[council] Conflicts and the Draft reply to Fadi
John Berard
john at crediblecontext.com
Wed Dec 19 20:14:52 UTC 2012
Sent from my iPhone
On Dec 19, 2012, at 11:29 AM, joy <joy at apc.org> wrote:
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> Thanks John, glad you're clear about it, three-dimensional ways to
> assess commentary: indeed!
> I would only add that, imho, while the operating procedures provide
> that a conflict of interest, made public, does not preclude
> participation, nor does it automatically permit such participation.
>
> Best
> Joy
>
> On 20/12/2012 4:35 a.m., john at crediblecontext.com wrote:
>> Joy,
>>
>> I thought the guidance clear enough. Financial interests that
>> touch ICANN are a part of the Statement of Interest and a conflict
>> of interest, made public, does not preclude participation. It
>> just allows fellow Councillors a more three-dimensional way to
>> assess that commentary.
>>
>> As for Mason's draft, I have consulted with the BC and we are
>> thinking through a set of suggestions.
>>
>> Watch this space!
>>
>> Cheers,
>>
>> John Berard Founder Credible Context 58 West Portal Avenue, #291
>> San Francisco, CA 94127 m: 415.845.4388
>>
>>
>> -------- Original Message -------- Subject: Re: [council]
>> Conflicts and the Draft reply to Fadi From: joy <joy at apc.org
>> <mailto:joy at apc.org>> Date: Tue, December 18, 2012 6:06 pm To:
>> Jonathan Robinson <jonathan.robinson at ipracon.com
>> <mailto:jonathan.robinson at ipracon.com>> Cc: "'Julie Hedlund'"
>> <julie.hedlund at icann.org <mailto:julie.hedlund at icann.org>>,
>> john at crediblecontext.com <mailto:john at crediblecontext.com>,
>> council at gnso.icann.org <mailto:council at gnso.icann.org>, "'Mason
>> Cole'" <mcole at 5x5com.com <mailto:mcole at 5x5com.com>>
>>
>>
>> Thanks Jonathan, that is helpful.
>>
>> I won't venture to speak for John, but recall his question was:
>>
>> "Before I offer comment on Mason's draft and before we convene on
>> Thursday can I get some guidance on how those of us who have a
>> conflict on the matter of new gTLDs should conduct ourselves or
>> offer input?"
>>
>> I do not yet have a firm position, but rather was supporting the
>> request for guidance on how the conflict of interest rules (as
>> outlined by Julie) apply to developing a response to the letter
>> from Fadi in this particular case. NCSG has seen the letter
>> prepared by Mason. I am not aware of any discussion of conflicts
>> of interest of NCSG Councillors who, in any event, support the
>> GNSO Council writing to the CEO as proposed.
>>
>> Perhaps those Councillors with possible conflicts can assist by
>> responding before the council meeting
>>
>> Regards
>>
>> Joy
>>
>>
>>
>> On 19/12/2012 11:51 a.m., Jonathan Robinson wrote:
>>
>>> Thanks Joy,
>>
>>> I am mindful of the short time between now and the Council
>>> meeting. Also of the issues that time zones create. Therefore I
>>> want to respond quickly.
>>
>>> My personal thoughts on this are that Councillors can contribute
>>> from two key positions:
>>
>>> 1. As a representative of the group they represent on the
>>> Council 2. In their individual capacity
>>
>>> It will be helpful if Councillors can be clear in which capacity
>>> they are contributing.
>>
>>> In the case of 1 above, I trust that this has been discussed to
>>> some extent in the groups / constituencies and therefore that
>>> councillors may be in a position to represent group positions.
>>
>>> In the case of 2 above, we have SOI's from individual councillors
>>> so that helps to inform us. After that, it may be down to a
>>> matter of judgement by councillors as to whether or not they
>>> contribute or not to a specific portion of the discussion.
>>
>>> I stress here that I have responded rapidly to try to assist and
>>> am open to any other contributions on this, particularly to the
>>> extent that they are based on existing bylaws or procedures.
>>
>>> Joy, I understand that you are seeking guidance but do you (or
>>> the NCSG to the extent that you are aware of it) have a firm
>>> view on this issue?
>>
>>
>>> Jonathan
>>
>>> -----Original Message----- From: owner-council at gnso.icann.org
>>> <mailto:owner-council at gnso.icann.org>
>>> [mailto:owner-council at gnso.icann.org] On Behalf Of joy Sent: 18
>>> December 2012 22:05 To: Julie Hedlund Cc:
>>> john at crediblecontext.com <mailto:john at crediblecontext.com>;
>>> council at gnso.icann.org <mailto:council at gnso.icann.org> List;
>>> Mason
>> Cole Subject: Re: [council]
>>> Conflicts and the Draft reply to Fadi
>>
>>
>>> Thanks Julie, and John for raising this. Given that John's
>>> question relates not to a motion, but to a matter of Council
>>> business (the draft reply to Fadi), it would appear that the
>>> Council operating procedures cited here do not apply. If so, can
>>> I ask what guidance can Council offer (or be offered) on the
>>> point John has raised (particularly in light of how the Board
>>> has dealt with conflicts of interest and recent sensitivities on
>>> this topic). Cheers
>>
>>
>>> Joy
>>
>>
>>> On 18/12/2012 12:24 p.m., Julie Hedlund wrote:
>>>> John,
>>
>>>> Thank you for your question with respect to conflicts of
>>>> interest. Here is some information that may be helpful.
>>
>>>> The GNSO Council Operating Procedures (see
>>>> http://gnso.icann.org/en/council/gnso-operating-procedures-13sep12-en.
>> pdf)
>>
>>
>>> differentiate between "conflicts of interest" and "statements of
>>>> interest." The Procedures contain requirements relating to
>>>> Statements of interest in Section 5.0. These are defined as,
>>>> "A written statement made by a Relevant Party that provides a
>>>> declaration of interests that may affect the Relevant Party's
>>>> judgement, on any matters to be considered by the GNSO Group.
>>>> " These statements of interest are to be provided by any
>>>> member of a GNSO Group (such as the Council, but also Working
>>>> Groups) to the Secretariat not less frequently than once a year
>>>> and at the beginning of a GNSO Group meeting the Chair asks if
>>>> members have updates to their statements of interest. Below
>>>> I've included the questions that form the content of the
>>>> statement of interest.
>>
>>>> The Procedures also reference "conflicts of interest," but only
>>>> in the context of a disclaimer (see excerpt from Section 4.5,
>>>> Obligational Abstentions, below) that refers to the Statements
>>>> of Interest procedures and notes that these statements do not
>>>> require that the Councilor abstain from participating and
>>>> voting. In particular, section 4.5 notes as follows:
>>
>>>> /".the term "Conflict of Interest" will not pertain when a
>>>> GNSO Councilor argues for and votes "Yes" or "No" on a matter
>>>> which, by virtue of that action, directly or indirectly
>>>> benefits that individual financially or economically; however,
>>>> that interpretation does not imply that circumstances cannot
>>>> occur in which a Councilor may perceive his/her situation as
>>>> obligating a formal abstention." /
>>
>>>> With respect to abstentions, the "Obligational Abstention"
>>>> (see details below) perhaps addresses what you refer to as
>>>> "conflict of interest." That is, it allows a Councilor to
>>>> abstain from a vote as follows and provides cases as examples
>>>> (see below):
>>
>>>> "A Councilor who believes that proceeding to vote on a motion
>>>> or action before the Council not only warrants, but requires,
>>>> his/her abstention and, thereby, recusal from deliberations, is
>>>> considered to be facing an obligational abstention."
>>
>>>> I hope that this is helpful, but please let me know if you need
>>>> more information or have more questions.
>>
>>>> Best regards,
>>
>>>> Julie
>>
>>>> Julie Hedlund, Policy Director
>>
>>>> *Excerpted from GNSO Council Operating Procedures, Section
>>>> 5.3.3, page 21*
>>
>>
>>>> 5.3.3 _Content_
>>
>>>> Relevant Parties shall complete all six sections of the
>>>> Statement of Interest form as specified below:
>>
>>>> 1. Please identify your current employer(s) and
>>>> position(s).
>>
>>>> 2. Please identify your declared country of primary
>>>> residence (which may be the country to which you pay taxes).
>>
>>>> 3. Please identify the type(s) of work performed at #1
>>>> above.
>>
>>>> 4. Please list any financial relationship beyond /de
>>>> minimus/ stock ownership you may have with any company that to
>>>> your knowledge has a financial relationship or contract with
>>>> ICANN.
>>
>>>> 5. Do you believe you are participating in the GNSO policy
>>>> process as a representative of any individual or entity,whether
>>>> paid or unpaid? Please answer "yes" or "no." If the answer is
>>>> "yes," please provide the name of the represented individual or
>>>> entity. If professional ethical obligations prevent you from
>>>> disclosing this information, please so state.
>>
>>>> 6. Please identify any other relevant arrangements,
>>>> interests, or benefits as requested in the following two
>>>> questions:
>>
>>>> i. Do you have any type of material interest in ICANN
>>>> GNSO policy development processes and outcomes? Please answer
>>>> "yes" or "no." If the answer is "yes," please describe the
>>>> material interest in ICANN GNSO policy development processes
>>>> and outcomes.
>>
>>>> ii. Are there any arrangements/agreements between you and
>>>> any other group, constituency or person(s) regarding your
>>>> participation as a work team member? Please answer "yes" or
>>>> "no." If the answer is "yes," please describe the
>>>> arrangements/agreements and the name of the group,
>>>> constituency, or person(s).
>>
>>
>>>> *Excerpted from GNSO Council Operating Procedures, Section
>>>> 4.5, Abstentions, page 15*
>>
>>>> a. _Obligational Abstentions_
>>
>>>> This category of abstentions results from conditions in which
>>>> a Councilor may find that he/she is unable to vote on a
>>>> measure due to a competing personal (e.g. religious),
>>>> professional, or political interest that interferes with
>>>> his/her ability to participate in the matter or where
>>>> participation raises ethical questions.
>>
>>>> /_Disclaimer concerning the term "Conflict of Interest"_//:
>>>> There are certain financial interests and, possibly, incentives
>>>> associated with GNSO actions that affect Internet domain name
>>>> policies. As they pertain to GNSO Council voting actions, such
>>>> interests are expected to be documented in a Councilor's
>>>> required Statement of Interest (see Chapter 5.0
>>>> <applewebdata://C6470B06-97BB-49EC-9D50-8234F30229D9#_Chapter_5.0:_Sta
>> tements_2>)
>>
>>
>>> and do not require that the Councilor abstain from participating
>>> and
>>>> voting. //GNSO Councilors do not have a fiduciary
>>>> responsibility to act in the best interests of ICANN in
>>>> discharging their responsibilities on the Council. While the
>>>> deliberations and decisions of ICANN are made in the interests
>>>> of the global Internet community as a whole, GNSO Councilors
>>>> are understood, in some cases, to represent the views of
>>>> organizations and interest groups that would materially
>>>> benefit from policies recommended by the GNSO. It is
>>>> understood that Councilors are often employed by or represent
>>>> those affected parties and such relationships could engender
>>>> subsequent benefit to Councilors as individuals. As a result
>>>> of these special circumstances and to avoid confusion with
>>>> ICANN's Conflict of Interest Policy, which does not pertain to
>>>> GNSO Council matters, the term "Conflict of Interest" will not
>>>> pertain when a GNSO Councilor argues for and votes "Yes" or
>>>> "No" on a matter which, by virtue of that action, directly or
>>>> indirectly benefits that individual financially or
>>>> economically; however, that interpretation does not imply that
>>>> circumstances cannot occur in which a Councilor may perceive
>>>> his/her situation as obligating a formal abstention. /
>>
>>>> A Councilor who believes that proceeding to vote on a motion or
>>>> action before the Council not only warrants, but requires,
>>>> his/her abstention and,thereby, recusal from deliberations, is
>>>> considered to be facing an obligational abstention. Although
>>>> it is not possible to draft a set of exhaustive conditions
>>>> under which obligational abstentions can arise, two examples
>>>> are provided by way of illustration:
>>
>>>> _Case 1_: a Councilor (attorney by profession) is
>>>> representing a client in legal actionrelating to a matter
>>>> before the Council and, and as required by his/her professional
>>>> code, must abstain and, furthermore, such abstention should not
>>>> be counted as a negative vote. [Note: this type of situation
>>>> requires the remedy specified in Paragraph 4.5.3
>>>> <applewebdata://C6470B06-97BB-49EC-9D50-8234F30229D9#_4.5.3_Remedy_To_
>> 1>
>>>> below].
>>
>>>> _Case 2_: a Councilor is a paid consultant for a national
>>>> political body that has a vested interest in a particular
>>>> motion before the Council. The Councilor is concerned that
>>>> his/her future income potential and ability to retain a
>>>> consulting engagement with the national body may be affected
>>>> if he/she votes on the measure. In such a case, the Councilor
>>>> believes that the ethical course of action is to abstain.
>>
>>>> In the two examples above, personal or professional
>>>> obligations interfere with the Council member's ability to
>>>> participate ethically; thus, requiring recusal from
>>>> deliberations on the matter and abstention from voting.
>>
>>
>>
>>>> From: "john at crediblecontext.com
>>>> <mailto:john at crediblecontext.com>
>>>> <mailto:john at crediblecontext.com>" <john at crediblecontext.com
>> <mailto:john at crediblecontext.com>
>>>> <mailto:john at crediblecontext.com>> Date: Monday, December 17,
>>>> 2012 12:00 PM To: Mason Cole <mcole at 5x5com.com
>>>> <mailto:mcole at 5x5com.com> <mailto:mcole at 5x5com.com>>,
>>>> "council at gnso.icann.org
>> <mailto:council at gnso.icann.org>
>>>> <mailto:council at gnso.icann.org> List" <council at gnso.icann.org
>> <mailto:council at gnso.icann.org>
>>>> <mailto:council at gnso.icann.org>> Subject: [council] Conflicts
>>>> and the Draft reply to Fadi
>>
>>>> Jonathan, et. al.,
>>
>>>> Before I offer comment on Mason's draft and before we convene
>>>> on Thursday can I get some guidance on how those of us who
>>>> have a conflict on the matter of new gTLDs should conduct
>>>> ourselves or offer input?
>>
>>>> Cheers,
>>
>>>> John Berard Founder Credible Context 58 West Portal Avenue,
>>>> #291 San Francisco, CA 94127 m: 415.845.4388
>>
>>
>>>> -------- Original Message -------- Subject: [council] Draft
>>>> reply to Fadi From: Mason Cole <mcole at 5x5com.com
>>>> <mailto:mcole at 5x5com.com> <mailto:mcole at 5x5com.com>> Date:
>>>> Fri, December 14, 2012 11:11 am To: "council at gnso.icann.org
>>>> <mailto:council at gnso.icann.org>
>> <mailto:council at gnso.icann.org> List"
>>>> <council at gnso.icann.org <mailto:council at gnso.icann.org>
>>> <mailto:council at gnso.icann.org>>
>>
>>>> Council colleagues --
>>
>>>> I have taken the liberty of drafting a reply to Fadi's request
>>>> for Council advice on the BC/IPC request for more RPMs.
>>>> Jonathan and I have spoken about a process from here and I am
>>>> happy to keep the pen for possible suggestions and edits.
>>>> Speaking for myself, though I realize the holidays are fast
>>>> approaching I would hope we can get a communication to Fadi
>>>> expeditiously.
>>
>>>> Many thanks --
>>
>>>> Mason
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