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FW: comments of Marilyn Cade on the Board Review Interim Report

  • To: <board-review-interim@xxxxxxxxx>
  • Subject: FW: comments of Marilyn Cade on the Board Review Interim Report
  • From: Marilyn Cade <marilynscade@xxxxxxxxxxx>
  • Date: Sat, 18 Apr 2009 01:10:57 -0400

COMMENTS OF Marilyn Cade to the ICANN Board Working Group
Report for discussion with the ICANN Community (Interim Report)  In the matter 
of my comments regarding this Interim report,
I am acting as an individual, and these views are my own.  I do advise two 
companies who are
participating in ICANN directly, and did not discuss nor clear my comments with
either company.  In addition, I am
a member of the ICANN President’s Strategy Committee (PSC); this may be
relevant to some comments I make.  I
am also a SME member of the Business and Commercial User Constituency as the
CEO of a micro enterprise.  I made comments at the public comment forum in 
Mexico City,
05 March 09, and my comments at that forum should be viewed as an addendum to
this public comment.  The Board Review is described as ‘voluntary’; a consulting
firm with a considerable expertise in corporate boards was selected, and
prepared a report. During the online public comment period, a number of 
including myself, raised a concern that the external review was very slanted
toward changes more suited to a commercial corporation – e.g. a for profit
business.  The WG took pains to
state that they understood that the community was not satisfied and that ICANN
“values and unique governance model are indeed different from those of standard
“for profit” businesses…” The WG went on to note that they believe there can
none the less be lessons to learn from other Boards, regardless of their “for
profit” or “not for profit” nature.  First, I wish to make an overarching 
comment related to this
proceeding, and to all of ICANN – the organization is simply doing too much, in
too short a time frame in most instances, and cannot be viewed as having a
strategic sense of why change is proposed in Reviews; whether this is actually
a good approach to ‘evolutionary improvements’ to an organization such as
ICANN; and how the constant interjection of parallel process reviews actually
fits into the President’s Strategy Committee’s initiative on Improving 
Confidence (IIC) to create a coherent approach to any changes or improvements
in the very sub structures being ‘reviewed’.   ICANN should pause, and take a 
deep breath, and in
fact, restructuring changes make little sense, in the absence of the completion
of the work of the PSC.  The issues
that are more procedural or focused on improvements in functioning should be
prioritized, and structural changes postponed while a coherent approach is
developed and posted for public comment.  Each review is performed by an 
‘outsider’, and is, by its
nature, for some reason, limited in how outreach is undertaken. In reviewing
whom a reviewer interacts with one tends to see elected policy representatives,
even when the subject is not policy development related. By choosing external
players, often with very limited understanding of ICANN, ICANN’s Board is
actually ensuring a superficial understanding of whatever entity is being
reviewed.  It is interesting that
the introduction of “360 reviews” has received so little acceptance within
ICANN itself. .   Of some note, in the instance of the GNSO review, an
internal review identified significant improvements that would have addressed
the PDP, and other related changes. The Board and senior staff failed to
support implementation of these changes, although they had broad community
support, and the Board directed an external review. The changes proposed have
resulted in a complex, confusing, and burdensome set of proposals on what to
change, how to change, and when to implement change. As a voluntary participant
in one of the working groups – on the PDP changes – I note that changes in the
PDP in the GNSO policy process were proposed three years ago by the self review
of the GNSO Council – and we are today, after a Board process of an external
review, only now beginning to address this important topic.   The GNSO review 
process itself is excessively complex and time consuming and has been extremely
top down with a Board working group heavily engaged in the design of the
changes.  The real point is that ICANN is simply doing too much, and
doing little with excellence.   I made comments in Mexico City asking for the
establishment of a single document on the web site that lists the open public
comment periods.  Beginning with
April 5 and going through May 28, I count 15 public comment processes.   I do 
my best to follow and
participate in ICANN, and frankly, ICANN is making is extremely difficult even
for the knowledgeable and informed and willing participant to adequately follow
process and productively participate in its public comment processes.  It is 
time to assess where ICANN is going. As my 92-year-old
father used to say to me, ‘If you don’t know where you are going, any road will
get you there’.  ICANN could
benefit from that homily….. conducting reviews just for the sake of conducting
a review allows the ‘check’ of a box. Given the lack of community support and
the lack of community involvement, overall, in the reviews creates a
significant risk to ICANN credibility. 
Since money is not an object to ICANN anymore, it appears that ICANN is
just cranking out reviews, regardless of how they interact with each other, and
without a holistic plan for how their recommendations interact. And thus we are
addressing a Board review with a number of really controversial
recommendations, and only a few that deserve immediate acceptance, such as
remunerating the Board/Board chair. And improving and strengthening supportive
functions/services for the Board.   Specific recommendations:1.    
Reduce the size of the Board. I disagree with this recommendation.   The Board 
must be geographically
representatives, and certainly, we need to have sufficient diversity on other
fronts to enable a Board that can govern. The Working Group’s ‘support’ for
reducing the Board was startling and disappointing.  It appears that in some 
instances, because a particular
individual or entity doesn’t fully understand their role that the solution
became: reduce the size of the board. A better solution would be to have clear
and publicly available ‘criteria’ and expectations for /board members that they
can review themselves.  Liaisons
probably really need to become liaisons, not merely shadow board members, 
on an equal level except for formal votes.  The role of liaisons is important, 
but has been allowed to
become really a shadow of a full Board member.  Instead of eliminating the
liaisons, or cutting the size of the Board, the Board should focus on defining
roles, and then itself, adhering to the roles agreed.  Liaisons should not 
become ‘shadow Board members’.  They should play the role of an expert
advisor on the topics at hand, from the perspective of the community they
represent.  I also oppose the further reduction
of actually elected Board members. Ideally, a mechanism to elect at least two
more members from the existing or a new SO would be developed. I do not support
giving the ALAC the right to select or elect Board members.  2.    
Fewer but longer Board meetings:  I was surprised at the level of micro
management proposed by the consultants. ICANN’s Board should be and indeed is
capable of working with the Board chair and the senior staff to devise
appropriate times for meetings; length of meetings, and structure of meetings.  
 I was both startled and disappointed that
ICANN would task a consultant to advise on the length of Board meetings. 
there seems to be a tendency for Board committees, often composed of Board
members who are appointed via the Nominating Committee and often lack
experience within the ICANN to make decisions about the rest of the community’s
needs.   Board subcommittees
seem to need more input and interaction with the community of stakeholders to
advise their considerations. 
Relying on written comments is a limited method of such interaction,
given the multitude of public comments that the community must address on an
ongoing basis.  I strongly object to the suggestion that
detailed minutes should be eliminated. This seemed a defensive and bizarre
suggestion that actually completely violates ICANN’s commitment to improving
transparency and accountability. 
Detailed minutes should be provided, within a specified time frame, and
staff held accountable to draft minutes within XX hours following a meeting,
and a process implemented to get Board member review and approval., again
within a specified time frame.  The Board should have enough
meetings to get their work done. Staff should support such a process. The role
of ‘retreats’ needs to be considered carefully. Retreats seem to be two day
events, without minutes or agendas, when the Board considers topics and invites
in guests.   No board
gathering should be without agenda, and only extremely rare exceptions should
be granted for closed, non minuted meetings. Of course, personnel discussions
and hiring or dismissal of executive staff, or similar events are in the
category of needing privacy and a mature Board will address such issues
appropriately.   3.    
Consolidation of Board Committees:  this is already underway.  4.    
Broaden the skills of the Board: It is not
ICANN’s job to provide ‘on the job training: to Board members, or even for that
matter, to community members. 
Informational support is a different matter and should be supported for
all community members. There may be exceptions where Board members would need
specific coaching or training on the aspects of their unique fiduciary
accountability as Board members of ICANN. In general, I do not support ICANN
assuming ‘creating the next leaders’ of ICANN as is described in the Strategic
Plan.  In fact, this sounds like
ICANN would somehow ‘pick and chose’ those considered ‘worthy’ and then give
them special professional training.    If the training is specific to being a 
member at ICANN, it should be so defined. However, given Board turn over, it is
not clear how the sub committee envisioned undertaking this.  Certainly, more 
discussion and more
clarity is needed before proceeding.  On the other hand, documentation
that is available to provide and describe the duties of a board member would be
welcomed.  5.    
Making Board membership sustainable: Board members should serve up to two terms
of three years, with the ability to fill in a partial term of a resigning Board
member.Four year terms are completely unsuitable.I support remunerating the 
Board and
especially the Board chair. I fully expect the Board chair to work at least
50%-60% percent of their time on ICANN governance and leadership issues, and
that really requires a remuneration package of an amount between $100,000 and
$150,000.  Other Board members
should be remunerated at approximately 1/4 to 1/3 of the Board chair payment.
Members who have conflicts should decline the payment. It is not suitable to
give the community’s resources to a Board member to donate to a charity;
instead, if a Board member cannot accept the remuneration, they should simply
decline. All remunerations should be a matter of public record. Overall, the 
Board review had a number of
recommendations that I have not seen support for – eg. Reducing the size of the
Board. On the other hand, other recommendations, such as paying the Board and
especially the chair, who must devote a very significant amount of time to his
role, and to outside representation of the organization, is non controversial
to the breadth of the ICANN community and should be implemented immediately.   
It is not appropriate to extend remuneration
to any other positions other than Board positions.  Travel/per diem support to 
elected and appointed
representatives should be supported by ICANN, but should be managed and
policies developed by the various constituencies.   The board should receive 
improved and
increased executive and administrative support.  I would support the creation 
of an independent secretariat
to support the Board, and the appointment of an outside ‘legal advisor’ to the
Board who is responsible for advising the Board on their responsibilities to
the community.  This will
supplement the General Counsel’s support, and the support provided by staff
experts.  Timelines should be established to deliver briefing
materials to the Board, so that when at ICANN face to face meetings, Board
members can spend time interacting with the community and learning more about
the various positions, rather than reading ‘just in time’ delivered
documents.  This requirement would benefit
all stakeholders as well, who are still struggling with the late delivery of
complex and detailed materials.  All briefing materials and reports prepared
for the Board should be posted for the community and GAC as resources. This
will enhance Board transparency, and enable the community to provide additional
information where needed.  ICANN must take seriously that it lacks
meaningful accountability mechanisms, as noted in public comments both to ICANN
and to the US DOC NOI, and to the PSC. 
This sub committee should recommend to the Board that the PSC should be
tasked, with resources, to complete the design of the various solutions
identified in the PSC report, and to then present to the Board regarding
proposed approaches, and then for public comment.  The Board review was 
extremely light in its focus on the
need for improved accountability; given the Board’s fiduciary responsibilities,
this is a key area in the Board review that deserves more attention.  It is 
fair to ask whether the Board is
being strategic in its focus; but in asking that question, one must also
address how the Board is supported by staffing resources and materials that
enable an informed Board.  Given
the complexity of the issues before this Board, I fully support improved and
increased staffing resources in support of the Board.  The Board and indeed the 
staff deserve
clearer guidelines on statements of conflict and actions they should take when
they have an ‘interest’ in a policy matter before the Board, including when
they should recluse themselves from discussions about a topic, as well as votes.
 I also noted that during the
Mexico City meeting, members of the stakeholders were asked to identify whom
they represented, but the WG itself was silent on its ‘interests’ as was its
consultant.  This may be an
indication of the need for an immediate focus on this area.  Hopefully, 
progress will be made
shortly on a draft conflicts of interest statement that can then be posted for 
comment.  Finally, I remain concerned that Board
level working groups are actually increasingly evidencing that they are very
distant from the ICANN community. This may be because 8 of the Board members
are appointed, and there is often little to no existing relationship between
Board members and the community. 
That should have been a topic in the board review but was not.  In fact, the 
accountability of the Board
to the community is a significant topic that deserves further discussion.  I am 
not proposing a solution to the
question, but I am noting a question that the consultants, and indeed the Board
Working Group have not really examined: how can the Board improve in its
accountability to the organization and to the community?  I appreciate the 
opportunity to raise again
some of my views that I was fortunate to be able to initially address at the
Mexico City public Forum. I would be pleased to respond to any
questions.  Marilyn Cade     

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