Re: [gnso-improvem-impl-sc] New task

[<Mary.Wong@xxxxxxxxxxx>]

I support Avri's points generally, and would add the following in this specific 
instance:

- the initial vote was properly proposed, seconded and voted on.

- just as ignorance of the law is no excuse, the fact that Councilors were not 
aware of the implications of an abstention (when, frankly, they should be as 
it's in the rules plain as day) should not permit a re-introduction of 
something that was properly introduced and voted on.

- In this case I don't know if the specific constituency impacted had given 
instructions to its Councilors as to how to vote. Even if they did not, the 
fact remains that these are very clearly set out in the GNSO rules, and if a 
constituency or Councilors did not know or did not make the time to 
discuss/decide, that is a very poor excuse for reintroducing a motion (again, 
one properly introduced, seconded and voted on).

- In an ideal world, the Council should have suspended the matter and referred 
the issue of a re-introduction/reconsideration of such a motion (without 
necessarily specifying the actual motion or context) to the SCI before 
re-opening the vote. As it is, it seems as though the SCI's hands are somewhat 
tied since the second motion did get voted on and went through - the mind 
boggles at an SCI determination that this re-introduction and vote was improper 
or invalid, especially in the currrent somewhat sensitive context within which 
ICANN is operating.

Cheers
Mary

Mary W S Wong
Professor of Law
Director, Franklin Pierce Center for IP
Chair, Graduate IP Programs
UNIVERSITY OF NEW HAMPSHIRE SCHOOL OF LAW
Two White Street
Concord, NH 03301
USA
Email: mary.wong@xxxxxxxxxxx
Phone: 1-603-513-5143
Webpage: http://www.law.unh.edu/marywong/index.php
Selected writings available on the Social Science Research Network (SSRN) at: 
http://ssrn.com/author=437584  

>>> Avri Doria  01/09/13 2:01 PM >>>

Another thought experiment.

There was a recent g-council vote where, in a rare event, the NCSG Policy 
Council had decided on an unanimous vote on an issue.  But during the vote, 
some voters got confused and voted against.

Would it have been appropriate for us to demand a re-vote?  

Had one of us been g-council Chair, would it have ben right for us to just 
reschedule the vote without even getting the g-councl to discuss and perhaps 
even vote on the notion of reconsidering the vote?

A general question, anytime from now on, when a SG or Constituency beleive that 
its voters went against the will of the SG/C should they be able to have a vote 
rescheduled at the next meeting?

avri


On 9 Jan 2013, at 00:54, Avri Doria wrote:

> 
> Even Robert's Rules of Order has rules on when and how a motion can be 
> reconsidered or rescinded (10.5).  The Board of ICANN has rules on 
> reconsideration in the ByLaws.   
> 
> One specific requirement for reconsideration under Roberts is that one of 
> those on the prevailing side ask for the reconsideration.  In this case it 
> was the Chair who had been on the losing side.
> 
> We need rules on when it is done and on how it should be done.
> 
> avri
> 
> 
> 
> On 9 Jan 2013, at 00:30, J. Scott Evans wrote:
> 
>> I tend to agree,
>> 
>> From: Aikman-Scalese, Anne ; 
>> To: 'Avri Doria' ; Jeff Neuman ; gnso-improvem-impl-sc@xxxxxxxxx ; 
>> Cc: Jonathan Robinson ; 
>> Subject: RE: [gnso-improvem-impl-sc] New task 
>> Sent: Wed, Jan 9, 2013 5:27:47 AM 
>> 
>> 
>> Hi all,
>> What I am struggling with procedurally is a basic "Robert's Rules" type 
>> inquiry.  Namely: - I don't know of anything procedurally that would permit 
>> a motion that is moved and seconded from being voted on, no matter how 
>> obnoxious anyone finds the motion to be.  I guess this is what we are going 
>> to discuss tomorrow.
> 
> the issue was voting again after it had already been defeated.
> 
>> 
>> I would like to ask whether there are specific provisions in the GNSO 
>> Operating Procedures regarding introduction of motions that staff can 
>> provide prior to our call.
> 
> It is all in the g-counci Procedures.
> And is says nothing on reconsideration or rescinding of decisions already 
> made.
> 
> 
>> 
>> Thank you
>> Anne
>> 
>> 
>> Anne E. Aikman-Scalese
>> Of Counsel
>> Lewis and Roca LLP * Suite 700
>> One South Church Avenue * Tucson, Arizona 85701-1611
>> Tel (520) 629-4428 * Fax (520) 879-4725
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>> -----Original Message-----
>> From: owner-gnso-improvem-impl-sc@xxxxxxxxx 
>> [mailto:owner-gnso-improvem-impl-sc@xxxxxxxxx] On Behalf Of Avri Doria
>> Sent: Tuesday, January 08, 2013 10:16 PM
>> To: Jeff Neuman; gnso-improvem-impl-sc@xxxxxxxxx
>> Cc: Jonathan Robinson
>> Subject: Re: [gnso-improvem-impl-sc] New task
>> 
>> 
>> Hi,
>> 
>> I guess I do not support that.
>> 
>> I think a motion should only be voted on once.  and that to bring it back, 
>> something must have changed or a reasonable amount of time should have past.
>> 
>> And no we use votes to count the up to the thresholds defined for motions to 
>> pass.  We may euphemistically use the word consensus, but it has NOTHING to 
>> do with consensus.  If anything the consensus is in the work of the WGs and 
>> not in the votes of the management team, i.e. g-council.
>> 
>> I believe that what happened in that meeting is something that should never 
>> be allowed to happen again.  And if we need rules to keep the chair from 
>> doing things like that,  something I admit never entered my imagination of 
>> things that could go wrong, then we need new rules.
>> 
>> A thought experiment: Just imagine the uproar in the council if an NCUC 
>> based g-council chair had dared to some like  this when the vote did not go 
>> her way.
>> 
>> avri
>> 
>> On 8 Jan 2013, at 21:24, Neuman, Jeff wrote:
>> 
>>> 
>>> Avri,
>>> 
>>> Yes, I know we use voting to measure consensus.  But in the end, the spirit 
>>> is to achieve consensus on policy items.  The fact that it took two votes 
>>> to do so should not prejudice the results.  Again, if there was some 
>>> evidence of wrong doing, fraud etc., that would be one thing.  But that did 
>>> not happen.
>>> 
>>> I support the ability to re-vote on any item unless there is evidence of 
>>> misconduct, harassment, fraud, etc.
>>> 
>>> Best regards,
>>> 
>>> Jeffrey J. Neuman
>>> 
>>> Sent from iPad.  Please excuse any typos.
>>> 
>>> 
>>> -----Original Message-----
>>> From:        Avri Doria [mailto:avri@xxxxxxxx]
>>> Sent: Tuesday, January 08, 2013 08:29 PM Eastern Standard Time
>>> To:  Neuman, Jeff
>>> Cc:  gnso-improvem-impl-sc@xxxxxxxxx; Jonathan Robinson
>>> Subject:      Re: [gnso-improvem-impl-sc] New task
>>> 
>>> Hi,
>>> 
>>> Sorry, that may be what the reviews intended at one point, but  that is not 
>>> what the current regulations say.  Due to the agreement between the SG at 
>>> the time, a very strict voting regime was adopted and approved by the Board 
>>> for the g-council.  G-council has such a complicated voting structure that 
>>> the Secretariat has a special tool to help them figure out when a motion 
>>> has passed or not.
>>> 
>>> To now claim that g-council is a consensus body does not match the reality 
>>> of the situation.
>>> 
>>> avri
>>> 
>>> 
>>> On 8 Jan 2013, at 19:37, Neuman, Jeff wrote:
>>> 
>>>> 
>>>> I will restate what I said on the Council call.  We are not supposed to as 
>>>> a group focus on voting.  We are supposed to come to "consensus" on items. 
>>>>  If there is a "consensus" at any time of the Council on any given policy 
>>>> (provided that the processes were followed by the working group making the 
>>>> recommendation), then that is what should govern. The last evolution and 
>>>> reform of icann report by the London School of Economics as supported by 
>>>> the Board Governance Committee emphasized this over and over again.  We 
>>>> are not supposed to be a voting body, so lets focus back on consensus.
>>>> 
>>>> All of the comments I have seen from those that did not like the result in 
>>>> the last council meeting have not addressed the fact that ultimately there 
>>>> was a "consensus" on the issue.  The fact that there had to be a second 
>>>> measurement of consensus on the item to me seems irrelevant and 
>>>> unnecessarily procedural.  There was no abuse of process.  There was no 
>>>> abuse within the working group making the recommendation.  There is not 
>>>> evidence that there were improper conflicts, etc.  Absent any showing of 
>>>> abuse, harassment, fraud, illegality, or willful negligence, I believe 
>>>> having a second measurement of consensus is not an issue.
>>>> 
>>>> Best regards,
>>>> 
>>>> Jeffrey J. Neuman
>>>> 
>>>> Sent from iPad.  Please excuse any typos.
>>>> 
>>>> 
>>>> -----Original Message-----
>>>> From:        Avri Doria [mailto:avri@xxxxxxxx]
>>>> Sent:        Tuesday, January 08, 2013 05:31 PM Eastern Standard Time
>>>> To:  gnso-improvem-impl-sc@xxxxxxxxx
>>>> Cc:  Jonathan Robinson; Neuman, Jeff
>>>> Subject:    Re: [gnso-improvem-impl-sc] New task
>>>> 
>>>> 
>>>> On 8 Jan 2013, at 17:16, Ron Andruff wrote:
>>>> 
>>>>> Assuming that the ultimate desired outcome was for Councillors to vote as 
>>>>> they were permitted to (and possibly directed to by their group), two 
>>>>> remedies were possible.
>>>>> 
>>>> 
>>>> 
>>>> I take real issue with this in that this can only be the case when it is 
>>>> accordance with adherence to all rules of neutrality, transparency and 
>>>> accountability.
>>>> 
>>>> Once a vote is given, it is taken and clues from anyone on how to make the 
>>>> vote work out better are not, in my view or the view of my stakeholder 
>>>> group, legitimate.  It is not for voter to decide that they should be able 
>>>> vote they way they meant to when they voted another way.  If it was, those 
>>>> poor old jewish voters on finding out the ballot in Florida was confusing 
>>>> could have taken back their votes for Buchanan, and Gore would have been 
>>>> President of the US. and yes, we may wish with all our hearts that it had 
>>>> been otherwise, but it wasn't.  Voting does not work according to wishes 
>>>> unsaid, it works in terms of the vote given.
>>>> 
>>>> avri
>>>> 
>>>> 
>>>> 
>>> 
>>> 
>>> 
>> 
>> 
>> 
>> 
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>