Re: Comments on draft-farrresnickel-harassment-01 - A mostly 'NO' view

On 3/18/14 10:06 PM, Michael StJohns wrote:
> At 07:00 PM 3/18/2014, Pete Resnick wrote:
>    
> > So I think the ability to have an (exceptional) process for dealing with 
> > incidents privately is necessary. I hope that we can come to consensus that 
> > having some set of folks in place for these (hopefully exceedingly exceptional) 
> > circumstances, who (in the most exceptional of these circumstances) have the 
> > power to quietly tell someone that they can't even stay at the meeting, is an 
> > exception to our openness that we can live with.
> >      
> The above pretty well meets the definition of "Star Chamber".  Strict, 
> arbitrary and secretive.
>    
Generally speaking, there's no appeal chain with a Star Chamber. There's 
no possibility for the firing of its members. And I'm not at all sure 
where you're getting "strict" or "arbitrary" from.
Any process we create where we give people authority and allow (or 
require) them to their keep discussions confidential, whether it's the 
IAB, the IESG, design teams, NomComs, etc., there exists the potential 
for abuse. We set up some guidelines for how the bodies are to behave, 
try to appoint reasonable people, put in what reasonable checks and 
balances we can, and hope for the best. If things go off the rails, we 
go back and rethink.
Labeling these sorts of entities as "Star Chambers", or "strict, 
arbitrary, and secretive" strikes me as FUD; these are impressively 
scary sounding words, but not backed up by real analysis.
> Other issues:
>
> Can the ombudsman remove anyone without restriction?  E.g. IAB, IESG, IETF 
> chair, IAOC and IETF Trust?   Or does this only apply at the WG chair level on 
> down?  Or only for non-wg chair participants?  I ask this because in every case 
> except the general participant, we have defined ways to remove someone and it 
> seems problematic to allow a single individual to remove an AD for example.  
> There are also legal issues with removing a trust member I would expect.
>    
The term "remove" is ambiguous . We have defined ways to "fire someone 
from their appointed position", but we don't have any current procedure 
to "tell someone to leave a meeting". The document mentions the latter, 
and yes, currently the document makes no distinction as to who can be 
told to leave a meeting, including leadership.
I am not aware of any legal issues regarding whether a trust member can 
be told to leave a meeting. What did you have in mind?
> Can the ombudsman get involved with issues of harassment that do not implicate 
> participation in the IETF?  What's the threshold?
>    
I don't understand the question.

> Will the evidence and the witnesses be made available to the Respondent?
>    
The document makes no mention of "evidence" or "witnesses". In the 
"detailed investigation" section of the document, the Ombudsperson is 
expected to discuss the circumstances of the situation with all parties. 
You seem to presume a formal proceeding that does not exist in this 
document.
> Will there be an advocate assigned to represent the interests of the Respondent?
>    
Again, this seems to presume a formal proceeding that does not exist in 
the document.
> What happens if/when the Respondent declines to participate and instead brings 
> the issue into the public stream?
If/when this happens, it will be unpleasant. However, it has yet to 
happen in the current state of affairs, where ADs have been asked to 
mediate these things. I don't see why the existence of an ombudsperson 
changes the possibility that someone might make bring such things to the 
public. Unless what you're saying is that once a remedy is imposed that 
is not to the Respondent's liking, the Respondent might go public. I 
suppose that's possible. And it will be unpleasant. But I don't see the 
Respondent having any particular interest in doing this: If someone is 
asked to leave a meeting, with the confidentiality maintained, they can 
simply say that they are leaving due to a personal situation. Going 
public means that they reveal that they have been asked to leave due to 
an accusation of harassment. That seems far less pleasant.
> Or alternately, sues the ombudsman, personally, for defamation and business 
> interference?
>    
As I said earlier, my understanding is that the Ombudsperson will be 
covered by our insurance. And again, this assumes that the information 
about why the person is leaving is public, which the Respondent would 
have to do themself.
> What's the decision threshold?
>    
There is no formal proceeding where a "decision" is reached. There is an 
investigation and some "remedy" is applied. Sometimes that remedy is 
simply a mediation between the parties. There is no finding of "guilt" 
or "innocence", which is what your question seems to imply. What remedy 
is imposed is left to the discretion of the Ombudsperson. If the 
Ombudsperson did not exercise due diligence in making their decision, 
that is appealable in the current document.
My sense is that you are envisioning a formal procedure which does not 
exist in the current text. If there is something in the current text 
that implies that, please do point it out and we can attempt to fix it.
> You mentioned good faith complaints.  What about bad faith?  Are the expulsion 
> penalties applicable to a bad faith reporter?
>    
I'm not sure what you're asking: Are you asking whether, if the 
Ombudsperson determines that a report was made in bad faith, can they 
impose a remedy on the Reporter for having done so? I don't see how 
given the description in section 4.
> You mention that the Ombsudman can consider failure to cooperate on the part of 
> the Respondent in determining remedy (shouldn't that be culpability?)
Shouldn't *what* be culpability? The Ombudsperson determines a remedy, 
*not* culpability.
> but from a legal standpoint it could be stupid for a Respondent to cooperate as 
> any discussions in this context could provide fodder for a real world legal 
> suit regardless of the facts of the matter.  Is there a fairer way of stating 
> this?
>    
Since the Ombudsperson is not making a determination of culpability, I 
don't see what you're getting at here.
> These are hard issues for companies and organizations with full time legal and 
> HR staffs.  We have neither and you're proposing to place this in the hands of 
> amateurs.  I shudder at the thought of how badly the IETF could screw this up - 
> in a very well-meaning way.
>    
First, there is nothing in the document currently that requires that the 
Ombudsperson be a set of amateurs. There have been suggestions on the 
list to do so, but the document does not currently say that. But leave 
that aside for the moment:
I currently shudder at the thought of what is going on today without any 
procedure for how to deal with these situations. It is driving away 
participants, it is putting current leadership in the position of 
handling issues for which many of us are flying by the seat of our 
pants, and it's unsustainable. Thankfully, there aren't too many 
instances of situations, let alone those that would require the most 
extreme remedy of having someone leave a meeting, so the odds of this 
going completely pear-shaped are low. The odds of the current state of 
affairs going bad are, in my view, much higher.
Of course there's risk here. And there's risk of leaving things as they 
are. I know which side of this particular risk equation I come down on.
pr

--
Pete Resnick<http://www.qualcomm.com/~presnick/>
Qualcomm Technologies, Inc. - +1 (858)651-4478