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

["Jonathan Robinson" <jonathan.robinson@xxxxxxxxxxx>]

Thanks Joy,

I am mindful of the short time between now and the Council meeting.  Also of
the issues that time zones create.
Therefore I want to respond quickly.

My personal thoughts on this are that Councillors can contribute from two
key positions:

1. As a representative of the group they represent on the Council
2. In their individual capacity

It will be helpful if Councillors can be clear in which capacity they are
contributing.

In the case of 1 above, I trust that this has been discussed to some extent
in the groups / constituencies and therefore that councillors may be in a
position to represent group positions.

In the case of 2 above, we have SOI's from individual councillors so that
helps to inform us.  After that, it may be down to a matter of judgement by
councillors as to whether or not they contribute or not to a specific
portion of the discussion. 

I stress here that I have responded rapidly to try to assist and am open to
any other contributions on this, particularly to the extent that they are
based on existing bylaws or procedures.

Joy, I understand that you are seeking guidance but do you (or the NCSG to
the extent that you are aware of it) have a firm view on this issue?


Jonathan

-----Original Message-----
From: owner-council@xxxxxxxxxxxxxx [mailto:owner-council@xxxxxxxxxxxxxx] On
Behalf Of joy
Sent: 18 December 2012 22:05
To: Julie Hedlund
Cc: john@xxxxxxxxxxxxxxxxxxx; council@xxxxxxxxxxxxxx List; Mason Cole
Subject: Re: [council] Conflicts and the Draft reply to Fadi


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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:_Sta
> tements_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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