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RE: [council] Conflicts and the Draft reply to Fadi
- To: joy@xxxxxxx, "Jonathan Robinson" <jonathan.robinson@xxxxxxxxxxx>
- Subject: RE: [council] Conflicts and the Draft reply to Fadi
- From: <john@xxxxxxxxxxxxxxxxxxx>
- Date: Wed, 19 Dec 2012 08:35:24 -0700
- Cc: "'Julie Hedlund'" <julie.hedlund@xxxxxxxxx>, council@xxxxxxxxxxxxxx, "'Mason Cole'" <mcole@xxxxxxxxxx>
- List-id: council@xxxxxxxxxxxxxx
- Sender: owner-council@xxxxxxxxxxxxxx
- User-agent: Workspace Webmail 5.6.30
<html><body><span style="font-family:Verdana; color:#000000;
font-size:10pt;"><div>Joy,</div><div><br></div><div>I thought the guidance
clear enough. Financial interests that touch ICANN are a part of the
Statement of Interest and a conflict of interest, made public, does not
preclude participation. It just allows fellow Councillors a more
three-dimensional way to assess that commentary.</div><div><br></div><div>As
for Mason's draft, I have consulted with the BC and we are thinking through a
set of suggestions.</div><div><br></div><div>Watch this
space!</div><div><br></div><div>Cheers,</div><div><br></div><div>John
Berard</div><div>Founder</div><div>Credible Context</div><div>58 West Portal
Avenue, #291</div><div>San Francisco, CA 94127</div><div>m:
415.845.4388</div><div><br><br></div>
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blue; margin-left: 8px; padding-left: 8px; font-size:10pt; color:black;
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-------- Original Message --------<br>
Subject: Re: [council] Conflicts and the Draft reply to Fadi<br>
From: joy <<a href="mailto:joy@xxxxxxx";>joy@xxxxxxx</a>><br>
Date: Tue, December 18, 2012 6:06 pm<br>
To: Jonathan Robinson <<a
href="mailto:jonathan.robinson@xxxxxxxxxxx";>jonathan.robinson@xxxxxxxxxxx</a>><br>
Cc: "'Julie Hedlund'" <<a
href="mailto:julie.hedlund@xxxxxxxxx";>julie.hedlund@xxxxxxxxx</a>>,<br>
<a href="mailto:john@xxxxxxxxxxxxxxxxxxx";>john@xxxxxxxxxxxxxxxxxxx</a>,
<a href="mailto:council@xxxxxxxxxxxxxx";>council@xxxxxxxxxxxxxx</a>, "'Mason
Cole'"<br>
<<a href="mailto:mcole@xxxxxxxxxx";>mcole@xxxxxxxxxx</a>><br>
<br>
<br>
-----BEGIN PGP SIGNED MESSAGE-----<br>
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<br>
Thanks Jonathan, that is helpful.<br>
<br>
I won't venture to speak for John, but recall his question was:<br>
<br>
"Before I offer comment on Mason's draft and before we convene on<br>
Thursday can I get some guidance on how those of us who have a<br>
conflict on the matter of new gTLDs should conduct ourselves or offer<br>
input?"<br>
<br>
I do not yet have a firm position, but rather was supporting the<br>
request for guidance on how the conflict of interest rules (as<br>
outlined by Julie) apply to developing a response to the letter from<br>
Fadi in this particular case. NCSG has seen the letter prepared by<br>
Mason. I am not aware of any discussion of conflicts of interest of<br>
NCSG Councillors who, in any event, support the GNSO Council writing<br>
to the CEO as proposed.<br>
<br>
Perhaps those Councillors with possible conflicts can assist by<br>
responding before the council meeting<br>
<br>
Regards<br>
<br>
Joy<br>
<br>
<br>
<br>
On 19/12/2012 11:51 a.m., Jonathan Robinson wrote:<br>
> <br>
> Thanks Joy,<br>
> <br>
> I am mindful of the short time between now and the Council meeting.<br>
> Also of the issues that time zones create. Therefore I want to<br>
> respond quickly.<br>
> <br>
> My personal thoughts on this are that Councillors can contribute<br>
> from two key positions:<br>
> <br>
> 1. As a representative of the group they represent on the Council <br>
> 2. In their individual capacity<br>
> <br>
> It will be helpful if Councillors can be clear in which capacity<br>
> they are contributing.<br>
> <br>
> In the case of 1 above, I trust that this has been discussed to<br>
> some extent in the groups / constituencies and therefore that<br>
> councillors may be in a position to represent group positions.<br>
> <br>
> In the case of 2 above, we have SOI's from individual councillors<br>
> so that helps to inform us. After that, it may be down to a matter<br>
> of judgement by councillors as to whether or not they contribute or<br>
> not to a specific portion of the discussion.<br>
> <br>
> I stress here that I have responded rapidly to try to assist and am<br>
> open to any other contributions on this, particularly to the extent<br>
> that they are based on existing bylaws or procedures.<br>
> <br>
> Joy, I understand that you are seeking guidance but do you (or the<br>
> NCSG to the extent that you are aware of it) have a firm view on<br>
> this issue?<br>
> <br>
> <br>
> Jonathan<br>
> <br>
> -----Original Message----- From: <a
href="mailto:owner-council@xxxxxxxxxxxxxx";>owner-council@xxxxxxxxxxxxxx</a><br>
> [<a
href="mailto:owner-council@xxxxxxxxxxxxxx";>mailto:owner-council@xxxxxxxxxxxxxx</a>]
On Behalf Of joy Sent: 18<br>
> December 2012 22:05 To: Julie Hedlund Cc: <a
href="mailto:john@xxxxxxxxxxxxxxxxxxx";>john@xxxxxxxxxxxxxxxxxxx</a>;<br>
> <a href="mailto:council@xxxxxxxxxxxxxx";>council@xxxxxxxxxxxxxx</a> List;
Mason Cole Subject: Re: [council]<br>
> Conflicts and the Draft reply to Fadi<br>
> <br>
> <br>
> Thanks Julie, and John for raising this. Given that John's question<br>
> relates not to a motion, but to a matter of Council business (the<br>
> draft reply to Fadi), it would appear that the Council operating<br>
> procedures cited here do not apply. If so, can I ask what guidance<br>
> can Council offer (or be offered) on the point John has raised<br>
> (particularly in light of how the Board has dealt with conflicts of<br>
> interest and recent sensitivities on this topic). Cheers<br>
> <br>
> <br>
> Joy<br>
> <br>
> <br>
> On 18/12/2012 12:24 p.m., Julie Hedlund wrote:<br>
>> John,<br>
> <br>
>> Thank you for your question with respect to conflicts of<br>
>> interest. Here is some information that may be helpful.<br>
> <br>
>> The GNSO Council Operating Procedures (see <br>
>> <a
href="http://gnso.icann.org/en/council/gnso-operating-procedures-13sep12-en";>http://gnso.icann.org/en/council/gnso-operating-procedures-13sep12-en</a>.<br>
>><br>
>> <br>
pdf)<br>
> <br>
> <br>
> differentiate between "conflicts of interest" and "statements of<br>
>> interest." The Procedures contain requirements relating to<br>
>> Statements of interest in Section 5.0. These are defined as, "A<br>
>> written statement made by a Relevant Party that provides a<br>
>> declaration of interests that may affect the Relevant Party's<br>
>> judgement, on any matters to be considered by the GNSO Group. " <br>
>> These statements of interest are to be provided by any member of<br>
>> a GNSO Group (such as the Council, but also Working Groups) to<br>
>> the Secretariat not less frequently than once a year and at the<br>
>> beginning of a GNSO Group meeting the Chair asks if members have<br>
>> updates to their statements of interest. Below I've included the<br>
>> questions that form the content of the statement of interest.<br>
> <br>
>> The Procedures also reference "conflicts of interest," but only<br>
>> in the context of a disclaimer (see excerpt from Section 4.5,<br>
>> Obligational Abstentions, below) that refers to the Statements of<br>
>> Interest procedures and notes that these statements do not<br>
>> require that the Councilor abstain from participating and voting.<br>
>> In particular, section 4.5 notes as follows:<br>
> <br>
>> /".the term "Conflict of Interest" will not pertain when a GNSO <br>
>> Councilor argues for and votes "Yes" or "No" on a matter which,<br>
>> by virtue of that action, directly or indirectly benefits that<br>
>> individual financially or economically; however, that<br>
>> interpretation does not imply that circumstances cannot occur in<br>
>> which a Councilor may perceive his/her situation as obligating a<br>
>> formal abstention." /<br>
> <br>
>> With respect to abstentions, the "Obligational Abstention" (see <br>
>> details below) perhaps addresses what you refer to as "conflict<br>
>> of interest." That is, it allows a Councilor to abstain from a<br>
>> vote as follows and provides cases as examples (see below):<br>
> <br>
>> "A Councilor who believes that proceeding to vote on a motion or<br>
>> action before the Council not only warrants, but requires,<br>
>> his/her abstention and, thereby, recusal from deliberations, is<br>
>> considered to be facing an obligational abstention."<br>
> <br>
>> I hope that this is helpful, but please let me know if you need<br>
>> more information or have more questions.<br>
> <br>
>> Best regards,<br>
> <br>
>> Julie<br>
> <br>
>> Julie Hedlund, Policy Director<br>
> <br>
>> *Excerpted from GNSO Council Operating Procedures, Section 5.3.3,<br>
>> page 21*<br>
> <br>
> <br>
>> 5.3.3 _Content_<br>
> <br>
>> Relevant Parties shall complete all six sections of the Statement<br>
>> of Interest form as specified below:<br>
> <br>
>> 1. Please identify your current employer(s) and position(s).<br>
> <br>
>> 2. Please identify your declared country of primary<br>
>> residence (which may be the country to which you pay taxes).<br>
> <br>
>> 3. Please identify the type(s) of work performed at #1<br>
>> above.<br>
> <br>
>> 4. Please list any financial relationship beyond /de<br>
>> minimus/ stock ownership you may have with any company that to<br>
>> your knowledge has a financial relationship or contract with<br>
>> ICANN.<br>
> <br>
>> 5. Do you believe you are participating in the GNSO policy <br>
>> process as a representative of any individual or entity,whether<br>
>> paid or unpaid? Please answer "yes" or "no." If the answer is<br>
>> "yes," please provide the name of the represented individual or <br>
>> entity. If professional ethical obligations prevent you from <br>
>> disclosing this information, please so state.<br>
> <br>
>> 6. Please identify any other relevant arrangements,<br>
>> interests, or benefits as requested in the following two<br>
>> questions:<br>
> <br>
>> i. Do you have any type of material interest in ICANN GNSO <br>
>> policy development processes and outcomes? Please answer "yes"<br>
>> or "no." If the answer is "yes," please describe the material<br>
>> interest in ICANN GNSO policy development processes and<br>
>> outcomes.<br>
> <br>
>> ii. Are there any arrangements/agreements between you and<br>
>> any other group, constituency or person(s) regarding your<br>
>> participation as a work team member? Please answer "yes" or<br>
>> "no." If the answer is "yes," please describe the<br>
>> arrangements/agreements and the name of the group, constituency,<br>
>> or person(s).<br>
> <br>
> <br>
>> *Excerpted from GNSO Council Operating Procedures, Section 4.5, <br>
>> Abstentions, page 15*<br>
> <br>
>> a. _Obligational Abstentions_<br>
> <br>
>> This category of abstentions results from conditions in which a <br>
>> Councilor may find that he/she is unable to vote on a measure due<br>
>> to a competing personal (e.g. religious), professional, or<br>
>> political interest that interferes with his/her ability to<br>
>> participate in the matter or where participation raises ethical<br>
>> questions.<br>
> <br>
>> /_Disclaimer concerning the term "Conflict of Interest"_//:<br>
>> There are certain financial interests and, possibly, incentives<br>
>> associated with GNSO actions that affect Internet domain name<br>
>> policies. As they pertain to GNSO Council voting actions, such<br>
>> interests are expected to be documented in a Councilor's required<br>
>> Statement of Interest (see Chapter 5.0 <br>
>>
<applewebdata://C6470B06-97BB-49EC-9D50-8234F30229D9#_Chapter_5.0:_Sta<br>
>><br>
>> <br>
tements_2>)<br>
> <br>
> <br>
> and do not require that the Councilor abstain from participating<br>
> and<br>
>> voting. //GNSO Councilors do not have a fiduciary responsibility<br>
>> to act in the best interests of ICANN in discharging their <br>
>> responsibilities on the Council. While the deliberations and<br>
>> decisions of ICANN are made in the interests of the global<br>
>> Internet community as a whole, GNSO Councilors are understood, in<br>
>> some cases, to represent the views of organizations and interest<br>
>> groups that would materially benefit from policies recommended by<br>
>> the GNSO. It is understood that Councilors are often employed by<br>
>> or represent those affected parties and such relationships could<br>
>> engender subsequent benefit to Councilors as individuals. As a<br>
>> result of these special circumstances and to avoid confusion with<br>
>> ICANN's Conflict of Interest Policy, which does not pertain to<br>
>> GNSO Council matters, the term "Conflict of Interest" will not<br>
>> pertain when a GNSO Councilor argues for and votes "Yes" or "No"<br>
>> on a matter which, by virtue of that action, directly or <br>
>> indirectly benefits that individual financially or economically;<br>
>> however, that interpretation does not imply that circumstances<br>
>> cannot occur in which a Councilor may perceive his/her situation<br>
>> as obligating a formal abstention. /<br>
> <br>
>> A Councilor who believes that proceeding to vote on a motion or<br>
>> action before the Council not only warrants, but requires,<br>
>> his/her abstention and,thereby, recusal from deliberations, is<br>
>> considered to be facing an obligational abstention. Although it<br>
>> is not possible to draft a set of exhaustive conditions under<br>
>> which obligational abstentions can arise, two examples are<br>
>> provided by way of illustration:<br>
> <br>
>> _Case 1_: a Councilor (attorney by profession) is representing a<br>
>> client in legal actionrelating to a matter before the Council<br>
>> and, and as required by his/her professional code, must abstain<br>
>> and, furthermore, such abstention should not be counted as a<br>
>> negative vote. [Note: this type of situation requires the remedy<br>
>> specified in Paragraph 4.5.3 <br>
>>
<applewebdata://C6470B06-97BB-49EC-9D50-8234F30229D9#_4.5.3_Remedy_To_<br>
>><br>
>> <br>
1><br>
>> below].<br>
> <br>
>> _Case 2_: a Councilor is a paid consultant for a national<br>
>> political body that has a vested interest in a particular motion<br>
>> before the Council. The Councilor is concerned that his/her<br>
>> future income potential and ability to retain a consulting<br>
>> engagement with the national body may be affected if he/she votes<br>
>> on the measure. In such a case, the Councilor believes that the<br>
>> ethical course of action is to abstain.<br>
> <br>
>> In the two examples above, personal or professional obligations <br>
>> interfere with the Council member's ability to participate<br>
>> ethically; thus, requiring recusal from deliberations on the<br>
>> matter and abstention from voting.<br>
> <br>
> <br>
> <br>
>> From: "<a
href="mailto:john@xxxxxxxxxxxxxxxxxxx";>john@xxxxxxxxxxxxxxxxxxx</a><br>
>> <<a
href="mailto:john@xxxxxxxxxxxxxxxxxxx";>mailto:john@xxxxxxxxxxxxxxxxxxx</a>>"
<<a href="mailto:john@xxxxxxxxxxxxxxxxxxx";>john@xxxxxxxxxxxxxxxxxxx</a><br>
>> <<a
href="mailto:john@xxxxxxxxxxxxxxxxxxx";>mailto:john@xxxxxxxxxxxxxxxxxxx</a>>>
Date: Monday, December 17,<br>
>> 2012 12:00 PM To: Mason Cole <<a
href="mailto:mcole@xxxxxxxxxx";>mcole@xxxxxxxxxx</a> <br>
>> <<a
href="mailto:mcole@xxxxxxxxxx";>mailto:mcole@xxxxxxxxxx</a>>>, "<a
href="mailto:council@xxxxxxxxxxxxxx";>council@xxxxxxxxxxxxxx</a> <br>
>> <<a
href="mailto:council@xxxxxxxxxxxxxx";>mailto:council@xxxxxxxxxxxxxx</a>>
List" <<a href="mailto:council@xxxxxxxxxxxxxx";>council@xxxxxxxxxxxxxx</a>
<br>
>> <<a
href="mailto:council@xxxxxxxxxxxxxx";>mailto:council@xxxxxxxxxxxxxx</a>>>
Subject: [council] Conflicts and<br>
>> the Draft reply to Fadi<br>
> <br>
>> Jonathan, et. al.,<br>
> <br>
>> Before I offer comment on Mason's draft and before we convene on<br>
>> Thursday can I get some guidance on how those of us who have a <br>
>> conflict on the matter of new gTLDs should conduct ourselves or<br>
>> offer input?<br>
> <br>
>> Cheers,<br>
> <br>
>> John Berard Founder Credible Context 58 West Portal Avenue, #291<br>
>> San Francisco, CA 94127 m: 415.845.4388<br>
> <br>
> <br>
>> -------- Original Message -------- Subject: [council] Draft reply<br>
>> to Fadi From: Mason Cole <<a
href="mailto:mcole@xxxxxxxxxx";>mcole@xxxxxxxxxx</a><br>
>> <<a
href="mailto:mcole@xxxxxxxxxx";>mailto:mcole@xxxxxxxxxx</a>>> Date: Fri,
December 14, 2012 11:11 am <br>
>> To: "<a
href="mailto:council@xxxxxxxxxxxxxx";>council@xxxxxxxxxxxxxx</a> <<a
href="mailto:council@xxxxxxxxxxxxxx";>mailto:council@xxxxxxxxxxxxxx</a>>
List"<br>
>> <<a
href="mailto:council@xxxxxxxxxxxxxx";>council@xxxxxxxxxxxxxx</a> ><<a
href="mailto:council@xxxxxxxxxxxxxx";>mailto:council@xxxxxxxxxxxxxx</a>>><br>
> <br>
>> Council colleagues --<br>
> <br>
>> I have taken the liberty of drafting a reply to Fadi's request<br>
>> for Council advice on the BC/IPC request for more RPMs. Jonathan<br>
>> and I have spoken about a process from here and I am happy to<br>
>> keep the pen for possible suggestions and edits. Speaking for<br>
>> myself, though I realize the holidays are fast approaching I<br>
>> would hope we can get a communication to Fadi expeditiously.<br>
> <br>
>> Many thanks --<br>
> <br>
>> Mason<br>
> <br>
> <br>
> <br>
> <br>
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