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<DIV><FONT face=Arial color=#0000ff size=2>Bruce, and Fellow
Councillors,</FONT></DIV>
<DIV><FONT face=Arial color=#0000ff size=2></FONT> </DIV>
<DIV><FONT face=Arial color=#0000ff size=2>It seems clear that our practise of
proxy voting is not in compliance with the Bylaws. I believe we must act
as quickly as we can to change this, and to develop a process that does comply
with the Bylaws. I suggest that we accept Counsel's offer of assistance to do
so.</FONT></DIV>
<DIV><FONT face=Arial color=#0000ff size=2></FONT> </DIV>
<DIV><FONT face=Arial color=#0000ff size=2>The obvious question this raises
is.............What is the status (legal, binding or otherwise) of the decisions
Council has made based on votes where the proxy system was used? Are these
decisions, and the voting processes that enabled them, valid?</FONT></DIV>
<DIV><FONT face=Arial color=#0000ff size=2></FONT> </DIV>
<DIV><FONT face=Arial color=#0000ff size=2>In order to begin to determine the
depth and potential significance of this matter, perhaps we could ask
Counsel and his Staff to review the minutes of our meetings and provide us with
a list of the decisions that were based on motions where the proxy votes, either
for or against, made the difference between a 'yes' and a 'no'
decision.</FONT></DIV>
<DIV><FONT face=Arial color=#0000ff size=2></FONT> </DIV>
<DIV><FONT face=Arial color=#0000ff size=2>The second obvious question
is............Whatever the new, compliant process is, should we be
asking Counsel to look at the possibility and/or legality of applying it
retroactively?</FONT></DIV>
<DIV><FONT face=Arial color=#0000ff size=2></FONT> </DIV>
<DIV><FONT face=Arial color=#0000ff size=2></FONT> </DIV>
<DIV><FONT face=Arial color=#0000ff size=2>Best regards,</FONT></DIV>
<DIV><FONT face=Arial color=#0000ff size=2></FONT> </DIV>
<DIV><FONT face=Arial color=#0000ff size=2>Maureen Cubberley</FONT></DIV>
<BLOCKQUOTE
style="PADDING-RIGHT: 0px; PADDING-LEFT: 5px; MARGIN-LEFT: 5px; BORDER-LEFT: #0000ff 2px solid; MARGIN-RIGHT: 0px">
<DIV style="FONT: 10pt arial">----- Original Message ----- </DIV>
<DIV
style="BACKGROUND: #e4e4e4; FONT: 10pt arial; font-color: black"><B>From:</B>
<A title=Bruce.Tonkin@melbourneit.com.au
href="mailto:Bruce.Tonkin@melbourneit.com.au">Bruce Tonkin</A> </DIV>
<DIV style="FONT: 10pt arial"><B>To:</B> <A title=council@gnso.icann.org
href="mailto:council@gnso.icann.org">council@gnso.icann.org</A> </DIV>
<DIV style="FONT: 10pt arial"><B>Sent:</B> Friday, February 17, 2006 2:26
AM</DIV>
<DIV style="FONT: 10pt arial"><B>Subject:</B> [council] Advice from the
General Counsels office on the use of proxy votes</DIV>
<DIV><BR></DIV>Hello All,<BR><BR>After Cary Karp raised a question about the
counting of proxy votes<BR>during our meeting on 6 Feb 2006, I sought advice
from the ICANN General<BR>Counsel on whether our past use of proxy votes
(which dates back to the<BR>rules of procedure for the DNSO Names Council) was
consistent with the<BR>current ICANN bylaws.<BR><BR>See the advice
below.<BR><BR>Regards,<BR>Bruce Tonkin<BR><BR><BR>-----Original
Message-----<BR>From: John Jeffrey <BR>Sent: Friday, 17 February 2006 5:58
PM<BR>To: Bruce Tonkin<BR>Cc: Olof Nordling; Dan Halloran<BR>Subject: Re:
Regarding proxy votes at a Council meeting<BR><BR>Bruce,<BR><BR>Thank you for
your inquiry concerning the practice of "proxy" voting<BR>which occurs during
the GNSO Council meetings. In follow up to your<BR>inquiry and in
furtherance to our discussion earlier today here is some<BR>additional
information and my office's opinion regarding the same.<BR><BR>We agree with
you that there is no provision for proxy voting under the<BR>current ICANN
Bylaws <<A
href="http://www.icann.org/general/archive-bylaws/">http://www.icann.org/general/archive-bylaws/</A><BR>bylaws-08apr05.htm>.
The current Bylaws (Article X, Section 4) include<BR>the following provision
concerning GNSO Council Procedures:<BR><BR>"The GNSO Council is responsible
for managing the policy<BR>development process of the GNSO. It shall adopt
such procedures as it<BR>sees fit to carry out that responsibility, provided
that such procedures<BR>are approved by the Board, and further provided that,
until any<BR>modifications are recommended by the GNSO Council and approved by
the<BR>Board, the applicable procedures shall be as set forth in Section 6
of<BR>this Article. ..." <<A
href="http://www.icann.org/general/archive-bylaws/">http://www.icann.org/general/archive-bylaws/</A><BR>bylaws-08apr05.htm#X-3.4><BR><BR>Bylaws
Article X, Section 6, provides that "Initially, the policy-<BR>development
procedures to be followed by the GNSO shall be as stated in<BR>Annex A to
these Bylaws. These procedures may be supplemented or revised<BR>in the manner
stated in Section 3(4) of this Article."<BR><BR>Since no modified procedures
have been recommended by Council or<BR>approved by the Board, the only
relevant procedures are those stated in<BR>Bylaws Annex A ("GNSO
Policy-Development Process") <http://<BR><A
href="http://www.icann.org/general/archive-bylaws/bylaws-08apr05.htm#AnnexA">www.icann.org/general/archive-bylaws/bylaws-08apr05.htm#AnnexA</A>>.<BR><BR>You
provided a link to the "Rules of Procedure of the DNSO Names<BR>Council,
Version 7" <<A
href="http://www.gnso.icann.org/council/names">http://www.gnso.icann.org/council/names</A>-<BR>proceduresv7.shtml#5>,
but that document is no longer in effect. The <BR>DNSO document
indicates that it was last amended on 18 April 2002. <BR>That
entire document was obsoleted and superceded by the adoption of<BR>ICANN's
"New Bylaws" on 15 December 2002. The new Bylaws provisions on<BR>the
GNSO (which assumed the responsibilities of the former DNSO)<BR>continued a
substantial portion of the old procedures from the DNSO<BR>procedures
document, but the New Bylaws also clearly did not retain<BR>other features of
the old procedures (including any reference to<BR>"proxies").<BR><BR>The GNSO
Council's practice of allowing Council members to participate<BR>in a meeting
(by casting a vote) even though they are not "present" does<BR>not appear to
be consistent with Bylaws Article X, Section 3(8), which<BR>provides (in part)
that "... the GNSO Council shall act at meetings.<BR>Members of the GNSO
Council may participate in a meeting of the GNSO<BR>Council through use of (i)
conference telephone or similar<BR>communications equipment, provided that all
members participating in<BR>such a meeting can speak to and hear one another
..." In other words,<BR>under the current Bylaws a Council member who is
unable to speak to or<BR>hear other Councillors may not "participate"
(including voting) in a<BR>Council meeting held in person or by
telephone.<BR><BR>That same section of the Bylaws (X-3.8) provides that
"Members entitled<BR>to cast a majority of the total number of votes of GNSO
Council members<BR>then in office shall constitute a quorum for the
transaction of<BR>business, and acts by a majority vote of the GNSO Council
members<BR>present at any meeting at which there is a quorum shall be acts of
the<BR>GNSO Council ..." This language concerning members "entitled to
cast a<BR>majority of the total number of votes" <BR>appears to relate
to the weighted voting provision <http://<BR><A
href="http://www.icann.org/general/bylaws.htm#X-5.2">www.icann.org/general/bylaws.htm#X-5.2</A>>
and not to any otherwise<BR>unreferenced scheme for voting by proxy.<BR><BR>We
recognize that this may be a "long standing process", but the
Council<BR>should take prompt action to come into compliance with the
Bylaws'<BR>requirements. The Council is free to recommend modifications
to these<BR>procedures (including perhaps a modification to anticipate
<BR>the participation of deaf or hard of hearing people on the
Council). <BR>If you'd like Dan and I would be happy to work with
you to craft<BR>whatever procedures would be inline with the Council's
preferences,<BR>provided they are in accordance with ICANN's other Bylaws,
mission and<BR>core values.<BR><BR>I hope this is helpful. Please let me
know if you have any other<BR>questions.<BR><BR>best regards,<BR>John
Jeffrey<BR>General Counsel and Secretary<BR>ICANN<BR><BR>On Feb 6, 2006, at
4:18 PM, Bruce Tonkin wrote:<BR><BR>> Hello John,<BR>><BR>> It has
been long standing practice for Council members to appoint <BR>> another
Council member to act as their proxy when voting on particular<BR><BR>>
issues if they are unable to attend a particular
meeting.<BR>><BR>><BR>> (the relevant section of the bylaws is
Article X, section 3, clause 8:<BR>> "Members entitled to cast a majority
of the total number of votes of <BR>> GNSO Council members then in office
shall constitute a quorum for the <BR>> transaction of business, and acts
by a majority vote of the GNSO <BR>> Council members present at any meeting
at which there is a quorum <BR>> shall be acts of the GNSO
Council"<BR>><BR>> I can't find a specific reference to proxies within
the ICANN bylaws, <BR>> but there is mention in our current operating
procedures, which can be<BR><BR>> found at:<BR>> <A
href="http://www.gnso.icann.org/council/names-proceduresv7.shtml#5">http://www.gnso.icann.org/council/names-proceduresv7.shtml#5</A><BR>><BR>>
If a Council member holds a proxy for another Council member - does <BR>>
this count towards either the quorum requirement, or the majority
vote<BR><BR>> requirement? <BR>><BR>> Regards,<BR>> Bruce
Tonkin<BR><BR>John Jeffrey<BR>General Counsel & Secretary<BR>Internet
Corporation for Assigned<BR>Names and Numbers<BR>4676 Admiralty Way<BR>Marina
del Rey, CA 91206<BR><BR><BR><BR><BR></BLOCKQUOTE></BODY></HTML>