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