RE: [gnso-improvem-impl-sc] New task
Thanks, Jonathan and Jeff. As I won't be on the SCI call this week, my view, FWIW, is that a motion that is properly introduced, seconded and voted on should NOT be re-introduced (whether in its original form or tweaked) in the absence of clear evidence indicating fraud, duress or other similar circumstance surrounding the original introduction/seconding/vote in relation to the motion. In this regard, Councilors' ignorance of the rules (e.g. effect of an abstention), and lack of instruction/direction from a Councilor's particular constituency/SG, should NOT count as the type of circumstance that ought to permit a reintroduction or re-vote on what in substance is the same motion. Cheers Mary Mary W S Wong Professor of Law Director, Franklin Pierce Center for IP 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
"Jonathan Robinson" 01/10/13 1:12 AM >>> <!--/* Font Definitions */@font-face{font-family:Calibri;panose-1:2 15 5 2 2 2 4 3 2 4;}@font-face{font-family:Tahoma;panose-1:2 11 6 4 3 5 4 4 2 4;}/* Style Definitions */p.MsoNormal, li.MsoNormal, div.MsoNormal{margin:0cm;margin-bottom:.0001pt;font-size:12.0pt;font-family:"Times New Roman","serif";}a:link, span.MsoHyperlink{mso-style-priority:99;color:blue;text-decoration:underline;}a:visited, span.MsoHyperlinkFollowed{mso-style-priority:99;color:purple;text-decoration:underline;}span.EmailStyle17{mso-style-type:personal-reply;font-family:"Calibri","sans-serif";color:#1F497D;}.MsoChpDefault{mso-style-type:export-only;font-size:10.0pt;}@page WordSection1{size:612.0pt 792.0pt;margin:72.0pt 72.0pt 72.0pt 72.0pt;}div.WordSection1{page:WordSection1;}-->All,
My understanding of the role of the SCI is to determine how improvements may be made for the future. When the motion was re-submitted to the December meeting, I do not believe that there was any procedure to guide the Council on the re-introduction of a motion that had recently been voted on. This specific issue has highlighted that we may need something to guide us on this in future. I do not believe that the SCI*s hands are tied at all. We have one useful example which raised concerns and now need to look at as general solution as possible for the future in order to cover both the example that raised the concern and other cases which may occur in future. Thanks, Jonathan From: owner-gnso-improvem-impl-sc@icann.org [mailto:owner-gnso-improvem-impl-sc@icann.org] On Behalf Of Mary.Wong@law.unh.edu Sent: 09 January 2013 16:58 To: avri@acm.org; gnso-improvem-impl-sc@icann.org Cc: jonathan.robinson@ipracon.com; Jeff.Neuman@neustar.us Subject: Re: [gnso-improvem-impl-sc] New task I support Avri's points generally, and would add the following in this specific instance: - the initial vote was properly proposed, seconded and voted on. - just as ignorance of the law is no excuse, the fact that Councilors were not aware of the implications of an abstention (when, frankly, they should be as it's in the rules plain as day) should not permit a re-introduction of something that was properly introduced and voted on. - In this case I don't know if the specific constituency impacted had given instructions to its Councilors as to how to vote. Even if they did not, the fact remains that these are very clearly set out in the GNSO rules, and if a constituency or Councilors did not know or did not make the time to discuss/decide, that is a very poor excuse for reintroducing a motion (again, one properly introduced, seconded and voted on). - In an ideal world, the Council should have suspended the matter and referred the issue of a re-introduction/reconsideration of such a motion (without necessarily specifying the actual motion or context) to the SCI before re-opening the vote. As it is, it seems as though the SCI's hands are somewhat tied since the second motion did get voted on and went through - the mind boggles at an SCI determination that this re-introduction and vote was improper or invalid, especially in the currrent somewhat sensitive context within which ICANN is operating. Cheers Mary Mary W S Wong Professor of Law Director, Franklin Pierce Center for IP 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
Avri Doria <avri@acm.org> 01/09/13 2:01 PM >>>
Another thought experiment. There was a recent g-council vote where, in a rare event, the NCSG Policy Council had decided on an unanimous vote on an issue. But during the vote, some voters got confused and voted against. Would it have been appropriate for us to demand a re-vote? Had one of us been g-council Chair, would it have ben right for us to just reschedule the vote without even getting the g-councl to discuss and perhaps even vote on the notion of reconsidering the vote? A general question, anytime from now on, when a SG or Constituency beleive that its voters went against the will of the SG/C should they be able to have a vote rescheduled at the next meeting? avri On 9 Jan 2013, at 00:54, Avri Doria wrote:
Even Robert's Rules of Order has rules on when and how a motion can be
reconsidered or rescinded (10.5). The Board of ICANN has rules on reconsideration in the ByLaws.
One specific requirement for reconsideration under Roberts is that one
of those on the prevailing side ask for the reconsideration. In this case it was the Chair who had been on the losing side.
We need rules on when it is done and on how it should be done.
avri
On 9 Jan 2013, at 00:30, J. Scott Evans wrote:
I tend to agree,
From: Aikman-Scalese, Anne <AAikman@lrlaw.com>; To: 'Avri Doria' <avri@acm.org>; Jeff Neuman
<Jeff.Neuman@neustar.us>; gnso-improvem-impl-sc@icann.org <gnso-improvem-impl-sc@icann.org>;
Cc: Jonathan Robinson <jonathan.robinson@ipracon.com>; Subject: RE: [gnso-improvem-impl-sc] New task Sent: Wed, Jan 9, 2013 5:27:47 AM
Hi all, What I am struggling with procedurally is a basic "Robert's Rules" type inquiry. Namely: - I don't know of anything procedurally that would permit a motion that is moved and seconded from being voted on, no matter how obnoxious anyone finds the motion to be. I guess this is what we are going to discuss tomorrow.
the issue was voting again after it had already been defeated.
I would like to ask whether there are specific provisions in the GNSO
Operating Procedures regarding introduction of motions that staff can provide prior to our call.
It is all in the g-counci Procedures. And is says nothing on reconsideration or rescinding of decisions already made.
Thank you Anne
Anne E. Aikman-Scalese Of Counsel Lewis and Roca LLP * Suite 700 One South Church Avenue * Tucson, Arizona 85701-1611 Tel (520) 629-4428 * Fax (520) 879-4725 AAikman@LRLaw.com * www.LewisandRoca.com/Aikman P Please consider the environment before printing this e-mail. This e-mail contains legally privileged and confidential information intended only for the individual or entity named within the message. If the reader of this message is not the intended recipient, or the agent responsible to deliver it to the intended recipient, you are hereby notified that any review, dissemination, distribution or copying of this communication is prohibited. If this communication was received in error, please notify us by reply e-mail and delete
the original message.
-----Original Message----- From: owner-gnso-improvem-impl-sc@icann.org
[mailto:owner-gnso-improvem-impl-sc@icann.org] On Behalf Of Avri Doria
Sent: Tuesday, January 08, 2013 10:16 PM To: Jeff Neuman; gnso-improvem-impl-sc@icann.org Cc: Jonathan Robinson Subject: Re: [gnso-improvem-impl-sc] New task
Hi,
I guess I do not support that.
I think a motion should only be voted on once. and that to bring it back, something must have changed or a reasonable amount of time should have past.
And no we use votes to count the up to the thresholds defined for motions to pass. We may euphemistically use the word consensus, but it has NOTHING to do with consensus. If anything the consensus is in the work of the WGs and not in the votes of the management team, i.e. g-council.
I believe that what happened in that meeting is something that should never be allowed to happen again. And if we need rules to keep the chair from doing things like that, something I admit never entered my imagination of things that could go wrong, then we need new rules.
A thought experiment: Just imagine the uproar in the council if an NCUC based g-council chair had dared to some like this when the vote did not go her way.
avri
On 8 Jan 2013, at 21:24, Neuman, Jeff wrote:
Avri,
Yes, I know we use voting to measure consensus. But in the end, the
spirit is to achieve consensus on policy items. The fact that it took two votes to do so should not prejudice the results. Again, if there was some evidence of wrong doing, fraud etc., that would be one thing. But that did not happen.
I support the ability to re-vote on any item unless there is
evidence of misconduct, harassment, fraud, etc.
Best regards,
Jeffrey J. Neuman
Sent from iPad. Please excuse any typos.
-----Original Message----- From: Avri Doria [mailto:avri@ella.com] Sent: Tuesday, January 08, 2013 08:29 PM Eastern Standard Time To: Neuman, Jeff Cc: gnso-improvem-impl-sc@icann.org; Jonathan Robinson Subject: Re: [gnso-improvem-impl-sc] New task
Hi,
Sorry, that may be what the reviews intended at one point, but that
is not what the current regulations say. Due to the agreement between the SG at the time, a very strict voting regime was adopted and approved by the Board for the g-council. G-council has such a complicated voting structure that the Secretariat has a special tool to help them figure out when a motion has passed or not.
To now claim that g-council is a consensus body does not match the
reality of the situation.
avri
On 8 Jan 2013, at 19:37, Neuman, Jeff wrote:
I will restate what I said on the Council call. We are not supposed
to as a group focus on voting. We are supposed to come to "consensus" on items. If there is a "consensus" at any time of the Council on any given policy (provided that the processes were followed by the working group making the recommendation), then that is what should govern. The last evolution and reform of icann report by the London School of Economics as supported by the Board Governance Committee emphasized this over and over again. We are not supposed to be a voting body, so lets focus back on consensus.
All of the comments I have seen from those that did not like the
result in the last council meeting have not addressed the fact that ultimately there was a "consensus" on the issue. The fact that there had to be a second measurement of consensus on the item to me seems irrelevant and unnecessarily procedural. There was no abuse of process. There was no abuse within the working group making the recommendation. There is not evidence that there were improper conflicts, etc. Absent any showing of abuse, harassment, fraud, illegality, or willful negligence, I believe having a second measurement of consensus is not an issue.
Best regards,
Jeffrey J. Neuman
Sent from iPad. Please excuse any typos.
-----Original Message----- From: Avri Doria [mailto:avri@ella.com] Sent: Tuesday, January 08, 2013 05:31 PM Eastern Standard Time To: gnso-improvem-impl-sc@icann.org Cc: Jonathan Robinson; Neuman, Jeff Subject: Re: [gnso-improvem-impl-sc] New task
On 8 Jan 2013, at 17:16, Ron Andruff wrote:
Assuming that the ultimate desired outcome was for Councillors to
vote as they were permitted to (and possibly directed to by their group), two remedies were possible.
I take real issue with this in that this can only be the case when it is accordance with adherence to all rules of neutrality, transparency and accountability.
Once a vote is given, it is taken and clues from anyone on how to make the vote work out better are not, in my view or the view of my stakeholder group, legitimate. It is not for voter to decide that they should be able vote they way they meant to when they voted another way. If it was, those poor old jewish voters on finding out the ballot in Florida was confusing could have taken back their votes for Buchanan, and Gore would have been President of the US. and yes, we may wish with all our hearts that it had been otherwise, but it wasn't. Voting does not work according to wishes unsaid, it works in terms of the vote given.
avri
---------------------- For more information about Lewis and Roca LLP, please go to www.lewisandroca.com.
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This message is intended only for the use of the individual or entity to which it is addressed. If the reader of this message is not the intended recipient, or the employee or agent responsible for delivering the message to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender of this E-Mail by return E-Mail or by telephone. In accordance with Internal Revenue Service Circular 230, we advise you that if this email contains any tax advice, such tax advice was not intended or written to be used, and it cannot be used, by any taxpayer for the purpose of avoiding penalties that may be imposed on the taxpayer
Thanks Mary. I understand the rules you have laid out, but not sure I understand the rationale? What are you trying to prevent, guard against, protect, etc.? The reason I take the opposite view is that we are a consensus building organization. If consensus can be achieved on a policy matter, regardless of whether it is when a measure of consensus is taken the first time or the 2nd time, I see no reason to recognize consensus when consensus exists. Jeffrey J. Neuman Neustar, Inc. / Vice President, Business Affairs From: Mary.Wong@law.unh.edu [mailto:Mary.Wong@law.unh.edu] Sent: Wednesday, January 09, 2013 12:17 PM To: avri@acm.org; gnso-improvem-impl-sc@icann.org; jonathan.robinson@ipracon.com Cc: Neuman, Jeff Subject: RE: [gnso-improvem-impl-sc] New task Thanks, Jonathan and Jeff. As I won't be on the SCI call this week, my view, FWIW, is that a motion that is properly introduced, seconded and voted on should NOT be re-introduced (whether in its original form or tweaked) in the absence of clear evidence indicating fraud, duress or other similar circumstance surrounding the original introduction/seconding/vote in relation to the motion. In this regard, Councilors' ignorance of the rules (e.g. effect of an abstention), and lack of instruction/direction from a Councilor's particular constituency/SG, should NOT count as the type of circumstance that ought to permit a reintroduction or re-vote on what in substance is the same motion. Cheers Mary Mary W S Wong Professor of Law Director, Franklin Pierce Center for IP Chair, Graduate IP Programs UNIVERSITY OF NEW HAMPSHIRE SCHOOL OF LAW Two White Street Concord, NH 03301 USA Email: mary.wong@law.unh.edu<mailto: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
"Jonathan Robinson" 01/10/13 1:12 AM >>>
All, My understanding of the role of the SCI is to determine how improvements may be made for the future. When the motion was re-submitted to the December meeting, I do not believe that there was any procedure to guide the Council on the re-introduction of a motion that had recently been voted on. This specific issue has highlighted that we may need something to guide us on this in future. I do not believe that the SCI?s hands are tied at all. We have one useful example which raised concerns and now need to look at as general solution as possible for the future in order to cover both the example that raised the concern and other cases which may occur in future. Thanks, Jonathan From: owner-gnso-improvem-impl-sc@icann.org<mailto:owner-gnso-improvem-impl-sc@icann.org> [mailto:owner-gnso-improvem-impl-sc@icann.org] On Behalf Of Mary.Wong@law.unh.edu<mailto:Mary.Wong@law.unh.edu> Sent: 09 January 2013 16:58 To: avri@acm.org<mailto:avri@acm.org>; gnso-improvem-impl-sc@icann.org<mailto:gnso-improvem-impl-sc@icann.org> Cc: jonathan.robinson@ipracon.com<mailto:jonathan.robinson@ipracon.com>; Jeff.Neuman@neustar.us<mailto:Jeff.Neuman@neustar.us> Subject: Re: [gnso-improvem-impl-sc] New task I support Avri's points generally, and would add the following in this specific instance: - the initial vote was properly proposed, seconded and voted on. - just as ignorance of the law is no excuse, the fact that Councilors were not aware of the implications of an abstention (when, frankly, they should be as it's in the rules plain as day) should not permit a re-introduction of something that was properly introduced and voted on. - In this case I don't know if the specific constituency impacted had given instructions to its Councilors as to how to vote. Even if they did not, the fact remains that these are very clearly set out in the GNSO rules, and if a constituency or Councilors did not know or did not make the time to discuss/decide, that is a very poor excuse for reintroducing a motion (again, one properly introduced, seconded and voted on). - In an ideal world, the Council should have suspended the matter and referred the issue of a re-introduction/reconsideration of such a motion (without necessarily specifying the actual motion or context) to the SCI before re-opening the vote. As it is, it seems as though the SCI's hands are somewhat tied since the second motion did get voted on and went through - the mind boggles at an SCI determination that this re-introduction and vote was improper or invalid, especially in the currrent somewhat sensitive context within which ICANN is operating. Cheers Mary Mary W S Wong Professor of Law Director, Franklin Pierce Center for IP Chair, Graduate IP Programs UNIVERSITY OF NEW HAMPSHIRE SCHOOL OF LAW Two White Street Concord, NH 03301 USA Email: mary.wong@law.unh.edu<mailto: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
Avri Doria <avri@acm.org<mailto:avri@acm.org>> 01/09/13 2:01 PM >>>
Another thought experiment. There was a recent g-council vote where, in a rare event, the NCSG Policy Council had decided on an unanimous vote on an issue. But during the vote, some voters got confused and voted against. Would it have been appropriate for us to demand a re-vote? Had one of us been g-council Chair, would it have ben right for us to just reschedule the vote without even getting the g-councl to discuss and perhaps even vote on the notion of reconsidering the vote? A general question, anytime from now on, when a SG or Constituency beleive that its voters went against the will of the SG/C should they be able to have a vote rescheduled at the next meeting? avri On 9 Jan 2013, at 00:54, Avri Doria wrote:
Even Robert's Rules of Order has rules on when and how a motion can be reconsidered or rescinded (10.5). The Board of ICANN has rules on reconsideration in the ByLaws.
One specific requirement for reconsideration under Roberts is that one of those on the prevailing side ask for the reconsideration. In this case it was the Chair who had been on the losing side.
We need rules on when it is done and on how it should be done.
avri
On 9 Jan 2013, at 00:30, J. Scott Evans wrote:
I tend to agree,
From: Aikman-Scalese, Anne <AAikman@lrlaw.com<mailto:AAikman@lrlaw.com>>; To: 'Avri Doria' <avri@acm.org<mailto:avri@acm.org>>; Jeff Neuman <Jeff.Neuman@neustar.us<mailto:Jeff.Neuman@neustar.us>>; gnso-improvem-impl-sc@icann.org<mailto:gnso-improvem-impl-sc@icann.org> <gnso-improvem-impl-sc@icann.org<mailto:gnso-improvem-impl-sc@icann.org>>; Cc: Jonathan Robinson <jonathan.robinson@ipracon.com<mailto:jonathan.robinson@ipracon.com>>; Subject: RE: [gnso-improvem-impl-sc] New task Sent: Wed, Jan 9, 2013 5:27:47 AM
Hi all, What I am struggling with procedurally is a basic "Robert's Rules" type inquiry. Namely: - I don't know of anything procedurally that would permit a motion that is moved and seconded from being voted on, no matter how obnoxious anyone finds the motion to be. I guess this is what we are going to discuss tomorrow.
the issue was voting again after it had already been defeated.
I would like to ask whether there are specific provisions in the GNSO Operating Procedures regarding introduction of motions that staff can provide prior to our call.
It is all in the g-counci Procedures. And is says nothing on reconsideration or rescinding of decisions already made.
Thank you Anne
Anne E. Aikman-Scalese Of Counsel Lewis and Roca LLP * Suite 700 One South Church Avenue * Tucson, Arizona 85701-1611 Tel (520) 629-4428 * Fax (520) 879-4725 AAikman@LRLaw.com<mailto:AAikman@LRLaw.com> * www.LewisandRoca.com/Aikman<http://www.LewisandRoca.com/Aikman> P Please consider the environment before printing this e-mail. This e-mail contains legally privileged and confidential information intended only for the individual or entity named within the message. If the reader of this message is not the intended recipient, or the agent responsible to deliver it to the intended recipient, you are hereby notified that any review, dissemination, distribution or copying of this communication is prohibited. If this communication was received in error, please notify us by reply e-mail and delete the original message.
-----Original Message----- From: owner-gnso-improvem-impl-sc@icann.org<mailto:owner-gnso-improvem-impl-sc@icann.org> [mailto:owner-gnso-improvem-impl-sc@icann.org] On Behalf Of Avri Doria Sent: Tuesday, January 08, 2013 10:16 PM To: Jeff Neuman; gnso-improvem-impl-sc@icann.org<mailto:gnso-improvem-impl-sc@icann.org> Cc: Jonathan Robinson Subject: Re: [gnso-improvem-impl-sc] New task
Hi,
I guess I do not support that.
I think a motion should only be voted on once. and that to bring it back, something must have changed or a reasonable amount of time should have past.
And no we use votes to count the up to the thresholds defined for motions to pass. We may euphemistically use the word consensus, but it has NOTHING to do with consensus. If anything the consensus is in the work of the WGs and not in the votes of the management team, i.e. g-council.
I believe that what happened in that meeting is something that should never be allowed to happen again. And if we need rules to keep the chair from doing things like that, something I admit never entered my imagination of things that could go wrong, then we need new rules.
A thought experiment: Just imagine the uproar in the council if an NCUC based g-council chair had dared to some like this when the vote did not go her way.
avri
On 8 Jan 2013, at 21:24, Neuman, Jeff wrote:
Avri,
Yes, I know we use voting to measure consensus. But in the end, the spirit is to achieve consensus on policy items. The fact that it took two votes to do so should not prejudice the results. Again, if there was some evidence of wrong doing, fraud etc., that would be one thing. But that did not happen.
I support the ability to re-vote on any item unless there is evidence of misconduct, harassment, fraud, etc.
Best regards,
Jeffrey J. Neuman
Sent from iPad. Please excuse any typos.
-----Original Message----- From: Avri Doria [mailto:avri@ella.com] Sent: Tuesday, January 08, 2013 08:29 PM Eastern Standard Time To: Neuman, Jeff Cc: gnso-improvem-impl-sc@icann.org<mailto:gnso-improvem-impl-sc@icann.org>; Jonathan Robinson Subject: Re: [gnso-improvem-impl-sc] New task
Hi,
Sorry, that may be what the reviews intended at one point, but that is not what the current regulations say. Due to the agreement between the SG at the time, a very strict voting regime was adopted and approved by the Board for the g-council. G-council has such a complicated voting structure that the Secretariat has a special tool to help them figure out when a motion has passed or not.
To now claim that g-council is a consensus body does not match the reality of the situation.
avri
On 8 Jan 2013, at 19:37, Neuman, Jeff wrote:
I will restate what I said on the Council call. We are not supposed to as a group focus on voting. We are supposed to come to "consensus" on items. If there is a "consensus" at any time of the Council on any given policy (provided that the processes were followed by the working group making the recommendation), then that is what should govern. The last evolution and reform of icann report by the London School of Economics as supported by the Board Governance Committee emphasized this over and over again. We are not supposed to be a voting body, so lets focus back on consensus.
All of the comments I have seen from those that did not like the result in the last council meeting have not addressed the fact that ultimately there was a "consensus" on the issue. The fact that there had to be a second measurement of consensus on the item to me seems irrelevant and unnecessarily procedural. There was no abuse of process. There was no abuse within the working group making the recommendation. There is not evidence that there were improper conflicts, etc. Absent any showing of abuse, harassment, fraud, illegality, or willful negligence, I believe having a second measurement of consensus is not an issue.
Best regards,
Jeffrey J. Neuman
Sent from iPad. Please excuse any typos.
-----Original Message----- From: Avri Doria [mailto:avri@ella.com] Sent: Tuesday, January 08, 2013 05:31 PM Eastern Standard Time To: gnso-improvem-impl-sc@icann.org<mailto:gnso-improvem-impl-sc@icann.org> Cc: Jonathan Robinson; Neuman, Jeff Subject: Re: [gnso-improvem-impl-sc] New task
On 8 Jan 2013, at 17:16, Ron Andruff wrote:
Assuming that the ultimate desired outcome was for Councillors to vote as they were permitted to (and possibly directed to by their group), two remedies were possible.
I take real issue with this in that this can only be the case when it is accordance with adherence to all rules of neutrality, transparency and accountability.
Once a vote is given, it is taken and clues from anyone on how to make the vote work out better are not, in my view or the view of my stakeholder group, legitimate. It is not for voter to decide that they should be able vote they way they meant to when they voted another way. If it was, those poor old jewish voters on finding out the ballot in Florida was confusing could have taken back their votes for Buchanan, and Gore would have been President of the US. and yes, we may wish with all our hearts that it had been otherwise, but it wasn't. Voting does not work according to wishes unsaid, it works in terms of the vote given.
avri
---------------------- For more information about Lewis and Roca LLP, please go to www.lewisandroca.com<http://www.lewisandroca.com>.
Phoenix (602)262-5311 Reno (775)823-2900 Tucson (520)622-2090 Albuquerque (505)764-5400 Las Vegas (702)949-8200 Silicon Valley (650)391-1380
This message is intended only for the use of the individual or entity to which it is addressed. If the reader of this message is not the intended recipient, or the employee or agent responsible for delivering the message to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender of this E-Mail by return E-Mail or by telephone. In accordance with Internal Revenue Service Circular 230, we advise you that if this email contains any tax advice, such tax advice was not intended or written to be used, and it cannot be used, by any taxpayer for the purpose of avoiding penalties that may be imposed on the taxpayer
I think our problem is the meshing of to systems that are not necessarily complimentary. For this reason, I recommend that we consider getting away from the council passing motions and re-focus the efforts on calling for consensus. J. Scott j. scott evans - head of global brand, domains & copyright - Yahoo! Inc. - 408.349.1385 - jscottevans@yahoo.com ________________________________ From: "Neuman, Jeff" <Jeff.Neuman@neustar.us> To: "Mary.Wong@law.unh.edu" <Mary.Wong@law.unh.edu>; "avri@acm.org" <avri@acm.org>; "gnso-improvem-impl-sc@icann.org" <gnso-improvem-impl-sc@icann.org>; "jonathan.robinson@ipracon.com" <jonathan.robinson@ipracon.com> Sent: Wednesday, January 9, 2013 1:00 PM Subject: RE: [gnso-improvem-impl-sc] New task Thanks Mary. I understand the rules you have laid out, but not sure I understand the rationale? What are you trying to prevent, guard against, protect, etc.? The reason I take the opposite view is that we are a consensus building organization. If consensus can be achieved on a policy matter, regardless of whether it is when a measure of consensus is taken the first time or the 2nd time, I see no reason to recognize consensus when consensus exists. Jeffrey J. Neuman Neustar, Inc. / Vice President, Business Affairs From:Mary.Wong@law.unh.edu [mailto:Mary.Wong@law.unh.edu] Sent: Wednesday, January 09, 2013 12:17 PM To: avri@acm.org; gnso-improvem-impl-sc@icann.org; jonathan.robinson@ipracon.com Cc: Neuman, Jeff Subject: RE: [gnso-improvem-impl-sc] New task Thanks, Jonathan and Jeff. As I won't be on the SCI call this week, my view, FWIW, is that a motion that is properly introduced, seconded and voted on should NOT be re-introduced (whether in its original form or tweaked) in the absence of clear evidence indicating fraud, duress or other similar circumstance surrounding the original introduction/seconding/vote in relation to the motion. In this regard, Councilors' ignorance of the rules (e.g. effect of an abstention), and lack of instruction/direction from a Councilor's particular constituency/SG, should NOT count as the type of circumstance that ought to permit a reintroduction or re-vote on what in substance is the same motion. Cheers Mary Mary W S Wong Professor of Law Director, Franklin Pierce Center for IP 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
"Jonathan Robinson" 01/10/13 1:12 AM >>>
All, My understanding of the role of the SCI is to determine how improvements may be made for the future. When the motion was re-submitted to the December meeting, I do not believe that there was any procedure to guide the Council on the re-introduction of a motion that had recently been voted on. This specific issue has highlighted that we may need something to guide us on this in future. I do not believe that the SCI?s hands are tied at all. We have one useful example which raised concerns and now need to look at as general solution as possible for the future in order to cover both the example that raised the concern and other cases which may occur in future. Thanks, Jonathan From:owner-gnso-improvem-impl-sc@icann.org [mailto:owner-gnso-improvem-impl-sc@icann.org] On Behalf Of Mary.Wong@law.unh.edu Sent: 09 January 2013 16:58 To: avri@acm.org; gnso-improvem-impl-sc@icann.org Cc: jonathan.robinson@ipracon.com; Jeff.Neuman@neustar.us Subject: Re: [gnso-improvem-impl-sc] New task I support Avri's points generally, and would add the following in this specific instance: - the initial vote was properly proposed, seconded and voted on. - just as ignorance of the law is no excuse, the fact that Councilors were not aware of the implications of an abstention (when, frankly, they should be as it's in the rules plain as day) should not permit a re-introduction of something that was properly introduced and voted on. - In this case I don't know if the specific constituency impacted had given instructions to its Councilors as to how to vote. Even if they did not, the fact remains that these are very clearly set out in the GNSO rules, and if a constituency or Councilors did not know or did not make the time to discuss/decide, that is a very poor excuse for reintroducing a motion (again, one properly introduced, seconded and voted on). - In an ideal world, the Council should have suspended the matter and referred the issue of a re-introduction/reconsideration of such a motion (without necessarily specifying the actual motion or context) to the SCI before re-opening the vote. As it is, it seems as though the SCI's hands are somewhat tied since the second motion did get voted on and went through - the mind boggles at an SCI determination that this re-introduction and vote was improper or invalid, especially in the currrent somewhat sensitive context within which ICANN is operating. Cheers Mary Mary W S Wong Professor of Law Director, Franklin Pierce Center for IP 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
Avri Doria <avri@acm.org> 01/09/13 2:01 PM >>>
Another thought experiment. There was a recent g-council vote where, in a rare event, the NCSG Policy Council had decided on an unanimous vote on an issue. But during the vote, some voters got confused and voted against. Would it have been appropriate for us to demand a re-vote? Had one of us been g-council Chair, would it have ben right for us to just reschedule the vote without even getting the g-councl to discuss and perhaps even vote on the notion of reconsidering the vote? A general question, anytime from now on, when a SG or Constituency beleive that its voters went against the will of the SG/C should they be able to have a vote rescheduled at the next meeting? avri On 9 Jan 2013, at 00:54, Avri Doria wrote:
Even Robert's Rules of Order has rules on when and how a motion can be reconsidered or rescinded (10.5). The Board of ICANN has rules on reconsideration in the ByLaws.
One specific requirement for reconsideration under Roberts is that one of those on the prevailing side ask for the reconsideration. In this case it was the Chair who had been on the losing side.
We need rules on when it is done and on how it should be done.
avri
On 9 Jan 2013, at 00:30, J. Scott Evans wrote:
I tend to agree,
From: Aikman-Scalese, Anne <AAikman@lrlaw.com>; To: 'Avri Doria' <avri@acm.org>; Jeff Neuman <Jeff.Neuman@neustar.us>; gnso-improvem-impl-sc@icann.org <gnso-improvem-impl-sc@icann.org>; Cc: Jonathan Robinson <jonathan.robinson@ipracon.com>; Subject: RE: [gnso-improvem-impl-sc] New task Sent: Wed, Jan 9, 2013 5:27:47 AM
Hi all, What I am struggling with procedurally is a basic "Robert's Rules" type inquiry. Namely: - I don't know of anything procedurally that would permit a motion that is moved and seconded from being voted on, no matter how obnoxious anyone finds the motion to be. I guess this is what we are going to discuss tomorrow.
the issue was voting again after it had already been defeated.
I would like to ask whether there are specific provisions in the GNSO Operating Procedures regarding introduction of motions that staff can provide prior to our call.
It is all in the g-counci Procedures. And is says nothing on reconsideration or rescinding of decisions already made.
Thank you Anne
Anne E. Aikman-Scalese Of Counsel Lewis and Roca LLP * Suite 700 One South Church Avenue * Tucson, Arizona 85701-1611 Tel (520) 629-4428 * Fax (520) 879-4725 AAikman@LRLaw.com * www.LewisandRoca.com/Aikman P Please consider the environment before printing this e-mail. This e-mail contains legally privileged and confidential information intended only for the individual or entity named within the message. If the reader of this message is not the intended recipient, or the agent responsible to deliver it to the intended recipient, you are hereby notified that any review, dissemination, distribution or copying of this communication is prohibited. If this communication was received in error, please notify us by reply e-mail and delete the original message.
-----Original Message----- From: owner-gnso-improvem-impl-sc@icann.org [mailto:owner-gnso-improvem-impl-sc@icann.org] On Behalf Of Avri Doria Sent: Tuesday, January 08, 2013 10:16 PM To: Jeff Neuman; gnso-improvem-impl-sc@icann.org Cc: Jonathan Robinson Subject: Re: [gnso-improvem-impl-sc] New task
Hi,
I guess I do not support that.
I think a motion should only be voted on once. and that to bring it back, something must have changed or a reasonable amount of time should have past.
And no we use votes to count the up to the thresholds defined for motions to pass. We may euphemistically use the word consensus, but it has NOTHING to do with consensus. If anything the consensus is in the work of the WGs and not in the votes of the management team, i.e. g-council.
I believe that what happened in that meeting is something that should never be allowed to happen again. And if we need rules to keep the chair from doing things like that, something I admit never entered my imagination of things that could go wrong, then we need new rules.
A thought experiment: Just imagine the uproar in the council if an NCUC based g-council chair had dared to some like this when the vote did not go her way.
avri
On 8 Jan 2013, at 21:24, Neuman, Jeff wrote:
Avri,
Yes, I know we use voting to measure consensus. But in the end, the spirit is to achieve consensus on policy items. The fact that it took two votes to do so should not prejudice the results. Again, if there was some evidence of wrong doing, fraud etc., that would be one thing. But that did not happen.
I support the ability to re-vote on any item unless there is evidence of misconduct, harassment, fraud, etc.
Best regards,
Jeffrey J. Neuman
Sent from iPad. Please excuse any typos.
-----Original Message----- From: Avri Doria [mailto:avri@ella.com] Sent: Tuesday, January 08, 2013 08:29 PM Eastern Standard Time To: Neuman, Jeff Cc: gnso-improvem-impl-sc@icann.org; Jonathan Robinson Subject: Re: [gnso-improvem-impl-sc] New task
Hi,
Sorry, that may be what the reviews intended at one point, but that is not what the current regulations say. Due to the agreement between the SG at the time, a very strict voting regime was adopted and approved by the Board for the g-council. G-council has such a complicated voting structure that the Secretariat has a special tool to help them figure out when a motion has passed or not.
To now claim that g-council is a consensus body does not match the reality of the situation.
avri
On 8 Jan 2013, at 19:37, Neuman, Jeff wrote:
I will restate what I said on the Council call. We are not supposed to as a group focus on voting. We are supposed to come to "consensus" on items. If there is a "consensus" at any time of the Council on any given policy (provided that the processes were followed by the working group making the recommendation), then that is what should govern. The last evolution and reform of icann report by the London School of Economics as supported by the Board Governance Committee emphasized this over and over again. We are not supposed to be a voting body, so lets focus back on consensus.
All of the comments I have seen from those that did not like the result in the last council meeting have not addressed the fact that ultimately there was a "consensus" on the issue. The fact that there had to be a second measurement of consensus on the item to me seems irrelevant and unnecessarily procedural. There was no abuse of process. There was no abuse within the working group making the recommendation. There is not evidence that there were improper conflicts, etc. Absent any showing of abuse, harassment, fraud, illegality, or willful negligence, I believe having a second measurement of consensus is not an issue.
Best regards,
Jeffrey J. Neuman
Sent from iPad. Please excuse any typos.
-----Original Message----- From: Avri Doria [mailto:avri@ella.com] Sent: Tuesday, January 08, 2013 05:31 PM Eastern Standard Time To: gnso-improvem-impl-sc@icann.org Cc: Jonathan Robinson; Neuman, Jeff Subject: Re: [gnso-improvem-impl-sc] New task
On 8 Jan 2013, at 17:16, Ron Andruff wrote:
Assuming that the ultimate desired outcome was for Councillors to vote as they were permitted to (and possibly directed to by their group), two remedies were possible.
I take real issue with this in that this can only be the case when it is accordance with adherence to all rules of neutrality, transparency and accountability.
Once a vote is given, it is taken and clues from anyone on how to make the vote work out better are not, in my view or the view of my stakeholder group, legitimate. It is not for voter to decide that they should be able vote they way they meant to when they voted another way. If it was, those poor old jewish voters on finding out the ballot in Florida was confusing could have taken back their votes for Buchanan, and Gore would have been President of the US. and yes, we may wish with all our hearts that it had been otherwise, but it wasn't. Voting does not work according to wishes unsaid, it works in terms of the vote given.
avri
---------------------- For more information about Lewis and Roca LLP, please go to www.lewisandroca.com.
Phoenix (602)262-5311 Reno (775)823-2900 Tucson (520)622-2090 Albuquerque (505)764-5400 Las Vegas (702)949-8200 Silicon Valley (650)391-1380
This message is intended only for the use of the individual or entity to which it is addressed. If the reader of this message is not the intended recipient, or the employee or agent responsible for delivering the message to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender of this E-Mail by return E-Mail or by telephone. In accordance with Internal Revenue Service Circular 230, we advise you that if this email contains any tax advice, such tax advice was not intended or written to be used, and it cannot be used, by any taxpayer for the purpose of avoiding penalties that may be imposed on the taxpayer
Hi, The problem is that the g-council is a management process. It is the WG that are the consensus building. To go back to the council as consensus is to go back to the days of council as legislature. In its management role, the g-council does not arrive at consensus. It votes in blocks that for the most part does not even allow its members to have their own points of view but are being ordered by SG/C to vote in a block a certain way. That is not a consensus process. It is a strictly defined voting organization. In the GNSO, WG are consensus, g-council is management by vote. This may be a good thing to bring up in the upcoming review, but I do not see any way for SCI to unwind the voting complexities of the g-council. avri On 9 Jan 2013, at 17:06, J. Scott Evans wrote:
I think our problem is the meshing of to systems that are not necessarily complimentary. For this reason, I recommend that we consider getting away from the council passing motions and re-focus the efforts on calling for consensus.
J. Scott
j. scott evans - head of global brand, domains & copyright - Yahoo! Inc. - 408.349.1385 - jscottevans@yahoo.com
From: "Neuman, Jeff" <Jeff.Neuman@neustar.us> To: "Mary.Wong@law.unh.edu" <Mary.Wong@law.unh.edu>; "avri@acm.org" <avri@acm.org>; "gnso-improvem-impl-sc@icann.org" <gnso-improvem-impl-sc@icann.org>; "jonathan.robinson@ipracon.com" <jonathan.robinson@ipracon.com> Sent: Wednesday, January 9, 2013 1:00 PM Subject: RE: [gnso-improvem-impl-sc] New task
Thanks Mary. I understand the rules you have laid out, but not sure I understand the rationale? What are you trying to prevent, guard against, protect, etc.? The reason I take the opposite view is that we are a consensus building organization. If consensus can be achieved on a policy matter, regardless of whether it is when a measure of consensus is taken the first time or the 2nd time, I see no reason to recognize consensus when consensus exists.
Jeffrey J. Neuman Neustar, Inc. / Vice President, Business Affairs
From: Mary.Wong@law.unh.edu [mailto:Mary.Wong@law.unh.edu] Sent: Wednesday, January 09, 2013 12:17 PM To: avri@acm.org; gnso-improvem-impl-sc@icann.org; jonathan.robinson@ipracon.com Cc: Neuman, Jeff Subject: RE: [gnso-improvem-impl-sc] New task
Thanks, Jonathan and Jeff. As I won't be on the SCI call this week, my view, FWIW, is that a motion that is properly introduced, seconded and voted on should NOT be re-introduced (whether in its original form or tweaked) in the absence of clear evidence indicating fraud, duress or other similar circumstance surrounding the original introduction/seconding/vote in relation to the motion. In this regard, Councilors' ignorance of the rules (e.g. effect of an abstention), and lack of instruction/direction from a Councilor's particular constituency/SG, should NOT count as the type of circumstance that ought to permit a reintroduction or re-vote on what in substance is the same motion.
Cheers Mary
Mary W S Wong Professor of Law Director, Franklin Pierce Center for IP 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
"Jonathan Robinson" 01/10/13 1:12 AM >>>
All,
My understanding of the role of the SCI is to determine how improvements may be made for the future.
When the motion was re-submitted to the December meeting, I do not believe that there was any procedure to guide the Council on the re-introduction of a motion that had recently been voted on.
This specific issue has highlighted that we may need something to guide us on this in future. I do not believe that the SCI?s hands are tied at all.
We have one useful example which raised concerns and now need to look at as general solution as possible for the future in order to cover both the example that raised the concern and other cases which may occur in future.
Thanks,
Jonathan
From: owner-gnso-improvem-impl-sc@icann.org [mailto:owner-gnso-improvem-impl-sc@icann.org] On Behalf Of Mary.Wong@law.unh.edu Sent: 09 January 2013 16:58 To: avri@acm.org; gnso-improvem-impl-sc@icann.org Cc: jonathan.robinson@ipracon.com; Jeff.Neuman@neustar.us Subject: Re: [gnso-improvem-impl-sc] New task
I support Avri's points generally, and would add the following in this specific instance:
- the initial vote was properly proposed, seconded and voted on.
- just as ignorance of the law is no excuse, the fact that Councilors were not aware of the implications of an abstention (when, frankly, they should be as it's in the rules plain as day) should not permit a re-introduction of something that was properly introduced and voted on.
- In this case I don't know if the specific constituency impacted had given instructions to its Councilors as to how to vote. Even if they did not, the fact remains that these are very clearly set out in the GNSO rules, and if a constituency or Councilors did not know or did not make the time to discuss/decide, that is a very poor excuse for reintroducing a motion (again, one properly introduced, seconded and voted on).
- In an ideal world, the Council should have suspended the matter and referred the issue of a re-introduction/reconsideration of such a motion (without necessarily specifying the actual motion or context) to the SCI before re-opening the vote. As it is, it seems as though the SCI's hands are somewhat tied since the second motion did get voted on and went through - the mind boggles at an SCI determination that this re-introduction and vote was improper or invalid, especially in the currrent somewhat sensitive context within which ICANN is operating.
Cheers Mary
Mary W S Wong Professor of Law Director, Franklin Pierce Center for IP 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
Avri Doria <avri@acm.org> 01/09/13 2:01 PM >>>
Another thought experiment.
There was a recent g-council vote where, in a rare event, the NCSG Policy Council had decided on an unanimous vote on an issue. But during the vote, some voters got confused and voted against.
Would it have been appropriate for us to demand a re-vote?
Had one of us been g-council Chair, would it have ben right for us to just reschedule the vote without even getting the g-councl to discuss and perhaps even vote on the notion of reconsidering the vote?
A general question, anytime from now on, when a SG or Constituency beleive that its voters went against the will of the SG/C should they be able to have a vote rescheduled at the next meeting?
avri
On 9 Jan 2013, at 00:54, Avri Doria wrote:
Even Robert's Rules of Order has rules on when and how a motion can be reconsidered or rescinded (10.5). The Board of ICANN has rules on reconsideration in the ByLaws.
One specific requirement for reconsideration under Roberts is that one of those on the prevailing side ask for the reconsideration. In this case it was the Chair who had been on the losing side.
We need rules on when it is done and on how it should be done.
avri
On 9 Jan 2013, at 00:30, J. Scott Evans wrote:
I tend to agree,
From: Aikman-Scalese, Anne <AAikman@lrlaw.com>; To: 'Avri Doria' <avri@acm.org>; Jeff Neuman <Jeff.Neuman@neustar.us>; gnso-improvem-impl-sc@icann.org <gnso-improvem-impl-sc@icann.org>; Cc: Jonathan Robinson <jonathan.robinson@ipracon.com>; Subject: RE: [gnso-improvem-impl-sc] New task Sent: Wed, Jan 9, 2013 5:27:47 AM
Hi all, What I am struggling with procedurally is a basic "Robert's Rules" type inquiry. Namely: - I don't know of anything procedurally that would permit a motion that is moved and seconded from being voted on, no matter how obnoxious anyone finds the motion to be. I guess this is what we are going to discuss tomorrow.
the issue was voting again after it had already been defeated.
I would like to ask whether there are specific provisions in the GNSO Operating Procedures regarding introduction of motions that staff can provide prior to our call.
It is all in the g-counci Procedures. And is says nothing on reconsideration or rescinding of decisions already made.
Thank you Anne
Anne E. Aikman-Scalese Of Counsel Lewis and Roca LLP * Suite 700 One South Church Avenue * Tucson, Arizona 85701-1611 Tel (520) 629-4428 * Fax (520) 879-4725 AAikman@LRLaw.com * www.LewisandRoca.com/Aikman P Please consider the environment before printing this e-mail. This e-mail contains legally privileged and confidential information intended only for the individual or entity named within the message. If the reader of this message is not the intended recipient, or the agent responsible to deliver it to the intended recipient, you are hereby notified that any review, dissemination, distribution or copying of this communication is prohibited. If this communication was received in error, please notify us by reply e-mail and delete the original message.
-----Original Message----- From: owner-gnso-improvem-impl-sc@icann.org [mailto:owner-gnso-improvem-impl-sc@icann.org] On Behalf Of Avri Doria Sent: Tuesday, January 08, 2013 10:16 PM To: Jeff Neuman; gnso-improvem-impl-sc@icann.org Cc: Jonathan Robinson Subject: Re: [gnso-improvem-impl-sc] New task
Hi,
I guess I do not support that.
I think a motion should only be voted on once. and that to bring it back, something must have changed or a reasonable amount of time should have past.
And no we use votes to count the up to the thresholds defined for motions to pass. We may euphemistically use the word consensus, but it has NOTHING to do with consensus. If anything the consensus is in the work of the WGs and not in the votes of the management team, i.e. g-council.
I believe that what happened in that meeting is something that should never be allowed to happen again. And if we need rules to keep the chair from doing things like that, something I admit never entered my imagination of things that could go wrong, then we need new rules.
A thought experiment: Just imagine the uproar in the council if an NCUC based g-council chair had dared to some like this when the vote did not go her way.
avri
On 8 Jan 2013, at 21:24, Neuman, Jeff wrote:
Avri,
Yes, I know we use voting to measure consensus. But in the end, the spirit is to achieve consensus on policy items. The fact that it took two votes to do so should not prejudice the results. Again, if there was some evidence of wrong doing, fraud etc., that would be one thing. But that did not happen.
I support the ability to re-vote on any item unless there is evidence of misconduct, harassment, fraud, etc.
Best regards,
Jeffrey J. Neuman
Sent from iPad. Please excuse any typos.
-----Original Message----- From: Avri Doria [mailto:avri@ella.com] Sent: Tuesday, January 08, 2013 08:29 PM Eastern Standard Time To: Neuman, Jeff Cc: gnso-improvem-impl-sc@icann.org; Jonathan Robinson Subject: Re: [gnso-improvem-impl-sc] New task
Hi,
Sorry, that may be what the reviews intended at one point, but that is not what the current regulations say. Due to the agreement between the SG at the time, a very strict voting regime was adopted and approved by the Board for the g-council. G-council has such a complicated voting structure that the Secretariat has a special tool to help them figure out when a motion has passed or not.
To now claim that g-council is a consensus body does not match the reality of the situation.
avri
On 8 Jan 2013, at 19:37, Neuman, Jeff wrote:
I will restate what I said on the Council call. We are not supposed to as a group focus on voting. We are supposed to come to "consensus" on items. If there is a "consensus" at any time of the Council on any given policy (provided that the processes were followed by the working group making the recommendation), then that is what should govern. The last evolution and reform of icann report by the London School of Economics as supported by the Board Governance Committee emphasized this over and over again. We are not supposed to be a voting body, so lets focus back on consensus.
All of the comments I have seen from those that did not like the result in the last council meeting have not addressed the fact that ultimately there was a "consensus" on the issue. The fact that there had to be a second measurement of consensus on the item to me seems irrelevant and unnecessarily procedural. There was no abuse of process. There was no abuse within the working group making the recommendation. There is not evidence that there were improper conflicts, etc. Absent any showing of abuse, harassment, fraud, illegality, or willful negligence, I believe having a second measurement of consensus is not an issue.
Best regards,
Jeffrey J. Neuman
Sent from iPad. Please excuse any typos.
-----Original Message----- From: Avri Doria [mailto:avri@ella.com] Sent: Tuesday, January 08, 2013 05:31 PM Eastern Standard Time To: gnso-improvem-impl-sc@icann.org Cc: Jonathan Robinson; Neuman, Jeff Subject: Re: [gnso-improvem-impl-sc] New task
On 8 Jan 2013, at 17:16, Ron Andruff wrote:
Assuming that the ultimate desired outcome was for Councillors to vote as they were permitted to (and possibly directed to by their group), two remedies were possible.
I take real issue with this in that this can only be the case when it is accordance with adherence to all rules of neutrality, transparency and accountability.
Once a vote is given, it is taken and clues from anyone on how to make the vote work out better are not, in my view or the view of my stakeholder group, legitimate. It is not for voter to decide that they should be able vote they way they meant to when they voted another way. If it was, those poor old jewish voters on finding out the ballot in Florida was confusing could have taken back their votes for Buchanan, and Gore would have been President of the US. and yes, we may wish with all our hearts that it had been otherwise, but it wasn't. Voting does not work according to wishes unsaid, it works in terms of the vote given.
avri
---------------------- For more information about Lewis and Roca LLP, please go to www.lewisandroca.com.
Phoenix (602)262-5311 Reno (775)823-2900 Tucson (520)622-2090 Albuquerque (505)764-5400 Las Vegas (702)949-8200 Silicon Valley (650)391-1380
This message is intended only for the use of the individual or entity to which it is addressed. If the reader of this message is not the intended recipient, or the employee or agent responsible for delivering the message to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender of this E-Mail by return E-Mail or by telephone. In accordance with Internal Revenue Service Circular 230, we advise you that if this email contains any tax advice, such tax advice was not intended or written to be used, and it cannot be used, by any taxpayer for the purpose of avoiding penalties that may be imposed on the taxpayer
Dear all, As Jeff Neuman is the Observer from the GNSO Council on this matter, I am hereby asking all to respond to the SCI list only and not copy Jonathan on our exchanges. I am sure he has enough email coming at him as Chair of the Council and Jeff, as the designate, can report back to him as and when needed. Thanks everyone. RA Ronald N. Andruff RNA <http://www.rnapartners.com> Partners, Inc. _____ From: owner-gnso-improvem-impl-sc@icann.org [mailto:owner-gnso-improvem-impl-sc@icann.org] On Behalf Of J. Scott Evans Sent: Wednesday, January 09, 2013 5:07 PM To: Neuman, Jeff; Mary.Wong@law.unh.edu; avri@acm.org; gnso-improvem-impl-sc@icann.org; jonathan.robinson@ipracon.com Subject: Re: [gnso-improvem-impl-sc] New task I think our problem is the meshing of to systems that are not necessarily complimentary. For this reason, I recommend that we consider getting away from the council passing motions and re-focus the efforts on calling for consensus. J. Scott j. scott evans - head of global brand, domains & copyright - Yahoo! Inc. - 408.349.1385 - jscottevans@yahoo.com _____ From: "Neuman, Jeff" <Jeff.Neuman@neustar.us> To: "Mary.Wong@law.unh.edu" <Mary.Wong@law.unh.edu>; "avri@acm.org" <avri@acm.org>; "gnso-improvem-impl-sc@icann.org" <gnso-improvem-impl-sc@icann.org>; "jonathan.robinson@ipracon.com" <jonathan.robinson@ipracon.com> Sent: Wednesday, January 9, 2013 1:00 PM Subject: RE: [gnso-improvem-impl-sc] New task Thanks Mary. I understand the rules you have laid out, but not sure I understand the rationale? What are you trying to prevent, guard against, protect, etc.? The reason I take the opposite view is that we are a consensus building organization. If consensus can be achieved on a policy matter, regardless of whether it is when a measure of consensus is taken the first time or the 2nd time, I see no reason to recognize consensus when consensus exists. Jeffrey J. Neuman Neustar, Inc. / Vice President, Business Affairs From: Mary.Wong@law.unh.edu [mailto:Mary.Wong@law.unh.edu] Sent: Wednesday, January 09, 2013 12:17 PM To: avri@acm.org; gnso-improvem-impl-sc@icann.org; jonathan.robinson@ipracon.com Cc: Neuman, Jeff Subject: RE: [gnso-improvem-impl-sc] New task Thanks, Jonathan and Jeff. As I won't be on the SCI call this week, my view, FWIW, is that a motion that is properly introduced, seconded and voted on should NOT be re-introduced (whether in its original form or tweaked) in the absence of clear evidence indicating fraud, duress or other similar circumstance surrounding the original introduction/seconding/vote in relation to the motion. In this regard, Councilors' ignorance of the rules (e.g. effect of an abstention), and lack of instruction/direction from a Councilor's particular constituency/SG, should NOT count as the type of circumstance that ought to permit a reintroduction or re-vote on what in substance is the same motion. Cheers Mary Mary W S Wong Professor of Law Director, Franklin Pierce Center for IP 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
"Jonathan Robinson" 01/10/13 1:12 AM >>>
All, My understanding of the role of the SCI is to determine how improvements may be made for the future. When the motion was re-submitted to the December meeting, I do not believe that there was any procedure to guide the Council on the re-introduction of a motion that had recently been voted on. This specific issue has highlighted that we may need something to guide us on this in future. I do not believe that the SCI?s hands are tied at all. We have one useful example which raised concerns and now need to look at as general solution as possible for the future in order to cover both the example that raised the concern and other cases which may occur in future. Thanks, Jonathan From: owner-gnso-improvem-impl-sc@icann.org [mailto:owner-gnso-improvem-impl-sc@icann.org] On Behalf Of Mary.Wong@law.unh.edu Sent: 09 January 2013 16:58 To: avri@acm.org; gnso-improvem-impl-sc@icann.org Cc: jonathan.robinson@ipracon.com; Jeff.Neuman@neustar.us Subject: Re: [gnso-improvem-impl-sc] New task I support Avri's points generally, and would add the following in this specific instance: - the initial vote was properly proposed, seconded and voted on. - just as ignorance of the law is no excuse, the fact that Councilors were not aware of the implications of an abstention (when, frankly, they should be as it's in the rules plain as day) should not permit a re-introduction of something that was properly introduced and voted on. - In this case I don't know if the specific constituency impacted had given instructions to its Councilors as to how to vote. Even if they did not, the fact remains that these are very clearly set out in the GNSO rules, and if a constituency or Councilors did not know or did not make the time to discuss/decide, that is a very poor excuse for reintroducing a motion (again, one properly introduced, seconded and voted on). - In an ideal world, the Council should have suspended the matter and referred the issue of a re-introduction/reconsideration of such a motion (without necessarily specifying the actual motion or context) to the SCI before re-opening the vote. As it is, it seems as though the SCI's hands are somewhat tied since the second motion did get voted on and went through - the mind boggles at an SCI determination that this re-introduction and vote was improper or invalid, especially in the currrent somewhat sensitive context within which ICANN is operating. Cheers Mary Mary W S Wong Professor of Law Director, Franklin Pierce Center for IP 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
Avri Doria <avri@acm.org> 01/09/13 2:01 PM >>>
Another thought experiment. There was a recent g-council vote where, in a rare event, the NCSG Policy Council had decided on an unanimous vote on an issue. But during the vote, some voters got confused and voted against. Would it have been appropriate for us to demand a re-vote? Had one of us been g-council Chair, would it have ben right for us to just reschedule the vote without even getting the g-councl to discuss and perhaps even vote on the notion of reconsidering the vote? A general question, anytime from now on, when a SG or Constituency beleive that its voters went against the will of the SG/C should they be able to have a vote rescheduled at the next meeting? avri On 9 Jan 2013, at 00:54, Avri Doria wrote:
Even Robert's Rules of Order has rules on when and how a motion can be
reconsidered or rescinded (10.5). The Board of ICANN has rules on reconsideration in the ByLaws.
One specific requirement for reconsideration under Roberts is that one of
those on the prevailing side ask for the reconsideration. In this case it was the Chair who had been on the losing side.
We need rules on when it is done and on how it should be done.
avri
On 9 Jan 2013, at 00:30, J. Scott Evans wrote:
I tend to agree,
From: Aikman-Scalese, Anne <AAikman@lrlaw.com>; To: 'Avri Doria' <avri@acm.org>; Jeff Neuman <Jeff.Neuman@neustar.us>;
gnso-improvem-impl-sc@icann.org <gnso-improvem-impl-sc@icann.org>;
Cc: Jonathan Robinson <jonathan.robinson@ipracon.com>; Subject: RE: [gnso-improvem-impl-sc] New task Sent: Wed, Jan 9, 2013 5:27:47 AM
Hi all, What I am struggling with procedurally is a basic "Robert's Rules" type inquiry. Namely: - I don't know of anything procedurally that would permit a motion that is moved and seconded from being voted on, no matter how obnoxious anyone finds the motion to be. I guess this is what we are going to discuss tomorrow.
the issue was voting again after it had already been defeated.
I would like to ask whether there are specific provisions in the GNSO
Operating Procedures regarding introduction of motions that staff can provide prior to our call.
It is all in the g-counci Procedures. And is says nothing on reconsideration or rescinding of decisions already made.
Thank you Anne
Anne E. Aikman-Scalese Of Counsel Lewis and Roca LLP * Suite 700 One South Church Avenue * Tucson, Arizona 85701-1611 Tel (520) 629-4428 * Fax (520) 879-4725 AAikman@LRLaw.com * www.LewisandRoca.com/Aikman P Please consider the environment before printing this e-mail. This e-mail contains legally privileged and confidential information intended only for the individual or entity named within the message. If the reader of this message is not the intended recipient, or the agent responsible to deliver it to the intended recipient, you are hereby notified that any review, dissemination, distribution or copying of this communication is prohibited. If this communication was received in error, please notify us by reply e-mail and delete the
original message.
-----Original Message----- From: owner-gnso-improvem-impl-sc@icann.org
[mailto:owner-gnso-improvem-impl-sc@icann.org] On Behalf Of Avri Doria
Sent: Tuesday, January 08, 2013 10:16 PM To: Jeff Neuman; gnso-improvem-impl-sc@icann.org Cc: Jonathan Robinson Subject: Re: [gnso-improvem-impl-sc] New task
Hi,
I guess I do not support that.
I think a motion should only be voted on once. and that to bring it back, something must have changed or a reasonable amount of time should have past.
And no we use votes to count the up to the thresholds defined for motions to pass. We may euphemistically use the word consensus, but it has NOTHING to do with consensus. If anything the consensus is in the work of the WGs and not in the votes of the management team, i.e. g-council.
I believe that what happened in that meeting is something that should never be allowed to happen again. And if we need rules to keep the chair from doing things like that, something I admit never entered my imagination of things that could go wrong, then we need new rules.
A thought experiment: Just imagine the uproar in the council if an NCUC based g-council chair had dared to some like this when the vote did not go her way.
avri
On 8 Jan 2013, at 21:24, Neuman, Jeff wrote:
Avri,
Yes, I know we use voting to measure consensus. But in the end, the
spirit is to achieve consensus on policy items. The fact that it took two votes to do so should not prejudice the results. Again, if there was some evidence of wrong doing, fraud etc., that would be one thing. But that did not happen.
I support the ability to re-vote on any item unless there is evidence of
misconduct, harassment, fraud, etc.
Best regards,
Jeffrey J. Neuman
Sent from iPad. Please excuse any typos.
-----Original Message----- From: Avri Doria [mailto:avri@ella.com] Sent: Tuesday, January 08, 2013 08:29 PM Eastern Standard Time To: Neuman, Jeff Cc: gnso-improvem-impl-sc@icann.org; Jonathan Robinson Subject: Re: [gnso-improvem-impl-sc] New task
Hi,
Sorry, that may be what the reviews intended at one point, but that is
not what the current regulations say. Due to the agreement between the SG at the time, a very strict voting regime was adopted and approved by the Board for the g-council. G-council has such a complicated voting structure that the Secretariat has a special tool to help them figure out when a motion has passed or not.
To now claim that g-council is a consensus body does not match the
reality of the situation.
avri
On 8 Jan 2013, at 19:37, Neuman, Jeff wrote:
I will restate what I said on the Council call. We are not supposed to
as a group focus on voting. We are supposed to come to "consensus" on items. If there is a "consensus" at any time of the Council on any given policy (provided that the processes were followed by the working group making the recommendation), then that is what should govern. The last evolution and reform of icann report by the London School of Economics as supported by the Board Governance Committee emphasized this over and over again. We are not supposed to be a voting body, so lets focus back on consensus.
All of the comments I have seen from those that did not like the result
in the last council meeting have not addressed the fact that ultimately there was a "consensus" on the issue. The fact that there had to be a second measurement of consensus on the item to me seems irrelevant and unnecessarily procedural. There was no abuse of process. There was no abuse within the working group making the recommendation. There is not evidence that there were improper conflicts, etc. Absent any showing of abuse, harassment, fraud, illegality, or willful negligence, I believe having a second measurement of consensus is not an issue.
Best regards,
Jeffrey J. Neuman
Sent from iPad. Please excuse any typos.
-----Original Message----- From: Avri Doria [mailto:avri@ella.com] Sent: Tuesday, January 08, 2013 05:31 PM Eastern Standard Time To: gnso-improvem-impl-sc@icann.org Cc: Jonathan Robinson; Neuman, Jeff Subject: Re: [gnso-improvem-impl-sc] New task
On 8 Jan 2013, at 17:16, Ron Andruff wrote:
Assuming that the ultimate desired outcome was for Councillors to vote
as they were permitted to (and possibly directed to by their group), two remedies were possible.
I take real issue with this in that this can only be the case when it is accordance with adherence to all rules of neutrality, transparency and accountability.
Once a vote is given, it is taken and clues from anyone on how to make the vote work out better are not, in my view or the view of my stakeholder group, legitimate. It is not for voter to decide that they should be able vote they way they meant to when they voted another way. If it was, those poor old jewish voters on finding out the ballot in Florida was confusing could have taken back their votes for Buchanan, and Gore would have been President of the US. and yes, we may wish with all our hearts that it had been otherwise, but it wasn't. Voting does not work according to wishes unsaid, it works in terms of the vote given.
avri
---------------------- For more information about Lewis and Roca LLP, please go to www.lewisandroca.com <http://www.lewisandroca.com/> .
Phoenix (602)262-5311 Reno (775)823-2900 Tucson (520)622-2090 Albuquerque (505)764-5400 Las Vegas (702)949-8200 Silicon Valley (650)391-1380
This message is intended only for the use of the individual or entity to which it is addressed. If the reader of this message is not the intended recipient, or the employee or agent responsible for delivering the message to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender of this E-Mail by return E-Mail or by telephone. In accordance with Internal Revenue Service Circular 230, we advise you that if this email contains any tax advice, such tax advice was not intended or written to be used, and it cannot be used, by any taxpayer for the purpose of avoiding penalties that may be imposed on the taxpayer
Dear Ron, Thank-you for your consideration. From memory, the Registries have a primary (Ray Fassett) and alternate (myself) representative on the SCI. Given the my role as GNSO Council Chair, it seems appropriate to replace me as alternate representative from the Registries SG. We agreed at our SG meeting yesterday that Jeff Neumann should take over from me in this role. I trust that this new arrangement is acceptable to you, your vice-chair and the rest of the SCI. Best wishes, Jonathan From: Ron Andruff [mailto:randruff@rnapartners.com] Sent: 09 January 2013 22:43 To: gnso-improvem-impl-sc@icann.org Cc: jonathan.robinson@ipracon.com Subject: RE: [gnso-improvem-impl-sc] New task - Point of Order Dear all, As Jeff Neuman is the Observer from the GNSO Council on this matter, I am hereby asking all to respond to the SCI list only and not copy Jonathan on our exchanges. I am sure he has enough email coming at him as Chair of the Council and Jeff, as the designate, can report back to him as and when needed. Thanks everyone. RA Ronald N. Andruff RNA Partners, Inc. <http://www.rnapartners.com> _____ From: owner-gnso-improvem-impl-sc@icann.org [mailto:owner-gnso-improvem-impl-sc@icann.org] On Behalf Of J. Scott Evans Sent: Wednesday, January 09, 2013 5:07 PM To: Neuman, Jeff; Mary.Wong@law.unh.edu; avri@acm.org; gnso-improvem-impl-sc@icann.org; jonathan.robinson@ipracon.com Subject: Re: [gnso-improvem-impl-sc] New task I think our problem is the meshing of to systems that are not necessarily complimentary. For this reason, I recommend that we consider getting away from the council passing motions and re-focus the efforts on calling for consensus. J. Scott j. scott evans - head of global brand, domains & copyright - Yahoo! Inc. - 408.349.1385 - jscottevans@yahoo.com _____ From: "Neuman, Jeff" <Jeff.Neuman@neustar.us> To: "Mary.Wong@law.unh.edu" <Mary.Wong@law.unh.edu>; "avri@acm.org" <avri@acm.org>; "gnso-improvem-impl-sc@icann.org" <gnso-improvem-impl-sc@icann.org>; "jonathan.robinson@ipracon.com" <jonathan.robinson@ipracon.com> Sent: Wednesday, January 9, 2013 1:00 PM Subject: RE: [gnso-improvem-impl-sc] New task Thanks Mary. I understand the rules you have laid out, but not sure I understand the rationale? What are you trying to prevent, guard against, protect, etc.? The reason I take the opposite view is that we are a consensus building organization. If consensus can be achieved on a policy matter, regardless of whether it is when a measure of consensus is taken the first time or the 2nd time, I see no reason to recognize consensus when consensus exists. Jeffrey J. Neuman Neustar, Inc. / Vice President, Business Affairs From: Mary.Wong@law.unh.edu [mailto:Mary.Wong@law.unh.edu] Sent: Wednesday, January 09, 2013 12:17 PM To: avri@acm.org; gnso-improvem-impl-sc@icann.org; jonathan.robinson@ipracon.com Cc: Neuman, Jeff Subject: RE: [gnso-improvem-impl-sc] New task Thanks, Jonathan and Jeff. As I won't be on the SCI call this week, my view, FWIW, is that a motion that is properly introduced, seconded and voted on should NOT be re-introduced (whether in its original form or tweaked) in the absence of clear evidence indicating fraud, duress or other similar circumstance surrounding the original introduction/seconding/vote in relation to the motion. In this regard, Councilors' ignorance of the rules (e.g. effect of an abstention), and lack of instruction/direction from a Councilor's particular constituency/SG, should NOT count as the type of circumstance that ought to permit a reintroduction or re-vote on what in substance is the same motion. Cheers Mary Mary W S Wong Professor of Law Director, Franklin Pierce Center for IP 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
"Jonathan Robinson" 01/10/13 1:12 AM >>>
All, My understanding of the role of the SCI is to determine how improvements may be made for the future. When the motion was re-submitted to the December meeting, I do not believe that there was any procedure to guide the Council on the re-introduction of a motion that had recently been voted on. This specific issue has highlighted that we may need something to guide us on this in future. I do not believe that the SCI?s hands are tied at all. We have one useful example which raised concerns and now need to look at as general solution as possible for the future in order to cover both the example that raised the concern and other cases which may occur in future. Thanks, Jonathan From: owner-gnso-improvem-impl-sc@icann.org [mailto:owner-gnso-improvem-impl-sc@icann.org] On Behalf Of Mary.Wong@law.unh.edu Sent: 09 January 2013 16:58 To: avri@acm.org; gnso-improvem-impl-sc@icann.org Cc: jonathan.robinson@ipracon.com; Jeff.Neuman@neustar.us Subject: Re: [gnso-improvem-impl-sc] New task I support Avri's points generally, and would add the following in this specific instance: - the initial vote was properly proposed, seconded and voted on. - just as ignorance of the law is no excuse, the fact that Councilors were not aware of the implications of an abstention (when, frankly, they should be as it's in the rules plain as day) should not permit a re-introduction of something that was properly introduced and voted on. - In this case I don't know if the specific constituency impacted had given instructions to its Councilors as to how to vote. Even if they did not, the fact remains that these are very clearly set out in the GNSO rules, and if a constituency or Councilors did not know or did not make the time to discuss/decide, that is a very poor excuse for reintroducing a motion (again, one properly introduced, seconded and voted on). - In an ideal world, the Council should have suspended the matter and referred the issue of a re-introduction/reconsideration of such a motion (without necessarily specifying the actual motion or context) to the SCI before re-opening the vote. As it is, it seems as though the SCI's hands are somewhat tied since the second motion did get voted on and went through - the mind boggles at an SCI determination that this re-introduction and vote was improper or invalid, especially in the currrent somewhat sensitive context within which ICANN is operating. Cheers Mary Mary W S Wong Professor of Law Director, Franklin Pierce Center for IP 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
Avri Doria <avri@acm.org> 01/09/13 2:01 PM >>>
Another thought experiment. There was a recent g-council vote where, in a rare event, the NCSG Policy Council had decided on an unanimous vote on an issue. But during the vote, some voters got confused and voted against. Would it have been appropriate for us to demand a re-vote? Had one of us been g-council Chair, would it have ben right for us to just reschedule the vote without even getting the g-councl to discuss and perhaps even vote on the notion of reconsidering the vote? A general question, anytime from now on, when a SG or Constituency beleive that its voters went against the will of the SG/C should they be able to have a vote rescheduled at the next meeting? avri On 9 Jan 2013, at 00:54, Avri Doria wrote:
Even Robert's Rules of Order has rules on when and how a motion can be
reconsidered or rescinded (10.5). The Board of ICANN has rules on reconsideration in the ByLaws.
One specific requirement for reconsideration under Roberts is that one of
those on the prevailing side ask for the reconsideration. In this case it was the Chair who had been on the losing side.
We need rules on when it is done and on how it should be done.
avri
On 9 Jan 2013, at 00:30, J. Scott Evans wrote:
I tend to agree,
From: Aikman-Scalese, Anne <AAikman@lrlaw.com>; To: 'Avri Doria' <avri@acm.org>; Jeff Neuman <Jeff.Neuman@neustar.us>;
gnso-improvem-impl-sc@icann.org <gnso-improvem-impl-sc@icann.org>;
Cc: Jonathan Robinson <jonathan.robinson@ipracon.com>; Subject: RE: [gnso-improvem-impl-sc] New task Sent: Wed, Jan 9, 2013 5:27:47 AM
Hi all, What I am struggling with procedurally is a basic "Robert's Rules" type inquiry. Namely: - I don't know of anything procedurally that would permit a motion that is moved and seconded from being voted on, no matter how obnoxious anyone finds the motion to be. I guess this is what we are going to discuss tomorrow.
the issue was voting again after it had already been defeated.
I would like to ask whether there are specific provisions in the GNSO
Operating Procedures regarding introduction of motions that staff can provide prior to our call.
It is all in the g-counci Procedures. And is says nothing on reconsideration or rescinding of decisions already made.
Thank you Anne
Anne E. Aikman-Scalese Of Counsel Lewis and Roca LLP * Suite 700 One South Church Avenue * Tucson, Arizona 85701-1611 Tel (520) 629-4428 * Fax (520) 879-4725 AAikman@LRLaw.com * www.LewisandRoca.com/Aikman P Please consider the environment before printing this e-mail. This e-mail contains legally privileged and confidential information intended only for the individual or entity named within the message. If the reader of this message is not the intended recipient, or the agent responsible to deliver it to the intended recipient, you are hereby notified that any review, dissemination, distribution or copying of this communication is prohibited. If this communication was received in error, please notify us by reply e-mail and delete the
original message.
-----Original Message----- From: owner-gnso-improvem-impl-sc@icann.org
[mailto:owner-gnso-improvem-impl-sc@icann.org] On Behalf Of Avri Doria
Sent: Tuesday, January 08, 2013 10:16 PM To: Jeff Neuman; gnso-improvem-impl-sc@icann.org Cc: Jonathan Robinson Subject: Re: [gnso-improvem-impl-sc] New task
Hi,
I guess I do not support that.
I think a motion should only be voted on once. and that to bring it back, something must have changed or a reasonable amount of time should have past.
And no we use votes to count the up to the thresholds defined for motions to pass. We may euphemistically use the word consensus, but it has NOTHING to do with consensus. If anything the consensus is in the work of the WGs and not in the votes of the management team, i.e. g-council.
I believe that what happened in that meeting is something that should never be allowed to happen again. And if we need rules to keep the chair from doing things like that, something I admit never entered my imagination of things that could go wrong, then we need new rules.
A thought experiment: Just imagine the uproar in the council if an NCUC based g-council chair had dared to some like this when the vote did not go her way.
avri
On 8 Jan 2013, at 21:24, Neuman, Jeff wrote:
Avri,
Yes, I know we use voting to measure consensus. But in the end, the
spirit is to achieve consensus on policy items. The fact that it took two votes to do so should not prejudice the results. Again, if there was some evidence of wrong doing, fraud etc., that would be one thing. But that did not happen.
I support the ability to re-vote on any item unless there is evidence of
misconduct, harassment, fraud, etc.
Best regards,
Jeffrey J. Neuman
Sent from iPad. Please excuse any typos.
-----Original Message----- From: Avri Doria [mailto:avri@ella.com] Sent: Tuesday, January 08, 2013 08:29 PM Eastern Standard Time To: Neuman, Jeff Cc: gnso-improvem-impl-sc@icann.org; Jonathan Robinson Subject: Re: [gnso-improvem-impl-sc] New task
Hi,
Sorry, that may be what the reviews intended at one point, but that is
not what the current regulations say. Due to the agreement between the SG at the time, a very strict voting regime was adopted and approved by the Board for the g-council. G-council has such a complicated voting structure that the Secretariat has a special tool to help them figure out when a motion has passed or not.
To now claim that g-council is a consensus body does not match the
reality of the situation.
avri
On 8 Jan 2013, at 19:37, Neuman, Jeff wrote:
I will restate what I said on the Council call. We are not supposed to
as a group focus on voting. We are supposed to come to "consensus" on items. If there is a "consensus" at any time of the Council on any given policy (provided that the processes were followed by the working group making the recommendation), then that is what should govern. The last evolution and reform of icann report by the London School of Economics as supported by the Board Governance Committee emphasized this over and over again. We are not supposed to be a voting body, so lets focus back on consensus.
All of the comments I have seen from those that did not like the result
in the last council meeting have not addressed the fact that ultimately there was a "consensus" on the issue. The fact that there had to be a second measurement of consensus on the item to me seems irrelevant and unnecessarily procedural. There was no abuse of process. There was no abuse within the working group making the recommendation. There is not evidence that there were improper conflicts, etc. Absent any showing of abuse, harassment, fraud, illegality, or willful negligence, I believe having a second measurement of consensus is not an issue.
Best regards,
Jeffrey J. Neuman
Sent from iPad. Please excuse any typos.
-----Original Message----- From: Avri Doria [mailto:avri@ella.com] Sent: Tuesday, January 08, 2013 05:31 PM Eastern Standard Time To: gnso-improvem-impl-sc@icann.org Cc: Jonathan Robinson; Neuman, Jeff Subject: Re: [gnso-improvem-impl-sc] New task
On 8 Jan 2013, at 17:16, Ron Andruff wrote:
Assuming that the ultimate desired outcome was for Councillors to vote
as they were permitted to (and possibly directed to by their group), two remedies were possible.
I take real issue with this in that this can only be the case when it is accordance with adherence to all rules of neutrality, transparency and accountability.
Once a vote is given, it is taken and clues from anyone on how to make the vote work out better are not, in my view or the view of my stakeholder group, legitimate. It is not for voter to decide that they should be able vote they way they meant to when they voted another way. If it was, those poor old jewish voters on finding out the ballot in Florida was confusing could have taken back their votes for Buchanan, and Gore would have been President of the US. and yes, we may wish with all our hearts that it had been otherwise, but it wasn't. Voting does not work according to wishes unsaid, it works in terms of the vote given.
avri
---------------------- For more information about Lewis and Roca LLP, please go to www.lewisandroca.com <http://www.lewisandroca.com/> .
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This message is intended only for the use of the individual or entity to which it is addressed. If the reader of this message is not the intended recipient, or the employee or agent responsible for delivering the message to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender of this E-Mail by return E-Mail or by telephone. In accordance with Internal Revenue Service Circular 230, we advise you that if this email contains any tax advice, such tax advice was not intended or written to be used, and it cannot be used, by any taxpayer for the purpose of avoiding penalties that may be imposed on the taxpayer
I agree fully with Mary's arguments. Best, Alain On Wed, Jan 9, 2013 at 12:16 PM, <Mary.Wong@law.unh.edu> wrote:
Thanks, Jonathan and Jeff. As I won't be on the SCI call this week, my view, FWIW, is that a motion that is properly introduced, seconded and voted on should NOT be re-introduced (whether in its original form or tweaked) in the absence of clear evidence indicating fraud, duress or other similar circumstance surrounding the original introduction/seconding/vote in relation to the motion. In this regard, Councilors' ignorance of the rules (e.g. effect of an abstention), and lack of instruction/direction from a Councilor's particular constituency/SG, should NOT count as the type of circumstance that ought to permit a reintroduction or re-vote on what in substance is the same motion.
Cheers Mary
Mary W S Wong Professor of Law Director, Franklin Pierce Center for IP 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
"Jonathan Robinson" ** 01/10/13 1:12 AM >>>
All,****
** **
My understanding of the role of the SCI is to determine how improvements may be made for the future.****
** **
When the motion was re-submitted to the December meeting, I do not believe that there was any procedure to guide the Council on the re-introduction of a motion that had recently been voted on.****
** **
This specific issue has highlighted that we may need something to guide us on this in future. I do not believe that the SCI?s hands are tied at all. ****
** **
We have one useful example which raised concerns and now need to look at as general solution as possible for the future in order to cover both the example that raised the concern and other cases which may occur in future. ****
** **
Thanks,****
** **
** **
Jonathan****
** **
*From:* owner-gnso-improvem-impl-sc@icann.org [mailto: owner-gnso-improvem-impl-sc@icann.org] *On Behalf Of * Mary.Wong@law.unh.edu *Sent:* 09 January 2013 16:58 *To:* avri@acm.org; gnso-improvem-impl-sc@icann.org *Cc:* jonathan.robinson@ipracon.com; Jeff.Neuman@neustar.us *Subject:* Re: [gnso-improvem-impl-sc] New task****
** **
I support Avri's points generally, and would add the following in this specific instance:
- the initial vote was properly proposed, seconded and voted on.
- just as ignorance of the law is no excuse, the fact that Councilors were not aware of the implications of an abstention (when, frankly, they should be as it's in the rules plain as day) should not permit a re-introduction of something that was properly introduced and voted on.
- In this case I don't know if the specific constituency impacted had given instructions to its Councilors as to how to vote. Even if they did not, the fact remains that these are very clearly set out in the GNSO rules, and if a constituency or Councilors did not know or did not make the time to discuss/decide, that is a very poor excuse for reintroducing a motion (again, one properly introduced, seconded and voted on).
- In an ideal world, the Council should have suspended the matter and referred the issue of a re-introduction/reconsideration of such a motion (without necessarily specifying the actual motion or context) to the SCI before re-opening the vote. As it is, it seems as though the SCI's hands are somewhat tied since the second motion did get voted on and went through - the mind boggles at an SCI determination that this re-introduction and vote was improper or invalid, especially in the currrent somewhat sensitive context within which ICANN is operating.
Cheers Mary
****
Mary W S Wong Professor of Law Director, Franklin Pierce Center for IP 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 ****
Avri Doria <avri@acm.org> 01/09/13 2:01 PM >>>
Another thought experiment.
There was a recent g-council vote where, in a rare event, the NCSG Policy Council had decided on an unanimous vote on an issue. But during the vote, some voters got confused and voted against.
Would it have been appropriate for us to demand a re-vote?
Had one of us been g-council Chair, would it have ben right for us to just reschedule the vote without even getting the g-councl to discuss and perhaps even vote on the notion of reconsidering the vote?
A general question, anytime from now on, when a SG or Constituency beleive that its voters went against the will of the SG/C should they be able to have a vote rescheduled at the next meeting?
avri
On 9 Jan 2013, at 00:54, Avri Doria wrote:
Even Robert's Rules of Order has rules on when and how a motion can be
reconsidered or rescinded (10.5). The Board of ICANN has rules on reconsideration in the ByLaws.
One specific requirement for reconsideration under Roberts is that one
of those on the prevailing side ask for the reconsideration. In this case it was the Chair who had been on the losing side.
We need rules on when it is done and on how it should be done.
avri
On 9 Jan 2013, at 00:30, J. Scott Evans wrote:
I tend to agree,
From: Aikman-Scalese, Anne <AAikman@lrlaw.com>; To: 'Avri Doria' <avri@acm.org>; Jeff Neuman <Jeff.Neuman@neustar.us>;
gnso-improvem-impl-sc@icann.org <gnso-improvem-impl-sc@icann.org>;
Cc: Jonathan Robinson <jonathan.robinson@ipracon.com>; Subject: RE: [gnso-improvem-impl-sc] New task Sent: Wed, Jan 9, 2013 5:27:47 AM
Hi all, What I am struggling with procedurally is a basic "Robert's Rules" type inquiry. Namely: - I don't know of anything procedurally that would permit a motion that is moved and seconded from being voted on, no matter how obnoxious anyone finds the motion to be. I guess this is what we are going to discuss tomorrow.
the issue was voting again after it had already been defeated.
I would like to ask whether there are specific provisions in the GNSO
Operating Procedures regarding introduction of motions that staff can provide prior to our call.
It is all in the g-counci Procedures. And is says nothing on reconsideration or rescinding of decisions already made.
Thank you Anne
Anne E. Aikman-Scalese Of Counsel Lewis and Roca LLP * Suite 700 One South Church Avenue * Tucson, Arizona 85701-1611 Tel (520) 629-4428 * Fax (520) 879-4725 AAikman@LRLaw.com * www.LewisandRoca.com/Aikman P Please consider the environment before printing this e-mail. This e-mail contains legally privileged and confidential information intended only for the individual or entity named within the message. If the reader of this message is not the intended recipient, or the agent responsible to deliver it to the intended recipient, you are hereby notified that any review, dissemination, distribution or copying of this communication is prohibited. If this communication was received in error, please notify us by reply e-mail and delete the
original message.
-----Original Message----- From: owner-gnso-improvem-impl-sc@icann.org [
mailto:owner-gnso-improvem-impl-sc@icann.org<owner-gnso-improvem-impl-sc@icann.org>] On Behalf Of Avri Doria
Sent: Tuesday, January 08, 2013 10:16 PM To: Jeff Neuman; gnso-improvem-impl-sc@icann.org Cc: Jonathan Robinson Subject: Re: [gnso-improvem-impl-sc] New task
Hi,
I guess I do not support that.
I think a motion should only be voted on once. and that to bring it back, something must have changed or a reasonable amount of time should have past.
And no we use votes to count the up to the thresholds defined for motions to pass. We may euphemistically use the word consensus, but it has NOTHING to do with consensus. If anything the consensus is in the work of the WGs and not in the votes of the management team, i.e. g-council.
I believe that what happened in that meeting is something that should never be allowed to happen again. And if we need rules to keep the chair from doing things like that, something I admit never entered my imagination of things that could go wrong, then we need new rules.
A thought experiment: Just imagine the uproar in the council if an NCUC based g-council chair had dared to some like this when the vote did not go her way.
avri
On 8 Jan 2013, at 21:24, Neuman, Jeff wrote:
Avri,
Yes, I know we use voting to measure consensus. But in the end, the
spirit is to achieve consensus on policy items. The fact that it took two votes to do so should not prejudice the results. Again, if there was some evidence of wrong doing, fraud etc., that would be one thing. But that did not happen.
I support the ability to re-vote on any item unless there is evidence
of misconduct, harassment, fraud, etc.
Best regards,
Jeffrey J. Neuman
Sent from iPad. Please excuse any typos.
-----Original Message----- From: Avri Doria [mailto:avri@ella.com <avri@ella.com>] Sent: Tuesday, January 08, 2013 08:29 PM Eastern Standard Time To: Neuman, Jeff Cc: gnso-improvem-impl-sc@icann.org; Jonathan Robinson Subject: Re: [gnso-improvem-impl-sc] New task
Hi,
Sorry, that may be what the reviews intended at one point, but that is
not what the current regulations say. Due to the agreement between the SG at the time, a very strict voting regime was adopted and approved by the Board for the g-council. G-council has such a complicated voting structure that the Secretariat has a special tool to help them figure out when a motion has passed or not.
To now claim that g-council is a consensus body does not match the
reality of the situation.
avri
On 8 Jan 2013, at 19:37, Neuman, Jeff wrote:
I will restate what I said on the Council call. We are not supposed
to as a group focus on voting. We are supposed to come to "consensus" on items. If there is a "consensus" at any time of the Council on any given policy (provided that the processes were followed by the working group making the recommendation), then that is what should govern. The last evolution and reform of icann report by the London School of Economics as supported by the Board Governance Committee emphasized this over and over again. We are not supposed to be a voting body, so lets focus back on consensus.
All of the comments I have seen from those that did not like the
result in the last council meeting have not addressed the fact that ultimately there was a "consensus" on the issue. The fact that there had to be a second measurement of consensus on the item to me seems irrelevant and unnecessarily procedural. There was no abuse of process. There was no abuse within the working group making the recommendation. There is not evidence that there were improper conflicts, etc. Absent any showing of abuse, harassment, fraud, illegality, or willful negligence, I believe having a second measurement of consensus is not an issue.
Best regards,
Jeffrey J. Neuman
Sent from iPad. Please excuse any typos.
-----Original Message----- From: Avri Doria [mailto:avri@ella.com <avri@ella.com>] Sent: Tuesday, January 08, 2013 05:31 PM Eastern Standard Time To: gnso-improvem-impl-sc@icann.org Cc: Jonathan Robinson; Neuman, Jeff Subject: Re: [gnso-improvem-impl-sc] New task
On 8 Jan 2013, at 17:16, Ron Andruff wrote:
Assuming that the ultimate desired outcome was for Councillors to
vote as they were permitted to (and possibly directed to by their group), two remedies were possible.
I take real issue with this in that this can only be the case when it is accordance with adherence to all rules of neutrality, transparency and accountability.
Once a vote is given, it is taken and clues from anyone on how to make the vote work out better are not, in my view or the view of my stakeholder group, legitimate. It is not for voter to decide that they should be able vote they way they meant to when they voted another way. If it was, those poor old jewish voters on finding out the ballot in Florida was confusing could have taken back their votes for Buchanan, and Gore would have been President of the US. and yes, we may wish with all our hearts that it had been otherwise, but it wasn't. Voting does not work according to wishes unsaid, it works in terms of the vote given.
avri
---------------------- For more information about Lewis and Roca LLP, please go to www.lewisandroca.com.
Phoenix (602)262-5311 Reno (775)823-2900 Tucson (520)622-2090 Albuquerque (505)764-5400 Las Vegas (702)949-8200 Silicon Valley (650)391-1380
This message is intended only for the use of the individual or entity to which it is addressed. If the reader of this message is not the intended recipient, or the employee or agent responsible for delivering the message to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender of this E-Mail by return E-Mail or by telephone. In accordance with Internal Revenue Service Circular 230, we advise you that if this email contains any tax advice, such tax advice was not intended or written to be used, and it cannot be used, by any taxpayer for the purpose of avoiding penalties that may be imposed on the taxpayer
**** **
-- Alain Berranger, B.Eng, MBA Member, Board of Directors, CECI, http://www.ceci.ca<http://www.ceci.ca/en/about-ceci/team/board-of-directors/> Executive-in-residence, Schulich School of Business, www.schulich.yorku.ca Treasurer, Global Knowledge Partnership Foundation, www.gkpfoundation.org NA representative, Chasquinet Foundation, www.chasquinet.org Chair, NPOC, NCSG, ICANN, http://npoc.org/ O:+1 514 484 7824; M:+1 514 704 7824 Skype: alain.berranger AVIS DE CONFIDENTIALITÉ Ce courriel est confidentiel et est à l’usage exclusif du destinataire ci-dessus. Toute personne qui lit le présent message sans en être le destinataire, ou l’employé(e) ou la personne responsable de le remettre au destinataire, est par les présentes avisée qu’il lui est strictement interdit de le diffuser, de le distribuer, de le modifier ou de le reproduire, en tout ou en partie . Si le destinataire ne peut être joint ou si ce document vous a été communiqué par erreur, veuillez nous en informer sur le champ et détruire ce courriel et toute copie de celui-ci. Merci de votre coopération. CONFIDENTIALITY MESSAGE This e-mail message is confidential and is intended for the exclusive use of the addressee. Please note that, should this message be read by anyone other than the addressee, his or her employee or the person responsible for forwarding it to the addressee, it is strictly prohibited to disclose, distribute, modify or reproduce the contents of this message, in whole or in part. If the addressee cannot be reached or if you have received this e-mail in error, please notify us immediately and delete this e-mail and destroy all copies. Thank you for your cooperation.
All, I am still missing the rationale as to why the NCSG representatives believe this rule should be in place for a bottom-up consensus driven organization. Please help me understand. Jeffrey J. Neuman Neustar, Inc. / Vice President, Business Affairs From: Alain Berranger [mailto:alain.berranger@gmail.com] Sent: Thursday, January 10, 2013 3:01 PM To: Mary.Wong@law.unh.edu Cc: avri@acm.org; gnso-improvem-impl-sc@icann.org; jonathan.robinson@ipracon.com; Neuman, Jeff Subject: Re: [gnso-improvem-impl-sc] New task I agree fully with Mary's arguments. Best, Alain On Wed, Jan 9, 2013 at 12:16 PM, <Mary.Wong@law.unh.edu<mailto:Mary.Wong@law.unh.edu>> wrote: Thanks, Jonathan and Jeff. As I won't be on the SCI call this week, my view, FWIW, is that a motion that is properly introduced, seconded and voted on should NOT be re-introduced (whether in its original form or tweaked) in the absence of clear evidence indicating fraud, duress or other similar circumstance surrounding the original introduction/seconding/vote in relation to the motion. In this regard, Councilors' ignorance of the rules (e.g. effect of an abstention), and lack of instruction/direction from a Councilor's particular constituency/SG, should NOT count as the type of circumstance that ought to permit a reintroduction or re-vote on what in substance is the same motion. Cheers Mary Mary W S Wong Professor of Law Director, Franklin Pierce Center for IP Chair, Graduate IP Programs UNIVERSITY OF NEW HAMPSHIRE SCHOOL OF LAW Two White Street Concord, NH 03301 USA Email: mary.wong@law.unh.edu<mailto:mary.wong@law.unh.edu> Phone: 1-603-513-5143<tel: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
"Jonathan Robinson" 01/10/13 1:12 AM >>> All,
My understanding of the role of the SCI is to determine how improvements may be made for the future. When the motion was re-submitted to the December meeting, I do not believe that there was any procedure to guide the Council on the re-introduction of a motion that had recently been voted on. This specific issue has highlighted that we may need something to guide us on this in future. I do not believe that the SCI?s hands are tied at all. We have one useful example which raised concerns and now need to look at as general solution as possible for the future in order to cover both the example that raised the concern and other cases which may occur in future. Thanks, Jonathan From: owner-gnso-improvem-impl-sc@icann.org<mailto:owner-gnso-improvem-impl-sc@icann.org> [mailto:owner-gnso-improvem-impl-sc@icann.org<mailto:owner-gnso-improvem-impl-sc@icann.org>] On Behalf Of Mary.Wong@law.unh.edu<mailto:Mary.Wong@law.unh.edu> Sent: 09 January 2013 16:58 To: avri@acm.org<mailto:avri@acm.org>; gnso-improvem-impl-sc@icann.org<mailto:gnso-improvem-impl-sc@icann.org> Cc: jonathan.robinson@ipracon.com<mailto:jonathan.robinson@ipracon.com>; Jeff.Neuman@neustar.us<mailto:Jeff.Neuman@neustar.us> Subject: Re: [gnso-improvem-impl-sc] New task I support Avri's points generally, and would add the following in this specific instance: - the initial vote was properly proposed, seconded and voted on. - just as ignorance of the law is no excuse, the fact that Councilors were not aware of the implications of an abstention (when, frankly, they should be as it's in the rules plain as day) should not permit a re-introduction of something that was properly introduced and voted on. - In this case I don't know if the specific constituency impacted had given instructions to its Councilors as to how to vote. Even if they did not, the fact remains that these are very clearly set out in the GNSO rules, and if a constituency or Councilors did not know or did not make the time to discuss/decide, that is a very poor excuse for reintroducing a motion (again, one properly introduced, seconded and voted on). - In an ideal world, the Council should have suspended the matter and referred the issue of a re-introduction/reconsideration of such a motion (without necessarily specifying the actual motion or context) to the SCI before re-opening the vote. As it is, it seems as though the SCI's hands are somewhat tied since the second motion did get voted on and went through - the mind boggles at an SCI determination that this re-introduction and vote was improper or invalid, especially in the currrent somewhat sensitive context within which ICANN is operating. Cheers Mary Mary W S Wong Professor of Law Director, Franklin Pierce Center for IP Chair, Graduate IP Programs UNIVERSITY OF NEW HAMPSHIRE SCHOOL OF LAW Two White Street Concord, NH 03301 USA Email: mary.wong@law.unh.edu<mailto:mary.wong@law.unh.edu> Phone: 1-603-513-5143<tel: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
Avri Doria <avri@acm.org<mailto:avri@acm.org>> 01/09/13 2:01 PM >>>
Another thought experiment. There was a recent g-council vote where, in a rare event, the NCSG Policy Council had decided on an unanimous vote on an issue. But during the vote, some voters got confused and voted against. Would it have been appropriate for us to demand a re-vote? Had one of us been g-council Chair, would it have ben right for us to just reschedule the vote without even getting the g-councl to discuss and perhaps even vote on the notion of reconsidering the vote? A general question, anytime from now on, when a SG or Constituency beleive that its voters went against the will of the SG/C should they be able to have a vote rescheduled at the next meeting? avri On 9 Jan 2013, at 00:54, Avri Doria wrote:
Even Robert's Rules of Order has rules on when and how a motion can be reconsidered or rescinded (10.5). The Board of ICANN has rules on reconsideration in the ByLaws.
One specific requirement for reconsideration under Roberts is that one of those on the prevailing side ask for the reconsideration. In this case it was the Chair who had been on the losing side.
We need rules on when it is done and on how it should be done.
avri
On 9 Jan 2013, at 00:30, J. Scott Evans wrote:
I tend to agree,
From: Aikman-Scalese, Anne <AAikman@lrlaw.com<mailto:AAikman@lrlaw.com>>; To: 'Avri Doria' <avri@acm.org<mailto:avri@acm.org>>; Jeff Neuman <Jeff.Neuman@neustar.us<mailto:Jeff.Neuman@neustar.us>>; gnso-improvem-impl-sc@icann.org<mailto:gnso-improvem-impl-sc@icann.org> <gnso-improvem-impl-sc@icann.org<mailto:gnso-improvem-impl-sc@icann.org>>; Cc: Jonathan Robinson <jonathan.robinson@ipracon.com<mailto:jonathan.robinson@ipracon.com>>; Subject: RE: [gnso-improvem-impl-sc] New task Sent: Wed, Jan 9, 2013 5:27:47 AM
Hi all, What I am struggling with procedurally is a basic "Robert's Rules" type inquiry. Namely: - I don't know of anything procedurally that would permit a motion that is moved and seconded from being voted on, no matter how obnoxious anyone finds the motion to be. I guess this is what we are going to discuss tomorrow.
the issue was voting again after it had already been defeated.
I would like to ask whether there are specific provisions in the GNSO Operating Procedures regarding introduction of motions that staff can provide prior to our call.
It is all in the g-counci Procedures. And is says nothing on reconsideration or rescinding of decisions already made.
Thank you Anne
Anne E. Aikman-Scalese Of Counsel Lewis and Roca LLP * Suite 700 One South Church Avenue * Tucson, Arizona 85701-1611 Tel (520) 629-4428<tel:%28520%29%20629-4428> * Fax (520) 879-4725<tel:%28520%29%20879-4725> AAikman@LRLaw.com<mailto:AAikman@LRLaw.com> * www.LewisandRoca.com/Aikman<http://www.LewisandRoca.com/Aikman> P Please consider the environment before printing this e-mail. This e-mail contains legally privileged and confidential information intended only for the individual or entity named within the message. If the reader of this message is not the intended recipient, or the agent responsible to deliver it to the intended recipient, you are hereby notified that any review, dissemination, distribution or copying of this communication is prohibited. If this communication was received in error, please notify us by reply e-mail and delete the original message.
-----Original Message----- From: owner-gnso-improvem-impl-sc@icann.org<mailto:owner-gnso-improvem-impl-sc@icann.org> [mailto:owner-gnso-improvem-impl-sc@icann.org] On Behalf Of Avri Doria Sent: Tuesday, January 08, 2013 10:16 PM To: Jeff Neuman; gnso-improvem-impl-sc@icann.org<mailto:gnso-improvem-impl-sc@icann.org> Cc: Jonathan Robinson Subject: Re: [gnso-improvem-impl-sc] New task
Hi,
I guess I do not support that.
I think a motion should only be voted on once. and that to bring it back, something must have changed or a reasonable amount of time should have past.
And no we use votes to count the up to the thresholds defined for motions to pass. We may euphemistically use the word consensus, but it has NOTHING to do with consensus. If anything the consensus is in the work of the WGs and not in the votes of the management team, i.e. g-council.
I believe that what happened in that meeting is something that should never be allowed to happen again. And if we need rules to keep the chair from doing things like that, something I admit never entered my imagination of things that could go wrong, then we need new rules.
A thought experiment: Just imagine the uproar in the council if an NCUC based g-council chair had dared to some like this when the vote did not go her way.
avri
On 8 Jan 2013, at 21:24, Neuman, Jeff wrote:
Avri,
Yes, I know we use voting to measure consensus. But in the end, the spirit is to achieve consensus on policy items. The fact that it took two votes to do so should not prejudice the results. Again, if there was some evidence of wrong doing, fraud etc., that would be one thing. But that did not happen.
I support the ability to re-vote on any item unless there is evidence of misconduct, harassment, fraud, etc.
Best regards,
Jeffrey J. Neuman
Sent from iPad. Please excuse any typos.
-----Original Message----- From: Avri Doria [mailto:avri@ella.com] Sent: Tuesday, January 08, 2013 08:29 PM Eastern Standard Time To: Neuman, Jeff Cc: gnso-improvem-impl-sc@icann.org<mailto:gnso-improvem-impl-sc@icann.org>; Jonathan Robinson Subject: Re: [gnso-improvem-impl-sc] New task
Hi,
Sorry, that may be what the reviews intended at one point, but that is not what the current regulations say. Due to the agreement between the SG at the time, a very strict voting regime was adopted and approved by the Board for the g-council. G-council has such a complicated voting structure that the Secretariat has a special tool to help them figure out when a motion has passed or not.
To now claim that g-council is a consensus body does not match the reality of the situation.
avri
On 8 Jan 2013, at 19:37, Neuman, Jeff wrote:
I will restate what I said on the Council call. We are not supposed to as a group focus on voting. We are supposed to come to "consensus" on items. If there is a "consensus" at any time of the Council on any given policy (provided that the processes were followed by the working group making the recommendation), then that is what should govern. The last evolution and reform of icann report by the London School of Economics as supported by the Board Governance Committee emphasized this over and over again. We are not supposed to be a voting body, so lets focus back on consensus.
All of the comments I have seen from those that did not like the result in the last council meeting have not addressed the fact that ultimately there was a "consensus" on the issue. The fact that there had to be a second measurement of consensus on the item to me seems irrelevant and unnecessarily procedural. There was no abuse of process. There was no abuse within the working group making the recommendation. There is not evidence that there were improper conflicts, etc. Absent any showing of abuse, harassment, fraud, illegality, or willful negligence, I believe having a second measurement of consensus is not an issue.
Best regards,
Jeffrey J. Neuman
Sent from iPad. Please excuse any typos.
-----Original Message----- From: Avri Doria [mailto:avri@ella.com] Sent: Tuesday, January 08, 2013 05:31 PM Eastern Standard Time To: gnso-improvem-impl-sc@icann.org<mailto:gnso-improvem-impl-sc@icann.org> Cc: Jonathan Robinson; Neuman, Jeff Subject: Re: [gnso-improvem-impl-sc] New task
On 8 Jan 2013, at 17:16, Ron Andruff wrote:
Assuming that the ultimate desired outcome was for Councillors to vote as they were permitted to (and possibly directed to by their group), two remedies were possible.
I take real issue with this in that this can only be the case when it is accordance with adherence to all rules of neutrality, transparency and accountability.
Once a vote is given, it is taken and clues from anyone on how to make the vote work out better are not, in my view or the view of my stakeholder group, legitimate. It is not for voter to decide that they should be able vote they way they meant to when they voted another way. If it was, those poor old jewish voters on finding out the ballot in Florida was confusing could have taken back their votes for Buchanan, and Gore would have been President of the US. and yes, we may wish with all our hearts that it had been otherwise, but it wasn't. Voting does not work according to wishes unsaid, it works in terms of the vote given.
avri
---------------------- For more information about Lewis and Roca LLP, please go to www.lewisandroca.com<http://www.lewisandroca.com>.
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This message is intended only for the use of the individual or entity to which it is addressed. If the reader of this message is not the intended recipient, or the employee or agent responsible for delivering the message to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender of this E-Mail by return E-Mail or by telephone. In accordance with Internal Revenue Service Circular 230, we advise you that if this email contains any tax advice, such tax advice was not intended or written to be used, and it cannot be used, by any taxpayer for the purpose of avoiding penalties that may be imposed on the taxpayer
-- Alain Berranger, B.Eng, MBA Member, Board of Directors, CECI, http://www.ceci.ca<http://www.ceci.ca/en/about-ceci/team/board-of-directors/> Executive-in-residence, Schulich School of Business, www.schulich.yorku.ca<http://www.schulich.yorku.ca> Treasurer, Global Knowledge Partnership Foundation, www.gkpfoundation.org<http://www.gkpfoundation.org> NA representative, Chasquinet Foundation, www.chasquinet.org<http://www.chasquinet.org> Chair, NPOC, NCSG, ICANN, http://npoc.org/ O:+1 514 484 7824; M:+1 514 704 7824 Skype: alain.berranger AVIS DE CONFIDENTIALITÉ Ce courriel est confidentiel et est à l'usage exclusif du destinataire ci-dessus. Toute personne qui lit le présent message sans en être le destinataire, ou l'employé(e) ou la personne responsable de le remettre au destinataire, est par les présentes avisée qu'il lui est strictement interdit de le diffuser, de le distribuer, de le modifier ou de le reproduire, en tout ou en partie . Si le destinataire ne peut être joint ou si ce document vous a été communiqué par erreur, veuillez nous en informer sur le champ et détruire ce courriel et toute copie de celui-ci. Merci de votre coopération. CONFIDENTIALITY MESSAGE This e-mail message is confidential and is intended for the exclusive use of the addressee. Please note that, should this message be read by anyone other than the addressee, his or her employee or the person responsible for forwarding it to the addressee, it is strictly prohibited to disclose, distribute, modify or reproduce the contents of this message, in whole or in part. If the addressee cannot be reached or if you have received this e-mail in error, please notify us immediately and delete this e-mail and destroy all copies. Thank you for your cooperation.
Hi, Because the g-council has to protected from arbitrary actions. In this case you can argue that you were only doing the right thing. but everyone who bucks the rules is doing it because they want to do the right thing. the g-councl needs to be protected from arbitrary decisions on process by its leaders. Jeff you seem to be arguing from a position that sees what happened as the right thing. But the reason we have rules on voting, such incredibly complex rules that need cheat sheets and software programs to help tell when a vote has been passed successfully, is that the SG/Cs don't trust each other and thus as a GNSO we want to make sure that the management phase of the consensus process, the part that decides whether the right thing is being done, is done cleanly and according to well understood rules. avri On 10 Jan 2013, at 15:04, Neuman, Jeff wrote:
All,
I am still missing the rationale as to why the NCSG representatives believe this rule should be in place for a bottom-up consensus driven organization.
Please help me understand.
Jeffrey J. Neuman Neustar, Inc. / Vice President, Business Affairs
From: Alain Berranger [mailto:alain.berranger@gmail.com] Sent: Thursday, January 10, 2013 3:01 PM To: Mary.Wong@law.unh.edu Cc: avri@acm.org; gnso-improvem-impl-sc@icann.org; jonathan.robinson@ipracon.com; Neuman, Jeff Subject: Re: [gnso-improvem-impl-sc] New task
I agree fully with Mary's arguments.
Best, Alain
On Wed, Jan 9, 2013 at 12:16 PM, <Mary.Wong@law.unh.edu> wrote: Thanks, Jonathan and Jeff. As I won't be on the SCI call this week, my view, FWIW, is that a motion that is properly introduced, seconded and voted on should NOT be re-introduced (whether in its original form or tweaked) in the absence of clear evidence indicating fraud, duress or other similar circumstance surrounding the original introduction/seconding/vote in relation to the motion. In this regard, Councilors' ignorance of the rules (e.g. effect of an abstention), and lack of instruction/direction from a Councilor's particular constituency/SG, should NOT count as the type of circumstance that ought to permit a reintroduction or re-vote on what in substance is the same motion.
Cheers Mary
Mary W S Wong Professor of Law Director, Franklin Pierce Center for IP 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
"Jonathan Robinson" 01/10/13 1:12 AM >>> All,
My understanding of the role of the SCI is to determine how improvements may be made for the future.
When the motion was re-submitted to the December meeting, I do not believe that there was any procedure to guide the Council on the re-introduction of a motion that had recently been voted on.
This specific issue has highlighted that we may need something to guide us on this in future. I do not believe that the SCI?s hands are tied at all.
We have one useful example which raised concerns and now need to look at as general solution as possible for the future in order to cover both the example that raised the concern and other cases which may occur in future.
Thanks,
Jonathan
From: owner-gnso-improvem-impl-sc@icann.org [mailto:owner-gnso-improvem-impl-sc@icann.org] On Behalf OfMary.Wong@law.unh.edu Sent: 09 January 2013 16:58 To: avri@acm.org; gnso-improvem-impl-sc@icann.org Cc: jonathan.robinson@ipracon.com; Jeff.Neuman@neustar.us Subject: Re: [gnso-improvem-impl-sc] New task
I support Avri's points generally, and would add the following in this specific instance:
- the initial vote was properly proposed, seconded and voted on.
- just as ignorance of the law is no excuse, the fact that Councilors were not aware of the implications of an abstention (when, frankly, they should be as it's in the rules plain as day) should not permit a re-introduction of something that was properly introduced and voted on.
- In this case I don't know if the specific constituency impacted had given instructions to its Councilors as to how to vote. Even if they did not, the fact remains that these are very clearly set out in the GNSO rules, and if a constituency or Councilors did not know or did not make the time to discuss/decide, that is a very poor excuse for reintroducing a motion (again, one properly introduced, seconded and voted on).
- In an ideal world, the Council should have suspended the matter and referred the issue of a re-introduction/reconsideration of such a motion (without necessarily specifying the actual motion or context) to the SCI before re-opening the vote. As it is, it seems as though the SCI's hands are somewhat tied since the second motion did get voted on and went through - the mind boggles at an SCI determination that this re-introduction and vote was improper or invalid, especially in the currrent somewhat sensitive context within which ICANN is operating.
Cheers Mary
Mary W S Wong Professor of Law Director, Franklin Pierce Center for IP 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
Avri Doria <avri@acm.org> 01/09/13 2:01 PM >>>
Another thought experiment.
There was a recent g-council vote where, in a rare event, the NCSG Policy Council had decided on an unanimous vote on an issue. But during the vote, some voters got confused and voted against.
Would it have been appropriate for us to demand a re-vote?
Had one of us been g-council Chair, would it have ben right for us to just reschedule the vote without even getting the g-councl to discuss and perhaps even vote on the notion of reconsidering the vote?
A general question, anytime from now on, when a SG or Constituency beleive that its voters went against the will of the SG/C should they be able to have a vote rescheduled at the next meeting?
avri
On 9 Jan 2013, at 00:54, Avri Doria wrote:
Even Robert's Rules of Order has rules on when and how a motion can be reconsidered or rescinded (10.5). The Board of ICANN has rules on reconsideration in the ByLaws.
One specific requirement for reconsideration under Roberts is that one of those on the prevailing side ask for the reconsideration. In this case it was the Chair who had been on the losing side.
We need rules on when it is done and on how it should be done.
avri
On 9 Jan 2013, at 00:30, J. Scott Evans wrote:
I tend to agree,
From: Aikman-Scalese, Anne <AAikman@lrlaw.com>; To: 'Avri Doria' <avri@acm.org>; Jeff Neuman <Jeff.Neuman@neustar.us>; gnso-improvem-impl-sc@icann.org<gnso-improvem-impl-sc@icann.org>; Cc: Jonathan Robinson <jonathan.robinson@ipracon.com>; Subject: RE: [gnso-improvem-impl-sc] New task Sent: Wed, Jan 9, 2013 5:27:47 AM
Hi all, What I am struggling with procedurally is a basic "Robert's Rules" type inquiry. Namely: - I don't know of anything procedurally that would permit a motion that is moved and seconded from being voted on, no matter how obnoxious anyone finds the motion to be. I guess this is what we are going to discuss tomorrow.
the issue was voting again after it had already been defeated.
I would like to ask whether there are specific provisions in the GNSO Operating Procedures regarding introduction of motions that staff can provide prior to our call.
It is all in the g-counci Procedures. And is says nothing on reconsideration or rescinding of decisions already made.
Thank you Anne
Anne E. Aikman-Scalese Of Counsel Lewis and Roca LLP * Suite 700 One South Church Avenue * Tucson, Arizona 85701-1611 Tel (520) 629-4428 * Fax (520) 879-4725 AAikman@LRLaw.com * www.LewisandRoca.com/Aikman P Please consider the environment before printing this e-mail. This e-mail contains legally privileged and confidential information intended only for the individual or entity named within the message. If the reader of this message is not the intended recipient, or the agent responsible to deliver it to the intended recipient, you are hereby notified that any review, dissemination, distribution or copying of this communication is prohibited. If this communication was received in error, please notify us by reply e-mail and delete the original message.
-----Original Message----- From: owner-gnso-improvem-impl-sc@icann.org [mailto:owner-gnso-improvem-impl-sc@icann.org] On Behalf Of Avri Doria Sent: Tuesday, January 08, 2013 10:16 PM To: Jeff Neuman; gnso-improvem-impl-sc@icann.org Cc: Jonathan Robinson Subject: Re: [gnso-improvem-impl-sc] New task
Hi,
I guess I do not support that.
I think a motion should only be voted on once. and that to bring it back, something must have changed or a reasonable amount of time should have past.
And no we use votes to count the up to the thresholds defined for motions to pass. We may euphemistically use the word consensus, but it has NOTHING to do with consensus. If anything the consensus is in the work of the WGs and not in the votes of the management team, i.e. g-council.
I believe that what happened in that meeting is something that should never be allowed to happen again. And if we need rules to keep the chair from doing things like that, something I admit never entered my imagination of things that could go wrong, then we need new rules.
A thought experiment: Just imagine the uproar in the council if an NCUC based g-council chair had dared to some like this when the vote did not go her way.
avri
On 8 Jan 2013, at 21:24, Neuman, Jeff wrote:
Avri,
Yes, I know we use voting to measure consensus. But in the end, the spirit is to achieve consensus on policy items. The fact that it took two votes to do so should not prejudice the results. Again, if there was some evidence of wrong doing, fraud etc., that would be one thing. But that did not happen.
I support the ability to re-vote on any item unless there is evidence of misconduct, harassment, fraud, etc.
Best regards,
Jeffrey J. Neuman
Sent from iPad. Please excuse any typos.
-----Original Message----- From: Avri Doria [mailto:avri@ella.com] Sent: Tuesday, January 08, 2013 08:29 PM Eastern Standard Time To: Neuman, Jeff Cc: gnso-improvem-impl-sc@icann.org; Jonathan Robinson Subject: Re: [gnso-improvem-impl-sc] New task
Hi,
Sorry, that may be what the reviews intended at one point, but that is not what the current regulations say. Due to the agreement between the SG at the time, a very strict voting regime was adopted and approved by the Board for the g-council. G-council has such a complicated voting structure that the Secretariat has a special tool to help them figure out when a motion has passed or not.
To now claim that g-council is a consensus body does not match the reality of the situation.
avri
On 8 Jan 2013, at 19:37, Neuman, Jeff wrote:
I will restate what I said on the Council call. We are not supposed to as a group focus on voting. We are supposed to come to "consensus" on items. If there is a "consensus" at any time of the Council on any given policy (provided that the processes were followed by the working group making the recommendation), then that is what should govern. The last evolution and reform of icann report by the London School of Economics as supported by the Board Governance Committee emphasized this over and over again. We are not supposed to be a voting body, so lets focus back on consensus.
All of the comments I have seen from those that did not like the result in the last council meeting have not addressed the fact that ultimately there was a "consensus" on the issue. The fact that there had to be a second measurement of consensus on the item to me seems irrelevant and unnecessarily procedural. There was no abuse of process. There was no abuse within the working group making the recommendation. There is not evidence that there were improper conflicts, etc. Absent any showing of abuse, harassment, fraud, illegality, or willful negligence, I believe having a second measurement of consensus is not an issue.
Best regards,
Jeffrey J. Neuman
Sent from iPad. Please excuse any typos.
-----Original Message----- From: Avri Doria [mailto:avri@ella.com] Sent: Tuesday, January 08, 2013 05:31 PM Eastern Standard Time To: gnso-improvem-impl-sc@icann.org Cc: Jonathan Robinson; Neuman, Jeff Subject: Re: [gnso-improvem-impl-sc] New task
On 8 Jan 2013, at 17:16, Ron Andruff wrote:
Assuming that the ultimate desired outcome was for Councillors to vote as they were permitted to (and possibly directed to by their group), two remedies were possible.
I take real issue with this in that this can only be the case when it is accordance with adherence to all rules of neutrality, transparency and accountability.
Once a vote is given, it is taken and clues from anyone on how to make the vote work out better are not, in my view or the view of my stakeholder group, legitimate. It is not for voter to decide that they should be able vote they way they meant to when they voted another way. If it was, those poor old jewish voters on finding out the ballot in Florida was confusing could have taken back their votes for Buchanan, and Gore would have been President of the US. and yes, we may wish with all our hearts that it had been otherwise, but it wasn't. Voting does not work according to wishes unsaid, it works in terms of the vote given.
avri
---------------------- For more information about Lewis and Roca LLP, please go to www.lewisandroca.com.
Phoenix (602)262-5311 Reno (775)823-2900 Tucson (520)622-2090 Albuquerque (505)764-5400 Las Vegas (702)949-8200 Silicon Valley (650)391-1380
This message is intended only for the use of the individual or entity to which it is addressed. If the reader of this message is not the intended recipient, or the employee or agent responsible for delivering the message to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender of this E-Mail by return E-Mail or by telephone. In accordance with Internal Revenue Service Circular 230, we advise you that if this email contains any tax advice, such tax advice was not intended or written to be used, and it cannot be used, by any taxpayer for the purpose of avoiding penalties that may be imposed on the taxpayer
-- Alain Berranger, B.Eng, MBA Member, Board of Directors, CECI, http://www.ceci.ca Executive-in-residence, Schulich School of Business, www.schulich.yorku.ca Treasurer, Global Knowledge Partnership Foundation, www.gkpfoundation.org NA representative, Chasquinet Foundation, www.chasquinet.org Chair, NPOC, NCSG, ICANN, http://npoc.org/ O:+1 514 484 7824; M:+1 514 704 7824 Skype: alain.berranger
AVIS DE CONFIDENTIALITÉ Ce courriel est confidentiel et est à l’usage exclusif du destinataire ci-dessus. Toute personne qui lit le présent message sans en être le destinataire, ou l’employé(e) ou la personne responsable de le remettre au destinataire, est par les présentes avisée qu’il lui est strictement interdit de le diffuser, de le distribuer, de le modifier ou de le reproduire, en tout ou en partie . Si le destinataire ne peut être joint ou si ce document vous a été communiqué par erreur, veuillez nous en informer sur le champ et détruire ce courriel et toute copie de celui-ci. Merci de votre coopération.
CONFIDENTIALITY MESSAGE This e-mail message is confidential and is intended for the exclusive use of the addressee. Please note that, should this message be read by anyone other than the addressee, his or her employee or the person responsible for forwarding it to the addressee, it is strictly prohibited to disclose, distribute, modify or reproduce the contents of this message, in whole or in part. If the addressee cannot be reached or if you have received this e-mail in error, please notify us immediately and delete this e-mail and destroy all copies. Thank you for your cooperation.
Hi Jeff, The best to you in 2013! I'll risk a personal opinion...my personal understanding from Avri and Mary's arguments is that the consensus building process is carried out at the WG level where a limited number of volunteers muck diligently through the issues in an iterative process (hopefully evidence-based but the Guidelines never refer to those exact words) under the leadership of the Chair; the findings and recommendations can then be discussed with a much broader audience like the Chartering Organization (I just finished re-reading a second time today the GNSO Working Groups Guidelines which confirm to me that consensus building process is to occur at least at that level, and before recommendations are carried forward). At the Council level, I' not sure, not read enough nor experienced enough...but maybe I'm taking too simplistic an approach? or I am uninformed? I'm not familiar enough with the GNSO Operating Procedures but does any of the long-time experts here know if they actually shed some light on consensus building processes at the Council level? and if they do, why the need have the elaborate voting structure? Thanks for any clarification here! Cheers, Alain On Thu, Jan 10, 2013 at 3:04 PM, Neuman, Jeff <Jeff.Neuman@neustar.us>wrote:
All,****
** **
I am still missing the rationale as to why the NCSG representatives believe this rule should be in place for a bottom-up consensus driven organization. ****
** **
Please help me understand.****
** **
*Jeffrey J. Neuman** **Neustar, Inc. / Vice President, Business Affairs*
****
** **
*From:* Alain Berranger [mailto:alain.berranger@gmail.com] *Sent:* Thursday, January 10, 2013 3:01 PM *To:* Mary.Wong@law.unh.edu *Cc:* avri@acm.org; gnso-improvem-impl-sc@icann.org; jonathan.robinson@ipracon.com; Neuman, Jeff
*Subject:* Re: [gnso-improvem-impl-sc] New task****
** **
** **
I agree fully with Mary's arguments.****
** **
Best, Alain****
On Wed, Jan 9, 2013 at 12:16 PM, <Mary.Wong@law.unh.edu> wrote:****
Thanks, Jonathan and Jeff. As I won't be on the SCI call this week, my view, FWIW, is that a motion that is properly introduced, seconded and voted on should NOT be re-introduced (whether in its original form or tweaked) in the absence of clear evidence indicating fraud, duress or other similar circumstance surrounding the original introduction/seconding/vote in relation to the motion. In this regard, Councilors' ignorance of the rules (e.g. effect of an abstention), and lack of instruction/direction from a Councilor's particular constituency/SG, should NOT count as the type of circumstance that ought to permit a reintroduction or re-vote on what in substance is the same motion.****
Cheers Mary
****
Mary W S Wong Professor of Law Director, Franklin Pierce Center for IP 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 ****
** **
"Jonathan Robinson" 01/10/13 1:12 AM >>>****
All,****
****
My understanding of the role of the SCI is to determine how improvements may be made for the future.****
****
When the motion was re-submitted to the December meeting, I do not believe that there was any procedure to guide the Council on the re-introduction of a motion that had recently been voted on.****
****
This specific issue has highlighted that we may need something to guide us on this in future. I do not believe that the SCI?s hands are tied at all. ****
****
We have one useful example which raised concerns and now need to look at as general solution as possible for the future in order to cover both the example that raised the concern and other cases which may occur in future. ****
****
Thanks,****
****
****
Jonathan****
****
*From:* owner-gnso-improvem-impl-sc@icann.org [mailto: owner-gnso-improvem-impl-sc@icann.org] *On Behalf Of * Mary.Wong@law.unh.edu *Sent:* 09 January 2013 16:58 *To:* avri@acm.org; gnso-improvem-impl-sc@icann.org *Cc:* jonathan.robinson@ipracon.com; Jeff.Neuman@neustar.us *Subject:* Re: [gnso-improvem-impl-sc] New task****
****
I support Avri's points generally, and would add the following in this specific instance:
- the initial vote was properly proposed, seconded and voted on.
- just as ignorance of the law is no excuse, the fact that Councilors were not aware of the implications of an abstention (when, frankly, they should be as it's in the rules plain as day) should not permit a re-introduction of something that was properly introduced and voted on.
- In this case I don't know if the specific constituency impacted had given instructions to its Councilors as to how to vote. Even if they did not, the fact remains that these are very clearly set out in the GNSO rules, and if a constituency or Councilors did not know or did not make the time to discuss/decide, that is a very poor excuse for reintroducing a motion (again, one properly introduced, seconded and voted on).
- In an ideal world, the Council should have suspended the matter and referred the issue of a re-introduction/reconsideration of such a motion (without necessarily specifying the actual motion or context) to the SCI before re-opening the vote. As it is, it seems as though the SCI's hands are somewhat tied since the second motion did get voted on and went through - the mind boggles at an SCI determination that this re-introduction and vote was improper or invalid, especially in the currrent somewhat sensitive context within which ICANN is operating.
Cheers Mary****
Mary W S Wong Professor of Law Director, Franklin Pierce Center for IP 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 ****
Avri Doria <avri@acm.org> 01/09/13 2:01 PM >>>
Another thought experiment.
There was a recent g-council vote where, in a rare event, the NCSG Policy Council had decided on an unanimous vote on an issue. But during the vote, some voters got confused and voted against.
Would it have been appropriate for us to demand a re-vote?
Had one of us been g-council Chair, would it have ben right for us to just reschedule the vote without even getting the g-councl to discuss and perhaps even vote on the notion of reconsidering the vote?
A general question, anytime from now on, when a SG or Constituency beleive that its voters went against the will of the SG/C should they be able to have a vote rescheduled at the next meeting?
avri
On 9 Jan 2013, at 00:54, Avri Doria wrote:
Even Robert's Rules of Order has rules on when and how a motion can be
reconsidered or rescinded (10.5). The Board of ICANN has rules on reconsideration in the ByLaws.
One specific requirement for reconsideration under Roberts is that one
of those on the prevailing side ask for the reconsideration. In this case it was the Chair who had been on the losing side.
We need rules on when it is done and on how it should be done.
avri
On 9 Jan 2013, at 00:30, J. Scott Evans wrote:
I tend to agree,
From: Aikman-Scalese, Anne <AAikman@lrlaw.com>; To: 'Avri Doria' <avri@acm.org>; Jeff Neuman <Jeff.Neuman@neustar.us>;
gnso-improvem-impl-sc@icann.org <gnso-improvem-impl-sc@icann.org>;
Cc: Jonathan Robinson <jonathan.robinson@ipracon.com>; Subject: RE: [gnso-improvem-impl-sc] New task Sent: Wed, Jan 9, 2013 5:27:47 AM
Hi all, What I am struggling with procedurally is a basic "Robert's Rules" type inquiry. Namely: - I don't know of anything procedurally that would permit a motion that is moved and seconded from being voted on, no matter how obnoxious anyone finds the motion to be. I guess this is what we are going to discuss tomorrow.
the issue was voting again after it had already been defeated.
I would like to ask whether there are specific provisions in the GNSO
Operating Procedures regarding introduction of motions that staff can provide prior to our call.
It is all in the g-counci Procedures. And is says nothing on reconsideration or rescinding of decisions already made.
Thank you Anne
Anne E. Aikman-Scalese Of Counsel Lewis and Roca LLP * Suite 700 One South Church Avenue * Tucson, Arizona 85701-1611 Tel (520) 629-4428 * Fax (520) 879-4725 AAikman@LRLaw.com * www.LewisandRoca.com/Aikman P Please consider the environment before printing this e-mail. This e-mail contains legally privileged and confidential information intended only for the individual or entity named within the message. If the reader of this message is not the intended recipient, or the agent responsible to deliver it to the intended recipient, you are hereby notified that any review, dissemination, distribution or copying of this communication is prohibited. If this communication was received in error, please notify us by reply e-mail and delete the
original message.
-----Original Message----- From: owner-gnso-improvem-impl-sc@icann.org [
mailto:owner-gnso-improvem-impl-sc@icann.org<owner-gnso-improvem-impl-sc@icann.org>] On Behalf Of Avri Doria
Sent: Tuesday, January 08, 2013 10:16 PM To: Jeff Neuman; gnso-improvem-impl-sc@icann.org Cc: Jonathan Robinson Subject: Re: [gnso-improvem-impl-sc] New task
Hi,
I guess I do not support that.
I think a motion should only be voted on once. and that to bring it back, something must have changed or a reasonable amount of time should have past.
And no we use votes to count the up to the thresholds defined for motions to pass. We may euphemistically use the word consensus, but it has NOTHING to do with consensus. If anything the consensus is in the work of the WGs and not in the votes of the management team, i.e. g-council.
I believe that what happened in that meeting is something that should never be allowed to happen again. And if we need rules to keep the chair from doing things like that, something I admit never entered my imagination of things that could go wrong, then we need new rules.
A thought experiment: Just imagine the uproar in the council if an NCUC based g-council chair had dared to some like this when the vote did not go her way.
avri
On 8 Jan 2013, at 21:24, Neuman, Jeff wrote:
Avri,
Yes, I know we use voting to measure consensus. But in the end, the
spirit is to achieve consensus on policy items. The fact that it took two votes to do so should not prejudice the results. Again, if there was some evidence of wrong doing, fraud etc., that would be one thing. But that did not happen.
I support the ability to re-vote on any item unless there is evidence
of misconduct, harassment, fraud, etc.
Best regards,
Jeffrey J. Neuman
Sent from iPad. Please excuse any typos.
-----Original Message----- From: Avri Doria [mailto:avri@ella.com <avri@ella.com>] Sent: Tuesday, January 08, 2013 08:29 PM Eastern Standard Time To: Neuman, Jeff Cc: gnso-improvem-impl-sc@icann.org; Jonathan Robinson Subject: Re: [gnso-improvem-impl-sc] New task
Hi,
Sorry, that may be what the reviews intended at one point, but that is
not what the current regulations say. Due to the agreement between the SG at the time, a very strict voting regime was adopted and approved by the Board for the g-council. G-council has such a complicated voting structure that the Secretariat has a special tool to help them figure out when a motion has passed or not.
To now claim that g-council is a consensus body does not match the
reality of the situation.
avri
On 8 Jan 2013, at 19:37, Neuman, Jeff wrote:
I will restate what I said on the Council call. We are not supposed
to as a group focus on voting. We are supposed to come to "consensus" on items. If there is a "consensus" at any time of the Council on any given policy (provided that the processes were followed by the working group making the recommendation), then that is what should govern. The last evolution and reform of icann report by the London School of Economics as supported by the Board Governance Committee emphasized this over and over again. We are not supposed to be a voting body, so lets focus back on consensus.
All of the comments I have seen from those that did not like the
result in the last council meeting have not addressed the fact that ultimately there was a "consensus" on the issue. The fact that there had to be a second measurement of consensus on the item to me seems irrelevant and unnecessarily procedural. There was no abuse of process. There was no abuse within the working group making the recommendation. There is not evidence that there were improper conflicts, etc. Absent any showing of abuse, harassment, fraud, illegality, or willful negligence, I believe having a second measurement of consensus is not an issue.
Best regards,
Jeffrey J. Neuman
Sent from iPad. Please excuse any typos.
-----Original Message----- From: Avri Doria [mailto:avri@ella.com <avri@ella.com>] Sent: Tuesday, January 08, 2013 05:31 PM Eastern Standard Time To: gnso-improvem-impl-sc@icann.org Cc: Jonathan Robinson; Neuman, Jeff Subject: Re: [gnso-improvem-impl-sc] New task
On 8 Jan 2013, at 17:16, Ron Andruff wrote:
Assuming that the ultimate desired outcome was for Councillors to
vote as they were permitted to (and possibly directed to by their group), two remedies were possible.
I take real issue with this in that this can only be the case when it is accordance with adherence to all rules of neutrality, transparency and accountability.
Once a vote is given, it is taken and clues from anyone on how to make the vote work out better are not, in my view or the view of my stakeholder group, legitimate. It is not for voter to decide that they should be able vote they way they meant to when they voted another way. If it was, those poor old jewish voters on finding out the ballot in Florida was confusing could have taken back their votes for Buchanan, and Gore would have been President of the US. and yes, we may wish with all our hearts that it had been otherwise, but it wasn't. Voting does not work according to wishes unsaid, it works in terms of the vote given.
avri
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participants (7)
-
Alain Berranger -
Avri Doria -
J. Scott Evans -
Jonathan Robinson -
Mary.Wong＠law.unh.edu -
Neuman, Jeff -
Ron Andruff