Ombudsman Recommendations in ATRT-2
There are two aspects on which I wish to comment. The first is that there are a series of comments stemming from the report which I published in relation to the complaint by Garth Bruen and others. They have not accepted the finding in my report, and obviously hold quite different opinions about the issues. Mr. Bruen is quite entitled to disagree with what I say, but I do not intend to debate the report. It is worth noting for the record that I have read the submissions which have been filed. They appear to follow a template structure. They are entitled to do so. There is little point in reopening this matter, because the system for submitting bulk complaints has changed very substantially and Compliance has also changed in the way it operates to be more vigorous and report in more detail. Regrettably the submitters do not appear to have taken this into account. I wish to comment on the recommendations in the 15 October ATRT2 Report. This proposes a fairly radical increase in the jurisdiction to the office of the ombudsman. This needs to be placed on the historical context of the ombudsman first set up in 2003/2004, when ICANN was a considerably smaller organisation. The office was set up without any role in internal staff matters, in a deliberate fashion. The purpose of the office was to deal with ICANN and the ICANN community, and is different from the concept of the organisational ombudsman, who commonly works within an organisation and frequently deals with issues between staff and between staff and management. The ICANN ombudsman is unique within the ombudsman community for this reason. The function of the office is more analogous to the classical ombudsman model, who generally operates on a national level between government structures and individuals within that country. Ombudsman are sometimes appointed as a provincial level, particularly in Canada and Australia but the function is similar. The multi-stakeholder model for ICANN creates a unique community internationally. This becomes even more important with the significant move to internationalise ICANN, which may include cutting the formal ties with the US government. I make no comment on whether this is a good or bad idea, but it is certainly on the agenda for change, to evolve ICANN to a truly international organisation. It is important to note this distinction, because even with other international institutions who have an ombudsman, they typically deal with internal issues rather than looking outwards. I suspect that the thinking on the multi-stakeholder model was not as advanced 10 years ago when the office of the ombudsman was set up. Nonetheless, clearly the concept of the multiheaded hydra which is the present ICANN model, was already in place, and the need for an independent and neutral dispute resolution professional was considered necessary. But since the creation, both my predecessor Dr Frank Fowlie and I have had no official role within staff issues. Occasionally we have assisted in an informal manner with the consent of parties, with staff issues. This has been an ad hoc process rather than something which is generally used or made known as a function of the office. This distinction is important because of the role of the ombudsman within the ICANN community. Certainly a role in the first bullet point at paragraph 3 on page 50, "a role in the continued process review and reporting on board and staff transparency" is consistent with the present function of the office. The change would need to be implemented either by tweaking the present bylaw or perhaps by updating the Framework. My role in having access to information, does give me the ability to access any documents within ICANN and the ICANN community. This is a necessary part of the investigation role of the ombudsman, and therefore a role within board and staff transparency is consistent. It is also part of the role of a classical ombudsman to be involved with availability of information and transparency issues. The increased role would therefore need to be assessed in the light of the additional task of reporting on transparency, and the setting up some form of process for doing so. Some thought needs to be given to a process to enable the ombudsman to review and report on transparency. This is anticipated in the next paragraph of the report which refers to "develop transparency metrics and reporting". The role of the ombudsman in that process needs to be considered. For example, would the ombudsman be responsible for preparation of the report on transparency with supporting metrics? Or would the ombudsman have a role as an auditor of the report? That may need to be an issue decided by a policy driven consideration on a wider level. The next bullet point refers to a role in helping employees deal with issues related to the public policy functions of ICANN. This does cross the line into the more difficult area of a role within staff. The recommendations do not elaborate on this issue, and I would be reluctant to recommend that the ombudsman become involved with the public policy functions because of the requirement to be independent and neutral, a fundamental aspect of good ombudsman practice. I would assume that this function is proposed to assist staff when there are difficulties, but it is difficult to make more detailed comment. The third bullet point relates to whistleblowers and protection of employees, with regard to issues that may be problematic for their continued employment. This is a radical change for the reasons I have described above. It is certainly part of an organisational ombudsman role and often that of a classical ombudsman to have a whistleblowing function. As I mentioned to the ATRT2 committee however, legal staff at ICANN have been firmly of the view that the existing whistleblowing protection, established under California law fulfils this function. That may be the case while ICANN is a California not-for-profit organisation. But as the internationalisation process continues, then a whistleblowing protection function will need to be established that works for an international organisation. There are models for the operation of such a function, and it would certainly fit within the function of the office, because of the neutrality and independence of the position. But there does need to be some discussion about the expansion to a role for protection of employees. In my discussions with ICANN staff, they were also firmly of the view that this should not be a function of the ICANN ombudsman in its present form. There was reluctance to accept any such office but if there were to be one, then the suggestion was that it should be another person rather than the ombudsman. The difference in function between the organisational ombudsman role, which has as its regular function in virtually all such roles, issues between staff and between staff and management, and the classical ombudsman where the issues are between the State or government entity and its citizens, illustrate the difficulties. Because the ICANN ombudsman is in reality a classical ombudsman, I can understand the difficulty and possible conflict of interest. It is conceivable that a staff issue could also be a community issue, where the community was complaining about a staff member, which is a current function of my office. I have specifically dealt with such issues. But if the problem with the staff member was related to an internal employment issue, and resolution of the community complaint required intervention within the staff structure, that would require very specific changes in the bylaw and framework. It would also require direct involvement and acceptance of this function with HR and senior management. So implementation of any changes would require both policy changes and a management acceptance. Some other comments made in the report are useful to note. The report suggests that ICANN needs to reconsider the Ombudsman's charter and the Office's role as a symbol of good governance to be further incorporated in transparency processes at page 48. This is an interesting comment when coupled with an earlier comment at page 45 which says "One report did question the independence of the ombudsman, noting that the office "appears so restrained and contained". I have had a longer term project of review of the bylaw and framework in the context of these having been in place for a substantial period of time. It is my intention to make recommendations about these due course, but the earlier issues as outlined will require such a review in any event. But where the person suggest that the office was restrained and contained, perhaps does not understand the specific jurisdiction. Certainly in the wider community the specific jurisdiction given to the ICANN ombudsman is not as well understood as I would like. This is demonstrated by the very substantial number of complaints which I receive which are out of my jurisdiction. But it should also be noted that part of my role is consumer related, and I fully accept that while complaints come in outside of my specific power to investigate, it is a valid function to find the appropriate place for such a complaint to be referred to. Chris LaHatte Ombudsman Blog <https://omblog.icann.org/> https://omblog.icann.org/ Webpage <http://www.icann.org/en/help/ombudsman> http://www.icann.org/en/help/ombudsman Confidentiality All matters brought before the Ombudsman shall be treated as confidential. The Ombudsman shall also take all reasonable steps necessary to preserve the privacy of, and to avoid harm to, those parties not involved in the complaint being investigated by the Ombudsman.The Ombudsman shall only make inquiries about, or advise staff or Board members of the existence and identity of, a complainant in order to further the resolution of the complaint. The Ombudsman shall take all reasonable steps necessary to ensure that if staff and Board members are made aware of the existence and identity of a complainant, they agree to maintain the confidential nature of such information, except as necessary to further the resolution of a complaint Attachment:
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