[governance] The due diligence process for ICANN NomCom appointees

[Karl Auerbach]

On 12/16/2010 07:52 AM, George Sadowsky wrote:

> Being on the Board of a Corporation comes with a serious fiduciary
> responsibility for its proper fiscal management.

ICANN is a California "public benefit" corporation; the fiduciary duties
of directors of that kind of corporation are somewhat different than
that of directors on a for profit corporation (and even on for-profit
boards the scope of that duty is rather more broad than "fiscal management.)

Now, one of the main areas in which "public benefit" corporations differ
from for-profit ones, at least here in California, is that when a
director is measuring what is good for the corporation that director
must take into account what is good for the public - in other words,
director must use a much wider horizon when doing his/her duties of
making independent and informed judgment.

The California law allows for public benefit corporations to have
directors elected by the public without a corporate power to veto the
choices.  That suggests a rather lesser corporate power to flake and
form the content and shape of its board of directors.

As a matter of public policy it is in the interest of the public that
the boards of public benefit corporations reflect a wide diversity of
views and not be simply a closed incumbents-chose-successor system.

This means that litmus tests, even lists of "qualifications" are suspect
because they limit the ability of the public, for whose benefit the
corporation is allowed existence, to participate in the management of
that corporation.

ICANN is oft perceived as a white tower in which pure philosopher kings
(and queens) will rule the internet with wisdom and impartiality.  From
that aspiration comes much of ICANN's amazing process of filling its
board seats, and much of the lore (and as a legal professional I am not
willing to use any word stronger than "lore") that lurks within ICANN's
directors meetings about the powers and limitations of directors.

Yet as we see daily ICANN is a political cauldron - a place in which
differences of views exist and in which strong clashes, even impolite
clashes, exist.  This churning is a healthy reflection of the diversity
of the opinions held by the public, for whose benefit ICANN obtains a
grant of existence from the State of California.

ICANN's systems seem designed to quiesce, even to eliminate, the "sturm
und drang" that comes from honest and informed debate over complex
matters of significant social and economic weight.

What all of this suggests, to me, is that ICANN is going the wrong way
when it insists on purity of heart, mind, and deed as qualifications of
those who are going to be on its board of directors.  Perhaps one might
draw a line at convicted felons, but the normal run-of-the mill person,
with his/her lumps and scars, is often much better suited to the
director's job of measuring the effect of an ICANN decision on the
public interest than would be a pristine and virginal monk who has never
experienced life.

	--karl--

____________________________________________________________
You received this message as a subscriber on the list:
     governance at lists.cpsr.org
To be removed from the list, send any message to:
     governance-unsubscribe at lists.cpsr.org

For all list information and functions, see:
     http://lists.cpsr.org/lists/info/governance

Translate this email: http://translate.google.com/translate_t