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

[joy <joy@xxxxxxx>]

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Thanks John, glad you're clear about it, three-dimensional ways to
assess commentary: indeed!
I would only add that, imho, while the operating procedures provide
that a conflict of interest, made public, does not preclude
participation, nor does it automatically permit such participation.

Best
Joy

On 20/12/2012 4:35 a.m., john@xxxxxxxxxxxxxxxxxxx wrote:
> Joy,
> 
> 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.
> 
> As for Mason's draft, I have consulted with the BC and we are 
> thinking through a set of suggestions.
> 
> Watch this space!
> 
> Cheers,
> 
> John Berard Founder Credible Context 58 West Portal Avenue, #291 
> San Francisco, CA 94127 m: 415.845.4388
> 
> 
> -------- Original Message -------- Subject: Re: [council]
> Conflicts and the Draft reply to Fadi From: joy <joy@xxxxxxx 
> <mailto:joy@xxxxxxx>> Date: Tue, December 18, 2012 6:06 pm To: 
> Jonathan Robinson <jonathan.robinson@xxxxxxxxxxx 
> <mailto:jonathan.robinson@xxxxxxxxxxx>> Cc: "'Julie Hedlund'" 
> <julie.hedlund@xxxxxxxxx <mailto:julie.hedlund@xxxxxxxxx>>, 
> john@xxxxxxxxxxxxxxxxxxx <mailto:john@xxxxxxxxxxxxxxxxxxx>, 
> council@xxxxxxxxxxxxxx <mailto:council@xxxxxxxxxxxxxx>, "'Mason 
> Cole'" <mcole@xxxxxxxxxx <mailto:mcole@xxxxxxxxxx>>
> 
> 
> 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> 
>> [mailto:owner-council@xxxxxxxxxxxxxx] On Behalf Of joy Sent: 18 
>> December 2012 22:05 To: Julie Hedlund Cc: 
>> john@xxxxxxxxxxxxxxxxxxx <mailto:john@xxxxxxxxxxxxxxxxxxx>; 
>> council@xxxxxxxxxxxxxx <mailto: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> 
>>> <mailto:john@xxxxxxxxxxxxxxxxxxx>" <john@xxxxxxxxxxxxxxxxxxx
> <mailto:john@xxxxxxxxxxxxxxxxxxx>
>>> <mailto:john@xxxxxxxxxxxxxxxxxxx>> Date: Monday, December 17, 
>>> 2012 12:00 PM To: Mason Cole <mcole@xxxxxxxxxx 
>>> <mailto:mcole@xxxxxxxxxx> <mailto:mcole@xxxxxxxxxx>>, 
>>> "council@xxxxxxxxxxxxxx
> <mailto:council@xxxxxxxxxxxxxx>
>>> <mailto:council@xxxxxxxxxxxxxx> List" <council@xxxxxxxxxxxxxx
> <mailto: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> <mailto:mcole@xxxxxxxxxx>> Date:
>>> Fri, December 14, 2012 11:11 am To: "council@xxxxxxxxxxxxxx 
>>> <mailto:council@xxxxxxxxxxxxxx>
> <mailto:council@xxxxxxxxxxxxxx> List"
>>> <council@xxxxxxxxxxxxxx <mailto: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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