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
UNIVERSITY OF NEW HAMPSHIRE SCHOOL OF LAW
Two White Street
Concord, NH 03301
USA
Email: mary.wong@law.unh.edu
Phone: 1-603-513-5143
Webpage: http://www.law.unh.edu/marywong/index.php
Selected writings available on the Social Science Research Network (SSRN) at: http://ssrn.com/author=437584


>>>
From: "Gomes, Chuck" <cgomes@verisign.com>
To: "Mary Wong" <Mary.Wong@law.unh.edu>
CC: "Council GNSO" <council@gnso.icann.org>, <robert.hoggarth@icann.org>, <ken.bour@verizon.net>
Date: 9/24/2010 6:08 PM
Subject: RE: [council] Proxy Voting Procedures

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
Sent: Friday, September 24, 2010 11:07 AM
Cc: Council GNSO; robert.hoggarth@icann.org; ken.bour@verizon.net
Subject: Re: [council] Proxy Voting Procedures

 

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

UNIVERSITY OF NEW HAMPSHIRE SCHOOL OF LAW
Two White Street
Concord, NH 03301
USA
Email: mary.wong@law.unh.edu
Phone: 1-603-513-5143
Webpage: http://www.law.unh.edu/marywong/index.php
Selected writings available on the Social Science Research Network (SSRN) at: http://ssrn.com/author=437584



>>>

From:

Stéphane Van Gelder<stephane.vangelder@indom.com>

To:

"Gomes, Chuck" <cgomes@verisign.com>

CC:

"Council GNSO" <council@gnso.icann.org>, <robert.hoggarth@icann.org>, <ken.bour@verizon.net>

Date:

9/8/2010 4:39 PM

Subject:

Re: [council] Proxy Voting Procedures

Thanks Chuck. I had read that very article as I prepared for today's meeting yesterday, as I was looking at the various links pertaining to absences and voting that Glen sent to the Council list before this meeting.

 

I did not have the same understanding as you re the requirement to request for a proxy in advance of the meeting (where does it say that in sub-section i. below?). I would argue that in Tim's case, the appointing organization, i.e. the RrSG, had established a position. This was not 'stated' on the public Council list, but article i. does not say this should be done in this way. I agree there is ambiguity here and my intent is not to second-guess the decision you made in today's meeting. But as this processes are still a bit new to us all, I just want to make sure we iron out some of the wrinkles so that if we have this type of situation again, we know how to handle it.

 

Thanks,

 

Stéphane

 

Le 8 sept. 2010 à 19:25, Gomes, Chuck a écrit :



Here is my response to Stéphane’s question regarding the GNSO Operating Procedures (GOP) requirements regarding proxy voting.

Here is the applicable excerpt from the GOP, Section 4.5.3.b, Remedies:

“Proxy Voting


 

The second method to be considered in avoiding the consequences of an abstention is the use of proxy voting, where the vote of an abstaining Councilor is transferred to another GNSO Councilor.


 

i. For abstentions declared by Councilors not appointed by the Nominating Committee and where voting direction is not a viable remedy, the appointing organization may transfer the vote of the abstaining Councilor to: (1) the House Nominating Committee Appointee (NCA), (2) another of its Constituency Councilors (where applicable), or (3) another Councilor within the Stakeholder Group. The appointing organization must be able to establish an affirmative or negative voting position, subject to provisions contained in its Charter or Bylaws, on the applicable measure/motion for which one of its Councilors has declared an intention to abstain. The Councilor to whom the vote is transferred shall exercise a vote in line with the appointing organization’s stated position.

ii. If an abstention is declared by a House NCA, once formal notification has occurred pursuant to the procedures in Paragraph 4.5.4-a, a proxy is automatically transferred to the GNSO Council’s unaffiliated NCA (hereinafter Council NCA) and any vote cast will be counted within the House to which the abstaining NCA is assigned. The Council NCA may exercise only one proxy at a time; therefore, the first abstention remedy properly transferred to the Council NCA, including all measures/motions specified, takes precedence. It should be noted that, because NCAs do not have an appointing organization, as defined in these procedures (see Section 1.3.1), to provide specific voting direction, the Council NCA may exercise his/her best judgment, including abstaining, on the matter at issue. If the Council NCA abstains or does not cast a vote for any other reason, no further remedies are available and the automatic proxy will be nullified. The original House NCA will be recorded in the minutes as having abstained from the vote.”

If I interpret the above correctly, for proxies to have been allowed in today’s meeting the following would have need to have happened in advance:  The appointing organization of the Councilor who has to abstain (because of planned absence or other reasons) “must be able to establish an affirmative or negative voting position” and that would have needed to have sent to Secretary.  I believe Staff has prepared a template to facilitate this.  That did not happen in any of the cases where proxies were requested today.

I cc’d Rob and Ken so that they can correct me if my interpretation is in error.

Chuck

 

 

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