[council] FW: [gnso-osc] FW: Further Council Ops Procedures Thoughts

["Gomes, Chuck" <cgomes@xxxxxxxxxxxx>]

As promised, here is my response to Steve Metalitz's excellent comments on the 
OSC list regarding the issue of counting abstentions.
 
Chuck

________________________________

From: Gomes, Chuck 
Sent: Wednesday, September 23, 2009 7:01 PM
To: Metalitz, Steven; gnso-osc@xxxxxxxxx
Subject: RE: [gnso-osc] FW: Further Council Ops Procedures Thoughts


Thanks Steve.  Please see my comments below.
 
Chuck


________________________________

        From: Metalitz, Steven [mailto:met@xxxxxxx] 
        Sent: Wednesday, September 23, 2009 6:11 PM
        To: Gomes, Chuck; gnso-osc@xxxxxxxxx
        Subject: RE: [gnso-osc] FW: Further Council Ops Procedures Thoughts
        
        
        I am afraid we are trying to square the circle on this abstention 
issue.  
         
        Abstentions may occur for a lot of reasons.  But if one occurs in order 
to avoid a conflict of interest problem, then we cannot treat it as a 
functional  "no" vote -- which we do if we insist that the denominator in 
calculating a voting threshold must always be the total number of people seated 
in the House or council. 
         
        Let's assume that on a motion before the council, a councillor's 
financial interests will be directly benefited by defeat of the motion.  The 
councillor should refrain from voting on (or even from participating in the 
discussion of) the motion.  Let's assume the council consists of 10 people and 
that a majority vote is needed for the motion. 
         
        However, if the councillor abstains for this reason, then if 5 vote for 
and 4 against, the motion fails. Abstention will have achieved exactly the 
result that a conflict of interest policy should avoid at all costs -- the 
action of the councillor has directly benefitted his financial interest. 
        [Gomes, Chuck] I think there is an added complication here.  Just 
because an individual Councilor has a conflict of interest, it doesn't 
necessarily mean that the SG should lose its vote. In my opinion, in such a 
case, the Councilor should communicate the personal conflict of interest and 
then: 1) if the SG has provided voting direction, be allowed to vote as 
directed by the SG; 2) if the SG has not provided direction, then the Councilor 
should vote according to the provisions of the applicable charter.  Each SG 
then has the opportunity to deal with this issue as they see best.      
         
        If the councillor is able to truly abstain, so that his presence is not 
counted for purposes of achieving the voting threshold, then the vote (5-4) 
reflects the views of the majority of council members who were allowed (in 
accordance with conflict of interest policy) to vote, and should be enough to 
carry the motion. 
        [Gomes, Chuck] I think your approach works if Councilors were truly 
representing themselves but they should really be representing their SGs. 
          
        The same scenario could play out almost no matter what is the voting 
threshold required or the number of eligible voters.    
         
        I emphasize that many abstentions will not be for conflict reasons -- 
quite commonly, it will be because the constituency/stakeholder group could not 
reach a position on the issue, or an issue arises suddenly and the councillor 
has decided that she will not vote absent instructions from her constituency/SG.
        [Gomes, Chuck] This is why I opposed treating abstentions as "no votes" 
and not factoring them into the % calculation.
         
        There is less of a problem counting the abstention for purposes of a 
voting threshold in this case -- though it still may not be a good idea.  But 
there would need to be an exception to this general rule for situations in 
which an abstention is dictated by conflict of interest rules.
        [Gomes, Chuck] You could be right that an exception might be needed but 
I think it will take more time to work out the details of that.  Maybe some 
exception language could be proposed in the public comment period.  If not, 
maybe the GCOT could take this up in their ongoing work.  Please let me know 
what you think.  
         
        Steve
         
         
        
        
________________________________

        From: owner-gnso-osc@xxxxxxxxx [mailto:owner-gnso-osc@xxxxxxxxx] On 
Behalf Of Gomes, Chuck
        Sent: Wednesday, September 23, 2009 5:39 PM
        To: gnso-osc@xxxxxxxxx
        Subject: [gnso-osc] FW: Further Council Ops Procedures Thoughts
        
        
        Here's the latest suggestion language for part of section 5.4.
         
        Chuck

________________________________

        From: Ken Bour [mailto:ken.bour@xxxxxxxxxxx] 
        Sent: Wednesday, September 23, 2009 4:34 PM
        To: Gomes, Chuck; 'Robert Hoggarth'; 'Avri Doria'
        Cc: 'Glen de Saint Géry'; 'Ray Fassett'; 'Liz Gasster'; 'Denise 
Michel'; 'Julie Hedlund'; 'Margie Milam'
        Subject: RE: Further Council Ops Procedures Thoughts
        
        

        Chuck:

         

        We agree that there is no reason to give abstentions another label.   
Would this language be acceptable at the end of 4.2? 

         

        Old language:  Abstentions shall be recorded as non-votes and shall 
include a reason.

         

        New language:   "Council members are permitted to abstain in any vote, 
but must provide a reason which shall be recorded in the minutes along with the 
abstention."  

         

        Ken

          

         

        From: Gomes, Chuck [mailto:cgomes@xxxxxxxxxxxx] 
        Sent: Wednesday, September 23, 2009 2:54 PM
        To: Robert Hoggarth; Avri Doria
        Cc: Glen de Saint Géry; Ray Fassett; Liz Gasster; Denise Michel; Julie 
Hedlund; Margie Milam; Ken Bour
        Subject: RE: Further Council Ops Procedures Thoughts
        Importance: High

         

        Rob,

         

        (Note I added Ken as a cc.)

         

        After exchaning email messages with Ray, the more I think about it the 
less I like the following in the amended language for 5.4: "Abstentions shall 
be recorded as non-votes."  The term "non-vote" implies that someone didn't 
participate in the vote, which is not the case for an abstention.  A 'non-vote' 
applies when someone refuses to vote or is absent.  An abstention can happen 
because there is not consensus on approval or disapproval; it that case, it is 
a vote in my opinion.

         

        Why should abstentions be counted as anything other than abstentions?  
I suggest changing that sentence to simply this: "A reason shall be provided 
for an abstention."

         

        Chuck

                 

________________________________

                From: Robert Hoggarth [mailto:robert.hoggarth@xxxxxxxxx] 
                Sent: Tuesday, September 22, 2009 6:40 PM
                To: Gomes, Chuck; Avri Doria
                Cc: Glen de Saint Géry; Ray Fassett; Liz Gasster; Denise 
Michel; Julie Hedlund; Margie Milam
                Subject: Further Council Ops Procedures Thoughts

                Dear Avri and Chuck;
                
                Ken Bour and I spent a couple of hours today going over the new 
Bylaws and the recommended Council Ops Procedures in an effort to better 
understand the issues behind the recent brief dialogue on abstentions with 
Kristina and Phillip on the Council email list AND in an effort to test and or 
break the ops processes and voting mechanisms.
                
                As a result of our effort, we have have come up with a number 
of ideas/concepts we wanted to float by you prior to the Council meeting.
                
                1.   We've developed some edits to the recommendations - 
specifically Section 5.4 (# of votes cast) and section 3.5 (Quorum) that we 
think address the affirmative vote/no vote abstaining issue by providing some 
more clarity to the recommended voting procedure.  That potential compromise 
language is set forth at the end of this message.
                
                2.   At the conclusion of the Work Team's deliberations, noting 
that the team had focused on the substance of each specific recommendation and 
not on the overall format of the procedures, I suggested to Ray Fassett 
(copying Ray on this message) that in preparation for the public comment 
period, Staff could work on the format and presentation of the recommendations 
to make them more clear and clean. We've started some work in that regard - not 
making any substantive changes, but merely trying to pull different sections 
together and consolidating common subjects areas (e.g., voting ) where there 
may be references in more than one section of the recommendations.  We should 
have a suggested format finished for you all to take a look at tomorrow.
                
                3.   We discussed the conundrum of the incoming Council voting 
on the Ops Procedures (before new voting procedures exist).  We suggest that 
you consider creating a procedural bridge between the two Councils in which the 
outgoing Council "conditionally approves" the new procedures as a transitional 
matter (perhaps this could take place at a "special" Council meeting during the 
weekend in Seoul) and then have the incoming Council ratify them as its first 
order of business.  The new Council could then make changes over time as it 
works with and develops some experience with the new procedures. Haven't 
discussed this with the GC yet - just brainstorming.
                
                4.   We have also started to develop a a matrix/voting record 
spreadsheet as an unofficial tool for the new Chair and Glen to use for 
recording votes.  The idea is to have a clear and understandable score sheet 
that can be used during votes to easily show when voting thresholds have been 
met (or not). We'll get Glen's feedback on the concept and share that with you 
when she is comfortable with a draft document.
                
                We are hopeful that the language suggested below is useful. 
Your comments are most welcomed.  
                
                Cheers,
                
                RobH
                
                SUGGESTED REVISED LANGUAGE FOLLOWS. SUGGESTED CHANGES IN BOLD 
RED UNDERLINED TEXT.
                
                In the recommended Council Operating Procedures, we suggest 
some new language to modify Section 5.4 and 3.5 as follows:
                
                5.4 The Number of Votes Cast
                 
                OLD: To pass, a motion must attain a majority of the votes cast 
in each house unless otherwise specified in these procedures or in the ICANN 
Bylaws. Abstentions count as votes cast and shall include a reason for the 
abstention.  This has the effect of making an abstention count the same as a 
vote against except as described in ICANN Bylaws, ANNEX A, GNSO 
Policy-Development Process, Section 3, Initiation of PDP.  [INSERT LIVE LINK TO 
THE BYLAWS.]
                 
                
                NEW:  Unless otherwise specified in these procedures or in the 
ICANN Bylaws, to pass a motion or other action, greater than 50% of the 
eligible voters in each House must cast affirmative votes.  For all votes 
taken, the number of eligible voters in each House shall be fixed to the number 
of seats allocated in the Bylaws (a.k.a. the denominator) and is not affected 
by the number of members present or absent at the meeting in which the motion 
or other action is initiated.  Abstentions shall be recorded as non-votes and 
shall include a reason. 
                
                3.5. Quorum
                 
                OLD: In order for the GNSO Council to initiate a meeting a 
quorum must be present.  A quorum is a majority of voting members, which 
includes at least one member of each Stakeholder Group. [INSERT LIVE LINK TO 
BYLAWS.] Whenever a vote is taken there must be a quorum. 
                
                NEW: In order for the GNSO Council to initiate a vote, a quorum 
must be present.  A quorum is a majority of voting members in each House, which 
includes at least one member of each Stakeholder Group. 
                
                ***END SUGGESTED LANGUAGE ***