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

[joy <joy@xxxxxxx>]

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Jeff: with all due respect, there is no need to get antsy: those who
want to discuss these issues should be free to do so.
thanks John, for your good natured reply and patience. looking forward
to BC input on the letter
best

Joy


On 20/12/2012 10:49 a.m., Neuman, Jeff wrote:
> I have to say that I find this conversation of "conflicts" quite 
> distracting to replying to Fadi.
> 
> Our job as councilors is to represent our communities not our own 
> individual statements or thoughts.  If our respective communities
> are supportive of our actions, then by definition, there should be
> no individual conflicts.  I know as a Registry Councilor, I am
> required to seek registry input on substantive responses and convey
> those views.  Therefore, even if I were personally conflicted for
> some reason, I could still do my job as a representative of those
> I represent. If I represent them otherwise, I am subject to being 
> removed by my SG.
> 
> That aside, the implication from the question that anyone impacted
> by a decision of the GNSO Council is considered as "conflicted" is
> not appropriate.  Impact does NOT equal Conflict.  If it did,
> everyone would be impacted.  The registries and registrars that
> have to implement the changes are impacted. The trademark owners,
> business, non-profits, non-commercial entities and individual
> registrants that will be financially impacted by including these
> changes (or not including them), etc.  The attorneys on the Council
> that represent those entities are also impacted, etc.  In short,
> everyone is impacted in one way or another.
> 
> Can we please drop this conversation and move on to the discussion
> of the substance of a response.
> 
> Thanks.
> 
> Jeffrey J. Neuman Neustar, Inc. / Vice President, Business Affairs
> 
> 
> 
> -----Original Message----- From: owner-council@xxxxxxxxxxxxxx 
> [mailto:owner-council@xxxxxxxxxxxxxx] On Behalf Of John Berard
> Sent: Wednesday, December 19, 2012 3:15 PM To: joy@xxxxxxx Cc:
> Jonathan Robinson; Julie Hedlund; council@xxxxxxxxxxxxxx; Mason
> Cole Subject: Re: [council] Conflicts and the Draft reply to Fadi
> 
> 
> 
> 
> Sent from my iPhone
> 
> On Dec 19, 2012, at 11:29 AM, joy <joy@xxxxxxx> wrote:
> 
> 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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