The preliminary report [icann.org] of the 30 September 2009 closed teleconference of the Board has been posted. This raises even more questions about the process by which the AoC was approved.
(1) Was the Board vote before or after the AoC was signed? According to the Preliminary Report:
"JPA Progress Report: The Board received an update from the CEO on the outcome of discussions with the Department of Commerce and the signing of the "Affirmations of Commitments" with the United States Department of Commerce, and a short outline of the work required to meet to the responsibilities set forth in the Affirmation document. The CEO also acknowledged the hard work done by all to reach the signing of the Affirmations. The Board then took the following actions:"
This use of the past tense in all the references to the approval and signing of the AoC in the Preliminary Report, and the clear indication of time sequence in the statement, "The Board then took the following actions", implies that the AoC was signed *before* the Board vote. If this was true, and the Board had not yet voted, who authorized Mr.Beckstrom to sign [doc.gov] the AoC? Does he believe that he has unilateral executive authority to set ICANN policy or bind ICANN to policy commitments? Did the CEO act (improperly) on his own without a Board vote? Or did the Board give him some (improper) secret advance authorization? What is the relationship of Board and CEO? Who is really in charge? Who is setting policy, and how?
(2) Did the Board ratify the AoC? According to the text of the resolution, the Board "acknowleges the completion of the Joint Project Agreement with the U.S. Department of Commerce, and applauds the signing of the new 'Affirmation of Commitments.'" The Resolution does *not* say that ICANN or the Board "approves", "authorizes the signing of", or "ratifies" the AoC. What is the relationship -- if any -- of the Board to the AoC?
(3) Why was the AoC considered in secret? The resolution makes clear that there were repeated discussions of the AoC at ICANN meetings that were not held with the maximum extent feasible of transparency, in violation of the Bylaws. Some were labeled as "retreats" and not meetings, with no publicly-disclosed agenda or report. Others were held in secret:
Whereas, the Board further discussed its approach to the conclusion of the JPA at a retreat in Austria in May 2009;...
Whereas, at the ICANN International Meeting in Sydney, Australia, ICANN staff and the Chairman of the ICANN Board held discussions with the DoC and on 26 June 2009, at a private session of the ICANN Board, reported on the discussions with the DoC;
Whereas, in confidence, the Board received further briefings on the progress of discussions with the DoC at its meetings on 30 July and 27 August 2009;...
Whereas, the Board discussed and provided input on the draft Affirmation of Commitments at the Board's 11 September 2009 retreat in Los Angeles, California;...
Perhaps this is why the Preliminary Report was withheld until several days after the deadline in the Bylaws. Whatever the reasons the preliminary report was late, it casts additional severe doubt on whether the AoC was properly approved by ICANN in accordance with the procedural rules in the Bylaws.