Re: [council] RE: Proxy Voting Procedures

[Wendy Seltzer <wendy@xxxxxxxxxxx>]

Could an SG establish a blanket rule that its Councilors, in the event
of necessary abstentions, may delegate proxies up to the time of the
vote, without further involvement required of the SG?

--Wendy

On 09/28/2010 07:37 AM, Gomes, Chuck wrote:
> 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> 
> 
>  
> 
> 


-- 
Wendy Seltzer -- wendy@xxxxxxxxxxx +1 914-374-0613
Fellow, Princeton Center for Information Technology Policy
Fellow, Berkman Center for Internet & Society at Harvard University
http://cyber.law.harvard.edu/seltzer.html
http://www.chillingeffects.org/
https://www.torproject.org/
http://www.freedom-to-tinker.com/