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

[<Mary.Wong@xxxxxxxxxxx>]

Thanks, Jonathan and Jeff. As I won't be on the SCI call this week, my
view, FWIW, is that a motion that is properly introduced, seconded and
voted on should NOT be re-introduced (whether in its original form or
tweaked) in the absence of clear evidence indicating fraud, duress or
other similar circumstance surrounding the original
introduction/seconding/vote in relation to the motion. In this regard,
Councilors' ignorance of the rules (e.g. effect of an abstention), and
lack of instruction/direction from a Councilor's particular
constituency/SG, should NOT count as the type of circumstance that ought
to permit a reintroduction or re-vote on what in substance is the same
motion.

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  

>>> "Jonathan Robinson"  01/10/13 1:12 AM >>>
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My understanding of the role of the SCI is to determine how improvements
may be made for the future.
 
When the motion was re-submitted to the December meeting, I do not
believe that there was any procedure to guide the Council on the
re-introduction of a motion that had recently been voted on.
 
This specific issue has highlighted that we may need something to guide
us on this in future.  I do not believe that the SCI*s hands are tied at
all.
 
We have one useful example which raised concerns and now need to look at
 as general solution as possible for the future in order to cover both
the example that raised the concern and other cases which may occur in
future.
 
Thanks,
 
 
Jonathan
 
From: owner-gnso-improvem-impl-sc@xxxxxxxxx
[mailto:owner-gnso-improvem-impl-sc@xxxxxxxxx] On Behalf Of
Mary.Wong@xxxxxxxxxxx
Sent: 09 January 2013 16:58
To: avri@xxxxxxx; gnso-improvem-impl-sc@xxxxxxxxx
Cc: jonathan.robinson@xxxxxxxxxxx; Jeff.Neuman@xxxxxxxxxx
Subject: Re: [gnso-improvem-impl-sc] New task


 
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 <avri@xxxxxxx> 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 <AAikman@xxxxxxxxx>; 
>> To: 'Avri Doria' <avri@xxxxxxx>; Jeff Neuman
<Jeff.Neuman@xxxxxxxxxx>; gnso-improvem-impl-sc@xxxxxxxxx
<gnso-improvem-impl-sc@xxxxxxxxx>; 
>> Cc: Jonathan Robinson <jonathan.robinson@xxxxxxxxxxx>; 
>> 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
>> AAikman@xxxxxxxxx * www.LewisandRoca.com/Aikman
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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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