[gnso-osc-ops] Summary of Call: 06 January 2010

[Julie Hedlund <julie.hedlund@xxxxxxxxx>]

Dear Work Team members,

Ken has compiled the following excellent summary from Wednesday's call.  This 
also is posted to the wiki Meeting Notes page at: 
https://st.icann.org/icann-osc/index.cgi?osc_gnso_operations_team_meeting_notes.

Many thanks to Ken for all his support!

Best regards,

Julie

06 January Meeting: (See MP3 
<http://audio.icann.org/gnso/gnso-council-ops-20100106.mp3> .)

Attendees:

Tony Holmes, Ray Fassett, Avri Doria, Wolf-Ulrich Knoben, Ron Andruff; Staff: 
Rob Hoggarth, Ken Bour, Glen de Saint Gery, Gisella Gruber-White

Discussions, Action Items, and Work Team Decisions

"Conflict of Interest" Terminology

 After much discussion, the team is prepared to acknowledge, at least for the 
present, that the term "Conflict of Interest (COI)" has special meaning and, 
according to ICANN Legal, should be reserved for use under narrowly drawn 
circumstances. Specifically, in the case of the GNSO Council, its elected 
members do not have a fiduciary obligation to ICANN; therefore, they cannot 
technically have a COI under this interpretation. In the next draft of the 
procedures, Ken will include a statement defining COI in this narrow context 
and explaining that, as a result, the term will not be explicitly cited as a 
reason for an abstention. Instead, we will substitute other nomenclature which 
recognizes the fact that, under certain circumstances, individual Councilors 
can and do have professional, ethical, or other non-financial obligations 
requiring an abstention (and possible recusal) even if such conditions do not 
rise to the level of an ICANN COI.

"Proxy" Voting

In his earlier summary email (18 Dec 2009), Ken noted that Bylaws Article X, 
Paragraph 8 appears to prevent the possibility of a "proxy" as currently 
drafted: "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."

In response to the question as to whether the above paragraph should be 
considered an immovable constraint, Ken suggested that the clause "Except as 
otherwise provided in these Bylaws" might easily be extended to add "...or the 
GNSO Operating Procedures" because such language is used in other sections of 
Article X. Ron offered an intriguing interpretation that a "proxy" does not 
really violate the spirit of paragraph 8 because there is still only one vote 
being "cast" by each member. One Councilor's vote is simply being registered by 
another Councilor (via proxy) as directed by the Constituency or SG. The proxy 
Councilor is, in effect, casting only one vote (his/her own) and declaring, by 
written statement from the C/SG, the other Councilor's vote, which would be 
recorded as having been proxied (to avoid the recused member from being 
attached to that vote). At the appropriate juncture, Ken and Rob will clarify 
that interpretation with Legal.

In response to constraints itemized by Legal/Staff in 2007 concerning the use 
of proxy voting, Ken emphasized that he will attempt to tie down the rules to 
include such restrictions as:

·Incidental and specific to a motion/action of the Council
·Time bound (not open-ended)
·Any Councilor may only exercise 1 proxy at a time (as directed by C/SG)
·Proxies do not influence quorum calculations
·Et al.

The team also discussed and reached an understanding that the introduction of 
proxy voting at the Council level does not specifically require that the C/SGs 
have Charter provisions that restrict their Councilors to vote consensus 
positions. It only requires that, in the event that a Councilor comes forward 
with a need to abstain, the C/SG would be asked if it can produce a consensus 
position as a prerequisite to executing a proxy remedy. If the C/SG cannot 
produce a consensus, then it would seek other available remedies (see 
discussion below).

GNSO Operating Procedures: Construct

Ken walked through his proposed construct for handling this topic within the 
GNSO Operating Procedures. The basic outline is as follows:

 Section 1 - Duties (establishes the principle that the C/SGs ultimately own 
each vote; everyone is duty-bound to participate responsibly; and conditions 
should be avoided where any vote is not exercised)

 Section 2 - Preventions (recognizes that there are circumstances which can/do 
prevent Councilors from fulfilling their duties)

 Section 3 - Remedies (itemizes a series of actions, in sequential order, that 
are available to remedy conditions described in Section 2)

Ken highlighted the 5 currently documented remedies labeled (a)-(e); see 18 Dec 
2009 email 
<https://st.icann.org/icann-osc/index.cgi?action=display;is_incipient=1;page_name=labeled%20%28a%29-%28e%29%3B%20see%2018%20Dec%202009%20email>
 and the team discussed them and their sequential order. The underlying premise 
behind this construct is that a C/SG, under most (if not all) circumstances, 
would prefer to have its votes exercised and would choose to remedy any cases 
that would otherwise result in an abstention.

Ken originally recommended that, for remedy "(d)" (alternate), there would be 
no explicit obligation that the C/SG bind the Councilor to a particular vote 
(via consensus) although nothing in the procedures would prevent the 
organization from providing such instructions to the "stand in" party. After 
discussing the pros/cons, the team agreed that the procedures should be silent 
on requiring consensus for this particular option. Remedy "(c)" (proxy) would 
require that a consensus position exist within the C/SG.

There was considerable discussion concerning how to ensure that all of the 
sequential remedies are, in fact, exercised. As Ray expressed it, what would 
prevent a C/SG from defaulting through the available remedies to an abstention 
and reduction of the denominator? That discussion resulted in a consensus to 
remove remedy (e) - abstention. Avri wondered if that decision would 
reintroduce the very problem raised by IPC members (Kristina Rosette and Steve 
Metalitz) who provided their input to the team in an earlier session. Ray 
offered his impression that those individuals would be OK as long as remedies 
were available that did not result in an abstention and a de facto "No" vote 
being recorded. By removing the abstention option (and denominator reduction), 
gaming would be eliminated and there would be no need to create enforcement 
rules concerning the remedies. On the other hand, Ken noted that, by removing 
the default option, there is an implicit recognition that EVERY abstention case 
can and will be remedied. To Avri's point, the team must still prevent the 
circumstance that a Councilor faces an obligatory abstention and, if the C/SG 
does not remedy the problem (e.g. proxy or alternate), the resultant abstention 
would be recorded as a de facto "No" vote - something that the IPC 
representatives were not prepared to accept in principle. Perhaps the rules now 
have to be drafted to require a remedy in every case of an obligatory 
abstention. Open question: is it possible that there could be a set of 
conditions under which a C/SG would not be able to avail itself of one of the 4 
remedies?

Based on team discussion, Ken will add "recusal" as a necessary step in cases 
where an obligational abstention is registered.

On behalf of the Policy Staff, Ken agreed to draft a set of procedures based 
upon this recommended construct and to submit to the team for review.

C/SG Charter Provisions

There was considerable sentiment expressed, although not unanimous, that C/SG 
Charters should constrain their Councilors to vote in accordance with consensus 
positions established by the organization. The GCOT agreed that it would ask 
the CSG WT to consider this question/issue since commonality of C/SG procedures 
is one of its assigned tasks. Ray agreed to pursue this matter via the email 
list.

Vice-Chair

Ray raised the issue that the team should address electing a Vice-Chair. Ray 
nominated Avri as a candidate and she agreed to consider it. This agenda item 
will be taken up at the team's next meeting.

Prepared by: Ken Bour