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

[joy <joy@xxxxxxx>]

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Thanks Julie, and John for raising this.
Given that John's question relates not to a motion, but to a matter of
Council business (the draft reply to Fadi), it would appear that the
Council operating procedures cited here do not apply.
If so, can I ask what guidance can Council offer (or be offered) on
the point John has raised (particularly in light of how the Board has
dealt with conflicts of interest and recent sensitivities on this topic).
Cheers


Joy


On 18/12/2012 12:24 p.m., Julie Hedlund wrote:
> 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
> 
> 
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