RE: [council] RE: Proxy Voting Procedures

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

In my assessment, that doesn't seem to work because of the following 
requirements:

- "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."

- "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 . . ."  Note the list of items that must be in the 
appointing organizations written communication with particular attention to: 
"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"; "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".

Chuck



> -----Original Message-----
> From: Wendy Seltzer [mailto:wendy@xxxxxxxxxxx]
> Sent: Tuesday, September 28, 2010 8:04 AM
> To: Gomes, Chuck
> Cc: Stéphane Van Gelder; Ken Bour; Mary Wong; Council GNSO;
> robert.hoggarth@xxxxxxxxx; liz.gasster@xxxxxxxxx
> Subject: Re: [council] RE: Proxy Voting Procedures
> 
> 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/