Minutes | Special Meeting of the ICANN Board | 14 December 2022
A Special Meeting of the ICANN Board of Directors was held telephonically on 14 December 2022, at 22:00 UTC.
Tripti Sinha, Chair, promptly called the meeting to order.
In addition to the Chair, the following Directors participated in all or part of the meeting: Alan Barrett, Maarten Botterman, Becky Burr, Chris Chapman, Edmon Chung, Sarah Deutsch, Avri Doria, Danko Jevtović (Vice Chair), Christian Kaufmann, Patricio Poblete, Katrina Sataki, and Matthew Shears.
The following Board Directors sent their apologies: Göran Marby (President and CEO), Sajid Rahman, León Sánchez.
The following Board Liaisons participated in all or part of the meeting: Harald Alvestrand (IETF Liaison), Manal Ismail (GAC Liaison), James Galvin (SSAC Liaison), and Wes Hardaker (RSSAC Liaison).
Secretary: John Jeffrey (General Counsel and Secretary).
The following ICANN Executives and Staff participated in all or part of the meeting: Xavier Calvez (SVP, Planning & Chief Financial Officer), Mandy Carver (SVP, Governmental and Intergovernmental Organization), Sally Newell Cohen (SVP, Global Communications and Language Services), Samantha Eisner (Deputy General Counsel), John Jeffrey (General Counsel and Secretary), Aaron Jimenez (Board Operations Specialist), Elizabeth Le (Associate General Counsel), Krista Papac (Complaints Officer), Ashwin Rangan (SVP, Engineering and Chief Information Officer), Amy Stathos (Deputy General Counsel), Theresa Swinehart (SVP, Global Domains & Strategy), and Gina Villavicencio (SVP, Global Human Resources).
1. Consent Agenda
The Chair opened the meeting and introduced the Consent Agenda. Becky Burr moved and Maarten Botterman seconded. The Chair called for a vote and the Board took the following action:
a. Security and Stability Advisory Committee (SSAC) Member Appointments
Whereas, the Board, at Resolution 2010.08.05.07 approved Bylaws revisions that created three-year terms for SSAC members, required staggering of terms, and obligated the SSAC Chair to recommend the reappointment of all current SSAC members to full or partial terms to implement the Bylaws revisions.
Whereas, in January 2022 the SSAC Membership Committee initiated an annual review of eight SSAC members whose terms are ending 31 December 2022 and submitted to the SSAC its recommendations for reappointments on 18 October 2022.
Whereas, on 24 October 2022, the SSAC members approved the reappointments.
Whereas, the SSAC recommends that the Board reappoint the following SSAC members to three-year terms: Joe Abley, Jeff Bedser, Merike Kaeo, Warren Kumari, Jacques Latour, John Levine, Danny McPherson, Tara Whalen.
Resolved (2022.12.14.01), the Board accepts the recommendation of the SSAC and reappoints the following SSAC members to three-year terms beginning 01 January 2023 and ending 31 December 2025: Joe Abley, Jeff Bedser, Merike Kaeo, Warren Kumari, Jacques Latour, John Levine, Danny McPherson, Tara Whalen.
Rationale for Resolution 2022.12.14.01
The SSAC is a diverse group of individuals whose expertise in specific subject matters enables the SSAC to fulfill its role and execute its mission. Since its inception, the SSAC has invited to its membership individuals with deep knowledge and experience in technical and security areas that are critical to the security and stability of the Internet's naming and address allocation systems.
The SSAC's continued operation as a competent body is dependent on the accumulation of talented subject matter experts who have consented to volunteer their time and energies to the execution of the SSAC mission.
This resolution is an organizational administrative function for which no public comment is required. The appointment of SSAC members is in the public interest and in furtherance of ICANN's mission as it contributes to the commitment of the ICANN to strengthen the security, stability, and resiliency of the DNS.
b. Consideration of the Board Accountability Mechanisms Committee's Recommendation on Reconsideration Request 22-5
Whereas, on 8 August 2022, Zydus Lifesciences Ltd. (Requestor) filed a reconsideration request (Request 22-5) challenging the Board Accountability Mechanisms Committee's (BAMC) summary dismissal of Reconsideration Request 22-3 (Request 22-3), which was also filed by the Requestor.
Whereas, the BAMC summarily dismissed Request 22-3, because the BAMC determined that Request 22-3 did not fall within the scope of the reconsideration process as it did not seek reconsideration of an action taken by the ICANN Board or Staff.
Whereas, in Request 22-5, the Requestor alleges that the BAMC's summary dismissal of Request 22-3 violates ICANN's Bylaws and policies because, the Requestor alleges, Request 22-3 satisfied the requirements under Article 4, Section 4.2 of the ICANN Bylaws to maintain a reconsideration request.
Whereas, on 13 September 2022, the BAMC determined that the request was sufficiently stated and sent Request 22-5 to the Ombudsman for consideration.
Whereas, after evaluation, the Ombudsman concluded that the BAMC's summary dismissal of Request 22-3 was correct, that the BAMC did not violate any Bylaws or established policies in summarily dismissing Request 22-3, and that Request 22-5 lacks merit (Ombudsman Evaluation).
Whereas, the BAMC carefully considered the merits of Request 22-5 and all relevant materials, including the Ombudsman Evaluation, and concluded that the Board did not violate ICANN's Commitments, Core Values or established ICANN policy(ies) by summarily dismissing Request 22-3. Accordingly, the BAMC has recommended that Request 22-5 be denied and that no further action be taken in response to the Request.
Whereas, the Board has carefully considered the BAMC's Recommendation on Request 22-5 and all relevant materials related to Request 22-5, and the Board agrees with the BAMC's Recommendation.
Whereas, pursuant to Article 4, Section 4.2(q) of the ICANN Bylaws, the Requestor had 15 days from the receipt of the BAMC's Recommendation on Request 22-5 to submit a rebuttal. No rebuttal was filed by the 6 December 2022 deadline, and none has been received to date.
Resolved (2022.12.14.02), the Board adopts the BAMC Recommendation on Reconsideration Request 22-5.
Rationale for Resolution 2022.12.14.02
The Board is taking this action today pursuant to Article 4, Section 4.2 of the ICANN Bylaws. Under Section 4.2 of the Bylaws, the Board designated the Board Accountability Mechanisms Committee (BAMC) to review and consider Reconsideration Requests before making recommendations to the Board on the merits of those Requests. See Bylaws, Art. 4, § 4.2(e).
The Board has carefully considered the BAMC's recommendation, the merits of Request 22-5 and all relevant materials. For the reasons set forth below and more fully in the BAMC Recommendation on Reconsideration Request 22-5, which are incorporated here by reference, the Board finds that BAMC's summary dismissal of Request 22-3 was proper, and there is no basis for reconsidering that decision as requested by Request 22-5. The Board concludes that the BAMC's summary dismissal of Request 22-3 did not contradict ICANN's Commitments, Core Values or established ICANN policy(ies). The Board further concludes that the alleged Board inaction insofar as the BAMC did not consider Request 22-3 on the merits or did not provide the relief sought in the request did not contradict ICANN's Commitments, Core Values or established ICANN policy(ies).
Specifically, the Board agrees with the BAMC's recommendation that the procedural evaluation of Request 22-3 was consistent with the procedural evaluation process for reconsideration requests as set forth under Article 4, Section 4.2(k) of the Bylaws. (See Bylaws, Art. 4, § 4.2(k).) Section 4.2(k) provides that the BAMC shall review each reconsideration request upon its receipt to determine if it is sufficiently stated to meet the criteria for maintaining a reconsideration request. A threshold requirement maintaining a reconsideration request is that the challenged action (or inaction) was taken (or failed to be taken) by the ICANN Board or Staff. The BAMC concluded that Request 22-3 was not sufficiently stated because the request did not seek reconsideration of an action (or inaction) by ICANN Board or Staff. The sole action the Requestor sought to have reconsidered in Request 22-3 was a panel decision in a Uniform Domain Dispute Resolution Policy (UDRP) proceeding (UDRP Decision) to which the Requestor was a party. As discussed in further detail in the BAMC Recommendation on Reconsideration Request 22-5, with which the Board agrees, the BAMC correctly determined that neither the ICANN Board nor ICANN Staff was involved in the UDRP Decision the Requestor sought to challenge in Request 22-3. The Board further agrees with the BAMC's conclusion that, contrary to the Requestor's allegations, UDRP Providers are neither "employees" nor "long-term paid contractors" of ICANN org. ICANN provides no wages to the staff or panelists of UDRP providers, and lacks the right to control the manner or means by which these individuals perform their tasks. They are therefore not ICANN employees. Further, because ICANN does not pay UDRP provider staff or panelists and lacks any contract with them, they cannot be considered " long-term paid contractors." The Board also agrees with the BAMC's findings that the UDRP Provider, which in this case is the World Intellectual Property Organization, and ICANN are separately organized and independent organizations. ICANN does not pay WIPO staff or panelists and lacks any control over how they perform their work. ICANN therefore is not their employer. Accordingly, the Board finds that the UDRP Decision challenged in Request 22-3 was not an action by the ICANN Staff or ICANN Board, that the BAMC correctly concluded Request 22-3 was not a proper reconsideration request, and that the summary dismissal was proper. Accordingly, the Board agrees with the BAMC that there is no basis for reconsidering the BAMC's summary dismissal of Request 22-3 as requested by Request 22-5.
Pursuant to Article 4, Section 4.2(q), the Requestor has 15 days from the receipt of the BAMC's Recommendation of Reconsideration Request 22-5 to submit a rebuttal. No rebuttal was filed by the 6 December 2022 deadline, and none has been received to date.
This action is within ICANN's Mission and is in the public interest as it is important to ensure that, in carrying out its Mission, ICANN is accountable to the community for operating within the Articles of Incorporation, Bylaws, and other established procedures, by having a process in place by which a person or entity materially affected by an action of the ICANN Board or Staff may request reconsideration of that action or inaction by the Board. Adopting the BAMC's Recommendation has no financial impact on ICANN and will not negatively impact the security, stability and resiliency of the domain name system.
Adopting the BAMC's Recommendation has no financial impact on ICANN and will not negatively impact the security, stability and resiliency of the domain name system.
This decision is an Organizational Administrative Function that does not require public comment.
All members of the Board present voted in favor of Resolutions 2022.12.14.01 and 2022.12.14.02. Göran Marby, Sajid Rahman, and León Sánchez were unavailable to vote. The Resolutions carried.
2. Executive Session
The Board entered into a confidential session. The Board undertook the following actions during its session:
a. President and CEO At-Risk Compensation for First Half of FY23
Whereas, each Board member has confirmed that he/she does not have a conflict of interest with respect to establishing the amount of payment to the President and CEO for the first half of FY23 at-risk compensation component.
Whereas, the Compensation Committee recommended that the Board approve payment to the President and CEO for the first half of his FY23 at-risk compensation.
Resolved (2022.12.14.02), the Board hereby approves a payment to the President and CEO for his annual at-risk compensation component for the first half of FY23.
Resolved (2022.12.14.03), specific items within this resolution shall remain confidential as an action "relating to personnel or employment matters", pursuant to Article 3, section 3.5.b of the ICANN Bylaws.
Rationale for Resolutions 2022.12.14.02 – 2022.12.14.03
When the President and CEO was hired, he was offered a base salary, plus an at-risk component of his compensation package. This same structure exists today. Consistent with all personnel with the ICANN organization, the President and CEO is to be evaluated against specific goals, which the President and CEO sets in coordination with the Compensation Committee, which are approved by the Board.
The President and CEO provided to the Compensation Committee his self-assessment of his mid-way achievements towards his FY23 goals. After reviewing, the Compensation Committee discussed and agreed that the President and CEO should be awarded his at-risk compensation for the first half of FY23 and recommended that the Board approve payment to the President and CEO for his at-risk compensation for the first half of FY23. The Board agrees with the Compensation Committee's recommendation.
Taking this decision is in furtherance of ICANN's Mission and is in the public interest in that it helps ensure that President and CEO is sufficiently compensated in line with his performance in furtherance of the Mission, and which reflects that his goals are consistent with ICANN's Strategic and Operating plans.
While the decision to pay the President and CEO his at-risk compensation for the first half of FY23 will have a fiscal impact on ICANN, it is an impact that was contemplated in the FY23 budget. This decision will not have an impact on the security, stability or resiliency of the domain name system.
This is an Organizational Administrative Function that does not require public comment.
The Chair called the meeting to a close.