[gnso-improvem-impl-sc] New task - Point of Order
Ron Andruff
randruff at rnapartners.com
Wed Jan 9 22:42:58 UTC 2013
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 at icann.org
[mailto:owner-gnso-improvem-impl-sc at icann.org] On Behalf Of J. Scott Evans
Sent: Wednesday, January 09, 2013 5:07 PM
To: Neuman, Jeff; Mary.Wong at law.unh.edu; avri at acm.org;
gnso-improvem-impl-sc at icann.org; jonathan.robinson at 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 at yahoo.com
_____
From: "Neuman, Jeff" <Jeff.Neuman at neustar.us>
To: "Mary.Wong at law.unh.edu" <Mary.Wong at law.unh.edu>; "avri at acm.org"
<avri at acm.org>; "gnso-improvem-impl-sc at icann.org"
<gnso-improvem-impl-sc at icann.org>; "jonathan.robinson at ipracon.com"
<jonathan.robinson at 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 at law.unh.edu [mailto:Mary.Wong at law.unh.edu]
Sent: Wednesday, January 09, 2013 12:17 PM
To: avri at acm.org; gnso-improvem-impl-sc at icann.org;
jonathan.robinson at 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 at 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 at icann.org
[mailto:owner-gnso-improvem-impl-sc at icann.org] On Behalf Of
Mary.Wong at law.unh.edu
Sent: 09 January 2013 16:58
To: avri at acm.org; gnso-improvem-impl-sc at icann.org
Cc: jonathan.robinson at ipracon.com; Jeff.Neuman at 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 at 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 at 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 at lrlaw.com>;
>> To: 'Avri Doria' <avri at acm.org>; Jeff Neuman <Jeff.Neuman at neustar.us>;
gnso-improvem-impl-sc at icann.org <gnso-improvem-impl-sc at icann.org>;
>> Cc: Jonathan Robinson <jonathan.robinson at 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 at LRLaw.com * www.LewisandRoca.com/Aikman
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>> -----Original Message-----
>> From: owner-gnso-improvem-impl-sc at icann.org
[mailto:owner-gnso-improvem-impl-sc at icann.org] On Behalf Of Avri Doria
>> Sent: Tuesday, January 08, 2013 10:16 PM
>> To: Jeff Neuman; gnso-improvem-impl-sc at 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 at ella.com]
>>> Sent: Tuesday, January 08, 2013 08:29 PM Eastern Standard Time
>>> To: Neuman, Jeff
>>> Cc: gnso-improvem-impl-sc at 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 at ella.com]
>>>> Sent: Tuesday, January 08, 2013 05:31 PM Eastern Standard Time
>>>> To: gnso-improvem-impl-sc at 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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