[snup] > >>The above pretty well meets the definition of "Star Chamber". Strict, arbitrary > >> and secretive. Part of the reason I am co-authoring this work with Pete is that when the IESG was making its original statement on harassment I went off the deep end about a number of pieces of the process some of which coincide with the concerns Mike is expressing, but I find the reference to Star Chambers is melodramatic and implies that the ombudsperson has something to gain from producing a specific result. > >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 "highest penalty available" certainly does conjure up heads on gateposts, but I think it is also seeing "remedy" as punishment (or, at least, so the word "punishment" implies to me). Perhaps we can work on the text for this because it is not my intent that the system invoke punishment. In the same way that a PR Action is not used as a punishment (it is used to enable the list to continue to function), I see the remedies applied by an Ombudsperson as necessary to insure the harassment-free environment for other IETF participants and no more than that. ...but I have now read your closing paragraphs and I see the distinction. I think a remedy arising from mediation might not need to be "imposed" but would still be a penalty of sorts. I need to think about this point further. I also don't quite get why you say this is the only penalty that can be imposed. Are you saying this because other "penalties" can be refused by the respondent? I guess that refusing a remedy does escalate things, but there is an implication that the remedy is handed down without discussion. i don't think this is how Ombudspersons work. > 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) OK, there is text missing on the process that the Ombudsperson should use. We got some professional advice that the current text does not capture well, and we also decided that having the IETF (probably non-expert in this realm) develop the processes would be an unprofitable use of time. So: - Ombudsperson should develop general processes - Ombudsperson should discuss those processes with IESG - Ombudsperson should publish those processes - Discussion is welcome from the IETF community, but these are processes that do not need IETF consensus - Significant objection to the processes that are not addressed should result in an RFC 2026 Section 6.5.3 appeal and/or a recall petition against the IETF chair (and the rest of the IESG if you like) assuming it is the IETF chair who is the hire/fire of the Ombudsperson. - Repeat with changes to Ombudsperson. > >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. I don't miss this at all. I think it is critical. There are four elements of protection... He-said/she-said cases are notoriously hard to handle and form a key part of Ombudsperson training. I think it highly unlikely that an Ombudsperson imposes drastic remedies without more than substance. Not all remedies are of the sort that would damage someone's reputation, and how they handle the remedy can make all the difference. The secrecy that you objected to earlier actually serves to protect the respondent. They are able to discuss with the Ombudsperson an appropriate response/remedy without their case or the accusations (true or false) being put into the public domain. We have retained text about very rapid appeal handling in cases that arise during IETF meetings. There was opposition to this speed, but I think it important that someone who is asked to leave a meeting should be able to have their appeal looked at while the meeting is still going on. I would go on to say that a false accusation is itself harassment. > >>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. I sincerely hope that the procedures apply equally to ADs. Without wanting to appear to be making light of this, the next time I sexually harass someone in an IETF meeting, I hope that the Ombudsperson deals with me as they would deal with any other person. You say that we have defined ways to remove people: we don't. We have ways to recall ADs, that does not stop them from being in a position to harass someone. "Remove" would appear to be the problematic word. But, I don't want someone I have sexually harassed to have to explain to a wide community what I did and how in order to recall me, I want to be treated like any other IETF participant and held to the same standards. > Going back to your example of having someone harassed in the hall, you expects must > 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"). Maybe it will take longer to resolve. So? does the text imply that all event be resolved within a 30 minute episode? If so, we should fix the text. I do, however, expect that all members of this community would take very seriously any accusations made against them and would want to talk to the Ombudsperson as soon as convenient to clarify what happened. False accusation. Immediate response "He said what? When can I come and talk to you about this?" > 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. That is an interesting question. We have not considered removal from IETF positions. I don't think the Ombudsperson has that power even under this document. You might argue that an AD will find it hard to continue as AD if they are excluded from IETF meetings. I might agree, but that is not the same as removing them from post. > >> 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. If someone believes they are being harassed they go to the Ombudsperson. If the Ombudsperson believes harassment took place within the context of the IETF they act. If you were the (untrained) Ombudsperson, how would you react to this situation? What makes you think that a trained Ombudsperson would react differently? > >>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. No it doesn't. If you want to make that assertion stick you are going to have to supply quotes that we can then fix. And I think your interpretation of process may be inhibiting your view here. This is closer to an arbitration process than a court of law. Sit down with Ombudsperson, talk through what happened, listen to what the Ombudsperson has to say about what they have heard, say your piece, ask to go away and think about it, come back discuss some more, etc. > >>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. We're back to the word penalty, but that aside, I think the possibility of the respondent refusing to participate is very real. I think there are three categories (or more): - Frightened (with or without reason) of the process and outcomes - Rejecting the authority of the Ombudsperson - Not wishing to face what happened We did write... The Respondent is not obliged to cooperate, but the Ombudsperson may consider failure to cooperate when determining a remedy (Section 5). > >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 really I don't think Pete said that. Pete said that the issue can be resolved without going public. They can leave the meeting without a public statement "Adrian is being asked to leave the meeting because he did such and such." If the whole thing is public then it is harder for me to keep my reputation. But sure, nothing can stop me from writing a blog, Tweeting, or taking out full page adverts in the New York Times. Presumably, if I thought I had been unfairly sanctioned (and my protestations of this to the Ombudsperson had failed to have an effect), and I didn't fancy appealing or my appeal failed, I could go public and make sure everyone knew about it. > >>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. I can see loss of business. But not loss of reputation. I sincerely hope that people who believe they have been unfairly treated will sue. I hate courts and lawyers and people who have friends who play lawyers on TV, but the court system exists to rectify things that have gone wrong in society. So, from that perspective, suing is good. It will significantly stress the confidentiality side of it, but I also believe enough in the Ombudsperson training and processes that I doubt that any Ombudsperson will find themselves in court for this. And note that the text does say In determining the appropriate remedy, the Ombudsperson may communicate with the Reporter, Subject, and Respondent in order to assess the impact that the imposition of a remedy might have on any of those parties. However, the Ombudsperson has ultimate responsibility for the choice of remedy. So it is unlikely that the additional "cost" to the Respondent has not already been aired and considered. > 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. Agree with you there. But maybe it is better to stabilise the text before spending lawyer dollars. > >>What's the decision threshold? [snip] > 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. I think that the text does not seek to exclude any of this, and I hope that the establishment of a documented process by the Ombudspersons will resolve these issues. But I continue to believe that the IETF lacks the expertise to write such a process itself. > >>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? Well, it would be harassment, wouldn't it? > >>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. The distinction is that failure to cooperate may influence the remedy not the assessment of 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? Cuts both ways. Failure to participate in early remedy process can go against you in court. If you are doing things in the IETF that might be subject to legal action, then the right resolution might be for legal action to be taken against you. So resolving it through the Ombudsperson might be a good idea. [snip] > 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. Thanks for the time and effort you've put into this. Adrian