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

[Nigel Roberts]

This does improve things a bit, indeed.


On 10/27/2017 08:52 AM, Jordan Carter wrote:
> 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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> 
> 
>