Re: [council] Conflicts and the Draft reply to Fadi

[Julie Hedlund <julie.hedlund@xxxxxxxxx>]

John,

Thank you for your question with respect to conflicts of interest.  Here is 
some information that may be helpful.

The GNSO Council Operating Procedures (see 
http://gnso.icann.org/en/council/gnso-operating-procedures-13sep12-en.pdf) 
differentiate between "conflicts of interest" and "statements of interest."  
The Procedures contain requirements relating to Statements of interest in 
Section 5.0.  These are defined as, "A written statement made by a Relevant 
Party that provides a declaration of interests that may affect the Relevant 
Party's judgement, on any matters to be considered by the GNSO Group. "   These 
statements of interest are to be provided by any member of a GNSO Group (such 
as the Council, but also Working Groups) to the Secretariat not less frequently 
than once a year and at the beginning of a GNSO Group meeting the Chair asks if 
members have updates to their statements of interest.  Below I've included the 
questions that form the content of the statement of interest.

The Procedures also reference "conflicts of interest," but only in the context 
of a disclaimer (see excerpt from Section 4.5, Obligational Abstentions, below) 
that refers to the Statements of Interest procedures and notes that these 
statements do not require that the Councilor abstain from participating and 
voting.  In particular, section 4.5 notes as follows:

"…the term “Conflict of Interest” will not pertain when a GNSO Councilor argues 
for and votes “Yes” or “No” on a matter which, by virtue of that action, 
directly or indirectly benefits that individual financially or economically; 
however, that interpretation does not imply that circumstances cannot occur in 
which a Councilor may perceive his/her situation as obligating a formal 
abstention."

With respect to abstentions, the "Obligational Abstention" (see details below) 
perhaps addresses what you refer to as "conflict of interest."  That is, it 
allows a Councilor to abstain from a vote as follows and provides cases as 
examples (see below):

"A Councilor who believes that proceeding to vote on a motion or action before 
the Council not only warrants, but requires, his/her abstention and, thereby, 
recusal from deliberations, is considered to be facing an obligational 
abstention."

I hope that this is helpful, but please let me know if you need more 
information or have more questions.

Best regards,

Julie

Julie Hedlund, Policy Director

Excerpted from GNSO Council Operating Procedures, Section 5.3.3, page 21
5.3.3    Content
Relevant Parties shall complete all six sections of the Statement of Interest 
form as specified below:
1.     Please identify your current employer(s) and position(s).
2.     Please identify your declared country of primary residence (which may be 
the country to which you pay taxes).
3.     Please identify the type(s) of work performed at #1 above.
4.     Please list any financial relationship beyond de minimus stock ownership 
you may have with any company that to your knowledge has a financial 
relationship or contract with ICANN.
5.     Do you believe you are participating in the GNSO policy process as a 
representative of any individual or entity,whether paid or unpaid?  Please 
answer “yes” or “no.”  If the answer is “yes,” please provide the name of the 
represented individual or entity.   If professional ethical obligations prevent 
you from disclosing this information, please so state.
6.     Please identify any other relevant arrangements, interests, or benefits 
as requested in the following two questions:
               i.       Do you have any type of material interest in ICANN GNSO 
policy development processes and outcomes?  Please answer “yes” or “no.”  If 
the answer is “yes,” please describe the material interest in ICANN GNSO policy 
development processes and outcomes.
              ii.       Are there any arrangements/agreements between you and 
any other group, constituency or person(s) regarding your participation as a 
work team member?  Please answer “yes” or “no.”  If the answer is “yes,” please 
describe the arrangements/agreements and the name of the group, constituency, 
or person(s).

Excerpted from GNSO Council Operating Procedures, Section 4.5, Abstentions, 
page 15
a.     Obligational Abstentions
This category of abstentions results from conditions in which a Councilor may 
find that he/she is unable to vote on a measure due to a competing personal 
(e.g. religious), professional, or political interest that interferes with 
his/her ability to participate in the matter or where participation raises 
ethical questions.
Disclaimer concerning the term “Conflict of Interest”:  There are certain 
financial interests and, possibly, incentives associated with GNSO actions that 
affect Internet domain name policies.  As they pertain to GNSO Council voting 
actions, such interests are expected to be documented in a Councilor's required 
Statement of Interest (see Chapter 
5.0<applewebdata://C6470B06-97BB-49EC-9D50-8234F30229D9#_Chapter_5.0:_Statements_2>)
 and do not require that the Councilor abstain from participating and voting.  
GNSO Councilors do not have a fiduciary responsibility to act in the best 
interests of ICANN in discharging their responsibilities on the Council. While 
the deliberations and decisions of ICANN are made in the interests of the 
global Internet community as a whole, GNSO Councilors are understood, in some 
cases, to represent the views of organizations and interest groups that would 
materially benefit from policies recommended by the GNSO.  It is understood 
that Councilors are often employed by or represent those affected parties and 
such relationships could engender subsequent benefit to Councilors as 
individuals.  As a result of these special circumstances and to avoid confusion 
with ICANN’s Conflict of Interest Policy, which does not pertain to GNSO 
Council matters, the term “Conflict of Interest” will not pertain when a GNSO 
Councilor argues for and votes “Yes” or “No” on a matter which, by virtue of 
that action, directly or indirectly benefits that individual financially or 
economically; however, that interpretation does not imply that circumstances 
cannot occur in which a Councilor may perceive his/her situation as obligating 
a formal abstention.
A Councilor who believes that proceeding to vote on a motion or action before 
the Council not only warrants, but requires, his/her abstention and,thereby, 
recusal from deliberations, is considered to be facing an obligational 
abstention.  Although it is not possible to draft a set of exhaustive 
conditions under which obligational abstentions can arise, two examples are 
provided by way of illustration:
Case 1:  a Councilor (attorney by profession) is representing a client in legal 
actionrelating to a matter before the Council and, and as required by his/her 
professional code, must abstain and, furthermore, such abstention should not be 
counted as a negative vote.  [Note:  this type of situation requires the remedy 
specified in Paragraph 
4.5.3<applewebdata://C6470B06-97BB-49EC-9D50-8234F30229D9#_4.5.3_Remedy_To_1> 
below].
Case 2:  a Councilor is a paid consultant for a national political body that 
has a vested interest in a particular motion before the Council.  The Councilor 
is concerned that his/her future income potential and ability to retain a 
consulting engagement with the national body may be affected if he/she votes on 
the measure.  In such a case, the Councilor believes that the ethical course of 
action is to abstain.
In the two examples above, personal or professional obligations interfere with 
the Council member’s ability to participate ethically; thus, requiring recusal 
from deliberations on the matter and abstention from voting.


From: "john@xxxxxxxxxxxxxxxxxxx<mailto:john@xxxxxxxxxxxxxxxxxxx>" 
<john@xxxxxxxxxxxxxxxxxxx<mailto:john@xxxxxxxxxxxxxxxxxxx>>
Date: Monday, December 17, 2012 12:00 PM
To: Mason Cole <mcole@xxxxxxxxxx<mailto:mcole@xxxxxxxxxx>>, 
"council@xxxxxxxxxxxxxx<mailto:council@xxxxxxxxxxxxxx> List" 
<council@xxxxxxxxxxxxxx<mailto:council@xxxxxxxxxxxxxx>>
Subject: [council] Conflicts and the Draft reply to Fadi

Jonathan, et. al.,

Before I offer comment on Mason's draft and before we convene on Thursday can I 
get some guidance on how those of us who have a conflict on the matter of new 
gTLDs should conduct ourselves or offer input?

Cheers,

John Berard
Founder
Credible Context
58 West Portal Avenue, #291
San Francisco, CA 94127
m: 415.845.4388


-------- Original Message --------
Subject: [council] Draft reply to Fadi
From: Mason Cole <mcole@xxxxxxxxxx<mailto:mcole@xxxxxxxxxx>>
Date: Fri, December 14, 2012 11:11 am
To: "council@xxxxxxxxxxxxxx<mailto:council@xxxxxxxxxxxxxx> List" 
<council@xxxxxxxxxxxxxx<mailto:council@xxxxxxxxxxxxxx>>

Council colleagues --

I have taken the liberty of drafting a reply to Fadi's request for Council 
advice on the BC/IPC request for more RPMs. Jonathan and I have spoken about a 
process from here and I am happy to keep the pen for possible suggestions and 
edits. Speaking for myself, though I realize the holidays are fast approaching 
I would hope we can get a communication to Fadi expeditiously.

Many thanks --

Mason