I am afraid we are trying to square the circle on this
abstention issue.
Abstentions may occur for a lot of reasons. But if
one occurs in order to avoid a conflict of interest problem, then we cannot
treat it as a functional "no" vote -- which we do if we insist that the
denominator in calculating a voting threshold must always be the total number
of people seated in the House or council.
Let's assume that on
a motion before the council, a councillor's financial interests will
be directly benefited by defeat of the motion. The councillor
should refrain from voting on (or even from participating in the discussion
of) the motion. Let's
assume the council consists of 10 people and that a majority vote is needed
for the motion.
However, if the councillor abstains for this reason, then
if 5 vote for and 4 against, the motion fails. Abstention will have
achieved exactly the result that a conflict of interest policy should
avoid at all costs -- the action of the councillor has directly benefitted his
financial interest.
[Gomes,
Chuck] I think there is an added complication here. Just
because an individual Councilor has a conflict of interest, it
doesn't necessarily mean that the SG should lose its vote. In my opinion,
in such a case, the Councilor should communicate the personal conflict of
interest and then: 1) if the SG has provided voting direction, be allowed
to vote as directed by the SG; 2) if the SG has not provided direction, then
the Councilor should vote according to the provisions of the applicable
charter. Each SG then has the opportunity to deal with this issue as
they see best.
If
the councillor is able to truly abstain, so that his presence is not counted
for purposes of achieving the voting threshold, then the vote (5-4) reflects
the views of the majority of council members who were allowed (in accordance
with conflict of interest policy) to vote, and should be enough to carry the
motion.
[Gomes, Chuck] I think
your approach works if Councilors were truly representing themselves but they
should really be representing their
SGs.
The same scenario could play out almost no matter what is
the voting threshold required or the number of eligible
voters.
I emphasize that many abstentions will not be for
conflict reasons -- quite commonly, it will be because the
constituency/stakeholder group could not reach a position on the issue, or an
issue arises suddenly and the councillor has decided that she will not vote
absent instructions from her constituency/SG.
[Gomes, Chuck] This is why I opposed treating
abstentions as "no votes" and not factoring them into the %
calculation.
There is less of a
problem counting the abstention for purposes of a voting threshold in this
case -- though it still may not be a good idea. But there would need to
be an exception to this general rule for situations in which an abstention is
dictated by conflict of interest rules.
[Gomes, Chuck] You could be right that an
exception might be needed but I think it will take more time to work out
the details of that. Maybe some exception language could be
proposed in the public comment period. If not, maybe the GCOT could take
this up in their ongoing work. Please let me know what you
think.
Steve
Here's the latest suggestion language for part of
section 5.4.
Chuck
Chuck:
We agree that
there is no reason to give abstentions another label. Would this
language be acceptable at the end of 4.2?
Old
language: Abstentions shall be recorded as non-votes and shall
include a reason.
New
language: ?Council members are permitted to abstain in any vote,
but must provide a reason which shall be recorded in the minutes along with
the abstention.?
Ken
From: Gomes, Chuck
[mailto:cgomes@xxxxxxxxxxxx]
Sent: Wednesday, September 23, 2009
2:54 PM
To: Robert Hoggarth; Avri Doria
Cc: Glen de Saint
Géry; Ray Fassett; Liz Gasster; Denise Michel; Julie Hedlund; Margie Milam;
Ken Bour
Subject: RE: Further Council Ops Procedures
Thoughts
Importance: High
Rob,
(Note
I added Ken as a cc.)
After
exchaning email messages with Ray, the more I think about it the less I like
the following in the amended language for 5.4: "Abstentions shall
be recorded as non-votes."
The term "non-vote" implies that someone didn't participate in the vote, which
is not the case for an abstention. A 'non-vote' applies when someone
refuses to vote or is absent. An abstention can happen because there is
not consensus on approval or disapproval; it that case, it is a vote in my
opinion.
Why
should abstentions be counted as anything other than abstentions? I
suggest changing that sentence to simply this: "A reason shall be provided for
an abstention."
Chuck
From: Robert Hoggarth
[mailto:robert.hoggarth@xxxxxxxxx]
Sent: Tuesday, September 22,
2009 6:40 PM
To: Gomes, Chuck; Avri Doria
Cc: Glen de
Saint Géry; Ray Fassett; Liz Gasster; Denise Michel; Julie Hedlund; Margie
Milam
Subject: Further Council Ops Procedures
Thoughts
Dear Avri and Chuck;
Ken Bour
and I spent a couple of hours today going over the new Bylaws and the
recommended Council Ops Procedures in an effort to better understand the
issues behind the recent brief dialogue on abstentions with Kristina and
Phillip on the Council email list AND in an effort to test and or break the
ops processes and voting mechanisms.
As a result of our effort, we
have have come up with a number of ideas/concepts we wanted to float by you
prior to the Council meeting.
1. We?ve developed some
edits to the recommendations ? specifically Section 5.4 (# of votes cast)
and section 3.5 (Quorum) that we think address the affirmative vote/no vote
abstaining issue by providing some more clarity to the recommended voting
procedure. That potential compromise language is set forth at the end
of this message.
2. At the conclusion of the Work Team?s
deliberations, noting that the team had focused on the substance of each
specific recommendation and not on the overall format of the procedures, I
suggested to Ray Fassett (copying Ray on this message) that in preparation
for the public comment period, Staff could work on the format and
presentation of the recommendations to make them more clear and clean. We?ve
started some work in that regard ? not making any substantive
changes, but merely trying to pull different sections together and
consolidating common subjects areas (e.g., voting ) where there may be
references in more than one section of the recommendations. We should
have a suggested format finished for you all to take a look at
tomorrow.
3. We discussed the conundrum of the incoming
Council voting on the Ops Procedures (before new voting procedures exist).
We suggest that you consider creating a procedural bridge between the
two Councils in which the outgoing Council ?conditionally approves? the new
procedures as a transitional matter (perhaps this could take place at a
?special? Council meeting during the weekend in Seoul) and then have the
incoming Council ratify them as its first order of business. The new
Council could then make changes over time as it works with and develops some
experience with the new procedures. Haven?t discussed this with the GC yet ?
just brainstorming.
4. We have also started to develop a
a matrix/voting record spreadsheet as an unofficial tool for the new Chair
and Glen to use for recording votes. The idea is to have a clear and
understandable score sheet that can be used during votes to easily show when
voting thresholds have been met (or not). We?ll get Glen?s feedback on the
concept and share that with you when she is comfortable with a draft
document.
We are hopeful that the language suggested below is useful.
Your comments are most welcomed.
Cheers,
RobH
SUGGESTED REVISED LANGUAGE FOLLOWS.
SUGGESTED CHANGES IN BOLD RED UNDERLINED
TEXT.
In the recommended Council Operating
Procedures, we suggest some new language to modify Section 5.4 and 3.5 as
follows:
5.4
The Number of Votes Cast
OLD: To pass, a motion
must attain a majority of the votes cast in each house unless otherwise
specified in these procedures or in the ICANN Bylaws. Abstentions count as
votes cast and shall include a reason for the abstention. This has the
effect of making an abstention count the same
as a vote against except as described in ICANN Bylaws, ANNEX A, GNSO
Policy-Development Process, Section 3, Initiation of PDP. [INSERT LIVE
LINK TO THE BYLAWS.]
NEW: Unless
otherwise specified in these procedures or in the ICANN Bylaws, to pass a
motion or other action, greater than 50% of
the eligible voters in each House must cast affirmative
votes. For all votes
taken, the number of eligible voters in each House shall be fixed to the
number of seats allocated in the Bylaws (a.k.a. the denominator) and is not
affected by the number of members present or absent at the meeting in which
the motion or other action is initiated. Abstentions
shall be recorded as non-votes
and shall include a reason.
3.5.
Quorum
OLD: In order for the GNSO Council to initiate a meeting
a quorum must be present. A quorum is a majority of voting members,
which includes at least one member of each Stakeholder Group. [INSERT LIVE
LINK TO BYLAWS.] Whenever a vote is taken there must be a quorum.
NEW: In order for the
GNSO Council to initiate a vote, a quorum must be present. A
quorum is a majority of voting members in
each House, which includes at least one member of each
Stakeholder Group.
***END SUGGESTED
LANGUAGE ***