Mary,
Is it okay with you if I forward your message below to the
GCOT. They are looking at the Disclosure of Interest procedures again and might
want to consider improving the abstention language also.
Chuck
From: owner-council@gnso.icann.org
[mailto:owner-council@gnso.icann.org] On Behalf Of Mary Wong
Sent: Saturday, September 25, 2010 11:34 AM
Cc: Council GNSO; robert.hoggarth@icann.org; ken.bour@verizon.net
Subject: RE: [council] Proxy Voting Procedures
Thanks for the
prompt and helpful answer, Chuck. I actually agree and understand that the
inclusive language in 4.5.2(a), regarding examples of volitional absence, was
intended to also cover the sort of situations I'd raised (particularly when
read with the "either/or" voting universe contemplated
by 3.8.1.)
The underlying
problem, as I see it, is that the actual language of 4.5.2(a) in two respects
creates potential uncertainty going forward (particularly some time down
the road when many of those involved in drafting and initially implementing
these new procedures are no longer on Council). These two respects are (1) the
use of the words "elects to refrain from ... voting" in 4.5.2(a)
(which implies a positive choice rather than one required by a necessary
absence); and (2) the examples used to illustrate possible basis for such a
choice. Although inclusive in nature, all three examples point toward instances
which relate to a Councillor's substantive inability to discharge
his/her duties responsibly. Either or both of these issues could
result - down the road - in possibly narrower interpretations of the abstention
voting procedures than we now are contemplating.
Helpful though our
email discussions are, unfortunately they are not official minutes of a Council meeting
or formal resolutions of a Council discussion. It occurs to me
that issues of interpretation such as the one I raised could appropriately
be referred, as a matter of implementation oversight, to our Standing
Committee for a formal confirmation that this particular interpretation is
correct for the record.
I'm not sure how we
are supposed to do this, but I'd be happy to draft and submit a brief motion
for Council consideration at the next meeting, if that's the way to do it.
Thanks and cheers
Mary
Mary W
S Wong
Professor of Law
Chair, Graduate IP
Programs
>>>
Mary, I think you are missing something. In my opinion, if a
Councilor cannot make a meeting, the procedures apply, as long as there is
sufficient lead time to follow the procedures. What makes you think
that “instances
where a Councilor simply cannot be at a meeting” are not covered? Note the following from Section 4.5: ·
“When circumstances
regarding a potential voting abstention occur that would otherwise prevent a
Councilor from discharging his/her responsibilities (see Paragraph 4.5.2),
the Councilor’s appointing organization is provided a set of remedies (see
Paragraph 4.5.3) designed to enable its vote to be exercised.” ·
“Circumstances may occur
when a Council member elects to refrain from participating and voting for
reasons that may include, but are not limited to . . .”
(Section 4.5.2.a) Please note the phrase “not limited to”. I
believe that “instances
where a Councilor simply cannot be at a meeting” are covered here. BTW, I definitely do not view you as “being a pest”. It
is essential that we all learn the nuances of the new procedures so that we
can use them appropriately and as easily as possible. Chuck From:
owner-council@gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf
Of Mary Wong Hi, Besides the
procedural issue, my concern was, and is, the sense (from reviewing the new
Council operating procedures) that if a Councilor is going to be absent from
a vote, the only way he/she can actually get to vote
- assuming the issue is not one that relates specifically to a PDP
Bylaw, Council procedure or vacancy (which triggers the Absentee Voting
procedures in 4.4) - is on issues that dictate an abstention. The problem is
that 4.5 (on Abstentions) presuppose only 2 situations where an abstention is
justified: (1) volitional (where a Councillor "elects to refrain from participating
and voting", see 4.5.2(a); and (2) obligational (i.e. professional,
personal or political conflicts), see 4.5.2(b). These then trigger the
procedural remedies we've discussed (including a proxy vote). I
completely agree that Councilors are fully expected and required
(including in 4.5.1) to participate actively and discharge their duties
responsibly, such that instances of absent and/or proxy voting are minimized
and not encouraged. However, it seems to me that there will be instances
where a Councilor simply cannot be at a meeting, but fully wishes to vote on
a motion that is not one that triggers either 4.4 or 4.5. In other words,
he/she does not need to "elect to refrain" from voting, and is not
otherwise obligated to abstain. As currently
worded, neither 4.4 nor 4.5 (including the language on proxies) would seem to
cover this type of situation, which arguably could be handled via a
relatively straightforward proxy process. Am I missing
something, reading the procedures too narrowly, or ... ? (maybe being a pest?
:) Thanks and cheers Mary In such a case,
the new Operating Procedures do not seem to allow for a relatively simple -
but documented and accountable - mechanism by which such a case could be
handled through a proxy. Mary
W S Wong Professor of Law Chair, Graduate IP
Programs
As of August 30, 2010, Franklin Pierce Law
Center has affiliated with the University of New Hampshire and is now known
as the University of New Hampshire School
of Law. Please
note that all email addresses have changed and now follow the convention:
firstname.lastname@law.unh.edu. For more information on the University of New Hampshire School of Law, please visit law.unh.edu |
As of August 30, 2010, Franklin Pierce Law
Center has affiliated with the University of New Hampshire and is now known as
the University of New Hampshire School of
Law. Please
note that all email addresses have changed and now follow the convention:
firstname.lastname@law.unh.edu. For more information on the University of New Hampshire School of Law, please visit law.unh.edu