[CCWG-ACCT] CCWG-Accountability-WS2 Answer on ombuds

[Nigel Roberts]

I have read this, and I do not see how this propsed additional resource 
for the IOO, welcome though it is, in itself, can have any effect 
whatsoever on the point regarding the perceived bias that results from 
the fact that Ombudsman serves at the pleasure of the Board, and that a 
Board can (and does) decide to not renew such contract.

Such an IOO will inevitably appear more reluctant to criticise a Board 
which might fire him or her.

Only a form of tenure of office can address that.

Whether such tenure can be achieved, through significantly longer 
contracts, or by the IOO reporting to a different employer, independent 
of the Board, is left as an exercise for the reader . . .



On 10/27/2017 07:15 AM, Sebicann Bachollet wrote:
> Hello Nigel and all,
> Thanks for your comments.
> If I understand well them, it is why the external reviewer and the IOO subgroup have made the following recommendation:
> "ICANN should establish an Ombuds Advisory Panel"
> To enhance (with other recommendations) IOO independence.
> 
> It can be found in the report of the IOO subgroup:
> https://community.icann.org/download/attachments/59643286/CCWG-Accountability-WS2-Ombudsman-DrafRecommendationsV2.5.pdf?version=1&modificationDate=1508780986000&api=v2 <https://community.icann.org/download/attachments/59643286/CCWG-Accountability-WS2-Ombudsman-DrafRecommendationsV2.5.pdf?version=1&modificationDate=1508780986000&api=v2>
> 
> All the best
> SeB
>   
>> Le 27 oct. 2017 à 09:10, Nigel Roberts <nigel at channelisles.net> a écrit :
>>
>> I understand Sam's answer, and I can see the technical legal logic that underpins it. The Board is the literal incarnation of the corporation, so it has ultimate responsbility for everything.
>>
>> This is so, since as far as I understand if (and I'm open to additional info here), although the Board itself owes a responsbility for doing that job qua Board properly towards the the EC, ICANN (unlike a British non-profit, or an ordinary company limited by shares) has no Members to whom the Board are responsbile.
>>
>> I'd like to offer a different perspective, to the below.
>>
>> So long as the Ombudsmans's office owes a responsbility to the Board, it can never be regarded as an impartial service. This is because the Ombudsman serves entirely at the discretion of the organisation.
>>
>> Even with the most independent-minded office-holder, and even in the complete absence of /actual/ bias, there is perceived bias in that the Ombudsman will want to remain employed, and can be perceived as less willing to criticise the Board.  The Scottish case of Starrs and Chalmers -v- Ruxton illustrates the point well.
>>
>> The concept of perceived (or as we say, apparent) bias is well understood, and is recognised in the Board Conflict of Interenet Policy). (See also the Guernsey case of McGonnel -v- The United Kingdom.
>>
>> This apparent bias does not mean the Ombuds function loses utility, but we must be clear on that apparent lack of independence. A completely independent ombudsman would be one that had a form of tenure, in my submisson.
>>
>>
>>
>> On 10/27/2017 05:45 AM, Bernard Turcotte wrote:
>>> ​Form Samantha Eisner:
>>> The answer to the question of: "The ultimate responsibility for the Ombuds
>>> office must remain with the Board »² is yes.  There has to be a line of
>>> accountability from the Ombuds to the Board.  This is particularly
>>> important as it is the Board¹s obligation to make sure that the Bylaws
>>> requirements are met appropriately, and also consdiering the internal
>>> access that the Ombuds is granted and the focus of ³internal² evaluation.
>>> This does not mean that that others cannot give inputs to the Board on
>>> that relationship with the Ombudsman.
>>> ‹
>>> Samantha Eisner
>>> Deputy General Counsel, ICANN
>>> 12025 Waterfront Drive, Suite 300
>>> Los Angeles, California 90094
>>> USA
>>> Direct Dial: +1 310 578 8631
>>> _______________________________________________
>>> Accountability-Cross-Community mailing list
>>> Accountability-Cross-Community at icann.org
>>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
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> 
>