Minutes | Meeting of the Organizational Effectiveness Committee of the Board (OEC) | 15 February 2024

OEC Attendees:  Katrina Sataki – Chair, Alan Barrett, Chris Buckridge, Chris Chapman, Edmon Chung and James Galvin

Executive and Staff Attendees: Xavier Calvez (SVP, Planning and Chief Financial Officer), Franco Carrasco (Board Operations Manager), Jean-Baptiste Deroulez (Associate Project Manager, Review Support & Accountability), Samantha Eisner (Deputy General Counsel), Evin Erdogdu (Project Manager, Review Support & Accountability), Alice Jansen (Implementation Operations Director – Reviews), Jason Kean (Project Manager, Review Support & Accountability), Laena Rahim (Associate General Counsel, APAC), Carlos Reyes (Sr. Policy Director, Community Operations & Programs), Giovanni Seppia (VP, Implementation Operations) and Theresa Swinehart (SVP, Global Domains and Strategy).

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

The Meeting was called to order at 19:00 UTC.

1. Agenda – The Chair established the agenda for the meeting and gave an overview of items to be discussed.
2. Review of Open Action Items and the OEC Work Plan – The OEC reviewed the "Open Action Items" and the updated OEC work plan with ICANN organization. ICANN org provided a brief summary of the status of activities under the OEC's action items list.

3. Registry Stakeholder Group (RySG) Charter Amendments – James Galvin disclosed that he participates in the RySG discussions on a regular basis. The OEC Chair noted that there was no conflict of interest for him to participate in the discussion on this topic.

   ICANN org briefed the OEC on the status of the proposed RySG charter amendments. ICANN Bylaws (Article 11, Section 5.c) states that each Generic Names Supporting Organization (GNSO) Stakeholder Group and Constituency "shall maintain recognition with the Board". The Board interpreted this language to require approval of any charter amendments. As a best practice, each GNSO Stakeholder Group and Constituency reviews its charter on a regular basis. In September 2013, the Board approved the Process for Amending GNSO Stakeholder Group and Constituency Charters, which guides the Board's consideration of any charter amendments.

   The RySG completed Phase 1 of the process by submitting a draft charter to ICANN org for review on 10 June 2020. As part of the Phase 2 process, ICANN org conducted a review of the amended charter. ICANN org noted concerns about the structure of the amended charter, which reflected RySG's responsibilities as an incorporated entity in the state of Florida, rather than its responsibilities within ICANN and the GNSO. ICANN org held discussions with the RySG from 2021 through 2022. The RySG submitted a revised amended charter to ICANN org on 21 December 2023.

   The amended charter updated its organizational structure, and some of the specific amendments include:

   • Clarified mission and participation principles.
   • Clarified area of governance, including expanded methods of determining decision-making and policy positions.
   • Updated qualities and definitions of membership categories (i.e., eliminated weighted voting).
   • Composition of the officer positions on the executive committee.
   • Addition and definition of an annual meeting for membership.
   • Authorization to use proxies in votes.

   Under the proposed amendments, two areas have been moved to the Operating Procedures: (1) provisions for communications and publications policies; and (2) responsibilities of GNSO Council representatives. The OEC observed that the eligibility criteria has been shifted from the RySG charter to its operating procedures. The OEC discussed and agreed that, at this juncture, it would be reasonable to request the RySG to incorporate additional language in the amended charter to ensure that all registries are entitled to membership of some level within the RySG.

   The OEC will continue its discussion on this topic at its meeting in April 2024.

   • Action Item:
     • As requested by the OEC, ICANN org to confer with the RySG on the proposed additional language in the amended charter.

4. Path toward a Plan - "Unaffiliated" Director Definition Item from the Second Organizational Review of the Nominating Committee (NomCom2) – In January 2024, the OEC requested ICANN org to gather historical data of NomCom appointments of directors that would likely meet the definition of "Unaffiliated" as well as drafting a plan for Board action, for the OEC's further discussion. The objective of today's discussion is to support the OEC in forming a plan to take to the Board in March 2024 to reflect governance concerns arising from this topic.

   For the period starting approximately AGM 2010, ICANN org reviewed All NomCom appointees to the Board to assess if they would likely have met the "Unaffiliated" Director Statement as currently drafted.

   Results:

   • From the 2010/11 term to 2016/2017, no fewer than three of the NomCom appointees each term likely fulfilled the definition of "Unaffiliated" Director as presented within the community at the time of their initial appointment.
   • From the 2017/18 term until 2023, the number of NomCom appointees likely fulfilling the definition was steady at 2 directors each term, with the exception of 2018/19, where only one NomCom appointee likely met the definition.
   • The Board's current term (2023/24) has three likely unaffiliated Directors from among the NomCom appointees. All three of these Directors have terms through at least the 2024/25 Board term.

   ICANN org noted that even when a NomCom appointee is not "unaffiliated", it does not mean that the Director has an actual or perceived conflict of interest (COIs are based on individual issues and circumstances).

   Assumptions:

   • "Unaffiliated" directors will be less likely to face conflicts of interest on matters that regularly come before the ICANN Board.
   • Directors familiar with ICANN and its processes bring the benefit of those experiences and relationships with the community to Board discussions.
   • Directors from outside of the community (i.e., unaffiliated) bring differing perspectives, experiences and expertise to ICANN – some become highly involved in the community during/after service; others leave the ecosystem.

   ICANN org shared additional governance concerns:

   • Renewed focus on COI as ICANN approaches major initiatives.
   • Impact of "Unaffiliated" Director conversation should be linked to CoI.

   ICANN org posed several potential questions which the Board should consider to move forward with this conversation. As a next step, ICANN org recommended that the Board acknowledge that this issue goes beyond the structural review of NomCom into a broader governance concern; and to acknowledge that there is some time to address the concern as the anticipated Board composition maintains three "unaffiliated" Directors seated through October 2025 (additional time can be taken if needed).

   ICANN org recommended the Board Governance Committee's (BGC) involvement in the discussions due to the interplay of governance/potential CoI concerns; and to initiate the conversation by re-evaluating the intent of the principles that it is trying to achieve.

   Some comments and observations from the OEC:

   • To consider whether the original notion of bringing in directors from outside of the community has worked – whether they become highly involved in the community during/after service or do they leave the ecosystem.
   • If the community becomes more successful in outreach and getting new participation, the pool of possible individuals that are unaffiliated reduces; and this may be a reflection of the success of ICANN reaching out and having people participate rather than the other way round.

   The OEC will continue its discussion on this topic at its future meetings.

   • Action Item:
     • ICANN org to draft a proposal, including elements of potential paths it could take, and acknowledgement that there may be a role for the BGC and the community (through ATRT4), for OEC review prior to circulation to the ICANN Board.

5. Next Steps: Proposed Recommendation to the Board on the Pilot Holistic Review (PHR) Revised Terms of Reference (ToR) – The OEC continued its discussion on this topic. The objective of this agenda item is to obtain OEC agreement on the proposed alterations to the ToR and next steps for altering the ToR.

   At its previous meeting in January 2024, the OEC agreed to share with the Board all the options which have been considered, elaborate the pros and cons and rationale of dismissing certain options to proceed with the PHR, and the rationale for the chosen option, and the alternative option. The OEC's preferred option is to initiate the PHR, and make alterations to the ToR that ask the PHR Team to review the divergent public comments and propose a way forward.

   In terms of the next steps toward Board action to convene the PHR Team, ICANN org set out the following steps:

   • The OEC to make alterations to the Revised PHR Draft ToR.
   • The OEC to approve the draft Board Paper and supporting materials at its upcoming meeting on 2 April 2024.
   • The Board to take a resolution on the initiation of the PHR at the Special Board Meeting in April 2024.

   ICANN org presented the proposed alterations to the revised PHR Draft ToR:

   • To ask the PHR team to address the divergent public comments and propose a pathway forward:
   • To provide the Board's expectation that each member of the review team should engage early and regularly with their respective groups to keep them updated and to build support for the review team's recommendations.
   • To outline the Board's expected process towards Bylaws amendments following the PHR.
   • To provide the Board's expected duration of the PHR, given dependency of timing for ATRT4 – 14 months.

   Pursuant to an in-depth discussion on this topic, the OEC reached an agreement on the proposed alterations to the ToR and next steps for altering the ToR.

   The OEC will continue its discussion on this topic at its future meetings.

   • Action Items:
     • ICANN org to draft a Board Paper and supporting materials to be presented at the OEC meeting on 2 April 2024.
     • Thereafter, the Board to take a resolution on the initiation of the PHR at the Special Board Meeting April 2024.

6. Update on Community Engagement on Steps Towards Board Action - Proposed Recommendation on Timing of ATRT4 – ICANN org provided an update on this topic. The objective of this agenda item is for the OEC to confirm with the Board that it is supportive of exploring a limited deferral of ATRT4. ATRT4 is scheduled to be convened by April 2024.

   Proposed steps towards Board action:

   • ICANN org will send a letter to the SO/AC Chairs to notify them of the circumstances surrounding ATRT4 (input will be requested by 22 March 2024). ICANN org noted that a Public Comment proceeding was not chosen as a medium for consultation as this issue requires a direct conversation between the SO/AC Chairs and their respective groups to determine if they have the bandwidth to populate a review team and participate in an additional review.
   • ICANN org to compile community input from correspondence and incorporate into the draft Board Paper for Board action.
   • OEC to approve draft Board Paper and supporting materials at its 2 April 2024 Meeting.
   • The Board to take a resolution on the timing/deferral of ATRT4 at the Special Board Meeting in April 2024.

   Responding to a query from the OEC, ICANN org commented that during ICANN79 in March 2024, there will be a session on ICANN Reviews on 5 March 2024, and ICANN org will be available for ad hoc discussions with the SO/AC Chairs and their respective groups.

   The OEC will continue its discussion on this topic at its future meetings.

   • Action Item:
     • ICANN org to send a letter to the SO/AC Chairs to notify them of the circumstances surrounding ATRT4 and to request input from their constituencies.

7. NomCom Rebalancing and initial ICANN org Benchmarking Study – ICANN org provided an overview of the benchmarking study to provide the OEC with information on how similar organizations conduct their process of selecting individuals onto their Board and other leadership roles. This agenda item aims to enable the OEC to discuss the benchmarking study results and determine what additional information the OEC would find useful as it considers NomCom rebalancing and working with the Board on the broader topic of ICANN governance.

   ICANN org provided a historical context of the topic of rebalancing the NomCom. Both the first and second organizational reviews of the NomCom issued recommendations on rebalancing the NomCom but different proposals to rebalance were not supported by the community and were not implemented.

   In March 2023, the ICANN Board acknowledged the withdrawal of NomCom2 Review recommendation 10 pertaining to NomCom rebalancing, directing ICANN org to "facilitate and support Board's engagement with the Supporting Organizations (SOs) and Advisory Committees (ACs) to understand community views on how the NomCom should be rebalanced", and provide the Board with an update by September 2023.

   In September 2023, the Board discussed the wide-ranging feedback received from the community, and requested further study to be done into options for next steps. ICANN org conducted a benchmarking study of 11 similar organizations to ICANN (e.g., IETF, ISOC, ITU, IGF, etc.) , to inform the Board's determination of next steps.

   ICANN org summarized some highlights from the research:

   • Of the 11 groups researched, eight use some sort of nominating/selection group, while three do not.
   • ICANN NomCom is a community-based committee that is not composed of current Board members/ In contrast, five out of the eight nominating committee structures researched include current Board members.
   • For the majority of the organizations researched, their selection phases are processed by a separate body that is distinct from its nominating committee. In contrast, the ICANN NomCom sources, assesses and decides who to appoint.
   • Each organization's nominating processes and rules are not completely available or transparent.  This differs in comparison to ICANN NomCom, which publishes its Operating Procedures.

   The benchmarking research demonstrates that ICANN is unique in how it sources, assesses and selects individuals for the Board and other community leadership roles. The OEC suggested other potential areas for ICANN org to examine e.g., ICANN org to obtain insights from other international organizations on their approach towards rebalancing within their community, and to explore if there are any useful examples that can be replicated by ICANN NomCom.

   The OEC will continue its discussion on this topic at its future meetings.

   • Action Item:
     • ICANN org to conduct further research on this topic and provide an update to the OEC in due course, to facilitate the OEC's work toward an update to the Board (possibly in May 2024), to close the loop on the March 2023 resolution.
8. Review of New Action Items – The OEC Chair recapped the new action items arising from the OEC's present meeting.

The Chair called the meeting to a close.