Dear Councillors,

We have received a response from ICANN Legal about our Board nomination process, in particular on section 3.5 which describes the due diligence check. ICANN Legal expressed no concerns about GDPR, nor any other substantive concerns about the process (see attachment). However, they did draw attention to the following:

1) some suggested language edits and clarifications about the way how to contact the due diligence provider. It’s what was meant in the guideline anyway, only now it has been made clearer, therefore, I think we can accept those suggestions, without any further discussions;

2) as I already mentioned before - following our discussions with the community - the guideline requires to vet all the candidates before the members vote. ICANN Legal suggests that we consider vetting only the winner – to cut the costs. If I understand it correctly, costs may be less of a problem with only 2 or 3 candidates. As far as I can tell, we have never had more than 2. Therefore, technically, we can assume that this time will be no different and still can go with the process as described in the guideline.

In parallel and awaiting the outcome from the legal review, we looked at the Selection timeline (as required under the old and recently adopted guideline). While developing the timeline, we learned that a due diligence check by the independent provider may take from 4 to 8 weeks (and in some cases, depending on the country of residence, even longer).

Today, the Secretariat and I discussed the possible timeline for the Board election. It has become pretty obvious that if we vet the candidates in the manner as foreseen under the guideline, we run a high risk of NOT having the results of the background check by our meeting in Montreal. Or, to be more precise, if we do interview them in Montreal, it is still not clear if the candidate(s) will be eligible. Which might be a good thing – even if anyone has to step down (because of a failed background check), nobody would suspect anything.

In any case, taking into account the points above and under the assumption we all agree that the membership should have the opportunity to interview the candidates before taking a vote, we will need to defer a decision on the timeline to our call on 22 August when we need to decide on one of two following options:

* Option 1: we vet all the candidates before the vote, i.e. go with the current version of the guideline. If we choose this path, we also need to choose one of the sub-options:

*** Sub-option 1.a : we interview the candidates in Montreal knowing that the background checks are not completed yet.

*** Sub-option 1.b : we postpone the interview of candidates to Cancun (March 2020) and vote after that. Even under this option there will still be time for members vote.

* Option 2: we change the process to vet only the winning candidate. However, we need to understand that no matter how hard we protect the results, information about the winner will eventually leak anyway (for example, the losing candidates will know they have lost because they are not contacted by the due diligence provider). If we go for this option, I believe it does not change the essence (nomination, voting, appointment, the fact that the appointed candidate has undergone a background check) of the guideline and therefore there is no need to publish the guideline for public comments from the community (any objections to that?).

While discussing the timeline, we realised one more thing: as you remember, there was a request from the community to add an option “None of the above” allowing people to vote against ALL the candidates. The current version of the guideline says that if the number of candidates being nominated equals the number of seats (e.g. one candidate to one seat or 2 candidates to 2 seats) we do not vote – the Council just nominates the candidate(s). Taking into account that members now can dismiss candidates by voting for “None of the above”, it seems only fair to apply this principle also to the case when there is only one candidate per seat, i.e. call for a members vote anyway (which in itself is probably the right thing to do). Therefore, I would like to suggest to remove the first two paragraphs from Section 3.7. Another thing for our Council call on 22 August.

Meanwhile, if there are any questions/suggestions/preferences, please feel free to share them on the list!

Kind regards,

]{atrina