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

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

I appreciate the point that the substance of the topic is about the reply to
Fadi.

However, if the other issue ensures councillors are a little better informed
on the operating procedures, it's probably a welcome benefit.

Accordingly, please note the following (explanatory text immediately
following section 4.5.2 b on Obligational Abstentions):

 

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) 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.

GNSO Operating Procedures, Version 2.5 Page 15

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.

 

From: owner-council@xxxxxxxxxxxxxx [mailto:owner-council@xxxxxxxxxxxxxx] On
Behalf Of Julie Hedlund
Sent: 17 December 2012 23:25
To: john@xxxxxxxxxxxxxxxxxxx
Cc: council@xxxxxxxxxxxxxx List; Mason Cole
Subject: Re: [council] Conflicts and the Draft reply to Fadi

 

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:_Statement
s_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" <john@xxxxxxxxxxxxxxxxxxx>
Date: Monday, December 17, 2012 12:00 PM
To: Mason Cole <mcole@xxxxxxxxxx>, "council@xxxxxxxxxxxxxx List"
<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>
Date: Fri, December 14, 2012 11:11 am
To: "council@xxxxxxxxxxxxxx List" <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