Second NomCom Organizational Review

The Second NomCom Organization Review was initiated in 2016 and concluded in 2019, with implementation of improvements continuing throughout 2020.

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.

The Nominating Committee's structure and operations has been altered or improved through Article 4.4 organizational review, as well as in the context of other review processes, including the 2002 Evolution and Reform Process as well as the ATRT1 and ATRT2 reviews.

Initiation

The 2016 NomCom published a call for volunteers for the review working party (RWP) in September 2016, laying out the timeline for the review and describing desired skills of volunteers and the application process. The working party membership was announced in October.

The original plan was for the RWP to meet for the first time at ICANN 56. However, perhaps because of the relocation of that meeting to Helsinki from Panama City, the meeting was postponed until ICANN 58 in Copenhagen on March 12, 2017. The meeting had intended to include ITEMS International, who had just wrapped up the ALAC2 review, which impacted the NomCom. Unfortunately, ITEMS was presenting to ALAC at the same time. The recommendation in question proposed that members to the ALAC be selected at random from a NomCom-vetted list of nominees. A brief discussion of the recommendation led to a general consensus that there was no need to worry that any such change would be implemented.

In the meantime, the RFP for an independent examiner was posted in January 2017. The RFP received an "above average" number of submissions.

Independent Examiner

In June 2017, the Analysis Group was selected to conduct the independent review.

Methodology

Following the revised guidelines for organizational reviews, the Analysis Group first prepared and presented a report on its assessment of the NomCom, and then incorporated public comment into a final report that included recommendations for improvement. In conducting its assessment, the Analysis Group interviewed over sixty individuals within the ICANN community, both in-person at ICANN 59 and ICANN 60, as well as by telephone. The group audited NomCom meetings at ICANN 60 to observe the NomCom's work in action. They also conducted a community survey that was prepared in association with the RWP. The survey received eighty-five responses. The group also conducted a review of ICANN and NomCom documentation, as well as the NomCom1 review. In its Assessment Report, the reviewers took pains to note that the goal of the interview and survey outreach was to ensure as diverse a set of viewpoints as possible:

It is important to emphasize that our approach to this assessment report, and to the final report, does not require perfect representation across the ICANN community from either those interviewed or those surveyed. We have not, for example, drawn conclusions based principally on the frequency with which we heard a particular opinion during our interviews and through the survey instrument. Rather, the interviews and online survey were methods for gathering diverse perspectives across ICANN with the goal of ensuring we have heard and considered many diverse opinions before making our assessment and our recommendations.

Assessment Report: Findings

Analysis Group provided an executive summary of its findings within two broad categories - people and processes:

• People
  • NomCom members have significant technical and policy-related experience in their fields but have difficulty fully understanding the role of Board members and the skills and attributes needed to be a successful Board member at ICANN.
  • NomCom members have exerted, and continue to exert, tremendous effort and time to the activities of the committee. On average, NomCom members lack substantive recruiting and selection experience for an organization the size and complexity of ICANN.
  • The extent to which NomCom appointees and members are independent and prioritize the interests of the global internet community in their decision-making is an area of concern within ICANN.
• Processes
  • The NomCom is generally seen as performing its role effectively, but there is room to improve the functioning of the NomCom.
  • The NomCom has made progress in increasing the extent to which it preserves policies and procedures from year to year, however, it still “reinvents the wheel” on many process issues and exhibits a lack of continuity.
  • There is a lack of communication between the NomCom and SO/ACs regarding the desired skills and qualities of potential candidates. In addition, the Board and SO/ACs sometimes struggle to reach consensus on what they need and do not have an effective way to communicate to the NomCom if current appointees should be re-appointed.
  • NomCom’s recruiting processes are generally effective, especially in recent years, but there is room for improvement. The NomCom should continue to increase the diversity of the candidate pool.
  • There is a lack of understanding around the role of, and consensus regarding, the effectiveness of the professional recruitment firm OB Brussels.
  • The NomCom’s interactions with candidates has improved significantly over the past five years and is generally viewed positively. However, several candidates expressed negative experiences regarding their interactions.
  • The NomCom does not always evaluate candidates in a consistent manner.
  • The role and effectiveness of the professional evaluation firm, OB Frankfurt, generates some disagreement within the ICANN community.
  • The NomCom has made significant progress in becoming more transparent, but transparency of its processes is still a concern within parts of the ICANN community.
  • Diversity requirements for NomCom appointees are currently appropriate.
  • The NomCom itself is not seen as sufficiently diverse, particularly with respect to gender.
  • The current size of the NomCom is appropriate.
  • There is concern that the NomCom may not accurately represent constituencies (both across organizations and within organizations) and over the role and participation of non-voting members.
  • The NomCom term length of one year, even if often renewed for a second year, may not allow for sufficient learning and engagement of members.
  • The leadership structure of the NomCom generally works well, although the effectiveness of the NomCom depends heavily on the effectiveness of the Chair.
  • The NomCom is highly dependent on ICANN Staff support. There is concern that the NomCom Staff is under-resourced, which has affected the functioning of the NomCom.

These findings were discussed in detail in the body of the report. Of note among the opinions gathered regarding the people who serve on the NomCom was a growing belief that "independence" of both NomCom members and the appointments that the NomCom makes went beyond ICANN's traditional interpretation of "conflict of interest."

Many people viewed the concept of independence as going beyond the requirement that appointees are free from conflicts of interest, which is covered by policies of the bodies to which the NomCom appoints people, and instead encompasses a more general view that the NomCom should appoint people that address issues without strong personal bias in favor of a particular viewpoint even if such a person did not stand to gain from that viewpoint financially... ...A common concern raised by both interviewees and survey respondents was that NomCom members too often voted as blocs based on the organization that sent them to the NomCom or some other common interest. As a result, these people felt that sending delegates to the NomCom was seen as a way for those organizations to advance an agenda instead of appointing people that acted in the best interest of the broader ICANN community.

Other areas of common concern were the diversity of the NomCom and its candidate pools, consistency in decision-making and evaluation of candidates, and improved communication between the NomCom, the ICANN Board, and other ICANN organizations regarding the needs of those groups whose members are selected by the NomCom.

Public Comment on the Assessment Report

Public comment on the assessment report was gathered through a webinar with Analysis Group in mid-January 2018, and an open consultation call in the week following the webinar, as well as written submissions to the RWP listserv. There was initially an additional call scheduled for February 1, just before the close of the public comment period; however, the first call was well attended and provided an opportunity to gather diverse feedback, and the second call was deemed redundant.

The webinar largely focused on an overview of the findings and process of public consultation. The Q&A period generated largely clarifying questions from attendees. One question inquired whether the Analysis Group had done any investigation into alternatives to the NomCom. The reviewers responded that they would certainly consider that in its final report, but that the assessment work involved largely comparing and contrasting the NomCom to similar mechanisms in other organizations. The reviewers stated that, to the extent possible, they examined comparable large, multi-stakeholder, organizations for possible best practices.

The subsequent consultation call generated more comment. The first part of the call was again devoted to a presentation of the findings. Mark Engle from Analysis Group noted that "I think there's a recognition that the committee is doing as well as they can with the experience and skillset that they have." However, Engle noted that there were critical gaps in training and experience that reflected the volunteer nature of the ICANN structure. Examples included inconsistent criteria for recruiting and selecting candidates, as well as the lack of open and public discussion of the criteria that a given NomCom is seeking in candidates. Will Brown of the review team noted that each new NomCom "reinvented the wheel" on certain processes and initial work planning. Comments and discussion revolved around not only NomCom's evolution and growth, but ensuring strategic alignment with the "new ICANN" after the IANA Transition and the development of the ICANN Empowered Community. Cheryl Langdon-Orr commented that this was "delightful opportunity" to generate consistency of practices and procedures, as well as continue to grow the transparency and predictability of the NomCom's work. She noted, also, that the ICANN community would find more opportunities for engagement with the NomCom if those continuity aspects continue to grow. Avri Doria noted that the idea that an "external firm of any sort" would be fully responsible for screening candidates would be very worrying for her. She also stated that question of NomCom accountability is complex. In her opinion, the NomCom could itself be seen as an accountability mechanism: a multistakeholder group, reviewing people within the roles that the NomCom appoints, and deciding on renewals for those people as well as evaluating community needs for appointments.

The SSAC, ISPCP, and NCSG submitted written comments to the NomCom2 listserv. The SSAC echoed the concerns expressed in the consultation call, that the NomCom might not be currently be capable of complying with the new commitments imposed by the IANA transition. The ISPCP took issue with the assessment methodology, and had a variety of objections to the findings in the report. The NCSG, by contrast, agreed with much of the report and emphasized the imbalance of representation both in terms of diversity and in terms of seats allocated to each constituency. It concluded that improvements must continue to ensure a strong and independent NomCom:

A committee that can change its own operating procedures in secret and only announce and publish the outcome while providing no rational for the changes is very much prone to capture. We respect the independence of the NomCom and it should operate and work for the broader, global public interest. To achieve this, there is a need for more transparency, a more diverse composition of its membership, and better rules to prevent capture. When there is an imbalance of stakeholder group representation on the NomCom (which the first review referred to and which still exists) the independence of the committee cannot be achieved.

Draft Final Report

The Analysis Group held a meeting with the ICANN community at ICANN 61 following the close of public comments on the assessment report. The presentation acknowledged changes based on public comment, as well as a preview of recommendations to be presented in the final report. The reviewers provided a summary of twenty-six recommendations, grouped in three broad categories: the composition and responsibility of the NomCom and its members; recruitment and evaluation processes; and additional recommendations.

• Composition and Responsibility of the NomCom and its Members
  • Formalize and communicate the job description for NomCom members that emphasizes independence and diversity considerations;
  • Implement training to improve understanding of director responsibilities;
  • Train NomCom leaders regarding responsibilities and authorities, and appoint Chair earlier;
  • Implement training in how to interview and assess candidates;
  • Retain professional recruiting consultant and codify its role;
  • Retain professional evaluation consultant and codify its role;
  • Two-year terms for members, maximum two consecutive terms (retain one-year terms for leadership roles);
  • All NomCom members should be fully participating and voting members (except leadership);
  • Review NomCom composition every five years;
  • NomCom senior staff should be accountable to and report to the CEO's office; and
  • NomCom leadership should have input on budget and resources.
• Recruitment and Evaluation Process
  • Publish process diagram and codify key elements of NomCom process, and explain annual changes;
  • Formalize communication between NomCom and Board, SOACs, and PTI board in regards to competencies;
  • Publish job descriptions for open positions;
  • Implement feedback process regarding members up for reappointment;
  • Publish and codify a candidate communication schedule;
  • Develop a marketing plan to better reach prospective candidates;
  • Evaluation consultant does preliminary screening;
  • Use a standardized matrix to evaluate and prioritize based on competencies and experience;
  • Implement consistency in interview questions; and
  • Publish data on composition of candidate pool and sources of candidates.
• Additional Recommendations
  • Form empowered body of current & former NomCom members to implement recommendations;
  • Inform assessments of NomCom by evaluating performance of the ICANN Board;
  • Investigate evolution of NomCom into a Leadership Devleopment function;
  • Clarify the definition and desire for independent directors; and
  • Designate three seats for independent directors.

At the presentation, many current NomCom members commented that they largely agreed with the recommendations of the Analysis Group. One of the points of conversation was the meaning of "independence." The reviewers noted in their presentation that the term has a myriad of definitions in the ICANN community, and that they were unable to find a concrete and specific definition as it related to directors of the board. George Sadowsky, speaking on his own behalf, noted that the definition was a legal one, and that opinions on what it meant were perhaps not as important. He also mentioned that the structure of the NomCom was based on an organizational map of ICANN from 2003, and that a recomposition was long overdue. Jonathan Cohen agreed with George Sandusky that the structural composition of the NomCom was a pertinent and important point.

After ICANN 61, the draft report was published for public comment on March 27, 2018.

Public Comment on the Draft Final Report

Public comment was solicited at the ICANN 61 presentation, and at a subsequent webinar held on April 10, 2018. The slides and presentation of the Analysis Group were substanitally the same as the ICANN 61 presentation. The webinar comments were again complimentary of the Analysis Group's work and recommendations as a whole. Mark Seiden lamented the lack of fine-grained attention in the review to policy-making by each NomCom. As an example, he noted that the current NomCom did not routinely publish its decision-making or proposed changes to process for public comment. This, and other transparency issues, indicated to Seiden that the "secrecy" issues surrounding the NomCom remained. Ole Jacobsen commented that there should be better connection and communication between the different NomCom cycles, so that continuity and transparency could be strengthened. Tom Barrett solicited comments on how the NomCom might better address and support the Empowered Community model. Cheryl Langdon-Orr agreed that the Empowered Community had placed additional obligations on the NomCom, as with all organizations. However, she noted too that there was not yet a full-term NomCom process within the post-EC world, and that this might be something to readdress in the future.

The draft final report also received eleven written comments, mostly from ICANN organizations and constituencies, during the public comment period. Some themes and highlights from the comments are listed below:

• Recommendation 9, that all members be participating and voting members of the NomCom, drew much attention. Nigel Roberts, in the sole individual comment, noted that the recommendation might create a problematic situation with the GAC, due to ICANN's founding principle that the organization remain free of governmental influence. This comment was echoed by the RySG. The SSAC objected to the conversion of the non-voting status of its representative, as it perceived advantages in placing the same person in the non-voting representative role over consecutive iterations of the NomCom. The BC also demurred, arguing that the "advisory" role of the non-voting members of the NomCom was a principle drawn from the ICANN Bylaws. The ALAC simply "agreed" with the recommendation, while the RSSAC approved of the recommendation in principle,

especially...now that the NomCom also appoints two members of the Board of Directors of Public Technical Identifiers (PTI), an affiliate of ICANN, and the current IANA functions operator. Given its mandate, the RSSAC believes its liaison can provide valuable insight to inform discussions and deliberations about the operational and technical expertise necessary to serve in these leadership positions.
However, the RSSAC will make a determination on the voting status of its liaison after the recommendations are more fully vetted by the NomCom, the ICANN Board and its Organizational Effectiveness Committee, the broader ICANN community, and after its own thorough review of the options for this change and the subsequent implications.

• The RrSG suggested that the continuous improvement of the NomCom as a "one-and-done," annual committee, was not best effectuated by a five-year review cycle. They proposed a standing committee, formed of ex-NomCom and ex-Board members, and possibly also the current Chair-elect and/or Associate Chair, that "could be given the responsibility for improving the productivity, transparency and accountability of the NomCom." The IPC expressed agreement with this concept in its comment.
• The NCSG reiterated its concerns about representation and diversity, noting that George Sadowsky's comment at ICANN 61 that the NomCom structure was representative of the ICANN structure in 2003 was yet another example of the common knowledge that the NomCom's structure was in need of reform.
• The BC objected on practical grounds to the recommendation that the NomCom appoint three independent directors to the Board, taking issue with the Analysis Group's suggested definition that "independent directors are those with limited prior ICANN experience: "In our view, board members without prior ICANN experience must typically devote the first half of their term just to build an understanding of what ICANN does and how it does its work." The ALAC agreed, noting that the current process did not need to be "hardened" when it was doing a reasonable job thus far.

Final Report

On June 5, 2018, the Analysis Group released its final report. The report noted that the NomCom's strengths included its commitment to improvement in response to recommendations from NomCom1 as well as ATRT1 and ATRT2. Indeed, "[a]s an example of such improvement from year to year, the 2018 NomCom has implemented, partially or in whole, several recommendations we had formed based on our assessment of the 2017 NomCom’s policies and procedures."

The recommendations remained largely the same as in the draft final report, with the addition of the RrSG/IPC suggestion of a standing committee focused on continuity and improvement of NomCom processes from year to year. Although occasional references were made to public comments, there was no discussion of objections to elements of the draft final report. For example, Recommendation 9 remained intact, with no discussion of the multiple responses the recommendation evoked.

Implementation

Implementation Planning

With a few alterations in membership, the NomCom2 RWP re-assembled as the NomCom2 Review Implementation Planning Team (IPT), and started work on a Feasibility Assessment and Implementation Plan (FAAIP) for the recommendations. The FAAIP was submitted to the Organizational Effectiveness Committee (OEC) in December 2018. With the exception of some edits to the wording of particular recommendations to better reflect the views of the community or the IPT members, all of the twenty-seven recommendations in the final report were accepted by the IPT. With an eye toward prioritization, the team's implementation plan separated the recommendations into five categories:

1. Accountability and Transparency;
2. ICANN/NomCom Charters/Operating Procedure;
3. Skills & Training;
4. Recruitment; and
5. Assessment

As the IPT explained: "The five categories are not equal in significance. In particular, category 1 and 2 above are “macro”‐level issues related to ICANN’s mission, which in turn influence the next three “micro”‐level categories that relate more to the operational details of the NomCom." The macro-issues informed multiple operational categories. Implementation of some recommendations were interdependent upon the progress and direction of other recommendations within the same or different categories. The FAAIP also sought to identify recommendations that, because of the simplicity of work, source of activity and effort, or preexisting community consensus, would have short implementation timelines.