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Re: Comments on draft-farrresnickel-harassment-01 - A mostly 'NO' view
2014-03-19 15:29:21
On 3/19/14 12:59 PM, Michael StJohns wrote:
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.
The Ombudsperson *can* (not must) impose a remedy that includes
expulsion. But they can also say that the Respondent will not directly
contact the Subject during a face-to-face meeting. They can also say
that the Respondent shall not engage in any discussion of body parts on
a mailing list, even if that seems relevant to the Respondent. Or they
may simply facilitate a discussion between the parties.
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)
I presume you are equally disturbed by the arbitrariness of the
balloting procedures for the NomCom and the IESG, or the arbitrariness
of the criteria that any given NomCom uses to select candidates, or....
That a procedure has (even a great deal of) discretion associated with
it does not make it arbitrary. Non-diligent use of that procedure might
be, but that is generally (and is in this document) an appealable point.
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.
Section 4:
In all cases the Ombudsperson will strive to maintain confidentiality
for all parties including the very fact of contact with the
Ombudsperson.
Not only am I not missing the point, it's in the document, and I've
referred to it earlier, as I did in my response to Dave: Part of the
essential reason for confidentiality is the potential damage to the
Respondent. The only way that the Respondent's business reputation is
damaged is if someone violates the confidentiality of the procedure.
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?
Neither I, nor the document, said any such thing. In fact, section 4
says something quite different. I expect the Ombudsperson to do a
diligent investigation, not based only the report, but based on
discussions with both the Subject and/or Reporter and the Respondent and
a review of other information where that is applicable. I see nowhere
that contemplates an immediate and arbitrary decision based solely on
the report. An Ombudsperson who did such a thing would be justifiably
appealed as per section 6 (and I presume removed as per 3.5).
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.
Why would you expect such a thing? What in the text implies that someone
would lose their position? Exclusion from a meeting or any given mailing
does not imply that a person would lose their appointed position in our
other procedures, and I don't see why it would here.
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.
In what you stated ("the mere presence"), I would expect the
Ombudsperson to say that there is not ongoing harassment and to offer
nothing more than mediating a discussion between the parties. The
details of the circumstance (e.g., acting otherwise unprofessionally
during meetings or on the mailing list) might require different solutions.
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.
If there is text that implies that "ties go to the subject", please
point that out. No text that we wrote is meant to imply that.
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?
Now I'm truly confused. How do you get someone being asked to leave
based on an accusation with no investigation out of what I said above?
That's simply not possible in the document, and I have never said any
such thing.
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.
Sure. But that's the same if I, as a chair, deny someone the mic during
a meeting according to 2418, or cut off their posting privileges
according to 3934 (both of which I can do immediately and without
consultation or further investigation if I consider them disruptive
enough, BTW, something that the present document does not allow). I
suppose I could be sued for business interference for doing so, but my
understanding is that I'm covered by insurance so long as I didn't do so
capriciously.
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.
We have been consulting with (and getting input from) the ISOC HR
department on this document. I am sure we will also get a legal review
as things solidify.
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.
The Ombudsperson has the definition of harassment provided in this
document. The Ombudsperson is supposed to (and we've already been asked
to strengthen the text on this point) refer things that are regular
disruptive behavior back into other IETF processes. But yes, there is a
good deal of discretion left to the Ombudsperson regarding what
constitutes harassment and what appropriate actions should be taken. I
personally don't see any way to have a useful policy without such
discretion.
So what exactly is the downside for making a bad faith report? Especially one
that results in the expulsion of the respondent?
So you're worried about the case where the Ombudsperson does the
investigation, determines that there was harassment and that the
appropriate action is expulsion from a meeting, and then later it is
discovered (how?) that the report was made in bad faith? I find the
scenario so far-fetched that I really can't offer a response.
You mention that the Ombsudman can consider failure to cooperate on the part of
the Respondent in determining remedy (shouldn't that be 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?
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.
Ah. "Culpability" has a sense of blame for intentional wrongdoing, which
is what confused me. Of course the Ombudsperson determines whether
harassment has taken place, and then determines what the appropriate
remedy is. (I just don't take that to be necessarily implying malice on
the part of the Respondent, and the Ombudsperson doesn't need to
determine that.) But in answer to the original comment, the failure to
cooperate only affects the determination of the remedy, not whether
harassment has taken place.
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.
[...]
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.
We're not talking about a random person. We're talking about people who
are given (or have) appropriate training, said training determined in
consultation with the professionals at ISOC in addition to our
leadership. So I simply reject that premise. Whether the guidelines and
protections (including the appeal) are strong enough is open for debate,
and some of the suggestions made so far on the list seem like good
things to add clarity, but overall I think the guidelines and
protections are strong enough to avoid abuses. I think the scenarios you
have identified for possible abuse of this are overblown: You're saying
that there is a significant likelihood that someone will report in bad
faith, that the Ombudsperson will fail to notice this, that the appeal
will still find that due diligence was done, and that the remedy in such
a case will be some sort of exclusion from a meeting. I simply don't buy
it. My experience (and a good deal of literature on the topic) says that
the far more likely failure scenario is that people who are getting
harassed will simply not report, especially in the face of the expressed
assumption that there are likely to be bad faith false reports and that
they will not be believed. Making the process public makes that scenario
almost guaranteed.
This is a worrisome topic. I understand nervousness about this sort of
change. But I truly think those worries are being given too much weight.
pr
--
Pete Resnick<http://www.qualcomm.com/~presnick/>
Qualcomm Technologies, Inc. - +1 (858)651-4478
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