slate of candidates is presented. There could be something introduced into our process that would require candidates to warrant that they would resign if they were to take a job with a contracted party. Is that something that would be out of line? In other words, it wouldn't be a bylaw change, but it would be part of our internal processes.
John Jeffrey: You know, that's certainly worth us going back and thinking about. And if that were to be a formal question from this group, then we could probably prepare a formal response to you on it.
Evan Leibovitch: I think we're going to have to because there's been other constituencies beyond the people on this call that have specifically been talking about it.
Cheryl Landon-Orr: Yes. I think it'd be well worth while. And of course, one of the possible ways forward which may be worthwhile, having in part of the preamble or questions for response in the Public Comment process that we're going to embark on now, is to put forward a statement, a half-level expectation of the role of the At-Large appointed director to the Board in terms of the – not representational, the ability to assist the ICANN Board to act in this independent way, using some of the language that you've used in your introduction to the matter for us, J.J.
I just think a lot of what you said said to me, in fact our appointment is an ideal opportunity to make sure that the Board can always act and discuss in the independent way that it needs to, to ensure that the public interest and end user good is always at the table. And that, if that is a criteria or expectation, that our candidates have quite literally put hand on heart and said I will be able to do that, then we could have a – if there is a conflict that is so large later declared – mechanism that says within the existing ways that you've also outlined to us, the Board could manage that and our community would feel well served.
John Jeffrey: Yes. So, we would certainly be interested in helping you look at that. And so, we could talk with Heidi an appropriate way for us to present some information to you on that.
Cheryl Landon-Orr: Yes. I think that could be very useful. Because it is certainly a major discussion going on, particularly in some of the regions. And it's one we're going to, I think, have to grapple with. So, part of it comes back to the – as you well know, J.J., the difficulty some people have in understanding the role of the director in a non-representational role. And in fact, we discovered in our last Community call that there were still members of the Community who were believing it would be better to have a process of some sort of rotational regional manner. And we're going, "But, whoa, whoa. These are not representational roles." It's not.
John Jeffrey: Yeah. And I really appreciate the work that you're putting into this. It's very important that you select – you know, with every Board seat that we have the best possible, most capable member joining the Board.
Cheryl Landon-Orr: Exactly. Yeah. And one that, in our case, a huge cross-Community constituency group. And I don't mean within ICANN Community, I mean Global Community, needs to feel faith in the appointment of.
Alan Greenberg: Cheryl?
Cheryl Landon-Orr: Yes? Who was that wanting to get attention?
Alan Greenberg: It's Alan. Sorry.
Cheryl Landon-Orr: Sorry. Go ahead, Alan.
Alan Greenberg: My voice went out. I guess it's worth pointing out that one of the reasons there's so much – and I'll use the strong paranoia in the Community – is that, unlike the supporting organizations who have two directors so that, if they make a really bad mistake, at least they have another one. If we make a really bad mistake, we have a really person sitting there – not bad, but some--.
Cheryl Landon-Orr: --Unsatisfactory.
Alan Greenberg: There's no escape clause.
John Jeffrey: Well, it is important to note that--.
Alan Greenberg: --Because there's only one of them.
John Jeffrey: It is important to note that the supporting organizations have been very successful I think in many ways in appointing skilled directors. And so, although it's often a difficult process, we've been very lucky with the quality and the experience of the directors that have joined the Board.
Alan Greenberg: Well, and part of the reason I think of that is something that we don't have an option on at this point, at least not completely. In all the cases, the director is named – the title of the director is for the entire supporting organization, GNSO and ccNSO. The person is always – in all the cases I know of, is always named by the council.
Cheryl Landon-Orr: Yes.
Alan Greenberg: Which means it's named by people who are heavily involved in the ICANN process. In our case, it may well be that a significant part of the electorate is – cast their vote directed by people who are not intimately familiar with ICANN. And that does raise issues of, you know, people valuing different things than are valued by the people who are heavily involved in ICANN. So, there's a whole bunch of things at play here and part of it is the politics that we have to deal with, that it's just a different setup than the supporting organizations.
Cheryl Landon-Orr: And there's little we can do about that because, right from the ALAC review point, we've had it very clearly outlined that this must be an At-Large appointment process, not an ALAC appointment process.
John Jeffrey: So, this is John. If I could just add one more point. You very correctly highlighted the bylaw mandated requirements for Board membership. And so, one way to think about that is to make sure that your nomination process takes into account that they should in fact be qualified according to those mandated requirements.
Alan Greenberg: The problem is, how does one judge that? We have a significant number of people – or a number of very loud people, who are saying anyone should be able to self-nominate and if they tick off the box, I meet all the qualifications, then by definition they do.
Cheryl Landon-Orr: Yeah. The due diligence--
Alan Greenberg: --The vetting process is one of the more contentious issues around.
Evan Leibovitch: Yeah. There are some people that say if we have a ballot of 200 people, like the California Governor thing, well, so be it.
Cheryl Landon-Orr: Which some of us would slit our wrists over, by the way.
John Jeffrey: By the way, just going back to the issue of conflict, in theory there is a process which could be used. If the At-Large Director has to bow out of so many issues that – because they are conflicted, At-Large could petition the Board to remove that person, you know, based on the fact that they are no longer effective. But you know, clearly, that's not a process we would like to embark on.
Cheryl Landon-Orr: Well, we certainly don't want to set it up for that to be the end game, do we.
Alan Greenberg: Well, the tone of our discussions has been, in most of them, before we decide – before the discussions go to the point of how to appoint someone, the discussions often focused for the first hour on how do we remove the person if we don't like them. So, that tells you a bit of the tone of the Community.
Cheryl Landon-Orr: No, that's a very important point actually, Alan. And Marco, I do hope that the Structural Improvements Committee is made aware of these concerns and deliberations because it is something that I think all points, all decision points in this process from now on, as it goes up to Board and then back to Community and then hopefully for prompt and in a timely manner resolution and outcome.
It needs to be clear in everyone's mind who has been by necessity or design disconnected from our Community processes, that our Community has gone through this very extensively. We have had full and frank discussions and we have the tensions and the scars to prove that, if they want. But I do think it's really important that we have recognition of how deeply our Community has drilled down and discussed all of this, considering the size of our Community, the accountability measures we hold on ourselves. This is possibly one of the more extensive appointment mechanism deliberations that has ever gone on for ICANN.
Marco Lorenzoni: Yeah. I think it's very clear in the mind of the Director sitting in the Structural Improvements Committee about the serious nature and the very extensive consultations that you have undertaken with your Community. I think that everybody is very well aware of this and, if not, it will be very easy to remind them. No problem at all. I am pretty confident that everybody is extremely aware of this and the time and the commitment it took to do the whole At-Large Community to go through this process.
Alan Greenberg: Marco, it's Alan. I may give you another side to that, however. Although I know the Structural Improvements Committee does not want another NCSG where there's a major conflict with part of the Community, on the other hand there are things that have been proposed by parts of our Community – hopefully will not end up with the final recommendations, but we don't have a complete control over that, which are probably not in the interest of ICANN.
Cheryl Landon-Orr: That's right.
Alan Greenberg: And we really do not want the SIC to simply rubber-stamp whatever we put in because the At-Large has autonomy. We really do expect this to be looked at and, if there are parts of it which there is a strong feeling that they are not the right direction, we want that feedback. It's not just a matter of flexing our muscles and saying we have autonomy, this is what we have decided. We really do want to forward the direction of ICANN and we do look for that sort of information and feedback. And that's something to keep in mind at the same time as knowing the extensive consultation. The consultation has – doesn't always – that level of consultation doesn't always result in meeting the needs of the broader picture. And the discussion that we need to rotate regionally, which has some wide support in parts of our Community, is an example of that.
Cheryl Landon-Orr: Yeah. It was bloody scary, but it certainly was an example of that.
Evan Leibovitch: Or the desire to go back to the 2000 vote process by some others.
Cheryl Landon-Orr: Which – you know, honestly, if I could put a stake in the middle of that damn vampire's heart I'd be very happy, but there you go.
Alan Greenberg: Well, but Cheryl, on the issue of regional disparity, all it takes is one more RALO to say that's what they want and we have a majority pushing in that direction.
Cheryl Landon-Orr: And we're no longer looking at acting in the best interests of ICANN.
Alan Greenberg: That's correct. Which is why I say we want the Structural Improvements Committee--.
Cheryl Landon-Orr: -Yep-.
Alan Greenberg: --To tell us if we think something really is not in the interest of ICANN.
Cheryl Landon-Orr: And I would like to--.
Alan Greenberg: --I don't know how to put it any clearer.
Cheryl Landon-Orr: Yeah. And I would like to think that the Staff Advisory is going to – the various decision bodies are going to be contacted or influenced by the people on this call. In other words, J.J. and Marco, do you hear what we're saying?
Alan Greenberg: By the way, we fully expect there to be appeals to the Board and Ombudsmen complaints over this process and the results.
Cheryl Landon-Orr: Oh, absolutely. Absolutely.
Evan Leibovitch: Especially amongst the people that want the 2000 election to come back.
Cheryl Landon-Orr: Yes. Yes. And all we can do is dot our I's and cross our T's. So, each and every one of us are painfully aware of what we're going into.
John Jeffrey: Understood. And if there's anything we can do along your process to help, let us know.
Evan Leibovitch: Well, for instance, one of things we've been saying – and it may – and to some people it seems like we're treading on the edge of a razor. But the fact that the term "At-Large" was capitalized has actually made a difference, at least in our explanation. Whereas there is a formal definition of At-Large--.
Alan Greenberg: -At-Large Community-.
Evan Leibovitch: --That is an explicit infrastructure that has been designed by ICANN that has ALAC, RALOs and ALSes, as opposed to the lower case at large, which basically means everybody out there that's wants to vote.
Alan Greenberg: Well, it's a little bit worse than that, Evan. Unfortunately, when the bylaws were changed in 2002 from the old meaning of At Large, which was capitalized but didn't have a hyphen, to the new meaning of At-Large, which was capitalized and had a hyphen, they chose the same two words. If someone in their wisdom had changed different words, we wouldn't be having much of the discussion we're having right now.
Evan Leibovitch: Oh, we'd still be, it'd just be harder to--.
Alan Greenberg: --Well, perhaps. But the fact that At-Large only changed in terms of a hyphen means people are reading the current Board direction as a return to 2000.
Evan Leibovitch: Yes. So for instance, what's the significance in this call is that perhaps – I don't know if there's an ability to do a clarification saying that when the Board sent back to At-Large saying come up with the process, it meant the capital-A, capital L with the hyphen and the – you know, and the--.
Cheryl Landon-Orr: --As defined.
Evan Leibovitch: As defined in the bylaws. And that is the body that's making the decision, not the world at large, a lower cases meaning whatever.
Alan Greenberg: Yeah.
John Jeffrey: Careful of the hyphen because, in fact, the Board resolution omitted the hyphen. The bylaws use the hyphen, but Board does not tend to use the hyphen.
Evan Leibovitch: But this is – okay. This gives you an idea of what we're dealing with.
John Jeffrey: Well, to be more specific, the Board said the At Large Community, all capitalized, that is the defining term in the bylaws for referring to the ALAC, the RALOs and the ALSes and their members.
Evan Leibovitch: But others have defined that to mean that – but others have defined that to mean the public at large.
John Jeffrey: And as I was--.
Cheryl Landon-Orr: -And I guess that's one of the things-.
John Jeffrey: --Going to say, and we are taking that literally.
Cheryl Landon-Orr: And what we're saying to J.J. is, if you're saying to us what can you all do from ICANN internal infrastructure to make our job in this process easier, is help us foresee what you see us grappling with right now and avoid it if at all possible. We need to very, very clear and have whatever information and advice – and there I do mean formal advice that is in existence or can be prepared – to make clear to the community what expectations are of the people directing the community to act.
Evan Leibovitch: And that may mean also almost preparation of the case for the ombudsmen which is going to happen in any case we come up with a conclusion or a consensus that's not what these people like.
Cheryl Landon-Orr: Some of us are not getting themselves involved in the decision making and development of these processes because they fear the personal and business ramifications of being involved in these decisions. It does get that bad out here in the real trenches.
Alan Greenberg: I guess the summary is that, in the Board resolution, they used the defined – a term defined in the bylaws, At-Large Community, and we are assuming that was not accidental but was deliberate. If that's a bad assumption, someone should quietly tell us that.
Cheryl Landon-Orr: Yes. Someone should tell us real soon. So, there is a little bit of homework, I guess, that we're asking – probably more J.J.'s team, but also Marco, to do and to be aware of.
Marco Lorenzoni: Well, the processes we are now passing the (inaudible) when we have colleagues who are wonderfully supporting you. So, we are working as a team on this.
Cheryl Landon-Orr: Well, that's very good to hear but there is also this – when you get a letter that says, "That's okay. You're all autonomous. You make your own points and come back to us when you're ready (inaudible)." Some of us had a very cold shiver go over us because, with autonomy, is also great risk.
Marco Lorenzoni: Yes.
Cheryl Landon-Orr: I was wondering if perhaps Dave and – is Tijani not on the call?
Alan Greenberg: I have not heard--.
Tijani Ben Jemaa: --Yes, I am. Yes, Tijani's on the phone, yes.
Cheryl Landon-Orr: Ah, Tijani.
Tijani Ben Jemaa: Yes, yes. I was – Cheryl, I was on the call since the beginning. I was listening to you. And the few questions I wanted to ask, they were asked by the other people. So, I am silent.
Cheryl Landon-Orr: Well, Tijani, you know I cannot possibly have you silent. We need to hear from Africa. And I know you were quite vociferous on some of the matters in our Community call, so I would very much like to hear from you now. And then we'll go to Dave.
Tijani Ben Jemaa: Yes. Dave, I don't know if he's on the call. He's not on the call.
Cheryl Landon-Orr: Yes, he was.
Dave Kissoondoyal: Yeah, I'm on the call--.
Alan Greenberg: --He was earlier.
Tijani Ben Jemaa: Oh, you are on the call. Very good. Very good, Dave.
Dave Kissoondoyal: Yeah, I have a question. I have a small question. Since we have a process to appoint a director, I think we should have a similar process to remove a director if the director is not performing well or it's not as the – what I say – as for the – of the community. So, there should be a process of removing the director.
Cheryl Landon-Orr: Okay. Dave, just let me stop you at that question and I'll dare get J.J. to make it as clear as he possibly can why the response to that question, which has come up a number of times in a number of communities, is what it is.
J.J.? Dave is a Nominating Committee appointee representing the African region to the ALAC. If you haven't met, Dave Kissoondoyal, John Jeffrey, senior counsel to ICANN.
John Jeffrey: Pleasure to meet you. So, the process for removing a director is very carefully defined and is brought in by corporate law and non-profit law, and also by the ICANN bylaws. And the process for removing a director is specifically set out so that a director could only be removed by a vote of the Board or by resignation, or by the expiration of their term.
And it's been an important consideration that's been asked before, whether a community that appoints or a supporting organization or whoever appoints, the Nominating Committee even, who appoints a Board member could have the power to remove a director. And it's been determined that that's a very bad thing to do if what you're trying to do is not have the directors be representatives of those appointees.
So, if an appointing group appoints a director, that director becomes ICANN's director, not the supporting organization or advisory committee that would appoint them. And their responsibilities then run to the whole Board, to the actions of the Community as a whole, to the public benefit as opposed to that specific organization that appointed them. And if you had a removal right, it would in fact bring about the wrong incentive, which would be for that director to act not in the whole of ICANN, but as a representative of that individual part.
Tijani Ben Jemaa: That's why, Dave, we have to be careful and to select the right director. Because when he's selected, when he's appointed, he will speak on his own behalf. He will not speak on our behalf.
Cheryl Landon-Orr: Thank you for that, Tijani. And I'll hasten for the record to add that when Tijani's uses the male term, he's using it in an individual sense of an – director, it could of course be a female gender. It was a gender-neutral comment you were making, wasn't it, Tijani.
Alan Greenberg: Ah, come one, Cheryl.
Cheryl Landon-Orr: Oh, come on. A girl's gotta have some fun.
Alan Greenberg: Cheryl, that's called entrapment, you know.
Cheryl Landon-Orr: And can you just remember how good I am at that?
Now, Dave, I think you had another issue or two you'd like to bring up. Please go ahead.
Dave Kissoondoyal: Not another issue, but I just want to get it right, okay? The directors are appointed by the At-Large. However, to be removed, it's the Board the removes him. Am I right?
Cheryl Landon-Orr: Correct. If indeed the removal is ever called for, it is a matter for the Board they serve on or through resignation or through the term of their appointment coming to an end.
Alan Greenberg: Or death.
Dave Kissoondoyal: I see. Yeah, but is there any way that it could be At-Large which appoints the director make any recommendation for their removal--.
Cheryl Landon-Orr: --No. No, no, no, no and no again.
Dave Kissoondoyal: Okay. That's (inaudible) my say. Thank you.
Cheryl Landon-Orr: Okay. Tijani, any points again, because I know AFRALO has spent a good amount of time discussing some of these matters.
Tijani Ben Jemaa: Yes. There is another case of removal for our director. Because if he will have a relationship – a profit relation with a registry or registrar, he will be obliged to resign.
Cheryl Landon-Orr: Now, that was discussed earlier and I think we probably need to make that very clear again. J.J., you might need to just revisit why making that a mandate versus a set of expectations or criteria that candidates publicly declare they will follow and so it is then a matter of conflict of interest coming into play. And if so much conflict of interest within the Board comes into play that the At-Large appointed director isn't able to act. Then it is a different trigger mechanism. Can you clarify for Africa and also for Latin America – Carlton's not on the call, unfortunately, but this call is recorded and transcribed and we'll make sure it gets back to Latin America and the Caribbean – why this has to be handled in a particular way.
John Jeffrey: Yes. So, the thing I would point you to first is the conflicts of interest policy for the Board. And so, that in particular governs the actions of a board member as it relates to a conflict. So, if you think about it this way, you'll never be able to project conflicts any director might have in the future because that's a changing thing. They might buy stock, they might become – change their employment. They might do other things that would change how they would be conflicted. And so, any board member has an ongoing obligation to know the subject matter of the things that they might vote on and to declare, where there is a conflict, that conflict of interest.
And if you think about the wide diversity of issues that the ICANN Board would vote on, it would be very hard to imagine that every issue any director might participate in would – they would be conflicted out of all of them. So, even if they are employed by a contracting party with ICANN, there's probably only a limited number, a very limited number of things that they would not be voting on.
And so, when some communities select board members they weigh the value of having a participant that has a deep understanding of ICANN against that potential for them not to be able to vote on some issues. And so, when you look at conflicts in general, the conflict orientation is an ongoing one where it is continuous that the board member is diligent to report conflicts and not vote where a conflict exists. I know that doesn't answer the question directly, so if you'd like me to clarify in a different way, please let me know.
Cheryl Landon-Orr: Thanks very much, J.J.
Tijani, do you think you've got enough information to go back to your community and help them understand those particular issues?
Tijani Ben Jemaa: No, it's okay now. Thank you.
Cheryl Landon-Orr: Okay. One thing I think might be worth mentioning, J.J., is the fact that you have a board that does not work in camera. You have a board that is as transparent and as accountable as is possible within the bounds of some matters of confidentiality. And so that, if a community – and a diligent community should be observing these things very closely – noted that an appointed director was perhaps not declaring under continuous disclosure something that the community believed they ought, or something similar, or was hitting some threshold of performance, it is possible either individuals or a community as a whole to petition the Board to (technical difficulty). That might be worthwhile making clear and us having something as a sort of a resource material or a piece of advice on that as well. Because it is a question that we're going to have to meet in our Public Comments period.
John Jeffrey: So, I think I understand the question. So, there's a number of ways. Of course, anyone could raise an issue of conflict of a board member. There's also of course within ICANN processes, particularly for parties that are affected by a decision, to raise such issues with either the ombudsman or with a Reconsideration Committee of the Board. So, if a member of the community believed that they had been harmed by a decision that was impacted by a conflicted director, that would certainly be one manner of dealing with it.
And certainly, the ICANN Board Governance Committee and the Board as a whole is served by acting in a transparent way, declaring conflicts and making sure that the decisions that they make are not impacted by a conflict. So certainly, there's an interest by board members and those serving the board to make sure that, if there's conflicts that are not being declared that are known in the community, that those be exposed.
Cheryl Landon-Orr: Thanks very much for that. Is there any follow-up you want to make on that, Tijani or Dave?
Tijani Ben Jemaa: No.
Cheryl Landon-Orr: Okay. It's just that it is a matter that members of our community have raised and it is something of great importance. So J.J., if it's at all possible, what I was thinking is, if you could assist with some advice from your team staff, which I'm here assuming will be Heidi and whoever she pressgangs into helping here, to prepare with us I guess a set of frequently asked questions that should also be out there and ready. So, sort of a Q&A on some of these things that we can have published at the same time as our call for Public Comments. Do you think that's a possibility or do you all believe that's a good way forward?
Tijani Ben Jemaa: Thank you for this suggestion. It's very good.
Cheryl Landon-Orr: Thank you, Tijani.
Alan Greenberg: Cheryl, I have one thought on how to address this.
Cheryl Landon-Orr: Please, go ahead, Alan.
Alan Greenberg: Yeah. One of the things we have to do in the very near future is put together the Request for Statement of Interest for candidates. And I think by highlighting in that, in addition to the qualification that we pretty well agreed on, that is an understanding of ICANN At-Large and the understanding of the needs of individual users, we could add that, to the extent that these – that the candidates can qualify potential conflicts or how they would treat conflicts the better. So, give them an opportunity in their statement to address the issue.
Cheryl Landon-Orr: Actually, that's a very good way forward. And I was going to raise something, but I'll just make a call for anyone else who wants to make comments at the moment. Does anyone else on the call – because I don't have an Adobe room open, so if anyone's waiving at me--. Sebastien, do you want to discuss or raise anything at this point in terms of what we're discussing so far?
Sebastien Bachollet: I have one or two points, but when you will be ready for--.
Cheryl Landon-Orr: -No, no. Please go ahead because mine comes in under Next Steps, so-.
Sebastien Bachollet: Yes. I would like to raise two points. The first is that in the white paper we have – and I think well done, but we have decided that each region gets a call. That means that each ALS is not. And that I want to be sure that there is no probably with that in any manner.
And I would like to add that we have, or we will have – and even we have already – different way of doing – taking decision in each region. And here, when it is to elect somebody or to choose or to make a decision on behalf of the region, to have for example to ALAC's people as the ALAC as each region elect the same number of people, there is no problem with that. But here, we are electing just one people for the overall community.
And I just want to raise that point to be sure that we are not going in the wrong way. Because if I take the example of election in general, I guess in a lot of countries one person, one vote. And here, our end member of the ALSes and then each will not be one ALS is one vote at the end. It will be part of one vote or less than one vote, whatever you want to count. That's one point. And I will wait for some discussion on that and come back to another point. Thank you.
Cheryl Landon-Orr: Okay, Sebastien. Putting on my Asia-Pacific hat, as I often have to have on the record, of course, the predilection that so many of us from AP look at with an amused smile on our faces at this passion for one person, one vote, or democratic processes at all, is something some of us find really amusing. The concept of democracy and vote allocations as opposed to appointments and deals and for the greater good decisions being made is something that not each of the member countries who have ALSes in Asia-Pacific subscribe to. And we tire greatly with this predilection to the importance of all of this.
We however do aspire to ensure that the outcomes and endpoints for the processes that we are involved with in ICANN are for the greater good of the Internet end-using community, including the several billion of us that are yet to join you through the digital divide or through the benefits of multi-lingualism and non-(inaudible) scripts.
So, having said that – and I do have to continually say that because the voices we hear in these discussions come from established democracies with freedom that, to some of us, we just don't understand, and certainly have managed to build very successful and, if not developing reasonably well developed economies and cultures without them. So, we do have the experience to say that good things can be built without every individual having a vote and voice.
How votes happen within the RALOs, J.J., I'm sure you're very familiar with. Some of the ALSes have various weighting mechanisms. The concept, of course, of even within Asia-Pacific where one of our ALSes brings some 4,000 individual voices with their words, others may bring 3 voices. The one in Japan is an example of that. And yet, another might be responsible for every consumer of telecommunications products within a country. How we weight the importance of those voices is something that we can actually (inaudible) within our memorandums at the RALO level. Some RALOs have already done so. Some have chosen other ways of doing it. But most importantly, we've been assured by our electorate – I'm sorry, our election experts that whatever weightings we need can be implemented in our voting mechanisms in an automated way.
Sebastien, what would you like to hear from other people on those questions?
Sebastien Bachollet: I fully agree with what you say. It was not to say that there are good ways to an election and there are just a (technical difficulty) was to position (technical difficulty).
Cheryl Landon-Orr: Yes.
Sebastien Bachollet: It was just to be sure that if we decide that each region gets the same number of (technical difficulty).
Cheryl Landon-Orr: You're starting to break up, Sebastien. You might need to move where you are, because you're staring to break up. I don't know whether you're on Skype or another line.
J.J., are you concerned with the ramifications from a legal point of view of these types of discussions of how, in a challenge to outcome, the equity of vote balance, etc., could--.
Sebastien Bachollet: (Technical difficulty.)
Cheryl Landon-Orr: Sorry, Sebastien. It's almost impossible to hear you. You're--.
Sebastien Bachollet: --I call back.
Alan Greenberg: He said he'll call back.
Cheryl Landon-Orr: Thank you. Good. Okay.
J.J., does this give you great concern?
John Jeffrey: No. I'm happy to hear that these are important issues to you and that you're discussing them. And I think that you should continue to do so in an open, transparent manner. And wherever we can help provide input, please let us know. Or if we see things that we think would benefit by input, we'll be happy to chime in and help.
Cheryl Landon-Orr: Thanks. Thank you for that.
One thing I'd like to just do is a quick round-robin on any – I know Sebastien has other points, but until he dials back in is there any--.
Sebastien Bachollet: --Hey, I'm back.
Cheryl Landon-Orr: Oh, good. Is there anyone else who wants to raise any discussion points?
Alan Greenberg: I have one. It's Alan.
Cheryl Landon-Orr: Okay. So, back to you, Sebastien, then Alan.
Sebastien Bachollet: Yeah. My question just to be sure that if we decide that each region is equal, there is no trouble because, at the end of the day, each ALS will not be equal. And I have no trouble with that, I just want to be sure that there is no – whatever, impediment or problem with that.
Cheryl Landon-Orr: From ICANN's point of view or from At-Large's point of view?
Sebastien Bachollet: From legal point of view, from ICANN point of view, from--. If – I can answer why it's a good – it's – there is no problem and the way it's – it could create some problems and that I would like to hear if there is – if somebody has trouble with that to be sure that we heard them – those problems, if any.
Cheryl Landon-Orr: Okay. J.J., it sounds to me like there might be a little bit of analysis being called for in terms of as an opinion on – or risk analysis, I guess, on legal challenges on different electorate models. In other words, if we establish the At-Large Community is represented by its regions and its ALSes, if we have an electorate that specifies regions, we can treat those regions equally. If we have an electorate that specifies the At-Large structures, there is huge diversity and different risks on that model in terms of challenge of the validity or the right of an individual to cast a vote on behalf of the ALS.
And it also opens up specific issues of what type of due diligence, what type of ascertainment of the right to vote we would have to go to and through if it is the ALS matter. In fact, and to some way, it's easier to identify and have established as a bona fide voter an individual than it is an At-Large structure, some 120 of them who come from enormous diversity and, as I say, representing three bodies. Now, is that three voices or is it the 30,000 voices that each of those people need to bring? And that's going to bias, certainly in my view, this first round's preference for an electorate model.
John Jeffrey: So, I think that it's very important to know that the discussions you're having are the right ones because you should be thinking about the best way to appoint a director. And among those requirements are that persons who will produce the broadest cultural and geographic diversity. So, if there's a mechanism that you should consider to do that, then that's one way to approach it.
But, that's not the only thing. It's in along with all of the other things. Does the person have integrity, objectivity, intelligence? Do they have an understanding of ICANN's mission and the potential impact on ICANN's decisions in the Global Internet Community? Is it someone with a familiarity with ICANN's processes, with the operation of registries and registrars, both at the g and cc level? The legal traditions, the policy development processes, the public interest nature, the broad range of issues that come in front of ICANN and people who are willing to serve as volunteers.
So, when you look at all of those factors, geographic diversity and a broad cultural understanding and impact is very important, but it's not the only thing to consider. So, if you set a rule that only applies one criteria, then that's the wrong rule. If that criteria though – if you set a rule that leads you to the best possible individual within that broader set of requirements, then you're creating a process that really serves the purpose.
Cheryl Landon-Orr: Uh-hmm. Yeah. Okay.
We've got another matter to raise from Alan, but is there anything else, Sebastien?
Sebastien Bachollet: Yep. I just wanted to – we have the long discussions about the fact that, once selected, the director is not anymore linked with the community. But we have some good history or image or relationship who still went well with some people of our community going to the board. And I think it's not because it's – there is not – he is not representing – or she is not representing anymore the community, that she can't have a good relationship and good feedback with the community itself. I think it's also important to say that – and it will be important in the choice, I guess. Thank you.
Cheryl Landon-Orr: The problem, of course, in terms of this first round is that that is going to bias one way or the other for people, or against people, who are known within the ICANN community. It comes back to one of the points that both Alan and J.J. made earlier on. We're looking at how the other SO's make their appointments. Whilst the law – the bylaw is written to say that they are the community's appointment. The appointments are made specifically by the council or leadership group of that community. And so, there is a well established degree of knowledge, if not trust, with the appointments that are made and a set of expectations that are incumbent on anyone who is appointed in terms of communication and interaction.
That, of course, is something that is not enshrined in what we are doing. Quite – not quite the opposite, but quite the contrary. We've been charged to look well outside of our own membership and to find – or our own knowledge base – and to find candidates from the world who meet the criteria. And they may very well be people who we have no direct knowledge or experience of as an electorate, and certainly as an ALAC. And yet, it will be the next couple of years that we will be reliant on this appointee to act in our best interests, something that of course we've discussed at great length, but we're between a rock and a hard place.
We need to move on to Next Steps. So, anything else, Sebastien?
Sebastien Bachollet: No, thank you. Thank you.
Cheryl Landon-Orr: Okay. Alan and then has been some discussion in the ExCom Chat that we need to look into the record – to read to the record. Go ahead, Alan.
Alan Greenberg: Yeah, that was the item. As we're talking, it dawned on me that we have a real problem here. Part of the recommendation in the white paper was to go out for ICANN Public Comment. That paper was published on the 10th or 11th of January with the intent of closing comments on the 9th of February, 30 days later, so that we could get a recommendation to the SIC in time for the meeting deadline of the 15th of February. If we're going out for ICANN Public Comment right now, we either need to say it's a Public Comment for a week or we're not going to make those deadlines and get a recommendation. And our timing was such that the SIC had to come to a decision in Nairobi if we're going to meet the longer timeline.
So, going out for a Public Comment right now for a week is not tenable and going out for a Public Comment for a month, but having made a decision already is not particularly acceptable. I don't know why the comment didn't start a long time ago but, nevertheless, we are where we are today.
Cheryl Landon-Orr: Well, you and me both don't know why the Public Comment didn't start a long time ago, but there you go. Obviously, someone made a piece of advice that we needed to go to a next step in terms of our timeline without our white paper going out for normal ICANN Public Comment. Perhaps I should ask Heidi or Marco about that.
Marco Lorenzoni: Yeah. I think it depends on what you want to ask the SIC to deliberate in Nairobi, basically. In any case, the SIC will discuss the next steps to pass the implementation, that's for sure. At the present level, I don't see the SIC as it has been written to your response we already made. I don't see the SIC entering into the debate, into the analysis of your election mechanism. That's my guess, but of course I cannot imagine what would be the result of all the discussion on this by the Structural Improvements Committee. I base this just on what has been said and written by the SIC in response to your questions. So, my personal advice would be to go with the Public Comments because, as also underlined by John, it's crucial at this point for you to have public input on your white paper.
Cheryl Landon-Orr: What I was contemplating and what I was going to bring forward in terms of Next Steps – and I've got two matters to bring forward, this and the one that I flagged earlier – was that under our timeline, February 9, I think we can say close of At-Large Community discussions in terms of as we define At-Large Community limited to that group discussion and we can get going on a genuine ICANN Public Comment period as soon as possible. So, I think we're actually ahead on the February 9. I think we closed that off at our last Community Call. So, at the end of January we've pretty much closed off those discussions in terms of changes and alterations to the white paper.
The February 9 deadline, I would like to think we can formally approach the SIC. We can write to the SIC and say, having already undertaken the beginning of – not the beginning, undertaken our ICANN Public Comment period on our white paper, here are the dates, here are the links, blah, blah, blah. And basically inform them that this process is going on, the analysis will be ready by whenever and that obviously when that's done, they can do with it what they bloody well please. But it needs to be on that taskforce if it's going to be in any way, shape or form considered at Nairobi.
Now, how on earth we meet a February 15 deadline for documents. I mean, our white paper and it being out for Public Comment, if that's public before February 15 that's fine from our end. But Marco, how on earth would the SIC get anything from them to the Board for any form of consideration by Nairobi? I don't see how that's attainable.
Marco Lorenzoni: I think it makes probably sense for you to address the Structural Improvements Committee, as you said, with a note saying at which stage you are of the consultation process, when you think to get the consolidation of public comments. I think it makes sense and it's a sort of (inaudible) information and transparency on what you are doing and the kind of consultation, extensive dialogue with the community you're having I think is very positive. In the meantime, we – as I said earlier during the call, we are working as staff to provide this analysis to the Structural Improvements Committee for them to take action.
Cheryl Landon-Orr: But what it means, Marco, let's be honest, is we have to put a red pen through all the timelines from February 15 on. Because the Board is not going to have any final documentation or recommendations from the SIC. The RALOs will not need to meet to ratify recommendations to the Board because we won't have finished our Public Comment period because we didn't start it when we should have. And that's another question I'd still like answered. And that what we can do is at least get on with the Call for Statements of Interest and running the full-blow ICANN Public Comment period on the proposed mechanisms, meaning that sometime in Nairobi we may be able to discuss the outcomes, but not move any more forward than that. And what we'd also need is a parallel set of dates and timelines from the other SIC and Board improvements processes that you're saying you're trying to get done as soon as possible. But we probably need to have a few dates interjected to shift our timeline to match.
Alan Greenberg: Cheryl, can I get in?
Cheryl Landon-Orr: All yours.
Alan Greenberg: Okay. Yeah. The milestones that we put together presumed that we would have a recommendation to the SIC by mid-month, that the SIC, at its meeting prior to the Board meeting would ratify our recommendation and that would be passed onto the Board. In the recent past, the Board has not held the SIC to a 15-day requirement for putting its recommendations in. No one has issued a peep that this timeline is unreasonable. And now we're talking about the SIC maybe – probably can't make a final recommendation to the Board until sometime in mid-March and the Board is not going to make a decision until its meeting sometime in March or April at best.
We're essentially either saying we run this whole thing in parallel, that is we select candidates and we start having elections before the board has approved the process, which is just a little bit farcical, or we admit that the June seeing of the person in Brussels in just not possible and scrap it and go back to the drawing table. I'm rather disappointed that the dates we're talking about are now being scrapped completely and no one has in the last month mentioned this.
Cheryl Landon-Orr: I mean, we wanted to go – we wanted the white paper, when it went to our Community, to go for full ICANN Community Public Comment. And it didn't happen. Why the hell it didn't happen--.
Alan Greenberg: -I've got to go away for a second-.
Cheryl Landon-Orr: --Why the hell it didn't happen I would love to know, but it didn't and we can't make any changes. So now, we need to make the best of it as we can. Let's make it really clear, the white paper needs to go out for comment. We'd like to put some FAQs around it. We want to use some of the very good words and explanations and background materials that we've unearthed in today's call, and we want this to happen between now and the 9th/15th of February. So, the sooner we can get this going, the better. That's something that goes back to staff. So, I'm assuming that Heidi and Marco will get back to us as a small workgroup of the At-Large Community with some what can happen when information.
Alan Greenberg: Cheryl, I missed the last--.
Cheryl Landon-Orr: --I'm still – sorry – I'd still like to know what the disadvantage of running some of these things in parallel is. I would not go so far as making elections happen. But we certainly could go so far as calls through the Statements of Interest, Alan. I don't think that's farcical.
Alan Greenberg: Yeah. Sorry, I had to go away to the door for a minute so I missed what you said. The only point I want to make, which maybe you already made, is we need to set expectations correctly for what's going to happen when we announce the Public Comment. So, we really do need an answer from the--..
Cheryl Landon-Orr: -Yep. So-.
Alan Greenberg: --Staff or SIC regarding what they plan to do.
Cheryl Landon-Orr: And Marco, I would like to ask as a clarification point of the SIC, I guess, with the receipt of that letter giving us the autonomy for the process and with that being assumed in – and I couldn't find in the announcements the Board Structural Improvements Report. Where do I see the final?
Marco Lorenzoni: You mean the last minutes?
Cheryl Landon-Orr: No. You were referring to the final of the report for the Board--.
Marco Lorenzoni: -The Board Review work is – yes, it's published on the webpage of the Board Review-.
Alan Greenberg: -I'll give you a pointer, Cheryl-.
Cheryl Landon-Orr: -Thank you-.
Alan Greenberg: --it's published but not referenced anywhere.
Marco Lorenzoni: Yes.
Cheryl Landon-Orr: Published but not referenced anywhere. It's certainly not in the announcements which get pushed in the--.
Alan Greenberg: -No, it was not-.
Cheryl Landon-Orr: --Most of our community. So, I assume it'll be happening soon, if it's not already going to happen. So, in the absence of us knowing about that, thank you for the briefing on that, through, Marco. But with that, also saying that we don't have an impediment to run some of these matters in parallel. Is there any reason why we should not just get on with this?
Marco Lorenzoni: Frankly speaking, I don't see – let me go back to you tomorrow, but I don't see an impediment for you to run a public consultation on this.
Cheryl Landon-Orr: Okay. Alright.
Alan Greenberg: Cheryl, the only impediment is the standard feeling in ICANN that we go out for Public Comment but the decision has already been made. And this just reinforces it in the community. That is, we're asking for comments, but we're going ahead on our merry way anyway. Yes, we could pull it back if it got bad enough, but that's all.
Marco Lorenzoni: Well, honestly, I don't think this is the case for this case.
Cheryl Landon-Orr: Oh, no, it isn't the best perception.
Cheryl Landon-Orr: Yes. Well, and it's the outcome of that perception is something that we have to wear and we have to battle with. And it certainly doesn't make any of our jobs any easier. It would've been nicer to avoid.
Okay. So, are we in agreement that there is no impediment to us running some of these processes in parallel, that there are a couple of date interjections that we need that will come out of what Marco and staff are doing in terms of other points from what SIC and Board recommendations will need to be.
I do like – I would like to go back to the question of does the – J.J., does the changes to the bylaws specific to the addition of an At-Large appointed director and the removal of our liaison role need to be tethered with all the other bylaw changes as a result of the Board Structural Improvements work, or can it be done separate to it?
John Jeffrey: So, that's certainly not my job to tell you one way or the other, so I'm not – I can't--.
Cheryl Landon-Orr: -Okay-.
John Jeffrey: --Speak on behalf of the Board on the point. But it certainly would be my recommendation that the work of the Board Review Working Group and the work of the SIC, in thinking about how the Board will act and what will be the appropriate structure in light of the addition of a new member, has to be considered. So, they might choose to separate their actual decision, but they would have to do so in a meaningful way considering all of the inputs that are provided to them, to make sure that the addition does not create any structural issue.
Cheryl Landon-Orr: Okay. So, if we do a preamble for what we want to put out to Public Comment with those sorts of – and have all the I's dotted and the T's crossed, with a language that says, you know, dependent upon the following processes that are running in parallel, this, this and this is – we're calling for comment and input on this, this and this, recognizing there's a couple of overriding things like that that may still change timelines, etc. Because I think we do not want to make unreal expectations.
One of the ways forward I'd like to suggest is we actually remove the milestones from the Public Comment documentation and that a more generic set of milestones – these are probably too detailed and too fine. We'll use that as a design team and an internal set of process milestones but, for the Public Comment milestones, we should have the major ones like a Public Comment start and endpoints, consideration of when we put out calls for Statements of Interest, formations of the various support workgroups such as the ABSC, and the end game of trying to have an At-Large director seated at the Board meeting in Brussels.
What do you think of that way forward?
Alan Greenberg: I think it's mandatory. Alan.
Cheryl Landon-Orr: Sebastien?
Sebastien Bachollet: I agree.
Cheryl Landon-Orr: Vanda?
Vanda Scartezini: Yes.
Cheryl Landon-Orr: Dave?
Dave Kissoondoyal: Yes. I agree as well.
Cheryl Landon-Orr: Okay. Tijani? He probably had to go to the AFRALO meeting. Evan?
Evan Leibovitch: I'm okay.
Cheryl Landon-Orr: Okay. Alright. Well, that's our way forward. The only other piece of any other business I wanted to raise, and I specifically wanted J.J.'s feedback on, was as we call for these Statements of Interest, one of the ways that our Community can be assured that they have all the necessary information to have confidence in the slate of candidates is to have things far more public than we see in a NomCom world. In other words, that candidates' statements or parts thereof are made public. And therefore, that there is a sense of – if you'd answered certain questions that will be in the Statement of Interest, such as statements of your qualifications and criteria and how you are going to serve the Internet-end-using public voice on the ICANN Board, that they become part of the public record. And then, if you are elected/appointed to the role, that's part of the sort of Damocles (ph) that hangs over your head. That may go some way to reassuring parts of our Community about some of those other issues that we've discussed with you today, such as removal and representational status.
Is there any reason why we cannot go that way, seeing as we have autonomy on how we do our selections? The votes would be confidential, but the prep material and the actual Statements of Interest, if we tell candidates that they are going to be public and published, they can decide what they put in them and then it's only on that material that any vetting can go on.
Alan Greenberg: I assume the deliberations of the Selection Committee will be private, though.
Cheryl Landon-Orr: The deliberations of the Committee--.
Alan Greenberg: --And any recommendations they get from individuals.
Cheryl Landon-Orr: Yes, that would be confidential, but the declarations and statements would be public.
Alan Greenberg: Sounds good to me.
Cheryl Landon-Orr: J.J., any reason why we can't do that?
John Jeffrey: No. In fact, I think that following transparent processes is always a positive.
Cheryl Landon-Orr: Okay. Well, we're all about transparency, which is why every word we say is taken down and often held against us in this game. Just to remind you that today's call has been recorded and, indeed, we produce transcripts of these calls. Because of the importance of the nature, we will want this in at least English and Spanish and French. And we would like to think that that will be done fairly shortly.
We'll be putting out the white paper with the redacted and modified milestones for Public Comment, that is ICANN Public Comment, as soon as humanly possible. There is a little bit of background material and preamble material, which I assume Heidi, Marco and a couple of people from our team can ensure is properly written. And some of that will need input from your department, J.J., in terms of some other existing briefing materials and pieces of advice such as the presentations you've previously given to the NomCom.
Is there any other thing that we have agreed is an Action Item out of today's meeting that I haven't picked up on, seeing as I'm now pacing the floor because I'm sure I need to be further in my day because I've got to leave in about 10 minutes.
No? Let me check Skype, who has their hand up. Okay. No, nothing else.
Alan, nothing?
Alan Greenberg: No.
Cheryl Landon-Orr: Evan, nothing?
Evan Leibovitch: No.
Cheryl Landon-Orr: Vanda, you're happy? Excepting, Vanda, you do – we do need to help and make sure you've got a statement to go to the next Board meeting about this. So, we'll have to work on that. I might get you to feed that through Heidi.
Okay. I'm out of office today, so my two Vice-Chairs – in fact, I'm out of office today and probably most of tomorrow. My two Vice-Chairs will now hold the mantle on all of this. And I'd like to thank each and every one of you, especially you, J.J. and Marco. And Marco, we are going to make your life a little bit more difficult for the next couple of days, but we--.
Marco Lorenzoni: -Perfect-.
Cheryl Landon-Orr: --Have to get back on course on these timelines.
Alan Greenberg: Cheryl, regarding the redone milestones, does that mean you want us to do it?
Cheryl Landon-Orr: Yes, please.
Alan Greenberg: Okay.
Cheryl Landon-Orr: Okay?
John Jeffrey: Cheryl, I just wanted to thank you for all your hard work. I mean, it's really amazing to listen to all the things that's going on to this. And certainly from the Board Secretary's standpoint and my role as General Counsel, I want to thank all of you for doing that.
Cheryl Landon-Orr: Oh, well thank you for noticing! Good morning, good evening, good day, good night. And gentlemen, it's all yours unless the sky is falling. I'm out of here for at least 24 to 36. Bye for now.
Alan Greenberg: Okay. Cheryl, if you can stay on the line for a second?
Cheryl Landon-Orr: Yes, I can.
Alan Greenberg: Yeah. If I redraft the milestones, can – will you be able to look at them on your mobile or something--.
Cheryl Landon-Orr: --Yeah, I'll look at it on my PDA.
Alan Greenberg: Okay. Okay.
Cheryl Landon-Orr: But not certainly for the next 12 hours.
Alan Greenberg: Ah.
