As promised, here is my response to Steve Metalitz's excellent comments on the OSC list regarding the issue of counting abstentions. Chuck ________________________________ From: Gomes, Chuck Sent: Wednesday, September 23, 2009 7:01 PM To: Metalitz, Steven; gnso-osc@icann.org Subject: RE: [gnso-osc] FW: Further Council Ops Procedures Thoughts Thanks Steve. Please see my comments below. Chuck ________________________________ From: Metalitz, Steven [mailto:met@msk.com] Sent: Wednesday, September 23, 2009 6:11 PM To: Gomes, Chuck; gnso-osc@icann.org Subject: RE: [gnso-osc] FW: Further Council Ops Procedures Thoughts I am afraid we are trying to square the circle on this abstention issue. Abstentions may occur for a lot of reasons. But if one occurs in order to avoid a conflict of interest problem, then we cannot treat it as a functional "no" vote -- which we do if we insist that the denominator in calculating a voting threshold must always be the total number of people seated in the House or council. Let's assume that on a motion before the council, a councillor's financial interests will be directly benefited by defeat of the motion. The councillor should refrain from voting on (or even from participating in the discussion of) the motion. Let's assume the council consists of 10 people and that a majority vote is needed for the motion. However, if the councillor abstains for this reason, then if 5 vote for and 4 against, the motion fails. Abstention will have achieved exactly the result that a conflict of interest policy should avoid at all costs -- the action of the councillor has directly benefitted his financial interest. [Gomes, Chuck] I think there is an added complication here. Just because an individual Councilor has a conflict of interest, it doesn't necessarily mean that the SG should lose its vote. In my opinion, in such a case, the Councilor should communicate the personal conflict of interest and then: 1) if the SG has provided voting direction, be allowed to vote as directed by the SG; 2) if the SG has not provided direction, then the Councilor should vote according to the provisions of the applicable charter. Each SG then has the opportunity to deal with this issue as they see best. If the councillor is able to truly abstain, so that his presence is not counted for purposes of achieving the voting threshold, then the vote (5-4) reflects the views of the majority of council members who were allowed (in accordance with conflict of interest policy) to vote, and should be enough to carry the motion. [Gomes, Chuck] I think your approach works if Councilors were truly representing themselves but they should really be representing their SGs. The same scenario could play out almost no matter what is the voting threshold required or the number of eligible voters. I emphasize that many abstentions will not be for conflict reasons -- quite commonly, it will be because the constituency/stakeholder group could not reach a position on the issue, or an issue arises suddenly and the councillor has decided that she will not vote absent instructions from her constituency/SG. [Gomes, Chuck] This is why I opposed treating abstentions as "no votes" and not factoring them into the % calculation. There is less of a problem counting the abstention for purposes of a voting threshold in this case -- though it still may not be a good idea. But there would need to be an exception to this general rule for situations in which an abstention is dictated by conflict of interest rules. [Gomes, Chuck] You could be right that an exception might be needed but I think it will take more time to work out the details of that. Maybe some exception language could be proposed in the public comment period. If not, maybe the GCOT could take this up in their ongoing work. Please let me know what you think. Steve ________________________________ From: owner-gnso-osc@icann.org [mailto:owner-gnso-osc@icann.org] On Behalf Of Gomes, Chuck Sent: Wednesday, September 23, 2009 5:39 PM To: gnso-osc@icann.org Subject: [gnso-osc] FW: Further Council Ops Procedures Thoughts Here's the latest suggestion language for part of section 5.4. Chuck ________________________________ From: Ken Bour [mailto:ken.bour@verizon.net] Sent: Wednesday, September 23, 2009 4:34 PM To: Gomes, Chuck; 'Robert Hoggarth'; 'Avri Doria' Cc: 'Glen de Saint Géry'; 'Ray Fassett'; 'Liz Gasster'; 'Denise Michel'; 'Julie Hedlund'; 'Margie Milam' Subject: RE: Further Council Ops Procedures Thoughts Chuck: We agree that there is no reason to give abstentions another label. Would this language be acceptable at the end of 4.2? Old language: Abstentions shall be recorded as non-votes and shall include a reason. New language: "Council members are permitted to abstain in any vote, but must provide a reason which shall be recorded in the minutes along with the abstention." Ken From: Gomes, Chuck [mailto:cgomes@verisign.com] Sent: Wednesday, September 23, 2009 2:54 PM To: Robert Hoggarth; Avri Doria Cc: Glen de Saint Géry; Ray Fassett; Liz Gasster; Denise Michel; Julie Hedlund; Margie Milam; Ken Bour Subject: RE: Further Council Ops Procedures Thoughts Importance: High Rob, (Note I added Ken as a cc.) After exchaning email messages with Ray, the more I think about it the less I like the following in the amended language for 5.4: "Abstentions shall be recorded as non-votes." The term "non-vote" implies that someone didn't participate in the vote, which is not the case for an abstention. A 'non-vote' applies when someone refuses to vote or is absent. An abstention can happen because there is not consensus on approval or disapproval; it that case, it is a vote in my opinion. Why should abstentions be counted as anything other than abstentions? I suggest changing that sentence to simply this: "A reason shall be provided for an abstention." Chuck ________________________________ From: Robert Hoggarth [mailto:robert.hoggarth@icann.org] Sent: Tuesday, September 22, 2009 6:40 PM To: Gomes, Chuck; Avri Doria Cc: Glen de Saint Géry; Ray Fassett; Liz Gasster; Denise Michel; Julie Hedlund; Margie Milam Subject: Further Council Ops Procedures Thoughts Dear Avri and Chuck; Ken Bour and I spent a couple of hours today going over the new Bylaws and the recommended Council Ops Procedures in an effort to better understand the issues behind the recent brief dialogue on abstentions with Kristina and Phillip on the Council email list AND in an effort to test and or break the ops processes and voting mechanisms. As a result of our effort, we have have come up with a number of ideas/concepts we wanted to float by you prior to the Council meeting. 1. We've developed some edits to the recommendations - specifically Section 5.4 (# of votes cast) and section 3.5 (Quorum) that we think address the affirmative vote/no vote abstaining issue by providing some more clarity to the recommended voting procedure. That potential compromise language is set forth at the end of this message. 2. At the conclusion of the Work Team's deliberations, noting that the team had focused on the substance of each specific recommendation and not on the overall format of the procedures, I suggested to Ray Fassett (copying Ray on this message) that in preparation for the public comment period, Staff could work on the format and presentation of the recommendations to make them more clear and clean. We've started some work in that regard - not making any substantive changes, but merely trying to pull different sections together and consolidating common subjects areas (e.g., voting ) where there may be references in more than one section of the recommendations. We should have a suggested format finished for you all to take a look at tomorrow. 3. We discussed the conundrum of the incoming Council voting on the Ops Procedures (before new voting procedures exist). We suggest that you consider creating a procedural bridge between the two Councils in which the outgoing Council "conditionally approves" the new procedures as a transitional matter (perhaps this could take place at a "special" Council meeting during the weekend in Seoul) and then have the incoming Council ratify them as its first order of business. The new Council could then make changes over time as it works with and develops some experience with the new procedures. Haven't discussed this with the GC yet - just brainstorming. 4. We have also started to develop a a matrix/voting record spreadsheet as an unofficial tool for the new Chair and Glen to use for recording votes. The idea is to have a clear and understandable score sheet that can be used during votes to easily show when voting thresholds have been met (or not). We'll get Glen's feedback on the concept and share that with you when she is comfortable with a draft document. We are hopeful that the language suggested below is useful. Your comments are most welcomed. Cheers, RobH SUGGESTED REVISED LANGUAGE FOLLOWS. SUGGESTED CHANGES IN BOLD RED UNDERLINED TEXT. In the recommended Council Operating Procedures, we suggest some new language to modify Section 5.4 and 3.5 as follows: 5.4 The Number of Votes Cast OLD: To pass, a motion must attain a majority of the votes cast in each house unless otherwise specified in these procedures or in the ICANN Bylaws. Abstentions count as votes cast and shall include a reason for the abstention. This has the effect of making an abstention count the same as a vote against except as described in ICANN Bylaws, ANNEX A, GNSO Policy-Development Process, Section 3, Initiation of PDP. [INSERT LIVE LINK TO THE BYLAWS.] NEW: Unless otherwise specified in these procedures or in the ICANN Bylaws, to pass a motion or other action, greater than 50% of the eligible voters in each House must cast affirmative votes. For all votes taken, the number of eligible voters in each House shall be fixed to the number of seats allocated in the Bylaws (a.k.a. the denominator) and is not affected by the number of members present or absent at the meeting in which the motion or other action is initiated. Abstentions shall be recorded as non-votes and shall include a reason. 3.5. Quorum OLD: In order for the GNSO Council to initiate a meeting a quorum must be present. A quorum is a majority of voting members, which includes at least one member of each Stakeholder Group. [INSERT LIVE LINK TO BYLAWS.] Whenever a vote is taken there must be a quorum. NEW: In order for the GNSO Council to initiate a vote, a quorum must be present. A quorum is a majority of voting members in each House, which includes at least one member of each Stakeholder Group. ***END SUGGESTED LANGUAGE ***