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

[Avri Doria <avri@xxxxxxx>]

Hi,

The problem is that the g-council is a management process.  It is the WG that 
are the consensus building.  To go back to the council as consensus is to go 
back to the days of council as legislature.

In its management role, the g-council does not arrive at consensus.  It votes 
in blocks that for the most part does not even allow its members to have their 
own points of view but are being ordered by SG/C to vote in a block a certain 
way.  That is not a consensus process.  It is a strictly defined voting 
organization.  In the GNSO, WG are consensus, g-council is management by vote.

This may be a good thing to bring up in the upcoming review, but I do not see 
any way for SCI to unwind the voting complexities of the g-council.

avri

On 9 Jan 2013, at 17:06, J. Scott Evans wrote:

> I think our problem is the meshing of to systems that are not necessarily 
> complimentary.  For this reason, I recommend that we consider getting away 
> from the council passing motions and re-focus the efforts on calling for 
> consensus.  
> 
> J. Scott
>  
> j. scott evans -  head of global brand, domains & copyright - Yahoo! Inc. - 
> 408.349.1385 - jscottevans@xxxxxxxxx
> 
> 
> From: "Neuman, Jeff" <Jeff.Neuman@xxxxxxxxxx>
> To: "Mary.Wong@xxxxxxxxxxx" <Mary.Wong@xxxxxxxxxxx>; "avri@xxxxxxx" 
> <avri@xxxxxxx>; "gnso-improvem-impl-sc@xxxxxxxxx" 
> <gnso-improvem-impl-sc@xxxxxxxxx>; "jonathan.robinson@xxxxxxxxxxx" 
> <jonathan.robinson@xxxxxxxxxxx> 
> Sent: Wednesday, January 9, 2013 1:00 PM
> Subject: RE: [gnso-improvem-impl-sc] New task
> 
> Thanks Mary.  I understand the rules you have laid out, but not sure I 
> understand the rationale?   What are you trying to prevent, guard against, 
> protect, etc.?  The reason I take the opposite view is that we are a 
> consensus building organization.  If consensus can be achieved on a policy 
> matter, regardless of whether it is when a measure of consensus is taken the 
> first time or the 2nd time, I see no reason to recognize consensus when 
> consensus exists.
>  
> Jeffrey J. Neuman 
> Neustar, Inc. / Vice President, Business Affairs
> 
>  
> From: Mary.Wong@xxxxxxxxxxx [mailto:Mary.Wong@xxxxxxxxxxx] 
> Sent: Wednesday, January 09, 2013 12:17 PM
> To: avri@xxxxxxx; gnso-improvem-impl-sc@xxxxxxxxx; 
> jonathan.robinson@xxxxxxxxxxx
> Cc: Neuman, Jeff
> Subject: RE: [gnso-improvem-impl-sc] New task
>  
> 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 >>>
> 
> All,
>  
> 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
> >> P Please consider the environment before printing this e-mail.
> >> This e-mail contains legally privileged and confidential information
> >> intended only for the individual or entity named within the message.
> >> If the reader of this message is not the intended recipient, or the
> >> agent responsible to deliver it to the intended recipient, you are
> >> hereby notified that any review, dissemination, distribution or
> >> copying of this communication is prohibited. If this communication
> >> was received in error, please notify us by reply e-mail and delete the 
> >> original message.
> >> 
> >> -----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
> >>>> 
> >>>> 
> >>>> 
> >>> 
> >>> 
> >>> 
> >> 
> >> 
> >> 
> >> 
> >> ----------------------
> >> For more information about Lewis and Roca LLP, please go to 
> >> www.lewisandroca.com.
> >> 
> >> Phoenix (602)262-5311 Reno (775)823-2900
> >> Tucson (520)622-2090 Albuquerque (505)764-5400
> >> Las Vegas (702)949-8200 Silicon Valley (650)391-1380
> >> 
> >> This message is intended only for the use of the individual or entity to 
> >> which it is addressed. If the reader of this message is not the intended 
> >> recipient, or the employee or agent responsible for delivering the message 
> >> to the intended recipient, you are hereby notified that any dissemination, 
> >> distribution or copying of this message is strictly prohibited. If you 
> >> have received this communication in error, please notify us immediately by 
> >> replying to the sender of this E-Mail by return E-Mail or by telephone.
> >> In accordance with Internal Revenue Service Circular 230, we advise you 
> >> that if this email contains any tax advice, such tax advice was not 
> >> intended or written to be used, and it cannot be used, by any taxpayer for 
> >> the purpose of avoiding penalties that may be imposed on the taxpayer
> >> 
> > 
> 
> 
> 
>