RE: [gnso-osc-ops] Abstentions and Conflicts of Interest]

["Ray Fassett" <ray@xxxxxxxxx>]

Right, thanks Ken & Tony.  Apparently this is not the case for all SG's and
Constituencies.  I believe the BC and IP constituencies have historically
not had the same binding sort of measures placed upon their council reps.
In other words, some council reps have the autonomy to act in their
individual capacity as GNSO council reps.

I don't think it is within the scope of our work team to mandate language
into an SG or Constituency charter.  Though I am certainly open to others
thoughts to this point.

I think what we can do - in the rules of procedure - is place the burden
squarely upon the SG/Constituency to resolve the conflict of their
individual before getting to the council level.  For the registry and ISP
stakeholder group, I think this is a moot point because these are 2 examples
of SG's that have long accepted the burden.  For those SG's that haven't
(such as hard coded into their charter), the answer can't (reasonably) be
"change the denominator" upon a vote if their individual has to abstain due
to their own individual conflict.

I felt on our last call that both Steve Metalitz and Kristina Rosette agreed
to the reasonableness of this discussion...which is simply don't transfer
the individual conflict to the council level but instead resolve the
conflict at the SG level before it gets there.  And this is the burden of
the SG to accomplish.  Why?  Because GNSO council reps are to be managers of
the policy process vs. developing policy.  I can see instances of interest
conflict of an individual if their role is to "develop" policy but if truly
just "managing" the policy process (as falls under our ballywick) then the
instances for individual conflict of interest should be extremely rare.
Which means altering the denominator upon a council vote should be extremely
rare.

Short of our ability to force or mandate language into an SG charter, the
question becomes what rules can we offer as procedure for an SG to use to
resolve a conflict of interest when notified of such conflict by their
individual rep?  We discussed enabling the SG to transfer their vote to a
different individual without such a conflict.  If the SG, for whatever
reason, has not followed this procedure at time of council vote, then the
denominator will not be changed as a result of an abstention.  This would be
placing the burden upon the SG via rules articulated in the procedures.  The
open point we have is to seek ICANN staff legal advice on the concept of
building into the rules of procedure a mechanism for an SG to transfer its
vote from one individual to a different individual (when notified by their
rep of a conflict of interest).

The question at hand here is:  Under what conditions is the denominator to
change at the time of a vote at the council level as a result of an
abstention (where such abstention is the result of an individual's conflict
of interest)?  If we place the burden of the conflict at the SG level,
through clear rules of procedure to resolve, any such instance of an
abstention at the council for this reason should be rare.

Hope this helps...and discussion welcome to any of the above.

Ray





 
-----Original Message-----
From: Ken Stubbs [mailto:kstubbs@xxxxxxxxxxxx] 
Sent: Tuesday, December 08, 2009 8:57 AM
To: Tony Holmes
Cc: 'Ray Fassett'; 'Ken Bour'; gnso-osc-ops@xxxxxxxxx;
julie.hedlund@xxxxxxxxx; robert.hoggarth@xxxxxxxxx; liz.gasster@xxxxxxxxx
Subject: Re: [gnso-osc-ops] Abstentions and Conflicts of Interest]

Ken Stubbs wrote:

We have the same policy as well "hard-coded" into our constituency 
by-laws and
have for the last 7 years.

Ken

Tony Holmes wrote:
> Ray
>
> It may be worth noting that within some Constituencies (the ISPCP being
one
> of them) there are words within their charters that bind GNSO Councilors
to
> vote in line with formally approved Constituency positions. 
>
> As they are charged with representing those positions, this safeguards
both
> their integrity and that of the Constituency. 
>
> Regards
>
> Tony
>
> -----Original Message-----
> From: owner-gnso-osc-ops@xxxxxxxxx [mailto:owner-gnso-osc-ops@xxxxxxxxx]
On
> Behalf Of Ray Fassett
> Sent: 07 December 2009 18:03
> To: 'Ken Bour'; gnso-osc-ops@xxxxxxxxx
> Cc: julie.hedlund@xxxxxxxxx; robert.hoggarth@xxxxxxxxx;
> liz.gasster@xxxxxxxxx
> Subject: RE: [gnso-osc-ops] Abstentions and Conflicts of Interest]
>
>
> It appears to me we need ICANN Counsel advice on the concept of
> "transferring a vote" from one individual to another individual.  I've
been
> trying to reason out the issue from the perspective that "the
Constituencies
> and/or SGs do, indeed, own/control their votes" on the thinking that this
> places accountability where it best belongs being at the SG/Constituency
> level (vs. at the Council level).  I wonder if we should seek ICANN
Counsel
> advice on this question too?  i.e. Does the SG/Constituency own/control
> their own vote and does this have any significance to the concept of being
> able to transfer a vote from individual to another individual when various
> scripted conditions are met?  Thoughts?
>
>
> -----Original Message-----
> From: owner-gnso-osc-ops@xxxxxxxxx [mailto:owner-gnso-osc-ops@xxxxxxxxx]
On
> Behalf Of Ken Bour
> Sent: Monday, December 07, 2009 10:09 AM
> To: 'Ray Fassett'; gnso-osc-ops@xxxxxxxxx
> Cc: julie.hedlund@xxxxxxxxx; robert.hoggarth@xxxxxxxxx;
> liz.gasster@xxxxxxxxx
> Subject: [gnso-osc-ops] Abstentions and Conflicts of Interest]
>
>
> Hi Ray:
>
> Please see my comments below to your questions.
>
> Ken
>
> -----Original Message-----
> From: Ray Fassett [mailto:ray@xxxxxxxxx] 
> Sent: Monday, December 07, 2009 9:08 AM
> To: gnso-osc-ops@xxxxxxxxx; ken.bour@xxxxxxxxxxx
> Cc: julie.hedlund@xxxxxxxxx; robert.hoggarth@xxxxxxxxx;
> liz.gasster@xxxxxxxxx
> Subject: RE: [Fwd: [gnso-osc-ops] Abstentions and Conflicts of Interest]
>
> Ken, sorry for the delay...and thank you for preparing this document for
us.
>
> I have 3 questions:
>
> 1.  In the case of an MCOI (Material Conflict of Interest), the primary
> remedy is to seek transferring the vote to its NCA.  Is this correct?
>
> [KAB] The primary and easiest remedy is shown in 5.2(a), that is, direct
how
> the vote should be entered.  If that will not eliminate the problem (e.g.
> the attorney case), then transferring the vote is the next best option
> (5.2(b)) versus losing it entirely.  Whether the vote should be vested
with
> the voting House NCA or another Councilor is subject to further
discussion;
> but, that is the way it is currently drafted.  
>
> 2.  The option for a Stakeholder Group (or Constituency) to transfer the
> vote of the conflicted rep to another rep of the same SG or Constituency
is
> not provided as a possible remedy...is this correct?
>
> [KAB] Actually, it is provided as an option if the House NCA is
> "unavailable."  Currently, I have that clause in parentheses, but it could
> be pulled out and made explicit.
>
> 3.  In the example, it assumes the Contracted Party House chose not to
have
> its NCA vote on behalf of the conflicted rep, is this correct?
>
> [KAB] True. The example is included as part of Section 5.4 which begins,
"If
> the conflict cannot be avoided after pursuing the above mechanisms..."  To
> reach 5.4 requires that ALL remedies were attempted and none found
> acceptable.  That should be an exceedingly rare occurrence assuming that
> Legal has no objection to the vote transfer concept.
>
> [KAB] An interesting question arises...  If the Constituencies and/or SGs
> do, indeed, own/control their votes, could they transfer a vote from one
> Councilor to another (including House NCA) in circumstances beyond COI?
For
> example, assume a Councilor cannot register a vote due to serious illness
> (e.g. unconscious).  If known in advance, following similar notification
> procedures, could the vote be transferred?  If such conditions will be
> allowed, perhaps it makes sense to write a generic "vote transfer "
> procedure outside of the COI framework and then reference it from within
the
> above material.
>
> Ray
>
> -----Original Message-----
> From: Ray Fassett [mailto:rfassett@xxxxxxxxxxxxxxx] 
> Sent: Monday, December 07, 2009 7:17 AM
> To: ray@xxxxxxxxx
> Subject: [Fwd: [gnso-osc-ops] Abstentions and Conflicts of Interest]
>
> ---------------------------- Original Message ----------------------------
> Subject: [gnso-osc-ops] Abstentions and Conflicts of Interest
> From:    "Ken Bour" <ken.bour@xxxxxxxxxxx>
> Date:    Thu, November 26, 2009 1:25 pm
> To:      "'gnso-osc-ops'" <gnso-osc-ops@xxxxxxxxx>
> Cc:      "'Julie Hedlund'" <julie.hedlund@xxxxxxxxx>
>          "'Robert Hoggarth'" <robert.hoggarth@xxxxxxxxx>
>          "'Liz Gasster'" <liz.gasster@xxxxxxxxx>
> --------------------------------------------------------------------------
>
> To:  GNSO Council Ops Team
>
>
>
> As discussed in our teleconference yesterday and noted in Julie's action
> item summary, I have prepared the attached DRAFT document, which is
proposed
> as a set of additional sections that could be incorporated into the GNSO
> Operating Procedures on the subjects of Abstentions and Conflicts of
> Interest.
>
>
>
> .         A version of this material was first published by Staff as a
> comment to the Public Forum on GNSO Operating Procedures
>
(http://forum.icann.org/lists/gnso-operating-procedures-2009/msg00001.html).
>
>
> .         In the attached condensed version, I removed the
> background/research portions of the original paper and included only the
> applicable definition and procedure sections.
>
> .         I attempted to capture my understanding of the team consensus on
> various elements and, as a result, rewrote much of the content.   I
enabled
> track changes in the document so that team members can see how/where the
> original material was altered.
>
>
>
> I am happy to answer any questions concerning this draft document and to
> continue supporting the team to help evolve and perfect these procedures.
>
>
>
> Happy Thanksgiving where celebrated.
>
>
>
> Ken Bour
>
>
>
>
>
>