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[council] Proxy Voting Procedures
- To: "'Mary Wong'" <Mary.Wong@xxxxxxxxxxx>, <cgomes@xxxxxxxxxxxx>
- Subject: [council] Proxy Voting Procedures
- From: "Ken Bour" <ken.bour@xxxxxxxxxxx>
- Date: Mon, 27 Sep 2010 14:05:06 -0400
- Cc: "'Council GNSO'" <council@xxxxxxxxxxxxxx>, <robert.hoggarth@xxxxxxxxx>, <liz.gasster@xxxxxxxxx>
- List-id: council@xxxxxxxxxxxxxx
- Sender: owner-council@xxxxxxxxxxxxxx
- Thread-index: Actebl38jwcD8WALSvKY97XcYlEsHA==
Chuck, Mary, et al.:
I am not entirely sure that this will help resolve the confusion, but the
absences and vacancies procedures are contained in Section 3.8-Incidental
Absences of the GOP, not Section 4.5. I copied out the following paragraph
(3.8.1-a) that pertains to your discussion…
a. Planned Absence: It is understood that, from time to time, it may be
necessary for a GNSO Council member to miss a scheduled meeting due to a
conflicting personal or professional obligation or other planned event that
cannot be reasonably altered.
i. When a Councilor anticipates being absent
or late for a Council meeting, the Councilor is expected to notify (e.g.
telephone, e-mail) the GNSO Secretariat as soon as practicable before the
meeting begins.
ii. A Councilor is expected to vote on such
motions as may come before the GNSO Council using the alternative means
provided in Section 4.4-Absentee Voting, if applicable. If circumstances will
not permit voting using the alternative means available, the Councilor may
declare an intention to abstain on those motions that are scheduled to be voted
upon during the GNSO Council meeting at which the Councilor expects to be
absent. In such an instance, the procedures in Section 4.5-Abstentions will
apply.
In essence, in the case of a planned absence, the Councilor is permitted to
declare an intention to abstain and that action affords the SG/C of the
remedies in Section 4.5 (e.g. proxy). Unplanned absences, covered in
3.8.1(b), are not remediable due to lack of advanced notice.
To execute any voting remedy does not require that a Councilor determine or
indicate whether an abstention is “volitional” or “obligational.” Those
categories were drafted to explain the types of abstentions that can occur --
illustrated with a few examples that were not intended to be exhaustive. A
planned absence could possibly be interpreted as volitional or obligational
depending upon the circumstances; but, again, it is not necessary to disclose
which classification applies in any abstention situation. Once a Councilor
knows, in advance of a Council meeting, that he/she will be absent, that is
sufficient declaration to request a voting remedy from the SG/C.
If you have any other questions, I would be pleased to answer them.
Ken Bour
From: Mary Wong [mailto:Mary.Wong@xxxxxxxxxxx]
Sent: Saturday, September 25, 2010 11:34 AM
Cc: Council GNSO; robert.hoggarth@xxxxxxxxx; ken.bour@xxxxxxxxxxx
Subject: RE: [council] Proxy Voting Procedures
Thanks for the prompt and helpful answer, Chuck. I actually agree and
understand that the inclusive language in 4.5.2(a), regarding examples of
volitional absence, was intended to also cover the sort of situations I'd
raised (particularly when read with the "either/or" voting universe
contemplated by 3.8.1.)
The underlying problem, as I see it, is that the actual language of 4.5.2(a) in
two respects creates potential uncertainty going forward (particularly some
time down the road when many of those involved in drafting and initially
implementing these new procedures are no longer on Council). These two respects
are (1) the use of the words "elects to refrain from ... voting" in 4.5.2(a)
(which implies a positive choice rather than one required by a necessary
absence); and (2) the examples used to illustrate possible basis for such a
choice. Although inclusive in nature, all three examples point toward instances
which relate to a Councillor's substantive inability to discharge his/her
duties responsibly. Either or both of these issues could result - down the road
- in possibly narrower interpretations of the abstention voting procedures than
we now are contemplating.
Helpful though our email discussions are, unfortunately they are not official
minutes of a Council meeting or formal resolutions of a Council discussion. It
occurs to me that issues of interpretation such as the one I raised could
appropriately be referred, as a matter of implementation oversight, to our
Standing Committee for a formal confirmation that this particular
interpretation is correct for the record.
I'm not sure how we are supposed to do this, but I'd be happy to draft and
submit a brief motion for Council consideration at the next meeting, if that's
the way to do it.
Thanks and cheers
Mary
Mary W S Wong
Professor of Law
Chair, Graduate IP Programs
UNIVERSITY OF NEW HAMPSHIRE SCHOOL OF LAW
Two White Street
Concord, NH 03301
USA
Email: mary.wong@xxxxxxxxxxx
Phone: 1-603-513-5143
Webpage: http://www.law.unh.edu/marywong/index.php
Selected writings available on the Social Science Research Network (SSRN) at:
http://ssrn.com/author=437584
>>>
From:
"Gomes, Chuck" <cgomes@xxxxxxxxxxxx>
To:
"Mary Wong" <Mary.Wong@xxxxxxxxxxx>
CC:
"Council GNSO" <council@xxxxxxxxxxxxxx>, <robert.hoggarth@xxxxxxxxx>,
<ken.bour@xxxxxxxxxxx>
Date:
9/24/2010 6:08 PM
Subject:
RE: [council] Proxy Voting Procedures
Mary,
I think you are missing something. In my opinion, if a Councilor cannot make a
meeting, the procedures apply, as long as there is sufficient lead time to
follow the procedures. What makes you think that “instances where a Councilor
simply cannot be at a meeting” are not covered?
Note the following from Section 4.5:
· “When circumstances regarding a potential voting abstention occur
that would otherwise prevent a Councilor from discharging his/her
responsibilities (see Paragraph 4.5.2), the Councilor’s appointing organization
is provided a set of remedies (see Paragraph 4.5.3) designed to enable its vote
to be exercised.”
· “Circumstances may occur when a Council member elects to refrain from
participating and voting for reasons that may include, but are not limited to .
. .” (Section 4.5.2.a) Please note the phrase “not limited to”. I believe
that “instances where a Councilor simply cannot be at a meeting” are covered
here.
BTW, I definitely do not view you as “being a pest”. It is essential that we
all learn the nuances of the new procedures so that we can use them
appropriately and as easily as possible.
Chuck
From: owner-council@xxxxxxxxxxxxxx [mailto:owner-council@xxxxxxxxxxxxxx] On
Behalf Of Mary Wong
Sent: Friday, September 24, 2010 11:07 AM
Cc: Council GNSO; robert.hoggarth@xxxxxxxxx; ken.bour@xxxxxxxxxxx
Subject: Re: [council] Proxy Voting Procedures
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 LAW
Two White Street
Concord, NH 03301
USA
Email: mary.wong@xxxxxxxxxxx
Phone: 1-603-513-5143
Webpage: http://www.law.unh.edu/marywong/index.php
Selected 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
As of August 30, 2010, Franklin Pierce Law Center has affiliated with the
University of New Hampshire and is now known as the University of New Hampshire
School of Law. Please note that all email addresses have changed and now follow
the convention: firstname.lastname@xxxxxxxxxxx. For more information on the
University of New Hampshire School of Law, please visit <http://law.unh.edu>
law.unh.edu
As of August 30, 2010, Franklin Pierce Law Center has affiliated with the
University of New Hampshire and is now known as the University of New Hampshire
School of Law. Please note that all email addresses have changed and now follow
the convention: firstname.lastname@xxxxxxxxxxx. For more information on the
University of New Hampshire School of Law, please visit <http://law.unh.edu>
law.unh.edu
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