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

[joy <joy@xxxxxxx>]

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Thanks Jonathan, that is helpful.

I won't venture to speak for John, but recall his question was:

"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?"

I do not yet have a firm position, but rather was supporting the
request for guidance on how the conflict of interest rules (as
outlined by Julie) apply to developing a response to the letter from
Fadi in this particular case. NCSG has seen the letter prepared by
Mason. I am not aware of any discussion of conflicts of interest of
NCSG Councillors who, in any event, support the GNSO Council writing
to the CEO as proposed.

Perhaps those Councillors with possible conflicts can assist by
responding before the council meeting

Regards

Joy



On 19/12/2012 11:51 a.m., Jonathan Robinson wrote:
> 
> 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
> 
> 
> 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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