Re: [council] RE: Proxy Voting Procedures

[Wendy Seltzer <wendy@xxxxxxxxxxx>]

On 09/28/2010 08:15 AM, Gomes, Chuck wrote:
> 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".
> 

Why should that not be remediable by a standing order?  (or why
shouldn't we fix the OP to make it so, if an SG so chooses?)

--Wendy

> 
>> -----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/
> 
> 


-- 
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/