[council] Advice from the General Counsels office on the use of proxy votes

[Marilyn Cade]

It does sound like we have much of the work needed already done, in the
documentation of procedures, but this will need a thorough examination as a
final item, I would suspect. I haven't looked at them for some time,
personally. 

In gaining Board approval, I support Ross's suggestion that we pursue the
level of flexibility that the CCNSO has. Undoubtedly the Board will see the
logic of having consistency in the SOs. 

As to revisiting our decisions, I suggest that we ask the Board to
reactively reaffirm any past decisions taken with the use of proxy votes. 

I assume that this refers only to the policy approval votes that would need
to be addressed.


-----Original Message-----
From: owner-council at gnso.icann.org [mailto:owner-council at gnso.icann.org] On
Behalf Of Ross Rader
Sent: Monday, February 20, 2006 10:48 AM
Cc: council at gnso.icann.org
Subject: Re: [council] Advice from the General Counsels office on the use of
proxy votes

Philip Sheppard wrote:
> The current bylaws give the GNSO the flexibility to apply our own
procedures.
> My recollection is that at its inception the GNSO agreed to proceed under
the substantive
> part of the guidelines of the Names Council until such time as we adopted
our own
> procedures.
> That includes a system of proxy votes endorsed by the then ICANN general
counsel.
> I believe we are covered retrospectively.
> 
> For future clarity, all we need to do is to ask Glen to submit a set of
GNSO procedures for
> formal adoption.
> I believe she already has such a draft.

This is not quite correct.

 From the bylaws -

"4. The GNSO Council is responsible for managing the policy development 
process of the GNSO. It shall adopt such procedures as it sees fit to 
carry out that responsibility, provided that such procedures are 
approved by the Board..."

The GNSO may only adopt those procedures approved by ICANN's Board of 
Directors.

In contrast, under most circumstances, the ccNSO is not required to seek 
similar "permission"

"11. The ccNSO Council, subject to direction by the ccNSO members, shall 
adopt such rules and procedures for the ccNSO as it deems necessary, 
provided they are consistent with these Bylaws."

I believe that the GNSO should seek a greater degree of autonomy and 
seek to minimize the degree to which its processes are locked into 
ICANN's Corporate Bylaws. There are few compelling reasons that the 
ICANN Board should not delegate stronger governance powers over the GNSO 
to the GNSO itself.  This would be best accomplished by incorporating 
the GNSO Rules of Procedure into the bylaws by reference and spelling 
out, in the Bylaws, the conditions under which the GNSO may revise its 
own governance structure and operating processes.

This is a very common practice, and in fact, is very similar to the 
governance structure implemented by the registrar constituency. We have 
separate bylaws and rules of procedure, each with different requirements 
that must be met in order to change them. This allows us a great degree 
of flexibility while avoiding issues like capture etc.

-ross