Minutes | Special Meeting of the ICANN Board 10 April 2012

A Special Meeting of the ICANN Board of Directors was held on 10 April 2012 at 5:00 am local time in Los Angeles, California.

Chairman Steve Crocker promptly called the meeting to order.

In addition to the Chair the following Directors participated in all or part of the meeting: Rod Beckstrom (President and CEO), Cherine Chalaby, Bertrand de La Chapelle, Chris Disspain, Bill Graham, Erika Mann, Gonzalo Navarro, Ray Plzak, R. Ramaraj, George Sadowsky, Mike Silber, Bruce Tonkin (Vice Chair), and Kuo-Wei Wu.

The following Board Liaisons participated in all or part of the meeting: Heather Dryden, GAC Liaison; Ram Mohan, SSAC Liaison.

Sébastien Bachollet, and Thomas Narten (IETF Liaison), Thomas Roessler (TLG Liaison) Judith Vazquez, and Suzanne Woolf (RSSAC Liaison) sent apologies.

This is a preliminary report of the approved resolutions resulting from the Special Meeting of the ICANN Board of Directors, which took place on 10 April 2012

  1. Establishment of New gTLD Program Committee
  2. Ratification of Subcommittee Determinations


The Chair reviewed the potential items for the agenda.

  1. Establishment of New gTLD Program Committee

    The Chair reminded the Board that there is a proposal to create a committee of the Board consisting only of Board members that do not have a conflict of interest in relation to the New gTLD Program. The proposal is for this committee to be empowered to act on matters related to the New gTLD Program with the full power of the Board, including passing resolutions. By forming a committee, that committee would also have the power to – as allowed for under the Bylaws – to take action without a meeting if necessary.

    Bruce Tonkin noted that he and the General Counsel and Secretary had discussed some proposed changes to the resolution, now before the Board. Bruce then recited the resolution for the Board. Bruce also proposed a change to the charter for the committee, to allow for flexibility in membership as approved by the Board. This was an alternative to the requirement that all members of the Board that are not conflicted in regards to the New gTLD Program must be members of the committee. Bruce cited a request from the GAC Liaison that she did not feel it as necessary to be a formal member of this committee, while maintaining the ability to be invited as an observer as necessary.

    Bruce moved the motion, and Ray Plzak seconded.  The floor was then opened for discussion.

    Bertrand de La Chapelle inquired about why membership on the committee would be optional for a Board member that is not conflicted on this topic, as this is a responsibility that would naturally fall on Board members.

    Bruce responded that committees of the Board are normally smaller than the full Board and more efficient. For example, while the full Board was interested in the CEO search, only a subset served on the committee and reported back to the Board. Bruce noted that some Board members may wish to not be on the committee because it's not an area of expertise, or they don't have the time commitment available. This would avoid a precedent that when a committee is created on a particular topic, everyone on the Board without a conflict has to be on that committee.

    Bertrand noted that while he understands Bruce's rationale, it does not seem to apply here. The purpose of this committee is for all Board members that are not deemed as conflicted to have the responsibility to participate.

    George Sadowsky agreed with Bertrand, and noted the special powers being granted to the committee. With those special powers also comes the responsibility to participate on the committee.

    Ray agreed with George and Bertrand. Ray then asked about the size of the committee, noting that it needs to be at least a majority plus one of the voting members of the Board, which must be reflected in the committee definition.

    Cherine Chalaby confirmed his agreement with Bertrand, George and Ray. Cherine shared his belief that the community would like to know that this is not just a subset of available members. The vital nature of this program merits that all directors that are not conflicted should be members.

    Bruce withdrew the amendment, noting that he suggested it out of a belief that the Board would find it helpful.

    The Chair then turned to the issue of the GAC liaison, who indicated a preference to not be on the committee. The Chair noted that the withdrawal of the amendment as it relates to voting directors should suffice to address the problem.

    The Board then took the following action:

    Resolved (2012.04.10.01), the Board hereby establishes the Board New gTLD Program Committee as follows: (i) the voting members of the Committee will consist of: Rod Beckstrom, Cherine Chalaby, Chris Disspain, Bill Graham, Erika Mann, Gonzalo Navarro, Ray Plzak, R. Ramaraj, George Sadowsky, Mike Silber, and Kuo-Wei Wu; (ii) the liaisons to the Committee will be Thomas Roessler; and (iii) the Chair of the Committee will be Cherine Chalaby.

    Resolved (2012.04.10.02), the Board hereby delegates to the Board New gTLD Program Committee all legal and decision making authority of the Board relating to the New gTLD Program (for the round of the Program, which commenced in January 2012 and for the related Applicant Guidebook that applies to this current round) as set forth in its Charter, which excludes those things that the Board is prohibited from delegating by law, or pursuant to Article XII, Section 2 of the ICANN Bylaws.

    Resolved (2012.04.10.03), all members of the New gTLD Program Committee reinforce their commitment to the 8 December 2011 Resolution of the Board (Resolution 2011.12.08.19) regarding Board member conflicts, and specifying in part: "Any and all Board members who approve any new gTLD application shall not take a contracted or employment position with any company sponsoring or in any way involved with that new gTLD for 12 months after the Board made the decision on the application."

    Resolved (2012.04.10.04), the Board directs the CEO to prepare a document setting forth a process for the creation of Board Committees to address future situations where there may be multiple Board members with perceived, potential or actual conflicts of interest on an issue.

    Thirteen Directors voted in favor of the resolutions. Sébastien Bachollet, Gonzalo Navarro and Judith Vazquez were unavailable to vote on the resolutions. The resolutions carried.

    Rationale for Resolutions 2012.04.10.01-2012.04.10.04

    In order to have efficient meetings and take appropriate actions with respect to the New gTLD Program for the current round of the Program and as related to the Applicant Guidebook, the Board decided to create the "New gTLD Program Committee" in accordance with Article XII of the Bylaws and has delegated decision making authority to the Committee as it relates to the New gTLD Program for the current round of the Program which commenced in January 2012 and for the related Applicant Guidebook that applies to this current round.

    Establishing this new Committee without conflicted members, and delegating to it decision making authority, will provide some distinct advantages. First, it will eliminate any uncertainty for conflict Board members with respect to attendance at Board meetings and workshops since the New gTLD Program topics can be dealt with at the Committee level. Second, it will allow for actions to be taken without a meeting by the committee. As the Board is aware, actions without a meeting cannot be taken unless done via electronic submission by unanimous consent; such unanimous consent cannot be achieved if just one Board member is conflicted. Third, it will provide the community with a transparent view into the Board's commitment to dealing with actual, potential or perceived conflicts.

    This resolution should have a positive impact on the community and ICANN as a whole as the New gTLD Program Committee will be able to take actions relating to the New gTLD Program for the current round of the Program and as related to the Applicant Guidebook without any question of conflict arising. No fiscal impact is anticipated as a result of this action and there will be no impact on the security, stability no resiliency of the domain name system.

    Bertrand inquired about the process for integrating new members onto the committee once they have mitigated a previously determined conflict of interest as identified by the Subcommittee of the Board Governance Committee.

    The Chair confirmed that formal resolution by the Board would be required to change the composition of the Committee, to identify the new member by name. This would be the case in either mitigation of a prior conflict or the change of Board membership. If there were any reports from the BGC regarding the mitigation of a previously identified conflict, the Chair expects the Board to act expeditiously in changing the committee.

    Bertrand then asked about the availability of resolutions under consideration by the New gTLD Program Committee to the members of the Board that are not on that committee.

    Bruce noted that for meetings of the Board, there is a pre-posted agenda, but the content of the resolutions is not available in advance.

    The Chair confirmed his belief that that should likely be the practice for the conflicted members of the Board, so that they are not in a different status than members of the public.

    Ray noted that Bertrand raises a valid point that there are likely topics under consideration that will be relevance to the conflicted members, such that it may be appropriate for them to provide objective statements or comments that the committee could consider in discussion. The actual resolutions should be discussed only among the committee members. The committee could consider this as a means of transparency to the Board on what the committee is doing and offering a chance for objective comment.

    The Chair proposed that though the principle that the Board is working towards is to have the conflicted members step out of the room and not influence discussion, there maybe situations where a conflicted member has a degree of expertise. In those situations, the chair of the committee has the authority to invite comments from outside experts, including other Board members, and the chair could use his judgment in that regard as a means to keeping the Board informed as necessary. There would not, however, be a publication requirement for the Board as a whole. If that does not work, the Board can revisit.

    Bertrand thanked the Chair for his distinction of the types of contributions that a conflicted member may offer. The Board should avoid those situations where a member could make a contribution that would provide him or her with knowledge or a competitive advantage when weighed against other actors. That should be avoided, and information should only be released to those members when it released to the public. However, there could be situations where there is not potential for competitive advantage and leveraging the competence of other Board members may be useful. The committee could consider whether it is appropriate to provide draft resolution text to other Board members in this instance.

    The General Counsel and Secretary advised that he does not recommend that the Board revise the documentation on the fly at this meeting. However, the charter could include a requirement that it act in a manner that would be the most transparent, taking into account the concerns raised by Bertrand.

    The Chair confirmed that he is not proposing a change to the charter, just as advice to the committee. The Board could revisit this issue later if necessary. The Chair asked Cherine, the chair of the committee, his comfort level with this issue.

    Cherine replied that he is very comfortable with the idea that the committee would provide the Board members with the topics under discussion. However, the resolutions or detailed discussion that could indicate the way the committee is considering to act is not for publication.

    The Chair and Bertrand agreed with this formulation.

    Bertrand then raised the subject of quorum for the committee. Because the committee will be subject to its own quorum rules, there is a possibility that contentious or difficult decisions could be adopted by a very small number of Board members. Bertrand cautioned that the Board has to be careful in using this tool so as to remain cognizant of this issue for the future.

    The Chair confirmed Bertrand's calculations – a majority of 9 Board members is sufficient to pass a resolution when taken by the full Board when all 16 voting members are present. If all 11 voting members of the committee are present, then 6 would be a majority vote. The Chair asked Cherine to consider that stronger majorities are more favorable than narrow majorities.

  2. Ratification of Subcommittee Determinations

    The Chair then inquired about whether the Board was ready to consider the ratification of the determinations made by the Subcommittee on Conflicts and Ethics of the Board Governance Committee.

    Bruce Tonkin noted that because some of the directors are absent that have been determined to have a conflict of interest in relation to the New gTLD Program, it may be preferable to wait until a meeting where they are present, to allow an option of presenting a statement.

    The Chair then called the meeting to a close.