Some comments re: Board member conflict of interests policy

[Kieren McCarthy <kieren@xxxxxxxxxxx>]

I agree with the posted comments from the registry constituency and the IPC
(note: I was not able to open or read the response from CADNA).

Re: registry comment about the Loyalty clause. ("the RySG is concerned that
the wording might erroneously suggest that a Director's obligation is to
protect ICANN, the corporation, over the  public interest at the heart of
ICANN's mission and purpose".)

I agree wholeheartedly with this. Already the "duties of an ICANN director"
to the organization itself are used too frequently and extensively to
justify poor decisions. ICANN's overall interests are best served by acting
in the broader interest, but too often in the heat of the latest
controversy - and latest short-term fix to avoid the controversy - the
organization makes the wrong decision, and Board members that are uncertain
about it are pressured into voting yes by being told about their
"obligations". This clause as it stands would only make that situation
worse.

Re: IPC comments. They are right: 21 days public comment is not enough,
especially considering that seven days of that was within an ICANN meeting.
I thought there were some rules surrounding this - clearly they either
didn't get formally agreed to, or they were agreed to "in theory" and have
been ignored in this case. The short time, and the fact there was a meeting
in between makes a mockery of the public comment process. I have only had
time to quickly review the documents and am acting as an individuals - it
is clearly impossible for an organization to have given this topic
sufficient thought and review in time.

The IPC is also right when it points out that there are two other ongoing
reviews of conflict of interest and so this comment period is premature. It
makes little sense to agree these changes now - especially to put them out
to public comment - when fundamental reviews are still being undertaken.
The whole process has been very poorly thought out.


As for personal comments:


This text: "A Potential Perceived Conflict should therefore be treated as
equivalent to a Potential Direct Conflict until such time as the doubt is
removed and the matter is determined after investigation of all the
relevant facts" -- strikes me as unnecessary, over-the-top, unnecessarily
reactive and something that will cause problems in future.

It seems obvious, to me at least, that a "perceived" conflict should *not*
be treated as equivalent to a direct conflict. It makes sense to have a
robust system for reviewing conflicts, but to state in black and white that
perception is equivalent to reality does seem very sensible at all.


There is an unnecessary inclusion of "General Counsel" in many of the
clauses. There should be no need to name a specific individual or role in
such a broad-ranging documents. Surely "the relevant ICANN staff member" of
something similar. Tying such an important series of responsibilities to a
particular job description is, again, and to my eyes, somewhat
short-sighted.


In relation to the overall text - it is far, far too legalistic. This
document is supposed to give confidence to the *outside world* that ICANN
has a strong conflict of interests policy. If people read a long screed of
legalese they will be *less* comforted, not more. Plain language would give
greater confidence. Legalese makes you feel that there is always a
loophole.


I hope these comments are useful.



Kieren



-- 


Kieren McCarthy
CEO | .Nxt, Inc.
+1 415 937 1451
kieren@xxxxxxxxxxx | http://dot-nxt.com

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