[ncdnhc-discuss] PROPOSED RESOLUTION: BOARD EDUCATION ON DUTIES

[Hans Klein]

Submitted by Hans Klein
Director, Civil Society Democracy Project
Computer Professionals for Social Responsibility (CPSR)



PROPOSED RESOLUTION: BOARD EDUCATION ON DUTIES

Whereas: ICANN's responsibilities extend globally, but its place of 
incorporation is in the state of California in the United States.

Whereas: California Corporations Law specifies both rights and obligations 
of corporate directors including directors of Public Benefit Corporations 
such as ICANN under which directors personally may incur both civil and 
criminal liabilities.

Whereas: Under the California Corporations Law, directors of a Public 
Benefit Corporation, have a legal duty to perform their duties on the Board 
and on committees of the Board "in good faith, in a manner such director 
believes to be in the best interests of the corporation and with such care,
including reasonable inquiry, as an ordinarily prudent person in a like 
position would use under similar circumstances." (Calif Code, Section 5231, 
Nonprofit Public Benefits Corporation, 
www.leginfo.ca.gov/.html/corp_table_of_contents.html).

Whereas: California Code Section 5231 requires an understanding of complex 
legal concepts that are influenced and interpreted under California and 
United States law and cases.

Whereas: Only one current Director of the ICANN board is a) a U.S. citizen 
or b) an attorney licensed in California. Accordingly, the ICANN Directors 
may not be expert in their legal responsibilities or even in the culture 
from which these rules and obligations are derived.

Whereas: All Constituencies of ICANN are entitled to and deserving of 
Directors who know and understand their legal obligations under California 
law with respect to the employees and staff of ICANN, the purposes of the 
Corporation, and the corporate actions taken by the Directors (including 
MoUs and contracts signed).

Be it hereby resolved that:

The ICANN Board undertake immediately after the Shanghai meeting, and prior 
to any further meetings, conference calls, or decisions, to engage an 
independent legal expert to offer a class or classes (online, by telephone 
or in person) on the rights and obligations on Board members under US and 
California law. Such an expert must be neutral, and come from a law firm or 
ethics practice that does not currently participate in the ICANN process or 
represent clients who participate in the ICANN process.

Such a process must delve into the meaning of obligations including "good 
faith," "care," "reasonable inquiry" and "ordinarily prudent person."

Such a class must be obligatory on all existing Directors, and a 
prerequisite for all new Directors prior to assuming their office.

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