Re: [802SEC] RE: [802SEC] EC meeting via teleconference--tentatively Friday 2-4pm et 20 Oct 2006
Paul,
I am less worried about the lack of an appeal process on the
designation of someone as conflicted. Presumably the SASB and its
lawyers have taken an approach that they feel is warranted given
the situation and likely to stand up should lawsuits follow. Clearly
it is safer to designate someone as potentially conflicted or even
conflicted
then it is not allow them to vote and have that disputed later in
appeals
and in court.
I've learned not to argue with Pat when it comes to rules as she is
far better at them then I. However, in my mind just because someone is
recused
doesn't mean they can't attend the meetings, just that they just can't
vote.
The recusal is effectively an abstain and our rules generally
specify that decisions are based on the ratio of those voting
approve and disapprove. In fact I'd encourage people to attend even
if they are recused. This process has to be transparent and as open
as possible barring conflicts of interest.
The only tricky part that I see in terms of doing this as
a teleconference is to get people off the line when they are
being discussed, and back on the line once a decision is done.
Instant messaging / cell phone calls should be sufficient
to get this to occur properly. Presumably, our recording secretary
has cell phone numbers for everyone.
I think it would be wise for you to contact everyone who is potentially
conflicted or conflicted today and give them the heads up.
mike
-------------------------------------------
Michael Takefman tak@cisco.com
Distinguished Engineer, Cisco Systems
Chair IEEE 802.17 Stds WG
3000 Innovation Dr, Ottawa, Canada, K2K 3E8
voice: 613-254-3399 cell:613-220-6991
> -----Original Message-----
> From: ***** IEEE 802 Executive Committee List *****
> [mailto:STDS-802-SEC@ieee.org] On Behalf Of Carl R. Stevenson
> Sent: Monday, October 16, 2006 3:13 PM
> To: STDS-802-SEC@listserv.ieee.org
> Subject: Re: [802SEC] RE: [802SEC] EC meeting via
> teleconference--tentatively Friday 2-4pm et 20 Oct 2006
>
> Paul, et al,
>
> I share Pat's concerns.
>
> Carl
>
>
> > -----Original Message-----
> > From: owner-stds-802-sec@ieee.org
> > [mailto:owner-stds-802-sec@ieee.org] On Behalf Of Pat Thaler
> > Sent: Monday, October 16, 2006 2:39 PM
> > To: Paul Nikolich; STDS-802-SEC@listserv.ieee.org
> > Cc: Lindsay.Michael@dorsey.com
> > Subject: [802SEC] RE: [802SEC] EC meeting via
> > teleconference--tentatively Friday 2-4pm et 20 Oct 2006
> >
> > Paul,
> >
> > My initial (intuitive) interpretation on recused members and quorum
> > was the same as yours - it seemed logical. However, the
> last opinion I
> > got from an IEEE attorney was the opposite. Somewhat
> skeptical, I did
> > a little research and found, to my surprise, that the more common
> > practice was what the attorney said - recusal didn't take a
> person out
> > of the base for a quorum count.
> >
> > There is something else that I'm uncomfortable with in the process
> > outlined in the 802 EC Conflict of interest document that you
> > circulated. As I read it, on Friday you will be informing
> some of us
> > that the Chair and legal counsel consider us as having a potential
> > conflict of interest and the basis for that determination. Those so
> > informed are then expected to make a response at that meeting on
> > whether they would like to be recused (and if not
> presumably will need
> > to state why they don't think they have a conflict of interest).
> > Based on that instantaneous response, the remaining members
> will then
> > vote on each potentially conflicted member.
> >
> > I think that members are entitled to have some time (on the order of
> > days) between being told the rationale for considering them
> > potentially conflicted before they have to decide on their
> response to
> > those reasons. Given the nature of the decision, they may need some
> > time to evaluate the potential conflict or they may wish to
> seek the
> > advice of their own legal counsel.
> >
> > I'm also not very comfortable with the procedural correctness of
> > unilaterally declaring some members as having a conflict of
> interest
> > (step 1 of the process you outlined) without any appeal or
> discussion
> > with the affected member.
> >
> > Regards,
> > Pat
> >
> > -----Original Message-----
> > From: Paul Nikolich [mailto:paul.nikolich@att.net]
> > Sent: Saturday, October 14, 2006 1:12 PM
> > To: Pat Thaler; STDS-802-SEC@listserv.ieee.org
> > Cc: Lindsay.Michael@dorsey.com
> > Subject: Re: [802SEC] EC meeting via
> > teleconference--tentatively Friday 2-4pm et 20 Oct 2006
> >
> > Pat,
> >
> > I agree we need to be squeeky clean here. I think we are, but I'll
> > request the SA attorney respond to your questions.
> >
> > My interpretation is that recused members are not included in the
> > basis for establishment of quorum and that the by-law
> refered to for
> > teleconference meetings are the IEEE by-laws, not the SA or 802 P&P.
> >
> > Regards,
> >
> > --Paul
> >
> > ----- Original Message -----
> > From: "Pat Thaler" <pthaler@BROADCOM.COM>
> > To: <STDS-802-SEC@listserv.ieee.org>
> > Sent: Friday, October 13, 2006 3:25 PM
> > Subject: Re: [802SEC] EC meeting via
> > teleconference--tentatively Friday 2-4pm et 20 Oct 2006
> >
> >
> > > Paul,
> > >
> > > I have availability for that time slot, but I believe that
> > I need to
> > > consult with my own attorney before meeting on this topic
> > and I don't
> > > know if that will be able to happen before next Friday.
> > >
> > > In addition I have concerns about the process being followed. For
> > > starters:
> > >
> > > What is the impact of the absence of recused or conflicted
> > EC members
> > > on the EC quorum requirement? It seems entirely possible
> > that half of
> > > us could be judged to be conflicted. I discussed this
> issue with an
> > > IEEE lawyer on a previous occasion but I don't think we reached a
> > > clear conclusion. There appear to be differing practices though
> > > counting the recused members as still being part of the basis for
> > > quorum seemed to be more common than basing it on only the
> > non-recused
> >
> > > members. Some boards have provisions for un-recusing the least
> > > conflicted members to get to quorum. The EC rule of
> "majority of EC
> > > members with voting rights" was ambiguous as to whether
> that means
> > > with voting rights on this matter (i.e. not recused) or
> > generally with
> > voting rights.
> > >
> > > Validity of a teleconference meeting: I understand that a
> > > teleconference meeting is legitimately a meeting but it
> > isn't clear to
> >
> > > me that this meeting is within the LMSC P&P. Note that
> the NY city
> > > statute quoted below begins: "When authorized by the
> certificate of
> > > incorporation or the by-laws" and we do not have anything in our
> > > by-laws that authorizes any EC meeting other than the Opening and
> > > Closing EC meetings. We have no provisions on who may call such a
> > > meeting and no provisions on notice requirements (which we
> > do have for
> >
> > > WG meetings). We had discussions within the last year on
> whether to
> > > add provision for teleconference meetings to the rules and
> > decided not
> >
> > > to do it for now so it is clear that we didn't think our
> > current rules
> > authorized such meetings.
> > > Concerns included openness and access for a body with members
> > > distributed across time zones.
> > >
> > > I think we need to be squeaky clean here.
> > >
> > > Regards,
> > > Pat
> > >
> > > -----Original Message-----
> > > From: ***** IEEE 802 Executive Committee List *****
> > > [mailto:STDS-802-SEC@ieee.org] On Behalf Of Paul Nikolich
> > > Sent: Friday, October 13, 2006 10:38 AM
> > > To: STDS-802-SEC@listserv.ieee.org
> > > Subject: [802SEC] EC meeting via
> teleconference--tentatively Friday
> > > 2-4pm et 20 Oct 2006
> > >
> > > Dear EC members,
> > >
> > > I will be convenening a teleconference meeting of the EC
> as soon as
> > > possible (hopefully 2-4pm ET Friday 20OCT2006). Please let
> > me know if
> >
> > > you can make the teleconference meeting next Friday immediately.
> > >
> > > The objective of the meeting will be to identify those
> > members of the
> > > EC that are non-conflicted with respect to any decisions
> > regarding the
> >
> > > 802.20 Working Group. The process by which the
> > non-conflicted members
> >
> > > will be identified is attached and closely matches the
> > process used at
> >
> > > SASB. The process is 802.20 specific right now, but in the
> > long term
> > > my intention is to make it generic and place it in the
> 802 Chair's
> > > Guidelines.
> > >
> > > Once the non-conflicted EC members are identified, our
> > first order of
> > > business will be to confirm the person identified to chair
> > 802.20 as
> > > recommended by the SASB chair recommendation committee and
> > approved by
> >
> > > the SASB. I'm not sure that person will be ready for EC
> > confirmation
> > > by next Friday, but he may be, therefore in addition to
> identifying
> > > the non-conflicted EC members, I may ask for the
> non-conflicted EC
> > > members to confirm the person via the telephone meeting as well.
> > >
> > > In case you are wondering whether or not telephone meetings are
> > > acceptable, they are. I asked SA counsel to confirm this
> fact and
> > > they have found the following:
> > >
> > > Section I-300(4)(2) of the Institute's Bylaws provide
> "The Board of
> > > Directors, the Executive Committee, the Major Boards, the
> Standing
> > > Committees any other board or committee reporting directly to the
> > > Board of Directors, and any board or committee of any
> > organizational
> > > unit of the IEEE, may meet and act upon the vote of its
> > members by any
> >
> > > means of telecommunications. The normal voting
> requirements shall
> > > apply when action is taken by means of telecommunications
> equipment
> > > allowing all persons participating in the meeting to hear
> > each other
> > > at the same time"."
> > >
> > > additionally NY State non for profit statute provides:
> > > "On the issue of telephone conferences, Section 708 of the
> > NY not for
> > > profit statute provides that a committee of the Board may
> > participate
> > > in a meeting of such board or committee by means of telephone if
> > > everyone can hear and that participation by such means
> constitutes
> > > presence in person at the meeting:
> > > 708(c)
> > > c) When authorized by the certificate of incorporation or
> > the by-laws,
> >
> > > any one or more members of the board or any committee thereof may
> > > participate in a meeting of such board or committee by means of a
> > > conference telephone or similar communications equipment
> > allowing all
> > > persons participating in the meeting to hear each other
> at the same
> > > time. Participation by such means shall constitute presence
> > in person
> > > at a meeting."
> > >
> > > Regards,
> > >
> > > --Paul Nikolich
> > >
> > >
> > > ----------
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