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

Fri Oct 27 07:52:36 UTC 2017

Hi all, Nigel

My reading of the final report is that this is tackled by means of the
recommendation about Ombudsman terms of employment:

*9 The Ombuds employment contracts should be revised to strengthen
independence by allowing for a: *

   - *5 years fixed term (including a 12 month probationary period) and
   permitting only one extension of up to 3 years   *
   - *The Ombuds should only be able to be terminated with cause*

(from
https://community.icann.org/display/WEIA/Ombudsman?preview=/59643286/71604391/CCWG-Accountability-WS2-Ombudsman-DrafRecommendationsV2.5.pdf
)

So I think the concern you raise has been addressed at least in part by
means of this?

best
Jordan

On 27 October 2017 at 20:43, Nigel Roberts <nigel at channelisles.net> wrote:

> 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/CC
>> WG-Accountability-WS2-Ombudsman-DrafRecommendationsV2.5.pdf?
>> version=1&modificationDate=1508780986000&api=v2 <
>> https://community.icann.org/download/attachments/59643286/C
>> CWG-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
>>>> _______________________________________________
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>>>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
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>>
>>
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-- 

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