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Ombudsman Recommendations in ATRT-2

  • To: "comments-atrt2-recommendations-09jan14@xxxxxxxxx" <comments-atrt2-recommendations-09jan14@xxxxxxxxx>
  • Subject: Ombudsman Recommendations in ATRT-2
  • From: Chris LaHatte <chris.lahatte@xxxxxxxxx>
  • Date: Tue, 18 Feb 2014 19:41:19 -0800

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
 

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