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

["Ray Fassett" <ray@xxxxxxxxx>]

If I understand correctly, Dan is giving us legal advice that a Conflict of
Interest can't exist because Council reps (different than Board members) do
not have a fiduciary responsibility to ICANN.  Absent such fiduciary
responsibility, there can't be a Conflict of Interest - with ICANN and that
this is by design.  I can accept this legal advice as it pertains to
Conflict of Interest to ICANN.  But this conclusion does not address the
issue - raised to us in Seoul by Kristina Rosette and Steve Metalitz - of a
Conflict of Interest a Council rep may have to the outcome of specific issue
the rep is required (per ICANN by-laws) to vote upon.  This is what we are
trying to get our hands around.  Here's what we need to separate:  Where the
vote takes place vs. where the conflict exists.  The vote takes place at the
Council level.  The conflict exists at the SG level.  Dan is saying (my
interpretation) that by definition a Conflict of Interest can't exist by way
of a voting process at the Council level - at least not one with ICANN.  I
happen to agree with this.

 

But to Ron's point - and what we heard in Seoul and then again later from
Kristina Rosette and Steve Metalitz - is that a rep can be conflicted as
this pertains to an issue, or the outcome of this issue.  The conflict is
not with ICANN, the conflict is with the issue at hand.  Put simply, the rep
can't vote representing their SG/Constituency - due to a personal conflict -
so they have to abstain.  This is what we are hearing is reality.  And
reality says that in this instance, the abstained vote in effect results as
a "no" vote.  The question is how to remedy the abstained vote from
happening at the Council level?  What can the RoP offer the SG/Constituency
to avoid this?  And after all such methods have been exercised by the
SG/Constituency where the outcome remains an abstention, should the
denominator then be changed?  We all can agree, from previous discussions,
that if we do this right, the instance of changing the denominator should be
very rare.

 

It seems hard coded to me that each Council rep is allowed only 1 vote.  So,
"proxy" does not seem to me the path of least resistance.  It does seem
reasonable to me to allow an SG/Constituency to name an alternate to vote
when the Council rep informs their SG/Constituency they have a personal
conflict of interest on the issue at hand.  And it seems to me there is some
precedent for use of "alternates" from what Ken has uncovered.

 

The conflict can't be with ICANN.  I get this.  So it is not ICANN's burden
to resolve whatever this conflict is, right?  So whose burden is it?  I
would say the SG/Constituency.  Our task is to provide to the
SG/Constituency the tools to do so through the RoP that they can invoke when
they feel appropriate to do so, such as when being notified by their rep of
such conflict.

 

Talk in a few..

 

Ray

 

 

 

 

  _____  

From: owner-gnso-osc-ops@xxxxxxxxx [mailto:owner-gnso-osc-ops@xxxxxxxxx] On
Behalf Of Ron Andruff
Sent: Sunday, December 27, 2009 1:24 PM
To: 'Ken Bour'; gnso-osc-ops@xxxxxxxxx
Subject: RE: [gnso-osc-ops] Legal Review Update: Abstentions & Proxy Voting

 

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