Minutes of Special Board Meeting 27 August 2009

A Special Meeting of the ICANN Board of Directors was held via teleconference 27 August 2009 @ 03.00 UTC. Chairman Peter Dengate Thrush promptly called the meeting to order.

In addition to Chairman Peter Dengate Thrush the following Directors participated in all or part of the meeting: Rod Beckstrom (President and CEO), Roberto Gaetano (Vice Chairman), Harald Tveit Alvestrand, Raimundo Beca, Steve Crocker, Steven Goldstein, Dennis Jennings, Raymond A. Plzak, Mike Silber, Jean-Jacques Subrenat, Bruce Tonkin, and Katim Touray.

The following Board Liaisons participated in all or part of the meeting: Janis Karklins, GAC Liaison; Ram Mohan, SSAC Liaison; Thomas Narten, IETF Liaison; Thomas Roessler, TLG Liaison; Wendy Seltzer, ALAC Liaison; and Suzanne Woolf, RSSAC Liaison. Rita Rodin Johnston and Rajasekhar Ramaraj were not present for the meeting.

Also, the following ICANN Management and staff participated in all or part of the meeting: John Jeffrey, General Counsel and Secretary; Doug Brent, Chief Operating Officer; Kurt Pritz, Senior vice President, Services; Denise Michel, Vice President, Policy; Kim Davies, Manager, Root Zone Services, Margie Milam, Senior Policy Counselor; Rob Hoggarth, Senior Policy Director; and Marco Lorenzoni, Director, Organizational Reviews.

1. Consent Agenda

   The Board discussed the proposed resolutions on the Consent Agenda, made adjustment and approved the following resolutions, unanimously, 13-0. The Resolutions were moved together by the Chair and Jean-Jacques Subrenat seconded the motion.

   1. Approval of Minutes from 30 July 2009 Special Board Meeting

      Resolved (2009.08.27.01), the Board hereby approves the minutes of the 30 July 2009 Board Meeting.

   2. Approval of Minutes from 26 June 2009 Special Board Meeting – closed session on CEO Compensation and Agreement Structure

      Resolved (2009.08.27.02), the Board hereby approves the minutes of the 26 June 2009 Closed Session Board Meeting.

   3. From the Board Finance Committee – Transfer of $11 million US Dollars from working capital to a restrictedreserve investment fund

      Whereas, the ICANN Board adopted the Investment Policy in November 2007;

      Whereas the Board endorsed the ICANN Investment Policy and adopted minor amendments to the Investment Policy on 30 July 2009.

      Whereas, at its 14 July 2009 meeting the Board Finance Committee reviewed the plans to transfer $11 million from working capital to the Board restricted Reserve Fund in accordance with the policy

      requirements for the working capital level to be equivalent to three months of operating expenses

      Resolved (2009.08.27.03), that the Board approves the recommendation of the BFC that the CFO be directed to transfer $11 million from working capital to the Board restricted Reserve Fund

   4. From the Board Governance Committee – Nominating Committee Chair Selection

      Whereas the BGC is tasked each year with recommending to the Board a candidate to serve as the Nominating Committee (“NomCom”) Chair;

      Whereas the BGC called for expressions of interest from all who would be interested in serving as the 2010 NomCom Chair;

      Whereas the BGC considered and discussed all legitimate expressions of interest; and

      Whereas the BGC recommends that the Board appoint Wolfgang Kleinwächter as the 2010 NomCom Chair.

      Resolved (2009.08.27.04), that Wolfgang Kleinwächter is appointed as Chair of the 2010 NomCom, to serve until the conclusion of the ICANN annual meeting in 2010, or until the Chair’s earlier resignation, removal, or other disqualification from service.

   5. From the Board Public Participation Committee
      1. ICANN Meetings Selection of Dates for 2011, 2012, 2013

         ICANN MEETING DATES / GEOGRAPHIC ROTATION 2011 - 2013
         2011
         13-18 March 2011 No. 40 | North America (Tentative)
         19-24 June 2011 No. 41 | Asia (Tentative)
         23-28 October 2011 No. 42 | Africa (Tentative)
         2012
         11-16 March 2012 No. 43 | Latin America (Tentative)
         24-29 June 2012 No. 44 | Europe (Tentative)
         14-19 October 2012 No. 45 | North America (Tentative)
         2013
         07-12 April 2013 No. 46 | Asia (Tentative)
         14-19 July 2013 No. 47 | Africa (Tentative)
         17-22 November 2013 No. 48 | Latin America (Tentative)

         Whereas, ICANN intends to hold Meetings in 2011, 2012 and 2013 as per its policy;

         Whereas, the dates proposed in this paper were published for public comment for a period of 30 days ending 14 August 2009;

         Whereas, staff has completed a thorough review of the public comments received, and has used those comments to develop the scheduled dates of ICANN Meetings;

         Resolved (2009.08.27.05) that the Board accepts the dates of Meetings to be held in 2011, 2012 and 2013.

      2. Approval of Budget and Designation of location for the ICANN Meeting in June 2010

         Whereas, ICANN intends to hold its second 2010 Meeting in the European region as per its policy;

         Whereas, the European Registry of Internet Domain Names (EURid) was one of the entities that submitted a viable proposal to serve as host for the 2010 European Meeting;

         Whereas, staff has completed a thorough review of the EURid proposal and finds it acceptable;

         Whereas, the Board Finance Committee will review and is expected to approve the budget for the ICANN 2010 European Meeting as proposed in this paper on August 17;

         Resolved (2009.08.27.06) that the Board accepts the EURid proposal and approves that the ICANN 2010 European Meeting shall be held in Brussels, Belgium from 21-25 June 2010, with a budget not to exceed US$2.094M.

         Resolutions 2009.08.27.01; 2009.08.27.02; 2009.08.27.03; 2009.08.27.04; 2009.08.27.05; and 2009.08.27.06 were approved in a single vote approving the consent agenda items. All Board Members present unanimously approved these resolutions.

2. Regular Agenda
   1. From the Board Governance Committee -Board/GAC Working Group – Selection of Co-Chair and Board Membership

      Jean-Jacques Subrenat addressed the process by which the Board Governance Committee (BGC) allocates responsibilities on committees and working groups and the method of selection of the chair of those entities, including a suggestion that the members of the selected group convene to select a leader.

      Dennis Jennings, as Chair of the BGC, confirmed that the BGC will take the process under consideration pursuant to Jean-Jacques request, and apologized for not having had the opportunity to personally contact the members of the working group prior to the publication of the proposed Board resolution.

      The Chair stated his view that the BGC selection process is well established.

      Following the discussion, the Chair moved and Dennis Jennings seconded the following resolution:

      Whereas on 26 June 2009, the Board resolved to establish a Board/GAC joint working group;

      Whereas the Board requested the BGC to nominate five Board members, one of whom to serve as cochair, to serve on the Board/GAC joint working group;

      Whereas the BGC has selected five Board members to serve as members of the Board/GAC joint working group and identified one of those five members as cochair of the working group; and

      Whereas the BGC agreed to recommend that the Board approve the BGC selections for the Board/GAC joint working group;

      Resolved (2009.08.27.07) that the Board members of the Board/GAC joint working group shall be Raimundo Beca, Ram Mohan, Raymond Plzak (cochair), Jean-Jacques Subrenat, and Katim Touray.

      Eleven of the Board members present approved of this resolution. Jean-Jacques Subrenat and Raymond Plzak abstained from voting on this resolution.

      Upon approval, Janis Karklins congratulated the Board on taking action to compose the working group, and noted the import of the work to be done with the GAC. Janis noted that Heather Dryden has been selected as the cochair appointed by the GAC, and expressed the GAC’s expectation that the working group will meet to move forward with its tasks in the near future.

      The Chair thanked Janis for his support and concurred with the import of the work to be performed. The Chair noted that the Board’s appointees are of excellent geographic diversity and each appointee brings an impressive skill set to the group. Finally, the Chair noted that he would provide his support as requested.

   2. Board Approval of the proposed Bylaws Amendments to enable the seating of the New GNSO Council in Seoul

      Denise Michel introduced the GNSO Bylaws Amendments discussion setting forth that some clarifications were made to the proposed bylaws amendments as a result of comments received during the second public comment forum on the proposed amendments.

      Margie Milam then presented the final packet of proposed bylaws amendments to the Board, noting that they are the minimum amendments required to create the bicameral house voting structure, establish stakeholder groups and implement some of the key improvements identified in the Board’s GNSO Improvement’s report. Margie noted that additional series of amendments would be forthcoming to fully implement the restructure, and certain suggested amendments were delayed in order to give the community additional time for consideration. Margie explained that GNSO Operating Rules and Procedures, a Restructuring Implementation Plan and a revision of the Policy Development Process are all under development.

      Margie provided the Board with a short description of the comments received during the recent public comment period and the responses thereto. The comments fell into essentially three categories: (1) objections to issues that were already resolved, such as voting thresholds, which staff did not make any further amendments as a result of; (2) clarification of proposed language, addressed in the proposed bylaws as presented to the Board; and (3) more substantive comments that merit further consideration and action, but could not be included in the proposed bylaws amendments at the current time as the community would not have adequate time to consider them. Margie also raised the issue of constituencies in the non-contracted parties house and that some commenters questioned whether the lack of constituencies in the contracted parties house would create a situation where the Board would approve constituencies within the commercial stakeholder group that actually serve interests more aligned with contracted parties. Margie highlighted this as an area that further Board action is required, and noted that the resolution was drafted in a way to address this concern.

      Steve Goldstein reiterated his comment from the previous meeting that there needs to be clear statement and reaffirmation that all stakeholder group charters would be reviewed after a year, and that the need for constituencies within the Non-Commercial Stakeholder Group will be reviewed after two years. Steve stated that the Non-Commercial Users Group has raised valid issues, and their recent complaints must be addressed.

      The Chair noted his agreement with Steve’s comment and directed the resolution to be redrafted to include this item.

      Mike Silber also noted his agreement with Steve’s comment.

      Bruce Tonkin asked for a clarification of the meaning of the word “sector” as set forth in Article 10, Section 3 on the diversity of the GNSO Council. Bruce also raised the issue of needing to more clearly define the definition of the Commercial Stakeholder Group to exclude members of the Registry and Registrar Stakeholder Groups. Bruce noted that these are points that should be clarified in further iterations of the GNSO-related bylaws amendments.

      The Chair noted his agreement with Bruce, and that these items should be tracked by staff for clarification as the process moves forward.

      Dennis inquired as to why the resolution was so specific regarding the limitation of new constituencies in the Non-Contracted Parties House.

      Denise responded that the language was included in response to comments made addressing this issue during the public comment session, to clarify that contracted parties do not belong on the non-contracted side. The issue will be discussed further publicly and will be considered for future bylaws changes.

      Bruce noted that this concern was also to address the potential for inclusion of those parties that are aligned with contracted parties, such as service providers, and that the commercial stakeholder group did not believe these supply-side parties are appropriately within the commercial stakeholder group.

      After discussion, Steve Goldstein moved and Bruce Tonkin seconded the following resolution:

      Whereas, the transition to a new GNSO Council requires Bylaws Amendments to reflect new GNSO structures, processes and mechanisms;

      Whereas, the GNSO community and ICANN Staff have developed specific Bylaws Amendments and recommendations to implement these changes and allow for the new GNSO Council to be seated at the October 2009 ICANN meeting in Seoul; 

      Whereas, two separate comment forums were held to solicit public input and the Amendments pending for Board action incorporate several comments and Board guidance;

      Whereas, the Board acknowledges that amendments may be needed regarding the types of new Constituencies that may be created in the future within the Non-Contracted Parties House, and Board review of the overall Stakeholder Group and Constituency structure is needed in the future;

      Resolved (2009.08.27.08), the Board approves the complete package of Bylaws amendments proposed [PDF, 160K];

      Resolved Further (2009.08.27.09) that the Board directs the Staff to draft and post for public comment additional proposed Bylaws amendments as necessary to facilitate the continued transition to the new GNSO structures, processes and mechanisms, including but not limited to amendments limiting the types of new Constituencies that may be created in the future within the Non-Contracted Parties House.

      Resolved Further (2009.08.27.10) that the Board will review the structures and operations of Stakeholder Groups and Constituencies in one year and every three years after that.

      All Board Members in attendance unanimously approved of this resolution.

   3. Assignment of Staff to Development of a Global Policy Proposal for "IANA Policy for Allocation of ASN Blocks to Regional Internet Registries "

      Rod Beckstrom introduced the request for Board approval of assignment to staff to monitor the policy for allocation of ASN blocks to RIRs, and the extension of time for the completion of the work.

      Raymond Plzak, the Chair and Raimundo Beca each noted that this action item was presented to the Board in line with the Board’s review procedures as set forth in conjunction with ICANN’s MOU with the ASO.

      Raymond and the Chair each noted that there might be less-time consuming way for the Board to direct ICANN staff follow the ASO’s global policy proposals.

      Harald Tveit Alvestrand raised the issue that items such as this, which impact the IANA Department, should be brought to the attention of the IANA Committee prior to reaching the Board level.

      The Chair suggested that as part of ICANN’s relationship with the RIRs and the NRO/ASO, that discussions should be had to make the staff monitoring of this type of policy more automated, without having to seek Board approval.

      The Chair moved and Raimundo Beca seconded the following resolution :

      Whereas, Article 1 of the Board’s Review Procedures for Global Internet Number Resource Policies Forwarded for Ratification by the ASO Address Council in Accordance with the ASO MoU (Board’s Review Procedures), states “When, in accordance with step 1 in the Global Policy Development Process of the ASO MoU (Attachment A, article 1), ICANN staff liaising with the addressing community becomes aware of a global policy development within the scope of the ASO MoU, ICANN staff informs the ICANN Board of this development. The Board decides, as and when appropriate, that this development should be followed by ICANN staff and instructs the ICANN CEO to assign staff for this purpose. ICANN staff so assigned shall inform all ICANN Supporting Organizations and Advisory Committees, shall establish an ICANN web page to be kept up to date and shall compile a background report to be kept up to date on this global policy development. This background report shall be provided to the Board as requested.”;

      Whereas, ICANN staff has informed the Board that a Global Policy Proposal for "IANA Policy for Allocation of ASN Blocks to Regional Internet Registries", entailing a date change in the adopted Global Policy with identical name, has entered the first adoption steps within the individual RIRs as well as being recognized by the ASO Address Council as a valid Global Policy Proposal; and

      Whereas, the Global Policy Proposal for "IANA Policy for Allocation of ASN Blocks to Regional Internet Registries" is identified as a global policy development within the scope of the ASO MoU with ICANN.

      Resolved (2009.27.08.11) that the Board directs that the development of a Global Policy Proposal for "IANA Policy for Allocation of ASN Blocks to Regional Internet Registries" be followed by ICANN staff as set forth within the Board’s Review Procedures and instructs the ICANN CEO to assign staff for this purpose.

      All Board members in attendance unanimously approved of this resolution.

   4. Redelegation of .CV (Cape Verde) Domain

      Rod Beckstrom introduced the redelegation request from the ministry in Cape Verde.

      Jean-Jacques Subrenat requested information on the history of the “best interest” language of the resolution and ICANN’s ability to make that statement.

      Kim Davies provided a description of the review that takes place during the redelegation process.

      Rod Beckstrom noted that changing the language of the resolution would set a new precedent and level of review in redelegation requests.

      Harald Tveit Alvestrand noted that the redelegation resolutions are formulaic, and requested IANA Committee review prior to changing the standard language of the resolutions.

      The Chair noted that the ccNSO has started working on a policy for redelegations, and that it may be appropriate to wait for that policy and the input of the IANA Committee prior to altering the standard language.

      Mike Silber moved and Harald Tveit Alvestrand seconded the following resolution:

      Whereas, the .CV top‐level domain is the designated country‐code for Cape Verde.

      Whereas, ICANN has received a request for redelegation of .CV to the Cape Verde Agencia Nacional das Comunicacoes.

      Whereas, ICANN has reviewed the request, and has determined that the proposed redelegation would be in the interests of the local and global Internet communities.

      Resolved (2009.27.08.12), that the proposed redelegation of the .CV domain to the Agencia Nacional das Comunicacoes is approved.

      All Board members in attendance unanimously approved of this resolution.

   5. Discussion regarding Structural Improvements Committee’s receipt of Board Review Working Group Recommendations
      1. Size of ICANN Board

         Marco Lorenzoni provided an update on the work of the Board review Working Group and the recommendation that the size of the Board not be changed at this time, but to revisit the independent reviewer’s recommendation of reduction of the size of the Board after three years’ time.

         Jean-Jacques Subrenat noted that the Working Group considered that ICANN’s model was note easily comparable to the best practices of corporations set forth by the independent reviewer.

         The Chair noted that there was nearly uniform public reaction in opposition to the recommendation that the size of the Board be reduced.

         Steve Goldstein noted that Marco has been doing excellent work on all he’s been doing.

         Steve Goldstein moved and Dennis Jennings seconded the following resolution:

         Whereas the Boston Consulting Group (BCG), the external consultants conducting the independent review of the Board of Directors, recommended that the size of the ICANN Board be reduced to increase effectiveness and efficiency;

         Whereas the Board Review Working Group (BRWC) has reached a final position relating to the BCG recommendation on the size of the Board and determined that the import of the issue required forwarding to the Structural Improvements Committee and Board prior to the issuance of a Final Report;

         Whereas the BRWG determined that a reduction of the size of the ICANN Board is not advisable at this time, as the intended effects of increasing effectiveness and efficiency are not likely to be met, and are based upon comparisons to corporate businesses which do not align with ICANN’s mission and objectives;

         Whereas the BRWG recommends measures intended to increase the effectiveness and efficiency of the Board, including requesting the ICANN Board Governance Committee to define processes for the delegation of work from the Board to ICANN management, and inviting the ICANN CEO to investigate the Board/Staff interaction on matters to be considered by the Board and ways to reduce the workload of each. After these measures are implemented, the BRWG recommends a reconsideration of the BCG recommendation in three years time, to allow for assessment of the effects of the measures on increasing the effectiveness and efficiency of the Board; and

         Whereas at its 17 August 2009 meeting the SIC reviewed the recommendation of the BRWG and unanimously approved of favorably receiving the BRWG recommendation and forwarding to the Board for discussion and implementation.

         IT IS RESOLVED (2009.08.27.13) that the recommendation of the BRWG to not decrease the size of the Board of Directors at this time is approved. The Board directs the Board Governance Committee to provide clarification on possible delegation of work from the ICANN Board to management. The Board also invites the CEO to investigate Board/Staff interaction and ways to reduce the workload of the Board on issues intended for Board consideration.

         IT IS FURTHER RESOLVED (2009.08.27.14) that the feasibility of decreasing the size of the Board of Directors should be rediscussed in three years time, to allow an assessment of the effects of the several measures intended to increase the effectiveness and efficiency of the Board.

         All Board members in attendance unanimously approved of this resolution.

      2. Voting Director Appointed from the At Large

         Marco Lorenzoni provided an update to the Board on the work of the Board review Working Group related to the recommendation of the ALAC review Working Group for the inclusion of voting directors appointed from the At Large. Marco reported that the compromise position reached by the Board review Working Group, after working through multiple scenarios, is to recommend the inclusion of one voting director appointed from the At Large, and eliminating the ALAC Liaison from the Board. Marco reported that there are additional implementation issues still to be worked through by the Working Group.

         Dennis Jennings noted that he understands what is being suggested, but counseled that it requires more careful consideration to be implemented in a way that is meaningful for the At Large community, as the current recommendation seems to indicate a sort of election that will not be properly defined or validated.

         The Chair stated over a period of years, through the Regional At Large Organization structure, there is now a clearly defined set of members who organize among regional lines, and therefore the Chair took issue with that portion of Dennis’ comment.

         Harald Tveit Alvestrand noted that much time and consideration has gone into this recommendation, but also noted that there was a refusal to start working on the exact mechanism of any election prior to having a resolution in principle from the Board approving on the appointment of a voting director from the At Large, as the community has had expectations raised in the past that were not satisfied. Harald declared that he is very much in favor of making a declaration of principle, and work towards the mechanics of implementation.

         Bruce Tonkin noted his support for Harald’s comment.

         Roberto Gaetano stated that this is recognition that the ALAC has come a long way, and that Dennis’ objections reflect the past structure of ALAC. Now there is a well-established mechanism for representation – a situation that was not the case in 2000. Now the ALAC structure has gone through this effort, it will be useful to recognize that fact. Roberto also noted that the proposal is a compromise between many different views, including views similar to the one presented by Dennis.

         Raymond Plzak raised the question of whether the ALAC will stop being an advisory committee if it may select a voting director? Will it be treated differently?

         The Chair responded that a change to something like a supporting organization may be the next logical stop in ALAC’s evolution, and that questions such as that are a reminder of Harald’s point, that the Board should start with the principle and then allow the remaining consequential issues to be dealt with.

         Wendy Seltzer noted that that having a statement in principle will go a long way to showing support for the At Large and encourage the At Large and ALAC to consider how the voting director would be elected, and how to make participation meaningful. Wendy noted her support for this resolution.

         Dennis noted that the discussion has been helpful, but expressed some concern over the wording of the resolution to reflect what has been discussed. Dennis suggested some modification of the wording of the resolution to reflect that the Board is making a statement in principle and that additional work is required for implementation, and with those modifications he could support the resolution.

         Steve Goldstein expressed that during his time on the Working Group, he continually requested that the voting director be from the ALAC, and noted that he received a lot of information from his colleagues on why such a limitation was not a wise decision. Steve noted that it’s best to allow the At Large to determine the mechanics of appointing a voting director.

         After the discussion, Steve Goldstein moved and Roberto Gaetano seconded the following resolution:

         Whereas on 21 May 2009 the Board of Directors previously considered a recommendation from the Structural Improvements Committee (SIC) requesting approval in principle of the idea that voting directors should be appointed from the At Large, as recommended in the ALAC Review Working Group, and the Board requested the SIC to provide additional scenarios and recommendations for how such an addition of voting directors may be achieved;

         Whereas the SIC determined that this matter could be appropriately addressed within the ongoing work of the Board Review Working Group (BRWG), as it was already addressing issues related to the size of the Board;

         Whereas on 12 August 2009 the BRWG issued a recommendation to add one voting director to the Board appointed by the At Large community, in substitution of the present ALAC liaison to the Board, and voted to present this recommendation to the SIC and the Board prior to the presentation of the forthcoming BRWG Final Report;

         Whereas the recommendation issued by the BRWG was a compromise solution among the BRWG members; and

         Whereas the SIC reviewed the BRWG recommendation at its 17 August 2009 meeting and approved the receiving of this recommendation and forwarding of the recommendation to the Board for discussion and implementation.

         Resolved (2009.08.27.15) that the recommendation of the BRWG to add one voting director appointed from the At Large Community to the ICANN Board of Directors, and removing the present ALAC Liaison to the Board, is approved in principle for implementation. Staff is directed to identify all steps required to achieve the implementation of this principle, after issuing of the BRWG Final Report.

         All Board members present unanimously approved of this resolution.

         The Chair congratulated the Board in reaching this decision. He stated that it is “an extraordinary policy change that’s taken a lot of work from a lot of people.”

   6. GNSO Council Restructuring Efforts Update

      Denise Michel provided an update on the status of other efforts underway on the GNSO Council Restructuring process, including the Operational Steering Committee and the Policy/Process Steering Committee, working on drafting a new policy development process and drafting of rules and processes for using the working group model. Denise noted that staff is communicating with the proposed constituencies as directed by the Board at its 30 July 2009 meeting, and is also working with the GNSO members to get ready for elections and the seating of the new council in Seoul.

   7. JPA Progress Report – CEO Briefing

      A confidential discussion was held on the progress of the JPA discussions.

   8. Other Business

      The Board received an update from the Chair on planning for the upcoming Board retreat.

   9. Executive Session – Board Only

      The Board conducted an executive session without staff present, in confidence.

      The meeting adjourned at approximately 05.30 UTC.

      Preliminary Report posted 2 September 2009; minutes originally posted 20 October 2009.