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

["Bruce Tonkin" <Bruce.Tonkin@xxxxxxxxxxxxxxxxxx>]

Hello All,

After Cary Karp raised a question about the counting of proxy votes
during our meeting on 6 Feb 2006, I sought advice from the ICANN General
Counsel on whether our past use of proxy votes (which dates back to the
rules of procedure for the DNSO Names Council) was consistent with the
current ICANN bylaws.

See the advice below.

Regards,
Bruce Tonkin


-----Original Message-----
From: John Jeffrey 
Sent: Friday, 17 February 2006 5:58 PM
To: Bruce Tonkin
Cc: Olof Nordling; Dan Halloran
Subject: Re: Regarding proxy votes at a Council meeting

Bruce,

Thank you for your inquiry concerning the practice of "proxy" voting
which occurs during the GNSO Council meetings.  In follow up to your
inquiry and in furtherance to our discussion earlier today here is some
additional information and my office's opinion regarding the same.

We agree with you that there is no provision for proxy voting under the
current ICANN Bylaws <http://www.icann.org/general/archive-bylaws/
bylaws-08apr05.htm>.  The current Bylaws (Article X, Section 4) include
the following provision concerning GNSO Council Procedures:

        "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, and further provided that, until any
modifications are recommended by the GNSO Council and approved by the
Board, the applicable procedures shall be as set forth in Section 6 of
this Article. ..." <http://www.icann.org/general/archive-bylaws/
bylaws-08apr05.htm#X-3.4>

Bylaws Article X, Section 6, provides that "Initially, the policy-
development procedures to be followed by the GNSO shall be as stated in
Annex A to these Bylaws. These procedures may be supplemented or revised
in the manner stated in Section 3(4) of this Article."

Since no modified procedures have been recommended by Council or
approved by the Board, the only relevant procedures are those stated in
Bylaws Annex A ("GNSO Policy-Development Process") <http://
www.icann.org/general/archive-bylaws/bylaws-08apr05.htm#AnnexA>.

You provided a link to the "Rules of Procedure of the DNSO Names
Council, Version 7" <http://www.gnso.icann.org/council/names-
proceduresv7.shtml#5>, but that document is no longer in effect.  The  
DNSO document indicates that it was last amended on 18 April 2002.   
That entire document was obsoleted and superceded by the adoption of
ICANN's "New Bylaws" on 15 December 2002.  The new Bylaws provisions on
the GNSO (which assumed the responsibilities of the former DNSO)
continued a substantial portion of the old procedures from the DNSO
procedures document, but the New Bylaws also clearly did not retain
other features of the old procedures (including any reference to
"proxies").

The GNSO Council's practice of allowing Council members to participate
in a meeting (by casting a vote) even though they are not "present" does
not appear to be consistent with Bylaws Article X, Section 3(8), which
provides (in part) that "... the GNSO Council shall act at meetings.
Members of the GNSO Council may participate in a meeting of the GNSO
Council through use of (i) conference telephone or similar
communications equipment, provided that all members participating in
such a meeting can speak to and hear one another ..."  In other words,
under the current Bylaws a Council member who is unable to speak to or
hear other Councillors may not "participate" (including voting) in a
Council meeting held in person or by telephone.

That same section of the Bylaws (X-3.8) provides that "Members entitled
to cast a majority of the total number of votes of GNSO Council members
then in office shall constitute a quorum for the transaction of
business, and acts by a majority vote of the GNSO Council members
present at any meeting at which there is a quorum shall be acts of the
GNSO Council ..."  This language concerning members "entitled to cast a
majority of the total number of votes"  
appears to relate to the weighted voting provision <http://
www.icann.org/general/bylaws.htm#X-5.2> and not to any otherwise
unreferenced scheme for voting by proxy.

We recognize that this may be a "long standing process", but the Council
should take prompt action to come into compliance with the Bylaws'
requirements.  The Council is free to recommend modifications to these
procedures (including perhaps a modification to anticipate  
the participation of deaf or hard of hearing people on the Council).   
If you'd like Dan and I would be happy to work with you to craft
whatever procedures would be inline with the Council's preferences,
provided they are in accordance with ICANN's other Bylaws, mission and
core values.

I hope this is helpful.  Please let me know if you have any other
questions.

best regards,
John Jeffrey
General Counsel and Secretary
ICANN

On Feb 6, 2006, at 4:18 PM, Bruce Tonkin wrote:

> Hello John,
>
> It has been long standing practice for Council members to appoint 
> another Council member to act as their proxy when voting on particular

> issues if they are unable to attend a particular meeting.
>
>
> (the relevant section of the bylaws is Article X, section 3, clause 8:
> "Members entitled to cast a majority of the total number of votes of 
> GNSO Council members then in office shall constitute a quorum for the 
> transaction of business, and acts by a majority vote of the GNSO 
> Council members present at any meeting at which there is a quorum 
> shall be acts of the GNSO Council"
>
> I can't find a specific reference to proxies within the ICANN bylaws, 
> but there is mention in our current operating procedures, which can be

> found at:
> http://www.gnso.icann.org/council/names-proceduresv7.shtml#5
>
> If a Council member holds a proxy for another Council member - does 
> this count towards either the quorum requirement, or the majority vote

> requirement?  
>
> Regards,
> Bruce Tonkin

John Jeffrey
General Counsel & Secretary
Internet Corporation for Assigned
Names and Numbers
4676 Admiralty Way
Marina del Rey, CA  91206