Advice from the General Counsels office on the use of proxy votes
Hello All, After Cary Karp raised a question about the counting of proxy votes during our meeting on 6 Feb 2006, I sought advice from the ICANN General Counsel on whether our past use of proxy votes (which dates back to the rules of procedure for the DNSO Names Council) was consistent with the current ICANN bylaws. See the advice below. Regards, Bruce Tonkin -----Original Message----- From: John Jeffrey Sent: Friday, 17 February 2006 5:58 PM To: Bruce Tonkin Cc: Olof Nordling; Dan Halloran Subject: Re: Regarding proxy votes at a Council meeting Bruce, Thank you for your inquiry concerning the practice of "proxy" voting which occurs during the GNSO Council meetings. In follow up to your inquiry and in furtherance to our discussion earlier today here is some additional information and my office's opinion regarding the same. We agree with you that there is no provision for proxy voting under the current ICANN Bylaws <http://www.icann.org/general/archive-bylaws/ bylaws-08apr05.htm>. The current Bylaws (Article X, Section 4) include the following provision concerning GNSO Council Procedures: "The GNSO Council is responsible for managing the policy development process of the GNSO. It shall adopt such procedures as it sees fit to carry out that responsibility, provided that such procedures are approved by the Board, and further provided that, until any modifications are recommended by the GNSO Council and approved by the Board, the applicable procedures shall be as set forth in Section 6 of this Article. ..." <http://www.icann.org/general/archive-bylaws/ bylaws-08apr05.htm#X-3.4> Bylaws Article X, Section 6, provides that "Initially, the policy- development procedures to be followed by the GNSO shall be as stated in Annex A to these Bylaws. These procedures may be supplemented or revised in the manner stated in Section 3(4) of this Article." Since no modified procedures have been recommended by Council or approved by the Board, the only relevant procedures are those stated in Bylaws Annex A ("GNSO Policy-Development Process") <http:// www.icann.org/general/archive-bylaws/bylaws-08apr05.htm#AnnexA>. You provided a link to the "Rules of Procedure of the DNSO Names Council, Version 7" <http://www.gnso.icann.org/council/names- proceduresv7.shtml#5>, but that document is no longer in effect. The DNSO document indicates that it was last amended on 18 April 2002. That entire document was obsoleted and superceded by the adoption of ICANN's "New Bylaws" on 15 December 2002. The new Bylaws provisions on the GNSO (which assumed the responsibilities of the former DNSO) continued a substantial portion of the old procedures from the DNSO procedures document, but the New Bylaws also clearly did not retain other features of the old procedures (including any reference to "proxies"). The GNSO Council's practice of allowing Council members to participate in a meeting (by casting a vote) even though they are not "present" does not appear to be consistent with Bylaws Article X, Section 3(8), which provides (in part) that "... the GNSO Council shall act at meetings. Members of the GNSO Council may participate in a meeting of the GNSO Council through use of (i) conference telephone or similar communications equipment, provided that all members participating in such a meeting can speak to and hear one another ..." In other words, under the current Bylaws a Council member who is unable to speak to or hear other Councillors may not "participate" (including voting) in a Council meeting held in person or by telephone. That same section of the Bylaws (X-3.8) provides that "Members entitled to cast a majority of the total number of votes of GNSO Council members then in office shall constitute a quorum for the transaction of business, and acts by a majority vote of the GNSO Council members present at any meeting at which there is a quorum shall be acts of the GNSO Council ..." This language concerning members "entitled to cast a majority of the total number of votes" appears to relate to the weighted voting provision <http:// www.icann.org/general/bylaws.htm#X-5.2> and not to any otherwise unreferenced scheme for voting by proxy. We recognize that this may be a "long standing process", but the Council should take prompt action to come into compliance with the Bylaws' requirements. The Council is free to recommend modifications to these procedures (including perhaps a modification to anticipate the participation of deaf or hard of hearing people on the Council). If you'd like Dan and I would be happy to work with you to craft whatever procedures would be inline with the Council's preferences, provided they are in accordance with ICANN's other Bylaws, mission and core values. I hope this is helpful. Please let me know if you have any other questions. best regards, John Jeffrey General Counsel and Secretary ICANN On Feb 6, 2006, at 4:18 PM, Bruce Tonkin wrote:
Hello John,
It has been long standing practice for Council members to appoint another Council member to act as their proxy when voting on particular
issues if they are unable to attend a particular meeting.
(the relevant section of the bylaws is Article X, section 3, clause 8: "Members entitled to cast a majority of the total number of votes of GNSO Council members then in office shall constitute a quorum for the transaction of business, and acts by a majority vote of the GNSO Council members present at any meeting at which there is a quorum shall be acts of the GNSO Council"
I can't find a specific reference to proxies within the ICANN bylaws, but there is mention in our current operating procedures, which can be
found at: http://www.gnso.icann.org/council/names-proceduresv7.shtml#5
If a Council member holds a proxy for another Council member - does this count towards either the quorum requirement, or the majority vote
requirement?
Regards, Bruce Tonkin
John Jeffrey General Counsel & Secretary Internet Corporation for Assigned Names and Numbers 4676 Admiralty Way Marina del Rey, CA 91206
Bruce, and Fellow Councillors, It seems clear that our practise of proxy voting is not in compliance with the Bylaws. I believe we must act as quickly as we can to change this, and to develop a process that does comply with the Bylaws. I suggest that we accept Counsel's offer of assistance to do so. The obvious question this raises is.............What is the status (legal, binding or otherwise) of the decisions Council has made based on votes where the proxy system was used? Are these decisions, and the voting processes that enabled them, valid? In order to begin to determine the depth and potential significance of this matter, perhaps we could ask Counsel and his Staff to review the minutes of our meetings and provide us with a list of the decisions that were based on motions where the proxy votes, either for or against, made the difference between a 'yes' and a 'no' decision. The second obvious question is............Whatever the new, compliant process is, should we be asking Counsel to look at the possibility and/or legality of applying it retroactively? Best regards, Maureen Cubberley ----- Original Message ----- From: Bruce Tonkin To: council@gnso.icann.org Sent: Friday, February 17, 2006 2:26 AM Subject: [council] Advice from the General Counsels office on the use of proxy votes Hello All, After Cary Karp raised a question about the counting of proxy votes during our meeting on 6 Feb 2006, I sought advice from the ICANN General Counsel on whether our past use of proxy votes (which dates back to the rules of procedure for the DNSO Names Council) was consistent with the current ICANN bylaws. See the advice below. Regards, Bruce Tonkin -----Original Message----- From: John Jeffrey Sent: Friday, 17 February 2006 5:58 PM To: Bruce Tonkin Cc: Olof Nordling; Dan Halloran Subject: Re: Regarding proxy votes at a Council meeting Bruce, Thank you for your inquiry concerning the practice of "proxy" voting which occurs during the GNSO Council meetings. In follow up to your inquiry and in furtherance to our discussion earlier today here is some additional information and my office's opinion regarding the same. We agree with you that there is no provision for proxy voting under the current ICANN Bylaws <http://www.icann.org/general/archive-bylaws/ bylaws-08apr05.htm>. The current Bylaws (Article X, Section 4) include the following provision concerning GNSO Council Procedures: "The GNSO Council is responsible for managing the policy development process of the GNSO. It shall adopt such procedures as it sees fit to carry out that responsibility, provided that such procedures are approved by the Board, and further provided that, until any modifications are recommended by the GNSO Council and approved by the Board, the applicable procedures shall be as set forth in Section 6 of this Article. ..." <http://www.icann.org/general/archive-bylaws/ bylaws-08apr05.htm#X-3.4> Bylaws Article X, Section 6, provides that "Initially, the policy- development procedures to be followed by the GNSO shall be as stated in Annex A to these Bylaws. These procedures may be supplemented or revised in the manner stated in Section 3(4) of this Article." Since no modified procedures have been recommended by Council or approved by the Board, the only relevant procedures are those stated in Bylaws Annex A ("GNSO Policy-Development Process") <http:// www.icann.org/general/archive-bylaws/bylaws-08apr05.htm#AnnexA>. You provided a link to the "Rules of Procedure of the DNSO Names Council, Version 7" <http://www.gnso.icann.org/council/names- proceduresv7.shtml#5>, but that document is no longer in effect. The DNSO document indicates that it was last amended on 18 April 2002. That entire document was obsoleted and superceded by the adoption of ICANN's "New Bylaws" on 15 December 2002. The new Bylaws provisions on the GNSO (which assumed the responsibilities of the former DNSO) continued a substantial portion of the old procedures from the DNSO procedures document, but the New Bylaws also clearly did not retain other features of the old procedures (including any reference to "proxies"). The GNSO Council's practice of allowing Council members to participate in a meeting (by casting a vote) even though they are not "present" does not appear to be consistent with Bylaws Article X, Section 3(8), which provides (in part) that "... the GNSO Council shall act at meetings. Members of the GNSO Council may participate in a meeting of the GNSO Council through use of (i) conference telephone or similar communications equipment, provided that all members participating in such a meeting can speak to and hear one another ..." In other words, under the current Bylaws a Council member who is unable to speak to or hear other Councillors may not "participate" (including voting) in a Council meeting held in person or by telephone. That same section of the Bylaws (X-3.8) provides that "Members entitled to cast a majority of the total number of votes of GNSO Council members then in office shall constitute a quorum for the transaction of business, and acts by a majority vote of the GNSO Council members present at any meeting at which there is a quorum shall be acts of the GNSO Council ..." This language concerning members "entitled to cast a majority of the total number of votes" appears to relate to the weighted voting provision <http:// www.icann.org/general/bylaws.htm#X-5.2> and not to any otherwise unreferenced scheme for voting by proxy. We recognize that this may be a "long standing process", but the Council should take prompt action to come into compliance with the Bylaws' requirements. The Council is free to recommend modifications to these procedures (including perhaps a modification to anticipate the participation of deaf or hard of hearing people on the Council). If you'd like Dan and I would be happy to work with you to craft whatever procedures would be inline with the Council's preferences, provided they are in accordance with ICANN's other Bylaws, mission and core values. I hope this is helpful. Please let me know if you have any other questions. best regards, John Jeffrey General Counsel and Secretary ICANN On Feb 6, 2006, at 4:18 PM, Bruce Tonkin wrote:
Hello John,
It has been long standing practice for Council members to appoint another Council member to act as their proxy when voting on particular
issues if they are unable to attend a particular meeting.
(the relevant section of the bylaws is Article X, section 3, clause 8: "Members entitled to cast a majority of the total number of votes of GNSO Council members then in office shall constitute a quorum for the transaction of business, and acts by a majority vote of the GNSO Council members present at any meeting at which there is a quorum shall be acts of the GNSO Council"
I can't find a specific reference to proxies within the ICANN bylaws, but there is mention in our current operating procedures, which can be
found at: http://www.gnso.icann.org/council/names-proceduresv7.shtml#5
If a Council member holds a proxy for another Council member - does this count towards either the quorum requirement, or the majority vote
requirement?
Regards, Bruce Tonkin
John Jeffrey General Counsel & Secretary Internet Corporation for Assigned Names and Numbers 4676 Admiralty Way Marina del Rey, CA 91206
Regardless of what processes and policies we seek to implement, I would like the Council to consider that we wholly implement these policies and processes outside of the ICANN Bylaws in a manner similar to those instantiated for the formation of the ccNSO. There are a number of reasons to commend this approach that I would be happy to discuss further with you. Maureen Cubberley wrote:
Bruce, and Fellow Councillors,
It seems clear that our practise of proxy voting is not in compliance with the Bylaws. I believe we must act as quickly as we can to change this, and to develop a process that does comply with the Bylaws. I suggest that we accept Counsel's offer of assistance to do so.
The obvious question this raises is.............What is the status (legal, binding or otherwise) of the decisions Council has made based on votes where the proxy system was used? Are these decisions, and the voting processes that enabled them, valid?
In order to begin to determine the depth and potential significance of this matter, perhaps we could ask Counsel and his Staff to review the minutes of our meetings and provide us with a list of the decisions that were based on motions where the proxy votes, either for or against, made the difference between a 'yes' and a 'no' decision.
The second obvious question is............Whatever the new, compliant process is, should we be asking Counsel to look at the possibility and/or legality of applying it retroactively?
Best regards,
Maureen Cubberley ----- Original Message ----- From: Bruce Tonkin To: council@gnso.icann.org Sent: Friday, February 17, 2006 2:26 AM Subject: [council] Advice from the General Counsels office on the use of proxy votes
Hello All,
After Cary Karp raised a question about the counting of proxy votes during our meeting on 6 Feb 2006, I sought advice from the ICANN General Counsel on whether our past use of proxy votes (which dates back to the rules of procedure for the DNSO Names Council) was consistent with the current ICANN bylaws.
See the advice below.
Regards, Bruce Tonkin
-----Original Message----- From: John Jeffrey Sent: Friday, 17 February 2006 5:58 PM To: Bruce Tonkin Cc: Olof Nordling; Dan Halloran Subject: Re: Regarding proxy votes at a Council meeting
Bruce,
Thank you for your inquiry concerning the practice of "proxy" voting which occurs during the GNSO Council meetings. In follow up to your inquiry and in furtherance to our discussion earlier today here is some additional information and my office's opinion regarding the same.
We agree with you that there is no provision for proxy voting under the current ICANN Bylaws <http://www.icann.org/general/archive-bylaws/ bylaws-08apr05.htm>. The current Bylaws (Article X, Section 4) include the following provision concerning GNSO Council Procedures:
"The GNSO Council is responsible for managing the policy development process of the GNSO. It shall adopt such procedures as it sees fit to carry out that responsibility, provided that such procedures are approved by the Board, and further provided that, until any modifications are recommended by the GNSO Council and approved by the Board, the applicable procedures shall be as set forth in Section 6 of this Article. ..." <http://www.icann.org/general/archive-bylaws/ bylaws-08apr05.htm#X-3.4>
Bylaws Article X, Section 6, provides that "Initially, the policy- development procedures to be followed by the GNSO shall be as stated in Annex A to these Bylaws. These procedures may be supplemented or revised in the manner stated in Section 3(4) of this Article."
Since no modified procedures have been recommended by Council or approved by the Board, the only relevant procedures are those stated in Bylaws Annex A ("GNSO Policy-Development Process") <http:// www.icann.org/general/archive-bylaws/bylaws-08apr05.htm#AnnexA>.
You provided a link to the "Rules of Procedure of the DNSO Names Council, Version 7" <http://www.gnso.icann.org/council/names- proceduresv7.shtml#5>, but that document is no longer in effect. The DNSO document indicates that it was last amended on 18 April 2002. That entire document was obsoleted and superceded by the adoption of ICANN's "New Bylaws" on 15 December 2002. The new Bylaws provisions on the GNSO (which assumed the responsibilities of the former DNSO) continued a substantial portion of the old procedures from the DNSO procedures document, but the New Bylaws also clearly did not retain other features of the old procedures (including any reference to "proxies").
The GNSO Council's practice of allowing Council members to participate in a meeting (by casting a vote) even though they are not "present" does not appear to be consistent with Bylaws Article X, Section 3(8), which provides (in part) that "... the GNSO Council shall act at meetings. Members of the GNSO Council may participate in a meeting of the GNSO Council through use of (i) conference telephone or similar communications equipment, provided that all members participating in such a meeting can speak to and hear one another ..." In other words, under the current Bylaws a Council member who is unable to speak to or hear other Councillors may not "participate" (including voting) in a Council meeting held in person or by telephone.
That same section of the Bylaws (X-3.8) provides that "Members entitled to cast a majority of the total number of votes of GNSO Council members then in office shall constitute a quorum for the transaction of business, and acts by a majority vote of the GNSO Council members present at any meeting at which there is a quorum shall be acts of the GNSO Council ..." This language concerning members "entitled to cast a majority of the total number of votes" appears to relate to the weighted voting provision <http:// www.icann.org/general/bylaws.htm#X-5.2> and not to any otherwise unreferenced scheme for voting by proxy.
We recognize that this may be a "long standing process", but the Council should take prompt action to come into compliance with the Bylaws' requirements. The Council is free to recommend modifications to these procedures (including perhaps a modification to anticipate the participation of deaf or hard of hearing people on the Council). If you'd like Dan and I would be happy to work with you to craft whatever procedures would be inline with the Council's preferences, provided they are in accordance with ICANN's other Bylaws, mission and core values.
I hope this is helpful. Please let me know if you have any other questions.
best regards, John Jeffrey General Counsel and Secretary ICANN
On Feb 6, 2006, at 4:18 PM, Bruce Tonkin wrote:
Hello John,
It has been long standing practice for Council members to appoint another Council member to act as their proxy when voting on particular
issues if they are unable to attend a particular meeting.
(the relevant section of the bylaws is Article X, section 3, clause 8: "Members entitled to cast a majority of the total number of votes of GNSO Council members then in office shall constitute a quorum for the transaction of business, and acts by a majority vote of the GNSO Council members present at any meeting at which there is a quorum shall be acts of the GNSO Council"
I can't find a specific reference to proxies within the ICANN bylaws, but there is mention in our current operating procedures, which can be
found at: http://www.gnso.icann.org/council/names-proceduresv7.shtml#5
If a Council member holds a proxy for another Council member - does this count towards either the quorum requirement, or the majority vote
requirement?
Regards, Bruce Tonkin
John Jeffrey General Counsel & Secretary Internet Corporation for Assigned Names and Numbers 4676 Admiralty Way Marina del Rey, CA 91206
The current bylaws give the GNSO the flexibility to apply our own procedures. My recollection is that at its inception the GNSO agreed to proceed under the substantive part of the guidelines of the Names Council until such time as we adopted our own procedures. That includes a system of proxy votes endorsed by the then ICANN general counsel. I believe we are covered retrospectively. For future clarity, all we need to do is to ask Glen to submit a set of GNSO procedures for formal adoption. I believe she already has such a draft. Philip
Philip Sheppard wrote:
The current bylaws give the GNSO the flexibility to apply our own procedures. My recollection is that at its inception the GNSO agreed to proceed under the substantive part of the guidelines of the Names Council until such time as we adopted our own procedures. That includes a system of proxy votes endorsed by the then ICANN general counsel. I believe we are covered retrospectively.
For future clarity, all we need to do is to ask Glen to submit a set of GNSO procedures for formal adoption. I believe she already has such a draft.
This is not quite correct. From the bylaws - "4. The GNSO Council is responsible for managing the policy development process of the GNSO. It shall adopt such procedures as it sees fit to carry out that responsibility, provided that such procedures are approved by the Board..." The GNSO may only adopt those procedures approved by ICANN's Board of Directors. In contrast, under most circumstances, the ccNSO is not required to seek similar "permission" "11. The ccNSO Council, subject to direction by the ccNSO members, shall adopt such rules and procedures for the ccNSO as it deems necessary, provided they are consistent with these Bylaws." I believe that the GNSO should seek a greater degree of autonomy and seek to minimize the degree to which its processes are locked into ICANN's Corporate Bylaws. There are few compelling reasons that the ICANN Board should not delegate stronger governance powers over the GNSO to the GNSO itself. This would be best accomplished by incorporating the GNSO Rules of Procedure into the bylaws by reference and spelling out, in the Bylaws, the conditions under which the GNSO may revise its own governance structure and operating processes. This is a very common practice, and in fact, is very similar to the governance structure implemented by the registrar constituency. We have separate bylaws and rules of procedure, each with different requirements that must be met in order to change them. This allows us a great degree of flexibility while avoiding issues like capture etc. -ross
It does sound like we have much of the work needed already done, in the documentation of procedures, but this will need a thorough examination as a final item, I would suspect. I haven't looked at them for some time, personally. In gaining Board approval, I support Ross's suggestion that we pursue the level of flexibility that the CCNSO has. Undoubtedly the Board will see the logic of having consistency in the SOs. As to revisiting our decisions, I suggest that we ask the Board to reactively reaffirm any past decisions taken with the use of proxy votes. I assume that this refers only to the policy approval votes that would need to be addressed. -----Original Message----- From: owner-council@gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Ross Rader Sent: Monday, February 20, 2006 10:48 AM Cc: council@gnso.icann.org Subject: Re: [council] Advice from the General Counsels office on the use of proxy votes Philip Sheppard wrote:
The current bylaws give the GNSO the flexibility to apply our own procedures. My recollection is that at its inception the GNSO agreed to proceed under the substantive part of the guidelines of the Names Council until such time as we adopted our own procedures. That includes a system of proxy votes endorsed by the then ICANN general counsel. I believe we are covered retrospectively.
For future clarity, all we need to do is to ask Glen to submit a set of GNSO procedures for formal adoption. I believe she already has such a draft.
This is not quite correct. From the bylaws - "4. The GNSO Council is responsible for managing the policy development process of the GNSO. It shall adopt such procedures as it sees fit to carry out that responsibility, provided that such procedures are approved by the Board..." The GNSO may only adopt those procedures approved by ICANN's Board of Directors. In contrast, under most circumstances, the ccNSO is not required to seek similar "permission" "11. The ccNSO Council, subject to direction by the ccNSO members, shall adopt such rules and procedures for the ccNSO as it deems necessary, provided they are consistent with these Bylaws." I believe that the GNSO should seek a greater degree of autonomy and seek to minimize the degree to which its processes are locked into ICANN's Corporate Bylaws. There are few compelling reasons that the ICANN Board should not delegate stronger governance powers over the GNSO to the GNSO itself. This would be best accomplished by incorporating the GNSO Rules of Procedure into the bylaws by reference and spelling out, in the Bylaws, the conditions under which the GNSO may revise its own governance structure and operating processes. This is a very common practice, and in fact, is very similar to the governance structure implemented by the registrar constituency. We have separate bylaws and rules of procedure, each with different requirements that must be met in order to change them. This allows us a great degree of flexibility while avoiding issues like capture etc. -ross
I have this edit from my personal records: Rules of Procedure for the DNSO version 7 Adopted by the Names Council 26 February 2001. Amended (new item 8) 26 February 2001. Amended (new item 3 and re-numbering) 11 July 2001. Amended (new item 9, 10, 11) 13 December 2001 Amended (new item 12) 10 April 2001 (added Jan 2002) Amended (new item 13) 18 April 2002 Contents 1. NC Chair 2. Conduct of NC meetings 3. NC committees and task forces 4. Intake committee 5. Proxies .... Section 5 describes proxies in the way we have been using them. Philip
participants (5)
-
Bruce Tonkin -
Marilyn Cade -
Maureen Cubberley -
Philip Sheppard -
Ross Rader