Re: [council] Proxy Voting Procedures

["Mary Wong" <Mary.Wong@xxxxxxxxxxx>]

Hi,
 
Besides the procedural issue, my concern was, and is, the sense (from
reviewing the new Council operating procedures) that if a Councilor is
going to be absent from a vote, the only way he/she can actually get to
vote - assuming the issue is not one that relates specifically to a PDP 
Bylaw, Council procedure or vacancy (which triggers the Absentee Voting
procedures in 4.4) - is on issues that dictate an abstention.
 
The problem is that 4.5 (on Abstentions) presuppose only 2 situations
where an abstention is justified: (1) volitional (where a Councillor
"elects to refrain from participating and voting", see 4.5.2(a); and (2)
obligational (i.e. professional, personal or political conflicts), see
4.5.2(b). These then trigger the procedural remedies we've discussed
(including a proxy vote).
 
I completely agree that Councilors are fully expected and required
(including in 4.5.1) to participate actively and discharge their duties
responsibly, such that instances of absent and/or proxy voting are
minimized and not encouraged. However, it seems to me that there will be
instances where a Councilor simply cannot be at a meeting, but fully
wishes to vote on a motion that is not one that triggers either 4.4 or
4.5. In other words, he/she does not need to "elect to refrain" from
voting, and is not otherwise obligated to abstain.
 
As currently worded, neither 4.4 nor 4.5 (including the language on
proxies) would seem to cover this type of situation, which arguably
could be handled via a relatively straightforward proxy process.
 
Am I missing something, reading the procedures too narrowly, or ... ?
(maybe being a pest? :)
 
Thanks and cheers
Mary
 
In such a case, the new Operating Procedures do not seem to allow for a
relatively simple - but documented and accountable - mechanism by which
such a case could be handled through a proxy.
 
Mary W S Wong
Professor of Law
Chair, Graduate IP Programs
UNIVERSITY OF NEW HAMPSHIRE SCHOOL OF LAWTwo White StreetConcord, NH
03301USAEmail: mary.wong@xxxxxxx.eduPhone: 1-603-513-5143Webpage:
http://www.law.unh.edu/marywong/index.phpSelected writings available on
the Social Science Research Network (SSRN) at:
http://ssrn.com/author=437584

>>> 


From: Stéphane Van Gelder<stephane.vangelder@xxxxxxxxx>
To:"Gomes, Chuck" <cgomes@xxxxxxxxxxxx>
CC:"Council GNSO" <council@xxxxxxxxxxxxxx>,
<robert.hoggarth@xxxxxxxxx>, <ken.bour@xxxxxxxxxxx>
Date: 9/8/2010 4:39 PM
Subject: Re: [council] Proxy Voting Procedures
Thanks Chuck. I had read that very article as I prepared for today's
meeting yesterday, as I was looking at the various links pertaining to
absences and voting that Glen sent to the Council list before this
meeting.

I did not have the same understanding as you re the requirement to
request for a proxy in advance of the meeting (where does it say that in
sub-section i. below?). I would argue that in Tim's case, the appointing
organization, i.e. the RrSG, had established a position. This was not
'stated' on the public Council list, but article i. does not say this
should be done in this way. I agree there is ambiguity here and my
intent is not to second-guess the decision you made in today's meeting.
But as this processes are still a bit new to us all, I just want to make
sure we iron out some of the wrinkles so that if we have this type of
situation again, we know how to handle it.

Thanks,

Stéphane

Le 8 sept. 2010 à 19:25, Gomes, Chuck a écrit :




Here is my response to Stéphane’s question regarding the GNSO Operating
Procedures (GOP) requirements regarding proxy voting.
Here is the applicable excerpt from the GOP, Section 4.5.3.b,
Remedies:
“Proxy Voting

 

The second method to be considered in avoiding the consequences of an
abstention is the use of proxy voting, where the vote of an abstaining
Councilor is transferred to another GNSO Councilor.

 

i. For abstentions declared by Councilors not appointed by the
Nominating Committee and where voting direction is not a viable remedy,
the appointing organization may transfer the vote of the abstaining
Councilor to: (1) the House Nominating Committee Appointee (NCA), (2)
another of its Constituency Councilors (where applicable), or (3)
another Councilor within the Stakeholder Group. The appointing
organization must be able to establish an affirmative or negative voting
position, subject to provisions contained in its Charter or Bylaws, on
the applicable measure/motion for which one of its Councilors has
declared an intention to abstain. The Councilor to whom the vote is
transferred shall exercise a vote in line with the appointing
organization’s stated position. 
ii. If an abstention is declared by a House NCA, once formal
notification has occurred pursuant to the procedures in Paragraph
4.5.4-a, a proxy is automatically transferred to the GNSO Council’s
unaffiliated NCA (hereinafter Council NCA) and any vote cast will be
counted within the House to which the abstaining NCA is assigned. The
Council NCA may exercise only one proxy at a time; therefore, the first
abstention remedy properly transferred to the Council NCA, including all
measures/motions specified, takes precedence. It should be noted that,
because NCAs do not have an appointing organization, as defined in these
procedures (see Section 1.3.1), to provide specific voting direction,
the Council NCA may exercise his/her best judgment, including
abstaining, on the matter at issue. If the Council NCA abstains or does
not cast a vote for any other reason, no further remedies are available
and the automatic proxy will be nullified. The original House NCA will
be recorded in the minutes as having abstained from the vote.”
If I interpret the above correctly, for proxies to have been allowed in
today’s meeting the following would have need to have happened in
advance:  The appointing organization of the Councilor who has to
abstain (because of planned absence or other reasons) “must be able to
establish an affirmative or negative voting position” and that would
have needed to have sent to Secretary.  I believe Staff has prepared a
template to facilitate this.  That did not happen in any of the cases
where proxies were requested today.
I cc’d Rob and Ken so that they can correct me if my interpretation is
in error.
Chuck




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