Summary and Analysis of Comments for Revised Conflicts of Interest Policy

[Marc Salvatierra <marc.salvatierra@xxxxxxxxx>]

Summary and Analysis of Comments for Revised Conflicts of Interest Policy

[Submitted by ICANN Staff on behalf of Amy A. Stathos, Deputy General Counsel, 
ICANN]

29 July 2009

ICANN staff prepared this summary and analysis of comments received on the 
Revised Conflicts of Interest Policy (COI).  The comment period ran from 6 May 
2009 to 5 June 2009.  Excluding one comment that appeared to be spam, two 
comments were received, one serving as a joint comment from three 
organizations, and one from one entity.  The public comments on this forum are 
available at http://forum.icann.org/lists/revised-coi-policy/.

High Level Summary:

One set of comments identified areas for improvement of the Revised COI, 
particularly focusing on interested Directors' ability to participate in 
deliberations and voting, and suggests the inclusion of additional definitions. 
 In addition, the comment provides suggested areas for addition of process or 
separation of policies.

The other expressed general support for the Revised COI, but raised questions 
regarding the application of the Duty to Disclose and Duty to Abstain as it 
relates to the ICANN CEO and those officers who report to the CEO, and also 
questions whether ICANN's Board Governance Committee will publish the 
identified interests.

General Comments:

Q. Todd Dickinson, Executive Director, American Intellectual Property Law 
Association (AIPLA), Steven J. Metalitz, counsel to Coalition for Online 
Accountability (COA), and Claudio DiGangi, Manager External Relations, 
Intellectual Trademark Association (INTA), submitted a joint comment addressing 
concerns regarding items their organizations wish to see in the revised COI, 
stating that "it may constitute a step backwards."

The major issue raised is "the question of when a Director should withdraw from 
Board deliberations on a particular matter."  The commenters note that the 
current COI requires a Director with a "'material financial interest'" to 
recuse him or herself from deliberations and voting. However, the revised COI, 
at section 2.4(c) appears to allow a Director, after "'identif[ying]' any 
'direct financial interest' in a matter' . . . to 'participate in Committee or 
Board deliberations' on the matter."  However, the commenters "believe there 
should be a duty, not only to abstain from voting, but also to withdraw from 
Board deliberations, in these circumstances."  The commenters also note that 
the duty to recuse and abstain should apply to material indirect financial 
interests as well as to the material and direct financial interests stated 
within the policy.  "Any material or direct financial interest should lead to 
abstention."  The commenters also note that the policy should contain 
definitions for the concepts of "material" and "direct."

The joint commenters also suggest some improvements to the draft COI, 
including: (1) the use of a independent third party, instead of the BGC, to 
make decisions regarding potential conflicts of interests; (2) the setting 
forth the "Periodic Review" article in a separate policy document; (3) making 
reference to how conflicts of interest issues for non-Board members are to be 
handled; and (4) insuring that Sections 4.1 and 4.2 (or a separate policy) 
"exclude the situation in which an employee is involved in determining his or 
her own compensation or the compensation of relatives or friends."  See 
http://forum.icann.org/lists/revised-coi-policy/msg00000.html.

Tim Ruiz, writing on behalf of GoDaddy, notes that Sections 2.1 (Duty to 
Disclose) and 2.4 (Duty to Abstain) raise some questions:  "Because ICANN's 
president and CEO is both a paid employee and a Board member with full voting 
privileges, how will this policy resolve scenarios where an issue before the 
Board directly affects this position or its associated compensation and 
incentives?"  He also notes that this question arises for "compensation and 
incentives of the corporate officers and other executives who report directly 
to the CEO." He further raises the question "can members of the community 
expect that the president/CEO or the Board Governance Committee (BGC) will 
disclose these conflicts?"  Finally, he asks whether the BGC will publish the 
interests of persons covered under the COI.  See 
http://forum.icann.org/lists/revised-coi-policy/msg00001.html.

Next Steps:

ICANN's BGC has considered and approved further revisions to the version posted 
for public comment that takes comments into account, particularly relating to 
deliberations after identification of a conflict.

The Board is set to vote on the revised COI Policy at its meeting on 30 July 
2009.

Contributors:
Tim Ruiz on behalf of GoDaddy
Q. Todd Dickinson on behalf of the American Intellectual Property Law 
Association (AIPLA)
Steven J. Metalitz on behalf of the Coalition for Online Accountability (COA)
Claudio DiGangi on behalf of the Intellectual Trademark Association (INTA)

Amy A. Stathos
Deputy General Counsel
ICANN
4676 Admiralty Way, Suite 330
Marina del Rey, CA 90292
amy.stathos@xxxxxxxxx
+1-310-301-3866