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ICANN’s Board has approved these Terms of Reference for the independent review (“Review”) of ICANN's Nominating Committee (“NomCom”), based on a draft posted on 12 December 2006 and the public comments received thereafter. These Terms of Reference suggest general and specific questions that the Review should address. These questions are intended to be illustrative, rather than definitive or exhaustive. They are not intended to limit the Review, but to ensure that it addresses relevant aspects of two fundamental questions: (i) whether the NomCom has a continuing purpose in the ICANN structure; and (ii) if so, whether any change in structure or operations is desirable to improve its effectiveness. The purpose of the Review is to help determine the best way forward, but such analysis depends in the first instance upon a solid assessment of how the NomCom has performed to date.  

Background

The NomCom is responsible for the selection of 8 members of ICANN’s Board of Directors; 3 members of the Country Code Names Supporting Organization (ccNSO); 3 members of the Generic Names Supporting Organization (GNSO); and 5 members of the Interim At-Large Advisory Committee (ALAC). Because the terms of these positions are typically longer than a year, the selection process for them is staggered. As a result, the NomCom that is formed anew each year fills just some of these 19 positions.

Each NomCom is composed of 23 persons as follows: a Chair (non-voting); the previous year’s Chair as an Advisor (non-voting); 3 liaisons (non-voting) from the Root Server System Advisory Committee (RSSAC), the Security and Stability Advisory Committee (SSAC) and the Governmental Advisory Committee (GAC); 5 voting delegates selected by the ALAC; 2 voting delegates representing small business users and large business users, respectively; 1 voting delegate each from the Registry Constituency, the Registrars Constituency, the ccNSO, the ISP Constituency, the IP Constituency, the Address Supporting Organization (ASO), an entity representing academic and similar organizations; the Non-Commercial Users Constituency, the IETF and the Technical Liaison Group (TLG). In addition, the Chair may designate a (non-voting) Associate Chair to assist in carrying out the duties of the Chair, which results in a total of 23 members.

The members of the NomCom must meet several criteria, including being:

• Accomplished persons of integrity, objectivity, and intelligence, with reputations for sound judgment and open minds, and with experience and competence with collegial large group decision-making;
• Persons who are neutral and objective, without any fixed personal commitments to particular individuals, organizations, or commercial objectives in carrying out their responsibilities; and
• Persons with an understanding of ICANN's mission and the potential impact of ICANN's activities on the broader Internet community who are willing to serve as volunteers, without compensation other than the reimbursement of certain expenses.

Pursuant to Article VII (6), ICANN is to provide “administrative and technical support necessary for the Nomination Committee to carry out its responsibilities.”

The NomCom procedures are publicly available and may be found at http://nomcom.icann.org/procedures-2007.html#A5. NomCom deliberations, and the names of unsuccessful candidates, however, are not public information. The ICANN Nomination Committee Procedures 2007 provide that “NomCom members will not disclose outside of the Committee any of the discussions, deliberations, communications, records and notes, about the candidates. Further, NomCom members will not disclose outside of the Committee the identities of the candidates under consideration by NomCom, unless NomCom as a whole has decided to do so and the explicit consent of the candidate(s) in question has been obtained.”

On 12 December 2006, at the direction of ICANN's Board, draft Terms of Reference (http://www.icann.org/announcements/announcement-12dec06.htm) were posted for public review and comment. Three comments were received through 29 January 2007 and may be viewed at http://forum.icann.org/lists/nomcom-review-tor/. All of these comments have been taken into account in preparation of these final Terms of Reference. As a result, several of the proposed questions have been clarified, many have been reordered, a few questions have been added, and a few have been omitted.

Terms of Reference

This Review of the NomCom will be conducted in an objective way by an entity or entities independent of the Committee, as specified in Article IV, Section 4 of the ICANN Bylaws. Guidance will be provided by the Board Governance Committee through the Terms of Reference that it approves, and by establishment of a "NomCom Review Advisory Committee" that it will appoint. The results of the Review shall be posted for public review and comment, and shall be considered by the Board not later than its second scheduled meeting after being posted for 30 days. As provided in the Bylaws, consideration by the Board includes the ability to revise the structure or operation of the Nominating Committee by a two-thirds vote of all members.

There are several important questions that the Review should address, which are listed below. This list is not intended to be exhaustive, particularly as the initial results of the Review may suggest related questions that should also be answered.

A. Scope of Review

In accordance with Article IV(4)(1) of the ICANN Bylaws, the Review of the Nominating Committee (NomCom) shall be to determine:

• Whether that body has a continuing purpose in the ICANN structure; and
• If so, whether any change in structure or operations is desirable to improve its effectiveness.

Both of these questions encompass various elements and are important to answer as comprehensively as possible. The broad question whether the NomCom has a continuing purpose to play in ICANN includes consideration of the role that it was intended to play, whether it has met its objectives, and whether there are other ways to achieve the same goals. An assessment of whether changes in the NomCom’s structure or operations are needed depends upon how well it has performed its function during its four selection periods to date (2003-2006), and whether there are general or specific ways to enhance its effectiveness in the future. Several questions pertain to the composition of the NomCom, its internal procedures (including transparency), the selection process it utilizes and the extent of its outreach.

There have been four NomComs since this type of selection process was adopted by the Board as part of ICANN’s restructuring in 2002. Each of these NomComs should be examined as part of the Review.

B. Rationale for the NomCom

The role of the NomCom in filling several of ICANN’s leadership positions has been described by the 2007 Nominating Committee’s Agreement to Adhere to the Code of Ethics as follows:

“The central rationale for using a nominating committee to select a portion of the ICANN leadership bodies is to balance those who can represent particular areas of knowledge and interests with those who place the broad public interest of the global Internet community ahead of any particular interests. NomCom’s role is to select individuals of the highest integrity and capability who place the broad public interest of the global Internet community ahead of any particular interests, and who are nevertheless knowledgeable about ICANN’s mission and environment.

To achieve this broad public-interest orientation, the members of NomCom are drawn from across the ICANN and global Internet communities. They are expected to act only on behalf of the interests of the global Internet community within the scope of the ICANN mission and the responsibilities assigned to NomCom by ICANN Bylaws. They are expected to act as individuals and are not beholden to their appointing constituencies as they work by consensus to derive the NomCom slates of Selected Nominees for these leadership bodies.

The NomCom functions independently from the ICANN Board, Supporting Organizations, and Advisory Committees. The NomCom selections are final . . .” (see http://nomcom.icann.org/ethics-2007.html).

It is crucial that ICANN has its leadership positions filled with the most qualified and talented people who can be identified and are available, and ensuring this occurs is a major responsibility.

C. Questions to Address

PART I. Does the NomCom have a continuing purpose in the ICANN structure?

1. What is the current 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

9. Do the members of the NomCom reflect adequately the different parts of the ICANN community?
10. Are any parts of the ICANN community over-represented or under-represented in the NomCom?
11. Should the NomCom include representatives from outside the ICANN community and, if so, how should they be selected?
12. What should be the relationship, if any, between the NomCom and the bodies for which it is filing positions?
13. What is the optimal size of the NomCom for it to be most effective?
14. Have members selected for the NomCom had the skills needed to conduct their work most effectively?
15. Should there continue to be a distinction between voting and non-voting members of the NomCom?

Internal Procedures

16. Are there elements of the NomCom’s work that should be more transparent? If so, how would such transparency be balanced against the protection of personally sensitive information?
17. To what extent is there, or should there be, continuity of internal information from year to year?
18. Have NomCom decisions been made in accordance with the published procedures?
19. How have any actual or potential conflicts of interest between NomCom members and candidates under consideration for leadership positions been resolved?
20. Are the safeguards in place to deal with potential or actual conflicts of interest between NomCom members and candidates adequate?
21. What kind of support has ICANN provided for the NomCom? What kind of support should ICANN provide?

Selection Process

22. Are the selection criteria set forth in the bylaws for each position the NomCom fills the right ones (see also Question 4)? For example, do the criteria enable the NomCom to examine the skills set of the current members of each body before selecting its candidates? Are they flexible enough to allow for evolution of ICANN bodies pursuant to their periodic reviews? Should the implications of increased emphasis on corporate governance, as symbolized by the Sarbanes-Oxley Act in the United States and the Higgs Report in the United Kingdom, affect the criteria used for selecting new members for the Board?
23. Does the Statement of Interest (SOI) required of each candidate provide the NomCom with adequate information to make its decisions?
24. How does the reference-checking process work?
25. To what extent does the NomCom communicate directly with candidates?
26. What procedures and working methods have the different NomComs used to identify top candidates, and then to make the final selections?
27. How effectively has due diligence at the end of the selection process worked?

Outreach

28. What is the aim of outreach?
29. What kind of outreach has occurred each year?
30. How effective has outreach been to identify potential candidates? For example, what percentage of new candidates submit SOIs each year? Has the distribution of geographic representation of candidates changed?
31. How effective have NomCom members been at outreach? For example, how many candidates each year are encouraged to apply by members of the NomCom? Are these candidates more likely to be successful than other candidates?
32. Does any particular constituency suggest more NomCom candidates than others?
33. Should ICANN or the NomCom seek to generate additional candidate interest and, if so, how?
34. Have any issues arisen regarding the requirement that SOIs be submitted in English?

Overall

35. How well has the NomCom performed in each of the years (2003, 2004, 2005 & 2006) in which it has filled leadership positions?
36. What are the annual costs of the NomCom process?
37. Has the NomCom had the resources necessary to accomplish its task?
38. Are there ways it could accomplish its task more cost-effectively?
39. What other general or specific measures can enhance the effectiveness of the NomCom?
40. What, if any, are the cost implications of such measures?