[gnso-osc-ops] Initial Legal Review of Section 4-Voting and 4.5-Abstentions

["Ken Bour" <ken.bour@xxxxxxxxxxx>]

GCOT Members:

 

Yesterday evening, Samantha Eisner (ICANN General Counsel's office) provided
feedback, comments, and suggested edits concerning the team's proposed GNSO
Operating Procedures revisions covering Voting and Abstentions. 

 

While Sam had many constructive comments to offer, I am delighted to report
that none of the recommendations affect the architecture of the provisions
including the remedies of voting direction, proxy, and temporary alternate.


 

Since there were quite a few suggestions, it will take me a few days to work
through Sam's recommendations -- thoughtfully and carefully.  While I will
not have another version ready for the team to review by today's scheduled
teleconference, I wanted to give you a brief status update concerning the
types of changes that Sam identified including my comments (in maroon text).


1)      Consistent use of terms.  The document switches from "Constituency
and Stakeholder Group" to "organization," in places, or uses a defined term
in one instance but not in another, such as "Temporary Alternate."  The
changes should be combed for consistency.  [KB>  Noted -- should be
relatively easy to fix.] 

2)      Confusion re: SGs and Cs.  There are repeated references to
Constituency (C) "and/or" Stakeholder Group (SG) that, in some instances,
make it appear that either group can elect/appoint Council Members.
Technically, the Bylaws only reference SGs as the appointing bodies.  While
a SG Charter may allow for its Cs to appoint Councilors, I think that this
has to be better described in the procedure as to which body may direct a
Councilor's vote.  [KB> I understand Sam's concern and believe I can clear
up the confusion.  I note that, because we now have two SGs with Cs and two
without any Cs, it has become especially challenging to write procedures
that are clear and accurate without being convoluted.] 

3)      Role of a Councilor.  There is a tension in the document concerning
the voting independence of a Councilor.  Do Councilors vote as they see fit
or as the SG/C wants them to vote?  Some of the initial statements lean
toward being directed and not to Councilor "independence".  Please review my
edits, accordingly, as I may have brought in the wrong standard.  [KB> I
believe that the team's understanding is as follows:  Each Councilor is
obligated to vote as prescribed by the applicable Charter (SG or C)
governing his/her appointment.  In some cases, Councilors are directed at
all times (e.g. Registries SG) and, in others (e.g. NCUC), they are
permitted to exercise judgment.  In the absence of specific direction, which
varies among SGs and Cs, Councilors vote independently.  If I have stated
this position correctly, I will try to ensure that it is more clearly
reflected in the next version.]

4)      Extended Absence Provision.  In the remedies section, the Temporary
Alternate arrangement is specified for use in the case of a Councilor's
extended absence.  I would recommend that, if appropriate, this provision be
moved to a separate section on absences.  Otherwise, it appears to be a
"standing" arrangement which is not permitted by the procedures.  It will
also deprive the Council of using the replacement for any quorum
calculations for the term of the temporary service.  [KB> Acknowledged.  I
did try to "squeeze" that additional application into this section and,
while I thought I addressed the quorum issue, we should seriously consider
Sam's recommendation.  I will look for an appropriate section of the
procedures where we could address absences in general including the specific
use of a Temporary Alternate for an extended case.  Please note that Sam's
comments here do not pertain to the use of the Temporary Alternate as a
remedy when activated by a potential abstention.]  

 

Finally, Sam indicated that ".we can address the necessary Bylaws changes
after there's acceptance of the revisions."  I interpret that statement as a
positive indication that there is a willingness to amend the Bylaws, as
needed, to enable these procedures to be activated.  

 

To maximize the team's productivity while it focuses on other pressing
matters (e.g. SOI/DOI), I may exchange a couple of iterations with Sam to
ensure that I have addressed her concerns before forwarding to the team.
Depending on Sam's availability, I hope to circulate a new version next
week. 

 

I intend to join the call today in case there are any additional questions
pertaining to this document and its status.  

 

Ken Bour