At 12:10 PM 3/19/2014, Pete Resnick wrote:
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.
Strict - this ombudsman can impose the highest penalty available - expulsion,
and in fact that may be the only penalty it can impose.
Arbitrary - e.g. not predictable. Not based in an established procedure and
due process. The ombudsman creates their own process and maintains it rather
than running a process defined for them. That process - obviously - can change
with the whims of the ombudsman. (section 3 first paragraph)
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.
You mean after we damage someone's business reputation unjustly? You keep
missing the point that there needs to be protections not only for the
subject/reporter, but for the respondent.
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.
See above.
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?
Going back to your example of having someone harassed in the hall, you expect
to make an immediate decision (based only on the report?) and pull an AD or
working group chair? What happens when - as I expect - you are ignored? And
why wouldn't the investigation take time past the end of the current meeting to
resolve itself? (More argument for the word "arbitrary").
The term used in the document is exclude - I would expect that to mean that
co-incident with removal from the meeting, the person would lose their position
within the IETF - including the IETF trust. I would wonder if such removal
would conflict with the provisions of the trust.
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.
Person A and Person B dated. It ended badly. It ended a while ago. It had
nothing to do with the IETF. Person B claims that the mere presence of Person A
at the IETF constitutes harassment because it cause them distress and they
can't participate in the same working groups.
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.
Goes back to "arbitrary" - if there is no evidence or witnesses, this is a they
said/they said argument, and this document seems to imply that all ties go to
the subject.
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.
Mediation is a lot different from a process where there is the possibility of
penalties being applied.
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.
Ok - now we get further to the problem. You're going to ask someone to leave
based on an accusation? Not even going to investigate?
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.
Not for business interference.
In any event, AFAIK our insurance covers us as long as we make a good faith
effort to follow our own procedures, and as long as those procedures are not
arbitrary and do not lead to capricious results. Part of the issue with
asking questions of lawyers, is making sure you give them all the data.
Provide this document to the lawyers, to the ISOC HR department and to the
underwriters and have them get together and say they're fine with this specific
piece of prose if you really want to ensure protection.
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.
What I'm pointing to is exactly what you said above - "left to the discretion
of the ombudsman". There is no bright line (or even fuzzy line) to guide the
ombudsman as to what constitutes actionable harassment. There is no due
process where the Respondent is guaranteed an opportunity to speak and, if they
choose not to speak its held against them.
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.
So what exactly is the downside for making a bad faith report? Especially one
that results in the expulsion of the respondent?
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.
The Ombusman should determine if there is actually an issue to be remedied and
the specific actor(s) responsible for the issue (e.g. culpability) before ever
determining that there needs to be a remedy.
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.
If the OB is not making a determination that Party B has harassed party A, how
would they get to the point of crafting a remedy for a non-issue?
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.
Pete -
I'm not saying there isn't a problem. I'm saying that giving a random person
the ability to exclude someone from the IETF without strong guidelines on
getting to the exclusion decision, and without strong protections for the
person subject to exclusion is JUST PLAIN WRONG and unfair in the extreme.
Set up the ombusman as a resource for the IETF leadership and participants.
Make it a counseling and mediation stop. Make it confidential and covered by
the legal "counselor" privilege and make the participants sign a
confidentiality agreement. Do this with professionals (work through ISOC to
set up something like an employee assistance program for this specific issue).
Don't give it the ability to exclude someone from the IETF or craft "remedies"
- make it about resolving the base problem.
If the mediation fails, then resolve the issue in the public channels, with a
defined and well known due process, protection for the accused, compassion for
the accuser and a goal that's in keeping with first protecting the standards
process.
Mike
pr
--
Pete Resnick<http://www.qualcomm.com/~presnick/>
Qualcomm Technologies, Inc. - +1 (858)651-4478