Minutes | Board Governance Committee (BGC) Meeting 2 November 2016

BGC Attendees: Rinalia Abdul Rahim, Cherine Chalaby, Chris Disspain (Chair), Mike Silber, Bruce Tonkin, and Suzanne Woolf

BGC Member Apologies: Erika Mann

Other Board Member Attendees: Steve Crocker, Ron da Silva, Asha Hemrajani, Rafael Lito Ibarra, Markus Kummer, and Lousewies Van der Laan

ICANN Executive and Staff Attendees: Akram Atallah (President, Global Domains Division), Susanna Bennett (Chief Operating Officer), Michelle Bright (Board Operations Content Manager), Samantha Eisner (Deputy General Counsel), Allen Grogan (Chief Contract Compliance Officer), John Jeffrey (General Counsel and Secretary), Melissa King (VP, Board Operations), Vinciane Koenigsfeld (Board Operations Content Manager), Wendy Profit (Board Operations Specialist), and Amy Stathos (Deputy General Counsel)

Invited Guests: Maarten Botterman, J. Beckwith Burr, Khaled Koubaa, and Akinori Maemura

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The following is a summary of discussions, actions taken, and actions identified:

1. Reconsideration Request 16-13 – At the BGC’s request, it was provided an overview of Merck KGaA’s (Requester’s) request seeking reconsideration of the Contractual Compliance department’s decision to internally evaluate the Requester’s Public Interest Commitment Dispute Resolution Procedure complaint (PICDRP Complaint) rather than submitting that complaint to the standing panel for consideration. The dispute surrounds the decision by the National Association of Boards of Pharmacy (NABP), the registry operator for .PHARMACY, to resolve contention for the second level domain of merck.phramacy in favor of a party other than the Requester. In preparation for the meeting, the BGC reviewed the materials related to Request 16-13 (including Request 16-13 and the exhibits to Request 16-13), as well as the Contractual Compliance department’s conduct with respect to the Requester’s complaint. As set forth in the BGC Determination, after evaluating the Contractual Compliance department’s actions and its compliance with the PICDRP, the BGC concluded that the all applicable policies and procedures were followed in the investigation of the Requester’s claims and in finding that the Registry had not violated its contractual obligations. The applicable policy, i.e., the PICDRP, expressly permits ICANN to proceed by way of internal determination under the circumstances presented here; and ICANN’s internal investigation of the PICDRP Complaint thoroughly and comprehensively reviewed the claims and found no evidence suggesting that the Registry violated its contractual obligations. The BGC further discussed that the Requester’s claim to trademark rights in the “Merck” mark does not change the analysis because, among other things, both the Requester and Merck Sharp and Dohme Corp., which prevailed in the contention for merck.pharmacy, hold trademark rights in “Merck.” The BGC therefore determined that Request 16-13 be denied and that the Determination be issued as directed by the BGC.
2. Committee Slating – The BGC discussed proposed membership for the Board Committees and working groups to recommend to the Board for approval. The BGC noted that it would be useful to include information regarding the frequency of meetings for each of the Committees and working groups, in order to better understand members’ time commitments. The BGC requested that the meeting frequency over the last twelve months be included for consideration relating to the Committee and working group slating. The BGC also discussed ways in which to ensure that each Committee is populated with members with the skills and experience necessary to complete the tasks of the committee, while also allowing for training opportunities, a succession plan, and diverse outlooks. The BGC also discussed creating development plans with formalized training for new Board and Committee members. The BGC noted that it would be useful for slating and succession purposes to have a description from each Committee as to what skill sets and experience are needed in order for the Committee to complete its tasks. The BGC Chair indicated that he would reach out to each Committee and request a Committee member position description that includes the skills, attributes, experience and/or expertise preferred for that Committee's membership. The BGC also briefly discussed whether it would be useful to create a BGC sub-committee or separate committee to deal with accountability mechanism-related matters, and the BGC agreed to discuss this with the full Board. The BGC agreed to recommend the proposed slate for Committee and working group membership to the Board for approval.
   • Action:
     • Add meeting frequency over the last twelve months to each Committee and working group list.
     • BGC Chair to reach out to each Committee and request a Committee member position description that includes the skills, attributes, experience and/or expertise needed to conduct the business of the Committee.
     • Submit Committee and working group slate recommendations to the Board for approval.
3. Reconsideration Process Under New Bylaws – At the BGC’s request, it was provided with an overview of the changes to the Reconsideration process under the new Bylaws. It was noted that there are a few key changes to the process including expansion of the grounds for reconsideration of staff and Board actions, limiting the BGC to recommendations (not determinations), timing parameters, and the opportunity for the Requester to submit a rebuttal to the BGC recommendation. In addition, the Ombudsman will now have a role in the Reconsideration process and must perform a “substantive evaluation” of the Reconsideration Request and provide that to the BGC. The BGC discussed that Reconsideration Requests submitted after 1 October 2016 will be subject to this revised process, and those submitted before will be subject to the Bylaws in place before 1 October 2016. The BGC also discussed the need to have a thorough discussion with the Ombudsman regarding the new role, the applicable procedures, and the resources needed, if any. The BGC requested that a process path be created to map out the steps and timing in the Reconsideration process under the new Bylaws from submission of a Request through Board determination. The BGC further noted that Workstream 2 relating to the Ombudsman role and responsibilities is still in process and completion of that work will inform the upcoming search for the next Ombudsman.
   • Action:
     • Prepare a process path for the Reconsideration process under the new Bylaws.
4. Board Member Skill Sets - Guidance to Nominating Committee – The BGC briefly reviewed the draft advice to the Nominating Committee (NomCom) regarding desired Board skill sets, to be used in the NomCom’s selection of Board members based upon its review of the candidates’ attributes, experience, expertise, and interests. The BGC decided to provide the draft advice to the Board and request input from the Board members regarding the types of experience and attributes that should be listed in the advice to the NomCom.
   • Action:
     • Board members to provide input on guidance document.

5. Officers and Board Members Statements of Interest Summary – The BGC reviewed the summary of the Board members’ statements of interest for conflict of interest purposes.

   ICANN’s conflict of interest policy requires Board members to disclose any actual, potential or perceived conflicts of interest with respect to ICANN, and the BGC’s charter requires it to review those disclosures on a regular basis. The BGC discussed edits to the summary as well as what level of information should be provided by Board members in completing their statements of interest, and were reminded that when something changes, the Board members should update their disclosure statements. The BGC discussed potential conflicts related to funding sources for organizations that ICANN Board members are affiliated with and requested that such detail be included in the summary (if provided), and that an additional question be added to the statement of interest questionnaire directed at funding sources for affiliated organizations. The BGC also discussed potential conflicts related to clients of Board members, and reviewed and discussed potential procedures by which Board members should disclose that information. The BGC noted that the summary of the statements of interest will be posted prior to the Board meeting.

6. Code of Conduct Annual Report – The BGC was provided with a brief overview of the Code of Conduct Annual Report, which is required under the Code of Conduct itself, and is part of the BGC’s Charter responsibilities. It was noted that there have been no allegations of non-compliance with the Code of Conduct by any Board members in the last year. As always, the Report will be posted on the BGC page.
7. Accountability Mechanism Annual Report – The BGC was provided with a brief overview of the Accountability Mechanism Annual Report, which is required under the BGC’s Charter and which will be posted as it is every year. The report provides a summary of Reconsideration Requests, Independent Review Process Requests, and Documentary Information Disclosure Policy Requests initiated and acted upon in the last year. The BGC requested that the format of the report be reviewed and potentially revised to permit further analysis regarding possible improvements on how to manage the processes.
   • Action:
     • Review and potentially revise format of Accountability Mechanism Annual Report to permit further analysis regarding possible improvements.