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

[Nigel Roberts]

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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