First NomCom Organizational Review

The First NomCom Organizational Review was initiated in 2007 and concluded in 2010, with the implementation of improvements continuing through 2012.

Background

Article 4.4 of the ICANN Bylaws requires periodic review of all supporting organizations and advisory committees, as well as the Nominating Committee. The bylaws state three objectives for the review:

1. to determine whether that organization, council or committee has a continuing purpose in the ICANN structure;
2. if so, whether any change in structure or operations is desirable to improve its effectiveness; and
3. whether that organization, council or committee is accountable to its constituencies, stakeholder groups, organizations and other stakeholders.

Organizational reviews are conducted by independent examiners, selected through a competitive bidding process. The independent examiner works in consultation with a working group assembled by the board, who will act as implementation shepherds once the final report of the independent examiner is submitted. The review parameters are set by the ICANN Board, and those parameters as well as other avenues of inquiry are typically included in the request for proposals (RFP) for independent examiners. Reviews can take anywhere from three to five years to complete. The full review process includes seven phases, including the implementation of recommendations from the review. Reviews must be conducted at least every five years, measuring from the date that the final report of the previous review was accepted by the ICANN Board. The Nominating Committee is one of the organizations subject to the review requirements of Article 4.4.

Multiple other review and reform processes, including the 2002 Evolution and Reform Process, have impacted the Nominating Committee's structure and composition over the history of ICANN. This review marked the first effort to focus specifically on the operation of the NomCom on its own account.

Initiation

ICANN posted a proposed Terms of Reference (ToR) for NomCom1 on December 12, 2006 for public comment. The proposed ToR included forty-seven questions within seven broad categories - key questions, committee composition, transparency, selection criteria, outreach, effectiveness, and miscellaneous other questions.

Three public comments were received on the proposed ToR, two of which were past the deadline for comment. Thomas Roessler proposed several refinements to questions, from editorial corrections to changes that ensured that a question was not making assumptions that the review process might overturn. Lesley Cowley, on behalf of Nominet (and one day past the submission deadline), expressed concerns that the level of detail and nature of the questions might constrain the reviewers, limit the scope or direction of review, or pre-dispose the reviewers to adapt the structure of their process to ensure that the totality of the questions are addressed. In another late submission, Chris Disspain on behalf of AuDA echoed Nominet's concerns regarding the structural and investigative determinism implied in some of the questions. He also commented that the purpose of the NomCom should not be presumed to be known:

I acknowledge that the draft terms of reference set out to achieve the scope of the review as defined by the bylaws. However, it is critical, in my view, that the review also consider what purpose in the ICANN structure the NomCom is supposed to fulfil [sic]. The current purpose of the NomCom is far from clear and I am not aware of a definitive explanation of it. The draft Terms of Reference evidence this by stating that the purpose 'has been described as follows'.

The ToR was re-drafted in response to the public comments, and the final version was posted on March 15, 2007, alongside ICANN's announcement of a Request for Proposals (RFP). The finalized ToR contained forty questions, organized beneath the core questions of Article 4.4 reviews:

• Part I: Does the NomCom have a continuing purpose in the ICANN structure?

1. What is the purpose of the NomCom?
2. To what extent has the NomCom process been able to select persons who place the broad public interest of the global Internet community ahead of any particular interests?
3. Should this goal remain the primary goal in filling positions, or are there other elements that are also important to consider?
4. Of those persons selected by the NomCom process since 2003, do any particular qualifications predominate?
5. Do people selected by the NomCom appear to play a greater, comparable or lesser role in decision-making within their respective bodies, in comparison to those persons selected by other means?
6. What should be the purpose of the NomCom going forward?
7. What other methods of selection for leadership positions might be considered?
8. What are the benefits, drawbacks and costs of such options?

• Part II: Is there any change in structure or operations that could improve the NomCom's effectiveness?
  • NomCom Composition (size, diversity of members, source of members, inclusion of necessary skills)
  • Internal Procedures (transparency, continuity & institutional memory, compliance with procedure, managing conflicts of interest)
  • Selection Process (are the selection criteria appropriate, what has the process been like, how might it be improved)
  • Outreach (history and effectiveness of past efforts, goals and metrics for successful outreach, potential barriers for non-English speakers)
  • Overall (how well has the NomCom performed, how can it do better, is there adequate support, or might more resources be needed to increase effectiveness)

On March 30, the ICANN board selected the initial members of the NomCom1 Review Working Group (WG): Alejandro Pisanty; Peter Dengate Thrush, Njeri Rionge, Mouhamet Diop, Jonathan Cohen, and Steve Goldstein.

Independent Examiner Findings & Recommendations

The board selected Interisle Consulting Group for the independent review of the NomCom in July 2007.

Methodology

Interisle solicited public comment on the NomCom and its processes, with a broad request for feedback or commentary. It used these comments to guide its interview process, conducting interviews with forty-seven individuals who were connected to or interacted with the NomCom in some way. It also engaged in documentary review from a variety of sources, including board records, email communications, and formal and informal presentations from ICANN meetings and beyond.

Findings

The report listed a series of "observations" based on the documentary evidence, interviews, and written feedback. Because the RFP and ToR encouraged a focus on both what was standard practice (written or unwritten) in the NomCom as it was, as well as findings that could reveal potentials for improvement in the future, the observations range from descriptive to prescriptive. The findings are listed below - bold text has been added to findings that were particularly relevant to the recommendations that followed.

1. The central purpose of the NomCom is to find genuinely independent and unaffiliated Board, Council, and ALAC members.
2. The responsibility for achieving and maintaining cultural and geographic diversity on the bodies to which it appoints makes it difficult for the NomCom to pursue its central purpose.
3. A nominating committee is a good way to find and appoint independent people to some of ICANN’s leadership positions, but the current NomCom could be substantially improved.
4. Direct elections are not a desirable alternative to the NomCom in the absence of a well-defined and adequately engaged electorate.
5. The At-Large Advisory Committee is not currently a viable alternative to the NomCom.
6. NomCom members do not consistently understand the overall role and responsibilities of the NomCom or agree on the details.
7. NomCom members do not consistently understand ICANN or its constituent bodies well enough to interpret and apply the criteria and qualifications for appointments.
8. Recruiting and selecting candidates for the ICANN Board is fundamentally different from recruiting and selecting candidates for the SOs and ALAC.
9. The rationale for NomCom appointments to the Board is stronger than the rationale for NomCom appointments to the SOs or ALAC.
10. The NomCom lacks representation from the Board, but otherwise adequately represents the different parts of the ICANN community.
11. The representative composition of the NomCom encourages members to think of themselves (and act) as constituency representatives rather than as individuals.
12. New NomCom members are not always well prepared to participate effectively.
13. When some members are much better prepared than others, the NomCom appears to be controlled by “insiders.”
14. NomCom’s one-year term of service with one-year renewal strikes the right balance between continuity and productive turnover.
15. NomCom lacks a practical mechanism for removing and replacing underperforming members.
16. NomCom is “too small” for effective recruitment and outreach and “too large” for efficient deliberation and selection after candidates have been identified.
17. The success of the NomCom’s efforts depends heavily on the skills of the Chair.
18. The demands of the NomCom Chair’s job exceed what can reasonably be expected of a volunteer, part-time position.
19. The unrealistic level of effort expected of the Chair inhibits regular turnover and planned orderly succession.
20. The rules governing the relationship between the NomCom and ICANN staff are not clearly documented or understood.
21. Lack of clarity concerning what does and does not constitute “interference” by staff in NomCom deliberations inhibits communication and encourages suspicion.
22. Broader awareness of ICANN and its mission would help NomCom recruit qualified volunteers.
23. As ICANN’s most visible outward-facing activity, the NomCom has a significant effect on the way in which ICANN is perceived in the world at large.
24. The way in which the NomCom operates is not well understood outside of the NomCom itself.
25. The NomCom lacks specific requirements for its annual Board, SO, and ALAC appointments, and it is not clear how those requirements should be established (or by whom).
26. The NomCom “application” model for recruitment deters some potentially well qualified candidates who are accustomed to and more comfortable with the traditional corporate “invitation” model.
27. Recruitment and selection follow different procedures, call for different skills and aptititudes, and place different demands on NomCom resources.
28. Annual NomCom outreach generates information about motivated potential ICANN volunteers that is not available either to subsequent NomComs or to other parts of ICANN.
29. Candidates want better and more timely information about the status of their candidacy and the progress of the NomCom process.
30. Some successful candidates consider the background check to be unreasonably intrusive.
31. The rules that govern the way in which candidate qualifications are evaluated and selections are made are not well-documented or understood.
32. Lack of internal agreement on the way in which deliberation and selection should be conducted makes it difficult for the NomCom to resolve conflicting criteria for evaluating candidates.
33. NomCom lacks information about the past performance of incumbent candidates for re-appointment.
34. In practice, the importance of its obligation to maintain absolute candidate confidentiality has led the NomCom to be secretive about other aspects of its operation as well.
35. Secrecy beyond what is required to preserve candidate confidentiality shields the NomCom from outside pressure and influence but also damages its credibility.
36. Members properly disclose their financial and other relationships in accordance with the NomCom’s conflict of interest policy, and also properly recuse themselves from discussions when called for by the policy.
37. On the whole the NomCom has appointed well-qualified, independent, and effective people to the Board, SO Councils, and ALAC.
38. The NomCom’s multi-stakeholder process is inherently biased in favor of appointments that are uncontroversial and broadly acceptable.
39. Some NomCom appointees need more help “getting up to speed” in their new jobs; with better and more timely information about selected candidates, staff could fill this role.

Recommendations

The report offered eighteen broad-brush recommendations, with additional specific recommendations or steps beneath some:

• Balance confidentiality and transparency;
• Treat candidates more respectfully;
• Recruit and select based on requirements (specifically, explicitly identify required skills and use that profile to guide the NomCom's process);
• Separate recruiting from selection;
• Focus NomCom on its core mission (i.e., find independent and unaffiliated directors for the ICANN Board);
• Restructure the NomCom leadership roles - hire a "NomCom Administrative Director" (NomCom AD) to lessen the burdens on the Chair, and incorporate succession planning for Chairpersons (multiple options);
• Enforce participation rules;
• Explicitly design and document NomCom processes;
• Seek candidate information from many sources beyond their submitted Statement of Interest and references;
• Boost awareness of ICANN and the NomCom;
• Hold NomCom appointees accountable (establish metrics for performance and base re-appointment or recall decisions on those metrics);
• Audit the NomCom process annually, and publish the results;
• Assign the management of outreach and recruitment to the NomCom AD - maintain relationships with and connections to a roster of ICANN volunteers who would be likely candidates for substantive policy work, as well as service on the NomCom;
• Select NomCom members by lottery;
• Distinguish between the "fiduciary" and "policy" roles of the ICANN Board;
• Nominate "policy" directors to the board from a slate of candidates drawn objectively from the NomCom AD's roster. ALAC selects two "policy" directors using its own mechanisms and processes. "Fiduciary" directors are recruited and selected through an independent process;
• Select SO and AC council members from the NomCom AD's roster; but
• Devlolve responsibility for selection of ALAC members - "It is no longer necessary or advisable for the NomCom to be involved in the selection of ALAC members."

Public Comment

Interisle presented on their report at ICANN 30 in Los Angeles, and solicited feedback on the report and its recommendations. In addition, six written comments were submitted during the public comment period on Interisle's report. Public comment ranged from positive to highly critical. Elisabeth Porteneuve presented without comment a statistical breakdown of home nation and native tongue of Interisle's interviewees. The statistics showed that the overwhelming majority of interviewees were English speakers, with over half of the interviewees coming from the United States. Avri Doria found fault with the report's division of "fiduciary" and "policy" roles, even as a thought exercise: "These responsibilities cannot be seperated and should not be separated in the considerations that form the nomcom or that shape the nomcom's decisions." Thomas Roessler strongly objected to a number of the recommendations, citing the "miracle" that is performed by the NomCom each year:

At the core of my disagreement is the review's tendency to consider the nominating committee's complex social process in a somewhat mechanistic way. The nominating committees perform a small miracle each year by achieving agreement on appointees in a group that is as diverse as the ICANN community overall. Great care should be taken to not endanger the committee's ability to perform this miracle. A significant part of the secret sauce that makes this success possible is the nomcom's secrecy and, yes, the unaccountabilty of individual members. Changes to these points are extremely risky, and should only be made with utmost care.

Philip Sheppard commented specifically to argue that there was no longer a need for the NomCom to appoint members to the GNSO Council.

Delay and Update Process

Following the closing of the public comment period in April 2008, the plan was for the WG to submit a draft report to the Board Governance Committee regarding the recommendations and proposing implementation for improvements. The WG drafted that report; however, "[t]he BGC considered that recommendations from the NomCom review process had to be analysed in coordination with the findings of other reviews [including the ICANN Board Review and the First ALAC Organizational Review] that at the time of delivery of the report were ongoing. Consequently, the NomCom review WG report was not published for public comments."

During the delay in action on the WG's final report, the Structural Improvements Committee (as it was then known) assumed responsibility for the oversight of Article 4.4 organizational reviews. In June 2009, anticipating a need for updates to the original final report, the SIC presented a re-composed working group to the board for approval and appointment. The following month Thomas Roessler (Chair), Alejandro Pisanty, Jonathan Cohen, Steve Goldstein, and "all nominated Members accepted to serve in this role" were appointed by resolution of the board. As work wrapped up on the other reviews, the SIC asked the recomposed WG to update and consolidate the draft report to reflect new data and input from the intervening years. The Interisle report was primarily based on data running up to and including 2006. As such, there was an opportunity to refresh the organization's understanding of the NomCom's operation and processes. The WG "reviewed relevant documents, and consulted intensively with NomCom Chairs of the period of 2006 to 2009 and with supporting staff" to update its draft report.

Public Comment

The updated draft report was published for public comment in October 2009, with the intention to gather public input and substantially refine the draft at ICANN 36 in Seoul. At ICANN 36, Thomas Roessler and Marco Lorenzi presented the WG's updated report, while members of the ICANN Board Review working group were also on hand to provide input related to the recommendations of that review. Much discussion was focused on support, backup, and succession planning for the chairperson. There was concern expressed about the proposal for the chair-elect to serve as a non-voting member in the year prior to his term, because of the potential risk of burnout or unforeseen circumstances causing the "trained and ready" chairperson to abandon the post. Roessler defended the plan as an improvement over the current system, which still carried the risk of the loss of an experienced chair. Tricia Drakes, who by custom was transitioning into the role of Advisor to the NomCom after stepping down from the chair, countered that risk management argues in favor of retaining the past chair for an advisory, support role, rather than training up a new chair. Wolfgang Kleinwächter, the incoming chair for the 2010 NomCom, proposed a number of methods to help ensure prepared and experienced chairpersons: for example, the Bylaws could require prior experience on the NomCom to be nominated chair. Kleinwächter preferred the "troika" method, with the prior chair becoming an advisor to the NomCom, and the Chair-elect serving in a learning role for a year. Jonathon Cohen proposed possibly transitioning the Advisor role into an on-demand consultation role, so that the former chair is not obligated to attend.

The Seoul session also approached the challenge of Interisle's observation 16: that the NomCom was both "too small" and "too large" to fulfill each of its functions. Roessler outlined the drivers for change, and provided some background on the current state of the ICANN Bylaws related to NomCom composition. The status quo composition of the NomCom at the time was:

• Voting Seats
  • 7 GNSO seats (1 RySG, 1 RrSG, 2x BC (small business & large business ), 1 ISPPC, 1 IPC, and a delegate selected by the NCUC);
  • 5 ALAC seats (selected according to ALAC rules);
  • 1 ccNSO seat;
  • 1 ASO seat,
  • 1 "academic" seat (chosen by an institution selected by the ICANN Board);
  • 1 IETF seat; and
  • 1 TLG seat.
• Nonvoting Seats
  • Chair
  • Past Chair
  • RSSAC
  • SSAC
  • GAC (at the time, not exercising its option to attend)

The status quo, assuming full participation, was 22 total seats, 17 voting and 5 non-voting. The WG proposed two strawman structures - one smaller and one larger:

1. Smaller, stakeholder-based model: 1 GNSO seat from each stakeholder group in the GNSO, 3 selected by the ALAC, and keep the rest of the composition the same. 16 total seats, 11 voting and 5 non-voting.
2. Larger, stakeholder-based model: 1 GNSO seat from each SG in the CPH, 2 seats for each SG in the NCPH, 3 seats selected by the ALAC, and keep the rest of the composition the same. 20 total seats, 15 voting and 5 non-voting.

Both proposals represented a reduction in the number of seats, although the larger model was close to the same composition. Wolfgang Kleinwächter stated that caution should be exercised whenever the ICANN community "shrinks" (or is perceived to shrink) representation and participation. Adam Peake agreed, stating in particular that decreased ALAC participation might diminish global representation, and generally stating that a large committee, while unmanageable, was preferable because of the goal of maximum representation and participation. Subsequent commenters agreed that a large composition, though unwieldy, was preferable.