RE: [council] RE: Proxy Voting Procedures

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

Stéphane,

 

Please see the following from the Procedures:

 

"4.5.3 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."

 

Did the RrSG "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"?  If so, 
I was not aware of that.  The procedures go on to describe the procedure for 
doing that as you can see below in Section 4.5.4, Procedures, taking note of 
particular sections that I highlighted:

 

"4.5.4 Procedures 

 

This paragraph outlines the notification and communication steps required when 
an abstention condition is identified as well as the procedures that must be 
followed in remedying the abstention. 

 

For the purposes of these procedures, the term "written" or "in writing" shall 
mean via postal mail or electronic mail (e-mail). 

 

In order for an abstention remedy to be implemented, all required procedures 
must be completed prior to the start of the GNSO Council meeting in which the 
vote will be taken; otherwise, the abstention will not be remedied and the 
provisions of paragraph 4.5.4-c will apply. 

 

a. Notification by Councilor 

 

A Councilor who believes that he/she should abstain from participation/voting 
on a measure before the Council is required to provide, at the earliest 
opportunity, a brief written notification documenting the circumstances to the 
appointing organization with a copy forwarded to the GNSO Secretariat. For a 
House NCA, the notification should be sent to the GNSO Secretariat with a copy 
to the Council NCA who is required to acknowledge receipt to both parties that 
an automatic proxy is confirmed. If the situation is perceived to be 
confidential in nature and cannot be disclosed in the notification, a statement 
to that effect should be included by the Councilor. 

 

b. Communication by Appointing Organization or NCA 

 

To effectuate a remedy described in 4.5.3, the appointing organization or, when 
applicable, the House or Council NCA must provide a written statement to the 
GNSO Secretariat, as early as possible prior to any discussion/voting on the 
matter at issue, containing the following information:

 

·         Name of the abstaining Councilor. 

* Remedy selected (from Paragraph 4.5.3). 

* Reason(s) for or condition(s) leading to the remedy. 

* Specific subject(s)/measure(s)/motion(s)/action(s) of the Council for which 
the remedy is being exercised. 

* Date upon which the remedy will expire or terminate. No remedy may initially 
or subsequently extend beyond three (3) months at a time. If the period needs 
to be extended, a written notice can be provided to the GNSO Secretariat 
indicating the reason for extension (e.g. Council vote postponed) and a new 
expiration date. While there is no limit to the number of extensions; 
"standing" remedies are not allowed under any circumstances. 

* For the specific remedies of Voting Direction and Proxy Voting, the 
communication must include an affirmation that the appointing organization has 
established a voting position, subject to provisions contained in its Charter 
or Bylaws, on the matter at issue. For Voting Direction, a statement from the 
appointing organization shall indicate that the affected Councilor has been 
instructed how to vote on the matter. Exclusion: these statements are not 
applicable or required in a remedy applied for a House NCA. 

* For Proxy Voting, identification of the GNSO Councilor who will register the 
vote for the abstaining Councilor. 

* For a Temporary Alternate, identification of the individual who will serve as 
a substitute for the abstaining Councilor. If not already published and 
available, a short bio and Statement/Disclosure of Interest should be prepared 
by the Temporary Alternate and delivered to the GNSO Secretariat in advance of 
any discussion or voting scheduled to take place."

 

I made my decision based on my understanding of the above.  If my understanding 
is incorrect, please help me see where I went wrong.

 

Fortunately, in this case, I don't believe that the denial of the proxy 
requests in the meeting had any material effect on the vote results.  But I do 
hope that this provides us a good test that will lead to better understanding 
of the procedures by all of us, myself included, so that we can applying them 
properly and so that SGs and constituencies can minimize any loss of votes 
because of absences.

 

Chuck

 

 

From: Stéphane Van Gelder [mailto:stephane.vangelder@xxxxxxxxx] 
Sent: Tuesday, September 28, 2010 4:37 AM
To: Gomes, Chuck
Cc: Ken Bour; Mary Wong; Council GNSO; robert.hoggarth@xxxxxxxxx; 
liz.gasster@xxxxxxxxx
Subject: Re: [council] RE: Proxy Voting Procedures

 

This is only part of the texts that we should base our proxy voting procedures 
on, as it only deals with absences. I had seen this text and taking it into 
account when the issue of proxy voting came up during our last meeting.

 

I still see nothing here that should have prevented Tim from being able to 
request to have me as his proxy in the way that he did.

 

Stéphane

Le 28 sept. 2010 à 02:00, Gomes, Chuck a écrit :





Thanks a lot ken.

If anyone has questions about this, please ask.

Chuck

 

From: Ken Bour [mailto:ken.bour@xxxxxxxxxxx] 
Sent: Monday, September 27, 2010 2:05 PM
To: 'Mary Wong'; Gomes, Chuck
Cc: 'Council GNSO'; robert.hoggarth@xxxxxxxxx; liz.gasster@xxxxxxxxx
Subject: Proxy Voting Procedures

 

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 law.unh.edu 
<http://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 law.unh.edu 
<http://law.unh.edu>