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Friday, February 17, 2006


ICANN Counsel Nixes Proxy Voting

John Jeffrey, ICANN General Counsel and Secretary, writes:

"Thank you for your inquiry concerning the practice of "proxy" voting which occurs during the GNSO Council meetings. In follow up to your inquiry and in furtherance to our discussion earlier today here is some additional information and my office's opinion regarding the same.

We agree with you that there is no provision for proxy voting under the current ICANN Bylaws . The current Bylaws (Article X, Section 4) include the following provision concerning GNSO Council Procedures:

"The GNSO Council is responsible for managing the policy development process of the GNSO. It shall adopt such procedures as it sees fit to carry out that responsibility, provided that such procedures are approved by the Board, and further provided that, until any modifications are recommended by the GNSO Council and approved by the Board, the applicable procedures shall be as set forth in Section 6 of this Article. ..."

Bylaws Article X, Section 6, provides that "Initially, the policy-development procedures to be followed by the GNSO shall be as stated in Annex A to these Bylaws. These procedures may be supplemented or revised in the manner stated in Section 3(4) of this Article."

Since no modified procedures have been recommended by Council or approved by the Board, the only relevant procedures are those stated in Bylaws Annex A ("GNSO Policy-Development Process") .

You provided a link to the "Rules of Procedure of the DNSO Names Council, Version 7" , but that document is no longer in effect. The DNSO document indicates that it was last amended on 18 April 2002. That entire document was obsoleted and superceded by the adoption of ICANN's "New Bylaws" on 15 December 2002. The new Bylaws provisions on the GNSO (which assumed the responsibilities of the former DNSO) continued a substantial portion of the old procedures from the DNSO procedures document, but the New Bylaws also clearly did not retain other features of the old procedures (including any reference to "proxies").

The GNSO Council's practice of allowing Council members to participate in a meeting (by casting a vote) even though they are not "present" does not appear to be consistent with Bylaws Article X, Section 3(8), which provides (in part) that "... the GNSO Council shall act at meetings. Members of the GNSO Council may participate in a meeting of the GNSO Council through use of (i) conference telephone or similar communications equipment, provided that all members participating in such a meeting can speak to and hear one another ..." In other words, under the current Bylaws a Council member who is unable to speak to or hear other Councillors may not "participate" (including voting) in a Council meeting held in person or by telephone.

That same section of the Bylaws (X-3.8) provides that "Members entitled to cast a majority of the total number of votes of GNSO Council members then in office shall constitute a quorum for the transaction of business, and acts by a majority vote of the GNSO Council members present at any meeting at which there is a quorum shall be acts of the GNSO Council ..." This language concerning members "entitled to cast a majority of the total number of votes" appears to relate to the weighted voting provision and not to any otherwise unreferenced scheme for voting by proxy.

We recognize that this may be a "long standing process", but the Council should take prompt action to come into compliance with the Bylaws' requirements. The Council is free to recommend modifications to these procedures (including perhaps a modification to anticipate the participation of deaf or hard of hearing people on the Council). If you'd like Dan and I would be happy to work with you to craft whatever procedures would be inline with the Council's preferences, provided they are in accordance with ICANN's other Bylaws, mission and core values."

I guess this means that GNSO Councilors will have to start showing up to do their jobs...

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