Comments to the Board Working Group Report on Nominating Committee

[Roberto Gaetano <roberto_gaetano@xxxxxxxxxxx>]

Thanks for the opportunity to comment on such important subject. Further to
my comments at the ICANN 51 session, I would like to provide a more
articulated contribution to the discussion.

 

Before reviewing the functionality of the NomCom in isolation, we need to
ask ourselves the question on whether the very structure of ICANN is still
adapted to the maturity level it has reached and whether ICANN itself is
still well equipped to face the challenges created by the changing Internet
world and community.

 

I concentrate on the NomCom task of selecting Board members, but most parts
of the reasoning also applies to the other tasks, i.e. selecting members of
Supporting Organizations and Advisory Committees. I have been on the ICANN
Board for several years, and have noticed that, while the theory states that
a Director has a fiduciary responsibility to the whole organization, the
practice differs, because the ties that link a Director to his/her electing
body are never totally cut. Of course, there are individual cases and
examples of different attitudes, but I believe that by and large this is a
structural problem: we cannot assume that in all cases the good faith of an
individual Director will be sufficient for making a decision that is the
best one for the organization, even if it displeases the community that has
brought him/her to the Board. We have to consider also that the Director
will be, in this case, in an obvious conflict of interest: to displease
her/his community will jeopardize the chances of a future reelection.

 

I fully understand the reason why the Board has been set up in the beginning
mimicking a parliament. But while this is a reasonable way, possibly the
only one, to structure the governing body in a constituent phase, is becomes
dysfunctional once the organization has grown out of its infancy. New
constituencies that were not envisaged in the initial design appear, other
parts of the organization see their importance grow or slim when external
circumstances change, the outside world changes and the challenges on ICANN
with it: a rigid, constituency-based distribution of Board seats ossifies
the "power structure" and hinders adaptability to change. So the starting
point of my analysis is that we need to get rid completely of the
constituency-appointed Directors, and give to the NomCom the task of filling
all positions on the Board. Of course, we might want to still have on the
Board Liaisons from Supporting Organizations much in the same way we have
now non-voting Liaisons from some Advisory Committees, but the voting
Directors must, in my view, be completely without conflict of interests
related to their roles with the nominating organizations. This would not
eliminate individual conflicts of interests, but this is an unavoidable
different thing from building in the process a structural conflict of
interest, the way it is now.

 

The consequences of this approach are the following (others may point out
further items):

.         the size of the Board will be independent from the changes in the
ICANN structure - as past Chair of the BGC and past Chair of the Board
Review WG I have witnessed the push towards a smaller Board and the
impossibility to make this change because of the alteration of the balance
in representation of the different electing bodies;

.         the NomCom will be able to plan its yearly work from scratch, and
take into account all the different constraints (geographical and gender
distribution, as well as the gaps in the skill set of the Board) without
having to wait for the selections of the Supporting Organizations, which may
alter the situation;

.         NomCom will have a wider choice for balancing out the different
needs;

.         there will be no structural conflict of interest for Directors
appointed by a single constituency or body.

Of course, this will make the NomCom far more critical for the success of
ICANN, and I am fully aware that the inevitable jockeying for positions and
power will move from the number of seats in the Board to the number of seats
in the NomCom. However, I believe that this will be a lesser problem,
because an intermediate layer will be introduced between the constituencies
(in the broad sense of the word) and the Board.

I have no direct experience of NomCom, but I am under the impression that
the way it works, by consensus, is a guarantee that the selected people are
at least not vetoed by the different constituencies. Even in the cases in
which NomCom appoints Directors coming from a specific ICANN community, we
can be reasonably sure that the appointed Directors have support that spans
beyond their local community. I am of course considering this approach only
for the selection of the Board Directors, not for the selection of members
of Supporting Organizations and Advisory Committees, where the current
mechanism of integrating "internal" candidates with NomCom-selected
candidates does not need to be changed.

 

Another question that needs to be answered is whether the current mechanism
of having a Nominating Committee that is in reality not "nominating" but
"appointing" Directors is still the way to go. 

Again, this comes from history: since Supporting Organizations were directly
electing Board members, adopting a similar mechanism for NomCom was not seen
as a strange thing. But if NomCom is the sole body in charge for the job,
the question is legitimate. However, I would argue that this approach could
be beneficial also to the other appointments that the NomCom currently
makes, i.e. in the case of Supporting Organizations and Advisory Committees,
for which the NomCom will continue to appoint only a part of the membership.

 

Personally, I believe that we need to separate the recruitment and
nomination process from the actual election process. I am speaking again
taking also into account my former experience in the previous round of
structural improvements. This double role of finding good potential
candidates for the open positions and actually selecting them has been
pointed out from several quarters, but never really solved. I believe that
these tasks are structurally independent and it is not obvious that they
need to be assigned to the same body. The process of identifying a
potentially good candidate and the process of selecting the best candidate
under the circumstances are logically separated, and even require a
different skill set: having two different committees, populated in a
different way, in order take into account the different skill sets needed,
seems to me a far better solution. We should have a Nominating Committee who
creates the slate of candidates, and a separate Selecting Committee who
proceeds to the appointment. The former will operate only in a definite time
slot every year, while the latter will remain active to deal also with other
matters, like for instance the appointment of Directors in case of
resignations during the year.

 

Last but not least, there is another related, issue: accountability. While
the global accountability of the Board to the community is indeed a separate
issue, the accountability of an individual Director is not. Unless I have
missed something since I left the Board, the current situation is still that
the Board is the sole body that has the authority to remove a Director. I
believe that this is a wrong approach, because it puts a drastically
dissenting Director in an awkward position, while, at the same time, giving
the unusual power to a body (the Board) to undo what a different body (the
NomCom) has done.

 

I would propose to keep with the Board the power of initiating a
non-confidence procedure, but to let the Selecting Committee make the final
decision. Also, we could introduce other mechanisms for initiation of
non-confidence procedures by the community, making the Director more
accountable to the community itself. However, I would argue that the final
decision of removal of a Director will remain with the Selecting Committee,
who will also proceed to the appointment of a replacement, taken from that
year's slate.

 

In the above described scheme, a key issue will be how to populate these two
committees. I have some suggestions on how to do this, but I also believe
that there is no point in having a thorough discussion at this stage,
without knowing whether the general approach I am taking could be considered
worth further discussion or is being estimated unfeasible. I will therefore
just add one consideration to this topic, which is that with the changing
environment I believe that we have to open ourselves to the parts of
Internet community that are not (yet?) active in ICANN. It will be advisable
to include in the new Nominating Committee (in my distinction above, the
committee that prepares the slate of candidates, not the one who actually
selects them) participants who come from bodies like sister organizations
part of the I* galaxy, international bodies, or other. We need to show ICANN
openness, and we need to make sure that we encourage participation outside
our historical circle. To include in the new Nominating Committee people who
have a different experience, and that are therefore likely able to bring new
points of view, can be a way in which we can populate the slate of
candidates with people with a different background, that can add skills that
might be missing if we confine ourselves to the communities we know and we
are able to reach out.

 

So, in summary:


.         no Directors are appointed directly by constituencies;

.         a NomCom, open to membership outside the ICANN circles, prepares
yearly the slate of candidates, then dissolves;

.         a SelCom, appointed by the ICANN community in a way to be
determined, selects yearly Directors and SO/AC members for all open
positions from the above slate;

.         the SelCom remains active to deal with further changes in the
Board

Best regards,

Roberto Gaetano

Speaking as an individual Internet user