Re: [gnso-osc-ops] Legal Review Update: Abstentions & Proxy Voting

[Avri Doria <avri@xxxxxxx>]

+1


On 27 Dec 2009, at 13:24, Ron Andruff wrote:

> Dear all,
>  
> I had a chance to look through Ken’s comments below as well as the SOI/DOI 
> documents (with GC’s comments) over the last couple of days and, while I 
> expect that we will be going through these on the call on Jan. 6th, wanted to 
> add to the discussion with some thoughts here.  To be clear, this email 
> pertains to Ken’s email below.  My SOI/DOI comments will follow in a separate 
> email.
>  
> With regard to Dan Halloran’s take on conflicts of interest not pertaining to 
> the GNSO, I don’t agree that they will not exist.  There will always be 
> conflicts arising, so to give them a euphemism, i.e. professional dilemma, 
> does little than obfuscate the facts.  We will have a Statement of Interest 
> (SOI) as well as a Declaration of Interest (DOI) in place shortly.  I don’t 
> understand why individuals, when faced with an obvious conflict that they can 
> not see a way around, could not state that they have a Conflict of Interest 
> (COI)?  To me this seems like the correct way forward.  Simply saying that 
> conflicts of interest do not happen at the GNSO level is akin to the ostrich 
> sticking its head in the ground.  And that won’t work here.  We need to drill 
> down deeper to see if we can find a better solution than what has been 
> proposed.
>  
> Kind regards,
>  
> RA
>  
> Ronald N. Andruff
> RNA Partners, Inc.
> 220 Fifth Avenue, 20th floor
> New York, New York 10001
>  
> www.rnapartners.com
> V: +1 212 481 2820 x 11
> F:  +1 212 481 2859
>  
> From: owner-gnso-osc-ops@xxxxxxxxx [mailto:owner-gnso-osc-ops@xxxxxxxxx] On 
> Behalf Of Ken Bour
> Sent: 2009-12-18 17:21
> To: gnso-osc-ops@xxxxxxxxx
> Subject: [gnso-osc-ops] Legal Review Update: Abstentions & Proxy Voting
>  
> Ray and GCOT Members:
>  
> Rob Hoggarth and I had a productive teleconference with Dan Halloran last 
> night concerning COI, abstentions, proxy voting, and other potential 
> remedies.   He had read our material and, of course, was very familiar with 
> this topic from his involvement in 2007 and earlier.   While Dan would like 
> to have more time to consider the legal ramifications and to consult with 
> John Jeffries, the following summarizes where we are at present: 
>  
> As I understood our conversation, Dan recognizes and acknowledges that:
>  
> 1)      the conditions leading to the re-introduction of proxy voting (or 
> similar remedy) have changed in the restructured GNSO, especially with the 
> new bicameral house apparatus and voting thresholds based upon small 
> denominators of 7 and 13.  
> 2)      an abstention under the current rules produces, in effect, a “No” 
> vote and that may not be acceptable under certain professional and/or 
> political circumstances.
> 3)      changing the voting denominator -- due to an abstention -- should not 
> be the default practice for reasons that include potential gaming.
> 4)      remedies appear to be needed to avoid registering abstentions that 
> would otherwise result in a denominator reduction.
> 5)      the GCOT, in the current draft procedure, appears to have addressed 
> the concerns surfaced in 2007 concerning the use of proxy voting within the 
> GNSO.
> 6)      the original language in the Bylaws interpreted as prohibiting proxy 
> voting has been removed although there is a new clause [Article X, 3(8)] that 
> needs to be analyzed (see discussion below).
>  
> The above is encouraging news that I had hoped we would find once we had an 
> opportunity to engage Dan on this subject.  
>  
> Dan did raise a concern about our use of proxy voting (or other remedies) for 
> cases of Conflict of Interest -- his take on it is intriguing.   What follows 
> is my best attempt at recounting Dan’s view.   He indicated that GNSO 
> Councilors, unlike Board Members, do not have a fiduciary responsibility to 
> ICANN in discharging their responsibilities on the Council.   In fact, they 
> are expected to represent the views of organizations and interest groups who 
> would materially benefit from policies that are recommended by the GNSO.   In 
> that sense, they function more like lobbyists.  It is understood that 
> Councilors are often employed members of those affected parties or may 
> represent them in other ways that could engender subsequent benefit to them 
> as individuals.   No ICANN conflict should arise when a GNCO Councilor argues 
> for and votes “Yes” on a matter which, by virtue of that action, directly or 
> indirectly benefits that individual financially or economically.   
>  
> My take away from that discussion is that Dan would prefer that we avoid 
> using the term Conflict of Interest in our procedural material because it is 
> potentially confusing and connotes a condition that should not occur in the 
> GNSO at the Council level.   On the other hand, after discussing a few of the 
> examples that were provided by Avri and Kristina, Dan acknowledges that 
> individual Councilors may, from time to time, encounter personal or 
> professional dilemmas (new term?)  that might cause them to want to abstain 
> from discussion/voting on an issue without having that action be treated as a 
> “No” vote.   
>  
> [KAB Note:  at the appropriate juncture, I will take a shot at restructuring 
> the procedures to refer only to classes of abstention and, in the appropriate 
> section, insert language to indicate that the term “Conflict of Interest” 
> does not pertain to the GNSO.]
>  
> Even if we sidestep the COI terminology, a remedy is still needed in the case 
> of a Councilor declaring a professional “dilemma” in order to avoid having to 
> decrement the voting denominator.   Dan offered another possible option that 
> might pertain in the GNSO’s situation.   He drew our attention to Article VI 
> (“Board of Directors”), Section 4(2) of the ICANN Bylaws in which there is a 
> provision that is remarkably similar to the one which the GCOT is 
> considering.   That entire paragraph is quoted below: 
>  
> “2.  No person who serves in any capacity (including as a liaison) on any 
> Supporting Organization Council shall simultaneously serve as a Director or 
> liaison to the Board. If such a person accepts a nomination to be considered 
> for selection by the Supporting Organization Council to be a Director, the 
> person shall not, following such nomination, participate in any discussion 
> of, or vote by, the Supporting Organization Council relating to the selection 
> of Directors by the Council, until the Council has selected the full 
> complement of Directors it is responsible for selecting.  In the event that a 
> person serving in any capacity on a Supporting Organization Council accepts a 
> nomination to be considered for selection as a Director, the constituency 
> group or other group or entity that selected the person may select a 
> replacement for purposes of the Council's selection process.” 
>  
> Interpretation:  The Bylaws already contain a provision permitting a 
> “replacement” or alternate to be named for a Councilor who has accepted a 
> nomination to become an ICANN Director and, therefore, is prohibited from 
> participating in certain Council voting.   In particular, lacking any other 
> remedy, that Councilor would have to “abstain” from voting on another nominee 
> for the Board.   Rather than lose its vote in such a circumstance, the above 
> provision allows the affected Constituency or Stakeholder Group to name 
> another individual (not necessarily a Council member), to serve on the 
> Council and vote for other Board nominees.    
>  
> I had previously thought that naming an “alternate,” who was not a Councilor, 
> could not be allowed because of existing clauses in Article X stipulating 
> that only Council members may vote.   This morning, I decided to reread 
> Article X (September 2009) and discovered only the following two references 
> pertaining to this matter, both in Section 3-GNSO Council: 
>  
> “1.  No individual representative may hold more than one seat on the GNSO 
> Council at the same time.”
> “8.  Except as otherwise specified in these Bylaws, each member of a voting 
> House is entitled to cast one vote in each separate matter before the GNSO 
> Council.”
>  
> Rob, Dan, and I did not discuss the new clause in paragraph 8 that would 
> seem, on the surface, to prohibit the use of proxy voting.   It is not clear 
> in my mind whether the language, “Except as otherwise specified in these 
> Bylaws,” also applies to the GNSO Operating Procedures because that reference 
> appears elsewhere in Article X.    It may be that the GNSO Operating 
> Procedures can authorize an exception that would permit an individual to cast 
> more than one vote (i.e. a proxy).   
>  
> Given the current Bylaws and Dan’s noting the possible application of Article 
> VI, one course of action for the GNSO might be to use the “alternate” 
> Councilor remedy. 
>  
> [KAB Note:  According to Dan, there are no procedures associated with this 
> condition that might guide the GCOT; however, Rob and I will put our heads 
> together and, in a separate document, suggest a few possibilities to 
> consider]. 
>  
> Another thought I had, after considering this entire matter holistically, is 
> that it might be useful to restructure the material along a different line 
> than has been presented thus far.   Specifically, perhaps we should consider 
> drafting a section that would follow this logic path:
>  
> 1)      Duty of Councilors  […emphasizing that Councilors are expected to be 
> remain active, informed, and accountable in exercising their obligations 
> including engaging responsibly on Council matters and voting “Yes” or “No” 
> when formally polled]
> a.      Active participation
> b.      Responsible inquiry
> 2)      Conditions that may prevent the fulfillment of Councilor 
> responsibilities  […acknowledging two categories of circumstances that may 
> occur]
> a.      Incidental or temporary absence [Note:  extended absence should be 
> handled via resignation and replacement?] 
> b.      Abstention
>                                                               i.      
> Volitional  […currently defined as “voluntary”]
> 1.      Such cases, even if not remedied as provided under 3(a-d) below, 
> never result in a voting denominator reduction (3e).   Constituencies and/or 
> SGs are encouraged to support their Councilors such that incidences of 
> volitional abstention are minimized to the greatest extent possible.
>                                                            ii.      
> Obligational  […instead of “involuntary”] 
> 1.      Insert explanation that ICANN “Conflicts of Interest” do not arise in 
> the GNSO; however,
> 2.      Conditions may occur in which a Councilor has a professional or 
> personal dilemma warranting if not obligating abstention that, if not 
> remedied as provided below in 3(a-d), would result in a decrement to the 
> voting denominator (3e). 
> 3)      Available remedies to the GNSO […these alternative methods may be 
> applied, in order of appearance and as applicable, so that all Constituency 
> and/or SG votes have an opportunity to be cast as provided by the Bylaws]
> a.      Electronic voting  […currently called “absentee voting”]
> b.      Voting directive provided in writing by Constituency and/or SG to 
> Councilor
> c.       Constituency/SG transfers the vote by proxy to House NCA or another 
> of its Councilors […assumes that the organization can/will produce a 
> consensus position to enable this remedy]
> d.     Constituency/SG names a temporary replacement (“alternate”) who is 
> empowered to “stand in” for Councilor in Council discussions and voting 
> […does not require that the organization establish a consensus position 
> although it may do so and direct the alternate how to represent its views on 
> the Council motion/action including its “Yes” or “No” vote] 
> e.      Councilor abstains and House voting denominator is decremented by one 
> […last resort in the event that all preceding remedies fail] 
>  
> Note:  assuming that 3c and 3d are both approved as available remedies, it 
> remains an open question which one should precede the other in the sequence 
> of steps.  I selected the order above because, if the C/SG can produce a 
> consensus position, it seems less administratively difficult to initiate a 
> proxy vs. executing the mechanics required to name a replacement (e.g. adding 
> to Council email list?, SOI?, Council introductions?, change roll call?, 
> etc.).    
>  
> The above outline is still a bit rough, but I am interested to know if GCOT 
> members think it might be a more constructive approach in handling this 
> complex material within the GNSO Operating Procedures.  
>  
> Thanks,
>  
> Ken Bour
>