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

[Avri Doria <avri@xxxxxxx>]

Hi,

I agree that we are not reviewing the vote itself.  Though it would be 
interesting to see what happened if someone did introduce a motion to rescind 
that vote (re-reading Robert's is fascinating!), that is not an SCI decision to 
make.

What is pertinent is that event, and projections on that event, as a case study 
for the issue before us..

avri

On 9 Jan 2013, at 12:04, Neuman, Jeff wrote:

> Just to clarify, the issue before the SCI is NOT whether the vote was proper 
> or improper at the last Council meeting, but rather on the general notion of 
> whether we should be allowing this in the future or restricting it.  Clearly 
> there is nothing now in the bylaws, operating procedures, etc. that says this 
> practice is NOT allowed.  So, regardless of what people’s personal views on 
> this are, the GNSO did not act improperly according to its rules. That said, 
> should this be allowed in the future, should there be restrictions, etc.  
> That is the issue we need to consider as a group.
>  
> Jeffrey J. Neuman 
> Neustar, Inc. / Vice President, Business Affairs
> 
>  
> From: Mary.Wong@xxxxxxxxxxx [mailto:Mary.Wong@xxxxxxxxxxx] 
> Sent: Wednesday, January 09, 2013 11:58 AM
> To: avri@xxxxxxx; gnso-improvem-impl-sc@xxxxxxxxx
> Cc: jonathan.robinson@xxxxxxxxxxx; Neuman, Jeff
> 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
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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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