Hi Jordan,

 

I am personally quite comfortable with the logic of the appointing body being the removing body for individual directors (recognising there is work to be done in respect of NomCom appointees).

 

One of the concerns that comes up in thinking about this is probably well represented by this hypothetical & fictional scenario:

 

The GNSO demands that the proceeds of the new gTLD programme be returned to the registries pro rata depending on the number of registrations. The Board does not agree, including the GNSO appointed directors on the Board. The GNSO removes its directors and appoints different ones who say they will support this proposal.

 

I think this scenario would never play out in practice.

 

Why not?

·         two out of sixteen directors would never be credibly enough to completely change the Board's position on a matter involving significant resources and impact on the public.

The GNSO can recall their dissident director even if they know the Board decision will not change, just to punish him

·         the new directors would face the same obligations the old directors faced to act in the public interest

I don’t see how this obligation will prevent the scenario to happen since the evaluation of the public Interest may be different from a party (or a person) to another

 

The removal of individual directors is possible in very many organisations and it is only when they are dysfunctional that these sorts of games start being played. 

To ensure that this will only happen when there is dysfunction, we need to put the necessary and right rules, not permit to the appointing bodies to recall there directors without convincing reason

 

I think in any situation where an SO/AC or the NomCom was contemplating removing a director, they'd be carefully considering what they could really achieve. And they'd be unlikely to do it for reasons of rent-seeking or other self-interested things.

you are lucky to believe so even if nothing prevent it

The whole rationale behind the power, in my view, is that it simply tightens the link between directors and their appointing bodies. It isn't and should not be a backdoor way to change directors from directors into mere avatars for the specific interests of their appointing groups.

 

George, I hope this is constructive.

 

A last question...

 

Do you have a concrete suggestion as to how you would see the exercise of such a power being done by "a process that is broadly distributed in the community" as an alternative for us to consider, and seek legal advice on?

This is a proposals for exercising the power of recalling Board directors by a process that is well distributed in the community consisting in recalling the board directors (from 1 to 15) by the community and not a single SO or AC:

·         The decision is taken by at least 4 SOs and/or ACs  including at list 1 SO and 1 AC.

·         All the directors have the same treatment (selected by their constituencies or by the nomcom)

·         The SOs and ACs and the NomCom select the board directors and their interim simultaneously (the GNSO selects 2 acting directors and 2 interim ones and the ALAC selects 1 acting director and 1 interim one, etc.).

·         All acting directors sign before taking their position as Board Director a commitment to step down in case a community decision to recall them is taken

·         Those interim directors will fully replace the removed directors if the number of recalled directors is less than 8. In case the number reaches 8 or more, the resulting board (non recalled directors plus the interim of the recalled ones) will act as a caretaker till the selection of new directors to replace the recalled ones.

·         This is to replace the 2 powers: stilling the whole board and recalling individual board directors.   

This has the merit to;

·         Fulfill the requirement of having the power to remove the whole Board and to remove individual board members

·         make the change smaller and simpler by having a single mechanism to recall the board directors instead of 2

·         not having to find a way for the nomcom to remove their appointed directors

·         avoid a period where ICANN run without board in place

·         avoid the risk of having an SO or AC recalling their selected director because of the SO or AC interest and not the global public interest

 

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Tijani BEN JEMAA

Executive Director

Mediterranean Federation of Internet Associations (FMAI)

Phone:  + 216 41 649 605

Mobile: + 216 98 330 114

Fax:       + 216 70 853 376

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