[CCWG-ACCT] Staff accountability

Nigel Roberts nigel at channelisles.net
Mon Jul 20 06:03:33 UTC 2015


Perhaps I might offer a perspective.

First of all, I am not personally arguing for either solution, only to 
remark that a solution is gravely needed.

However, for those arguing against an independent inspector general, 
perhaps you might consider the differences in the role (and thus the 
advantage of independence) as follows :-

1.   The Ombudsman, strengthened or otherwise is not truly independent.

A truly independent review should be funded otherwise than directly by 
ICANN. This aspect has immense implication for organisational fairness 
and effectiveness in carrying out the role.

Furthermore ICANN can (and HAS) changed its bylaws to avoid scrutiny and 
review (see the changes directly made as a result of the decision in 
.XXX to make the IRP 'deferential'.)

Despite the fact the current Ombudsman is of the highest calibre in his 
field, he is paid by ICANN.

See Scotland's 'temporary sheriffs' case (Starrs -v- Ruxton) 
http://bit.ly/1Kfq4xx and the Guernsey's Bailiff -v- UK (McGonnell v- 
United Kingdom) 
The latter case DID in fact trigger a consitutional earthquake in 
London. [See important PS at the end]

Now, I explicitly do not suggest the current office holder is subject to 
'actual bias' but on the important fundamental rights priniciple of 
'apparent bias', so long as ICANN pays his 'gig fee' the office cannot 
be considered independent.

2,    The Ombudsman's role is that of mediator

And the current office holder is very good at that.

In otherwords, an Ombudsman acts upon a complaint from an individual (or 
possibly a group) that ICANN or a part of it has done something it 
shouldn't. He then tries to bring the parties together.

But that is a completely different approach to a truly independent 
inspector, funded otherwise than by ICANN who has powers to inquire into 
every aspect of ICANN's operations and behaviour, ESPECIALLY those that 
are regarded as confidential (for every local government body that is up 
to no good, marks the 'hairy' documents as confidential.

An independent inspector could, and indeed should, act on his or her own 

And should have the benefit of an overarching Charter to aid their work, 
similar to the Canadian Charter, or the principles of the US 
Constitution, to which ICANN should be held.

An independent inspector should also be financially self-sufficient so 
as not to worry, even unconsciously, about upsetting senior staff in the 
pursuit of the truth.

This could be done via ICANN donating capital money to an 
'Accountability Trust' who, independent of ICANN, employ the independent 
inspector, and would have restraints (both explicit, and through the 
independent indnature of the trustees appointed) on how they can 
exercise control on the office-holder.

Having now written the above, I have convinced myself we need such an 


PS: Just to avoid an further cross-cultural misunderstandings, due to 
ambiguous terms-of-art used in the two cases I link to, above.

1. (Mostly for US readers)  a 'sheriff' is a member of Scotland's 
judiciary (i.e. a lower tier, or County Court judge): NOT a 
law-enforcement officer.

2 (Most for readers in Great Britain), the 'Bailiff' referred to is NOT 
a debt-collector legally allowed to seize goods:  he is a member of both 
the Island's judiciary (its highest judge) and its legislature (he is 
Speaker of the House)

On 20/07/15 06:02, David Cake wrote:
>> On 18 Jul 2015, at 2:38 am, Kieren McCarthy <kieren at kierenmccarthy.com> wrote:
>>> some personnel issues should remain confidential,
>> I don't understand why people keep putting this strawman out there. No one is suggesting, or indeed has ever suggested, that personnel issues be included in a proper accountability mechanism.
>>> Why would a strengthened ombudsman not be a good fit for this role?
>> I'll give you three good reasons:
>> 1. The Ombudsman was created in 2004. Despite numerous efforts to make the role effective, it has never happened. Why keep making the same mistake?
> 	Frankly, the same could be said of most ICANN accountability measures. It is the hope of this entire CCWG process that with sufficient leverage, we have a historic opportunity to make some of them far more effective than they were in the past.
>> 2. The Ombudsman is completely reliant on ICANN corporate. For access to people and documents, for resources, for salary, for technical support, for logistical support, for an office, for a room at ICANN meetings, for everything except his own body. And his role and what he can do is determined by ICANN's legal department in the rules that they wrote. The Ombudsman also signs a very strong confidentiality agreement with ICANN that effectively ties their hands on everything except illegal activity. See point 1.
>> 3. An Ombudsman is a single person. And one completely reliant on ICANN. This provides an enormous degree of control by ICANN and very little freedom for the accountability role the Ombusdsman is supposed to fulfill. There are numerous people able to testify that ICANN corporate has no hesitation in applying significant pressure on individuals if they act in a way that it deemed a potential threat. All of those people are however under confidentiality agreements with ICANN.
> 	I said ‘strengthened’. I would assume both of these issues can be significantly mitigated by changes to the role - particularly, rewriting of the agreement with the ombudsman if it weakens the office, and some process for increasing resources of the office when/if required. But the extent to which such changes might be effective can be discussed in the WS2 work on the ombudsmans role.
> 	I do think that there are issues where there is a need for someone who has the authority to see documents that may have legitimate grounds to be considered confidential (personnel records, security issues, etc) and make judgements as to what information should be released, and that person needs to be very familiar with ICANN in order to perform the role effectively. There absolutely are some legitimate reasons for information to remain confidential, and I think an external enquiry model is likely to make that problem worse (in the sense of leading to escalating legal obstruction from ICANN legal to every request) not better.
> 	An ongoing Independent Inspector General role or similar would seem to be an interesting alternative - but my original point was that such a role would have large overlap with the Ombudsmans existing role, and it might be far more practical to fix an existing role rather than add a new one.
> 	David
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