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

["Ron Andruff" <randruff@xxxxxxxxxxxxxxx>]

Dear All,

 

I believe we covered some significant ground on the last call and support
the meeting notes below being exemplary of that.  Unfortunately, I will be
away on vacation next week so I will not be able to join the call but did
want to put in my 'proxy' vote for Avri to become the Vice Chair should she
choose to accept the offer.  I also vote in favor of the new line of
thinking on proxies, i.e., we do not reduce the denominator.  

 

Again, apologies for missing the call.  Good luck in your work.

 

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 Julie Hedlund
Sent: 2010-01-08 13:54
To: gnso-osc-ops
Subject: [gnso-osc-ops] Summary of Call: 06 January 2010

 

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_no
tes.

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