Consideration of Reconsideration Request 15-18

Brief Summary.

Mr. Andruff is the 2015 NomCom Chair-Elect. (See Resolution 2014.10.11.01, available at https://www.icann.org/resources/board-material/resolutions-2014-10-11-en....) Per ICANN's Bylaws, the BGC recommends, and the Board approves, the NomCom Chair and Chair Elect. (See Bylaws, Article VII, §§ 2.1 and 2.2, available at https://www.icann.org/resources/pages/governance/bylaws-en/#VII; BGC Charter, Art. I, § I, available at https://www.icann.org/resources/pages/charter-06-2012-02-25-en.) After a careful evaluation process, which included review of the candidates' EOI statements, two rounds of interviews, and consideration of the 360-degree review of the 2015 NomCom Leadership (360-Degree Review), the BGC recommended to the Board that Stéphane Van Gelder and Hans Petter Holen be appointed as the 2016 NomCom Chair and Chair-Elect, respectively. On 28 September 2015, the Board appointed Stéphane Van Gelder as the 2016 NomCom Chair and Hans Petter Holen as the 2016 NomCom Chair-Elect. (See Resolution 2015.09.28.25, available at https://www.icann.org/resources/board-material/resolutions-2015-09-28-en....)

Mr. Andruff suggests that the BGC did not make the Board aware of the following material facts, and therefore the Board did not consider them, prior to the Board's appointment of the 2016 NomCom Chair and Chair-Elect: (1) an insufficient number of BGC members were present for Mr. Andruff's interviews; (2) Mr. Andruff's 360-Degree Review rating "cannot justify the 2015 Chair-Elect being passed over as 2016 NomCom Chair"; (3) "lack of cultural sensitivity" is subjective and there is no evidence supporting the notion that Mr. Andruff lacks such "cultural sensitivity"; (4) the 360-Degree Review cannot adequately provide a true and full representation of the capabilities of an individual to serve as a Chair-Elect; and (5) the "negative comments" written in Mr. Andruff's 360-Degree Review emanated from individuals with a "suspect agenda". (Request, § 8, Pgs. 4-5.) Mr. Andruff further suggested that the Board was prevented from considering the foregoing material facts because the BGC did not inform him of its recommendation until the day of the Board meeting, thus depriving him of any reasonable opportunity to prepare a detailed response.

The BGC concluded that Mr. Andruff's claims do not support reconsideration and the Board agrees. As stated in the Rationale for Resolution 2015.09.28.25, "[t]he BGC received and reviewed several EOIs, oversaw a 360-degree evaluation of the 2015 NomCom leadership and conducted interviews with candidates before making its recommendations. The Board then considered and agree[d] with the BGC's recommendation for the 2016 NomCom Chair and 2016 NomCom Chair-Elect." (Resolution 2015.09.28.25, available at https://www.icann.org/resources/board-material/resolutions-2015-09-28-en....) Mr. Andruff did provide the BGC with information relating to his qualifications in his EOI and during the two telephone interviews with the BGC. Mr. Andruff also had the opportunity to respond to any concerns raised in his 360-Degree Review during his second interview with the BGC. With respect to Mr. Andruff's arguments regarding the numbers of BGC members that were present for his interviews and that he was deprived of the opportunity to respond to the BGC's recommendation to the Board, the BGC concluded that Mr. Andruff did not state a basis for reconsideration. Given this, the BGC recommended that Request 15-18 be denied. The Board agrees.

Further, Mr. Andruff was provided the opportunity to address the Board as part of its consideration of Request 15-18. The Board finds that Mr. Andruff did not demonstrate that the BGC or the Board acted without material information or pursuant to false or inaccurate information.

Facts

The BGC's Recommendation on Reconsideration Request 15-18, which sets forth in detail the facts relevant to this matter, is hereby incorporated by reference and shall be deemed a part of this Rationale. The BGC Recommendation on Reconsideration Request 15-18 is available at https://www.icann.org/en/system/files/files/recommendation-15-18-andruff... [PDF, 153 KB] and is attached as Exhibit B to the Reference Materials.

Issues

In view of the claims set forth in Request 15-18, the issues for reconsideration seem to be whether reconsideration is warranted because the BGC did not make the Board aware of the following material facts, and therefore the Board did not consider them, prior to the Board's appointment of the 2016 NomCom Chair and Chair-Elect: (1) an insufficient number of BGC members were present for Mr. Andruff's interviews; (2) Mr. Andruff's 360-Degree Review rating "cannot justify the 2015 Chair-Elect being passed over as 2016 NomCom Chair"; (3) "lack of cultural sensitivity" is subjective and there is no evidence supporting the notion that Mr. Andruff lacks such "cultural sensitivity"; (4) the 360-Degree Review cannot adequately provide a true and full representation of the capabilities of an individual to serve as a Chair-Elect; and (5) the "negative comments" written in Mr. Andruff's 360-Degree Review emanated from individuals with a "suspect agenda". (Request § 8, Pgs. 4-5.)

The Relevant Standards for Evaluating Reconsideration Requests and the NomCom Chair and Chair-Elect Selection Process.

As Mr. Andruff challenges a Board action he must show that the Board acted without material information or pursuant to false or inaccurate information. (See Bylaws, Art. IV, § 2.2.) ICANN's Bylaws call for the BGC to evaluate and make recommendations to the Board with respect to Reconsideration Requests. (See id. at § 2.) The Board has reviewed and thoroughly considered the BGC Recommendation on Request 15-18 and finds the analysis sound.1 The NomCom is composed of, among others, a non-voting Chair and non-voting Chair-Elect. Both are appointed by the ICANN Board. (See Bylaws, Art. VII, §§ 2.1 and 2.2.) The Bylaws provide that

[i]t is anticipated that upon the conclusion of the term of the Chair-Elect, the Chair-Elect will be appointed by the Board to the position of Chair. However, the Board retains the discretion to appoint any other person to the position of Chair.
(See id. at § 3.4.)

The Call for EOI for the 2016 NomCom Chair and Chair-Elect sets forth the requisite skills and experience. (See Call for EOI for 2016 NomCom Chair and Chair-Elect, available at https://www.icann.org/news/announcement-2-2015-06-04-en.) Further,

[w]hile it is anticipated that the 2015 NomCom Chair Elect will become the 2016 NomCom Chair, in support of continuous improvement in its accountability and transparency, the NomCom will evaluate the performance of the current NomCom leadership, and the results of that evaluation will be available to the Board Governance Committee before it makes a recommendation to the full Board on 2016 NomCom leadership. These 360-degree reviews will be conducted by an independent third party provider and will consist of interviewing other NomCom leadership, NomCom members, and designated NomCom staff. The BGC will utilize the outcomes of these reviews in their processes leading up to the Board's formal appointment of the 2016 NomCom Chair and Chair-Elect.
(Id.)

Analysis and Rationale

The BGC concluded, and the Board agrees, that Mr. Andruff has not demonstrated a basis for reconsideration. As a preliminary matter, the Board notes that Mr. Andruff suggests that the BGC is "meddling in the affairs of the supposedly independent Nominating Committee." (Request, § 7, Pg. 4.) ICANN's Bylaws require the Board to appoint the NomCom Chair and Chair Elect, and the Board has delegated to the BGC the responsibility for recommending candidates for these positions for Board approval. (See BGC Charter, Art. I, § I, available at https://www.icann.org/resources/pages/charter-06-2012-02-25-en.) As such, the actions of the BGC challenged in Reconsideration Request 15-18 are part of the BGC's mandate as set forth in the BGC's Charter, which was approved by the Board on 13 October 2012. (See id.) If Mr. Andruff is challenging the Board's delegation to the BGC of the authority to recommend the NomCom Chair and Chair Elect for Board approval, the time to do so has passed.

With respect to Mr. Andruff's argument that the BGC "chose to overlook [his] exemplary record of sixteen years of service, sound leadership at ICANN, and solid overall marks in [his] 360 Review" and focused instead "on a subset of mean-spirited and targeted attacks on [the Mr. Andruff's] reputation by a few individuals" (Request, § 3, Pg. 1), the BGC concluded, and the Board agrees, that Mr. Andruff has not shown that either the BGC or the Board overlooked his years of service or the positive aspects of the 360-Degree Review. Rather, Mr. Andruff's EOI statement details his skills, experience, and contribution to the ICANN community, which is information that was considered by the BGC and the Board. (See Resolution 2015.09.28.25, available at https://www.icann.org/resources/board-material/resolutions-2015-09-28-en....) Additionally, Mr. Andruff had the opportunity to, and did, provide the BGC with information relating to his qualifications in both telephone interviews with the BGC, as well as address any concerns that he may have with his 360-Degree Review, and point out the positive aspects of his 360-Degree Review, during his second telephone interview with the BGC.

The BGC further concluded that Mr. Andruff's challenge of the BGC's recommendation on the basis that there were an insufficient number of BGC members present for his interviews is not a proper basis for reconsideration. (See Request, § 3, Pg. 2.) The Board agrees. There is no requirement mandating a minimum number of BGC members that must be present for the interviews, as there is no requirement that the BGC interview the candidates. Moreover, three of the four voting BGC members that had not recused themselves (those who recused themselves did so because they are eligible to be selected by the 2016 NomCom) participated during the first interview, and all four participated during the second interview. Further, all four voting BGC members who did not recuse themselves were present during the BGC meeting in which the BGC made its recommendation for the 2016 NomCom Leadership slate, and all voting Board members, except the three who recused themselves, participated in the Board decision on this matter.2 Additionally, the same or similar number of BGC members were present at the interviews of the other candidates. It should further be noted that the number of BGC members present at the interviews are not inconsistent with the interviews conducted for the NomCom leadership positions in previous years. In all events, the number of BGC members who participated in Mr. Andruff's interviews does not speak to whether the Board acted without material information, or pursuant to false or inaccurate information, and therefore reconsideration is not appropriate on this basis.

With respect to Mr. Andruff's argument regarding lack of due process and procedural unfairness, there is no requirement that the BGC afford him the opportunity to respond to the BGC's recommendation before the Board considers the recommendation. Furthermore, even if there was such a process, this is not a proper basis for reconsideration of Board action. Specifically, Mr. Andruff has not demonstrated that the Board failed to consider material information, or considered false or misleading information, in approving the 2016 NomCom Leadership. Nevertheless, the BGC recommended, and the Board afforded Mr. Andruff an opportunity to be heard on the matter before making its final determination in this matter.

With respect to Mr. Andruff's claim the Board's appointment of the 2016 NomCom Chair was made without material information, the BGC concluded and the Board agrees, that Mr. Andruff has not shown: (1) that the cited information would have been material to the Board's decision; (2) that the Board did not consider the information; or (iii) that the Board acted on false or inaccurate information. Instead, most if not all of the bases for reconsideration (as stated in the preceding paragraph) appear to be Mr. Andruff's opinion, and opinions do not serve as a basis for reconsideration because they are not material facts that were not considered, or false or inaccurate facts that were considered.

Indeed, as stated in the Rationale for Resolution 2015.09.28.12, "the BGC received and reviewed several EOIs, oversaw a 360-degree evaluation of the 2015 NomCom leadership and conducted interviews with candidates before making its recommendations. The Board then considered and agree[d] with the BGC's recommendation for the 2016 NomCom Chair and 2016 NomCom Chair-Elect." (Resolution 2015.09.28.25, available at https://www.icann.org/resources/board-material/resolutions-2015-09-28-en....) As such, Mr. Andruff had the opportunity to provide the BGC with information that may be material to his candidacy such as his qualification, as well as address any concerns that Mr. Andruff may have with his 360-Degree Review, through his EOI Statement and during the telephone interviews with the BGC.

The full BGC Recommendation on Reconsideration Request 15-18, which sets forth the Analysis and Rationale in detail and with which the Board agrees, is hereby incorporated by reference and shall be deemed a part of this Rationale. The BGC Recommendation on Reconsideration Request 15-18 is available at https://www.icann.org/en/system/files/files/recommendation-15-18-andruff... [PDF, 153 KB], and is attached as Exhibit B to the Reference Materials.

Decision

The Board had the opportunity to consider all of the materials submitted by or on behalf of Mr. Andruff (see https://www.icann.org/resources/pages/reconsideration-15-18-ra-2015-10-1...) or that otherwise relate to Request 15-18. The Board also had the opportunity to hear directly from Mr. Andruff. Following consideration of all relevant information provided, the Board reviewed and has adopted the BGC's Recommendation on Request 15-18, which shall be deemed a part of this Rationale and the full text of which can be found at https://www.icann.org/en/system/files/files/recommendation-15-18-andruff... [PDF, 153 KB].

Adopting the BGC's recommendation has no financial impact on ICANN and will not negatively impact the systemic security, stability and resiliency of the domain name system.

This is an Organizational Administrative function that does not require public comment.

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1 Having a reconsideration process whereby the BGC reviews and, if it chooses, makes a recommendation to the Board for approval, positively affects ICANN's transparency and accountability. It provides an avenue for the community to ensure that staff and the Board are acting in accordance with ICANN's policies, Bylaws, and Articles of Incorporation.

2 See Agenda of 27 September 2015 BGC Meeting, available at https://www.icann.org/resources/board-material/agenda-bgc-2015-09-27-en; see also, Minutes of 27 September 2015, available at https://www.icann.org/resources/board-material/minutes-bgc-2015-09-27-en.