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

[<KnobenW@xxxxxxxxxx>]

Thanks Ken,
 
it looks very promising. Those types of concern may easily be solved.
 

Kind regards
Wolf-Ulrich

 

________________________________

Von: owner-gnso-osc-ops@xxxxxxxxx [mailto:owner-gnso-osc-ops@xxxxxxxxx]
Im Auftrag von Ken Bour
Gesendet: Mittwoch, 10. Februar 2010 17:01
An: gnso-osc-ops@xxxxxxxxx
Betreff: [gnso-osc-ops] Initial Legal Review of Section 4-Voting and
4.5-Abstentions



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