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

["Maureen Cubberley" <m.cubberley@xxxxxxxxxxxx>]

Bruce, and Fellow Councillors,

It seems clear that our practise of proxy voting is not in compliance with the 
Bylaws.  I believe we must act as quickly as we can to change this, and to 
develop a process that does comply with the Bylaws. I suggest that we accept 
Counsel's offer of assistance to do so.

The obvious question this raises is.............What is the status (legal, 
binding or otherwise) of the decisions Council has made based on votes where 
the proxy system was used? Are these decisions, and the voting processes that 
enabled them, valid?

In order to begin to determine the depth and potential significance of this 
matter, perhaps we could ask Counsel and his Staff to review the minutes of our 
meetings and provide us with a list of the decisions that were based on motions 
where the proxy votes, either for or against,  made the difference between a 
'yes' and a 'no' decision.

The second obvious question is............Whatever the new, compliant process 
is, should we be asking Counsel to look at the possibility and/or legality of 
applying it retroactively?


Best regards,

Maureen Cubberley
  ----- Original Message ----- 
  From: Bruce Tonkin 
  To: council@xxxxxxxxxxxxxx 
  Sent: Friday, February 17, 2006 2:26 AM
  Subject: [council] Advice from the General Counsels office on the use of 
proxy votes


  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