[gnso-improvem-impl-sc] New task
Mary Wong
Mary.Wong at law.unh.edu
Tue Jan 15 20:01:19 UTC 2013
$(UJen put it much more elegantly than I did, but in essence that's what I was trying to say.
That said, I agree that a hard-and-fast rule for all circumstances may be unsuitable, so I'm sympathetic to a "changed circumstance" argument - that, however, is not what we've been tasked to discuss in this instance. In this instance, nothing changed. The reason the motion was re-submitted and re-voted on was because a Councilor did not understand the Council's own rules. Regardless of whether in the future it is an IPC, NCSG or any other SG/C's representative, I see absolutely no basis for a re-vote in this type of situation.
The rules are clearly stated, publicly available and (as I recall) linked to in every Council meeting agenda document. Even if the person in question is a brand-new novice Councilor - which is not the case here - I'd be of the same view. Anyone elected to represent a constituent group has to be assumed to know the rules and procedures under which they are to discharge their office (just as ignorance of the law is no excuse.)
I agree also that some orientation/training for new Councilors may be desirable, but that again is beyond our remit.
As for the question of consensus, well, at Council level a vote IS representative of consensus (or lack thereof). Each SG/C has internal rules as to how their Councilors express their SG/C's views through formal voting - hence the care taken in the GNSO rules to make sure there has been adequate instruction of, e.g., a proxy replacement for a Councilor. Again, the fact that an SG/C failed in a particular instance to instruct their representative isn't sufficient basis in my view to justify a re-submission and re-vote.
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
>>>
From:
"Aikman-Scalese, Anne" <AAikman at lrlaw.com>
To:
"'Alain Berranger'" <alain.berranger at gmail.com>, Jen Wolfe <jwolfe at wolfedomain.com>
CC:
"Neuman, Jeff" <Jeff.Neuman at neustar.us>, "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>
Date:
1/15/2013 2:41 PM
Subject:
RE: [gnso-improvem-impl-sc] New task
Hi all,
I find myself a bit more concerned about the possible effect of such a rule on quashing motions for reconsideration. There may even be changed circumstances that might justify reconsideration and one would not want to make a rule that no motion that has previously been voted upon can be brought before the Council again.
I also tend to wonder whether a Councilor, especially a newer Councilor, laboring under a misimpression about the conflict of interest rules, might not, in itself, constitute a changed circumstance. Maybe I am less critical because the Councilor in question is an IPC Councilor and also a very good lawyer. If he was confused about this, I consider it possible that anyone might be. So I tend to disagree that if the Councilor in question had been NCSG, that there would have been a uproar about the change in vote (or at least there shouldn't be in an ideal ICANN world).
There is an aspect of this which for me involves "Do unto others as you would have others do unto you." So it seems that if we say this is okay the way it happened, the same leniency is given going forward to any Councilor who labors under a misunderstanding of Council rules, subject perhaps to the discretion of the Chair in bringing the motion again.
The harder line would be: "Dear Councilor: You are responsible for knowing all the rules before you vote and no misunderstanding on your part as to any issue can serve as a basis for resubmission of a motion." If we go this route, new Councilors should definitely be trained accordingly. Do new GNSO Councilors receive training and orientation as is the norm for most Boards?
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
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From: owner-gnso-improvem-impl-sc at icann.org [mailto:owner-gnso-improvem-impl-sc at icann.org] On Behalf Of Alain Berranger
Sent: Tuesday, January 15, 2013 11:26 AM
To: Jen Wolfe
Cc: Neuman, Jeff; Mary.Wong at law.unh.edu; avri at acm.org; gnso-improvem-impl-sc at icann.org
Subject: Re: [gnso-improvem-impl-sc] New task
Thanks Jennifer,
Common sense speaks again! The black belt argument will often close a discussion, though!!!! ;-) Many involved with ICANN would likely benefit from six sigma training... including myself!
Let's see what the Standing Committee on GNSO Improvements Implementation I discussions will lead too.
Cheers, Alain
On Fri, Jan 11, 2013 at 9:37 AM, Jen Wolfe <jwolfe at wolfedomain.com> wrote:
Hi everyone,
I hope your new year is off to a great start. I know I am new to the council and this committee so forgive me if I am misunderstanding our role, but what confused me about this particular issue was that all of the councilors had the opportunity for discussion, to ask questions and for consensus. A vote was taken and then a councilor asked further clarifying questions and then wanted to change his vote. From a strictly process standpoint, I am not clear on why a new vote should be allowed once the time for discussion and clarifying questions close. In any other parliamentary procedure, legislative body or corporate governance on boards, once a vote is taken, that’s it, even if someone misunderstood something procedurally or substantively.
I fully understand the need for consensus, but once discussion closes and a vote is taken, from a process and procedural standpoint, it’s a slippery slope to start allowing votes to be re-opened because one person asked a clarifying question after the vote was taken. It not only takes up valuable time of the council in discussing new issues, but could be used inappropriately in the future if this were permissible.
I look forward to participating in this committee. I have a black belt in six sigma process improvement and pride myself on finding ways to function more efficiently and hope I can provide meaningful contributions to this committee.
Have a great weekend!
jennifer c. WOLFE, esq., apr, SSBB
managing director, wolfe domain, a digital brand strategy adivsory firm
managing partner, wolfe, sadler, breen, morasch & colby, an intellectual property law firm
IAM 300 - TOp 300 global ip strategists 2011 & 2012
Follow Me: ( http://www.linkedin.com/in/jenwolfe ) ( http://pinterest.com/wolfedomain/ ) ( https://twitter.com/jenwolfe )
Blog: What will you do when your CEO asks why you didn’t apply for a gTLD? ( http://jenwolfe.com/c-suite/ )
Book: Domain Names Rewired ( http://www.amazon.com/Domain-Names-Rewired-Strategies-Protection/dp/1118312627 )
From:owner-gnso-improvem-impl-sc at icann.org [mailto:owner-gnso-improvem-impl-sc at icann.org] On Behalf Of Neuman, Jeff
Sent: Thursday, January 10, 2013 3:05 PM
To: Alain Berranger; Mary.Wong at law.unh.edu
Cc: avri at acm.org; gnso-improvem-impl-sc at icann.org
Subject: RE: [gnso-improvem-impl-sc] New task
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 at gmail.com]
Sent: Thursday, January 10, 2013 3:01 PM
To: Mary.Wong at law.unh.edu
Cc: avri at acm.org; gnso-improvem-impl-sc at icann.org; jonathan.robinson at 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 at 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 at 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 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 ( 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 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 ( tel:%28520%29%20629-4428 ) * Fax (520) 879-4725 ( tel:%28520%29%20879-4725 )
>> AAikman at LRLaw.com * www.LewisandRoca.com/Aikman
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>> 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
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>> copying of this communication is prohibited. If this communication
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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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--
Alain Berranger, B.Eng, MBA
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