Attendees: 

Sub-group Members:   Andrew Sullivan, Asha Hemrajani, Avri Doria, Edward Morris, Farzaneh Badii, Herb Waye, Jimson Olufuye, Jose Arce, Karel Douglas, Klaus Stoll, Mike Silber, Sebastien Bachollet, Susan Payne   (13)

Staff:  Bernie Turcotte, Brenda Brewer, Laena Rahim, Nathalie Vergnolle, Trang Nguyen

Apologies:  Cheryl Langdon-Orr

**Please let Brenda know if your name has been left off the list (attendees or apologies).**

Transcript

Recording

Agenda

1. Roll Call / Apologies – Welcome – Opening Remarks (5 min SBT & Staff)
2. Discuss the following chapters of the document (45 min) https://docs.google.com/document/d/192SDRXsnr5ujf1iVj4hj_WMf3fMmYiEhY1ur8E_T73g/edit?usp=sharing
      - Dependencies between the sub-groups
      - ATRT2
      - Stress Tests
      - Current role of the ICANN Ombuds Office
3. Next Meeting (5 min)
4. AOB (5 min)

Notes

Notes (BT):

September 6th, 2016 - 5th meeting

1.  Roll Call / Apologies – Welcome – Opening Remarks (5 min SBT & Staff)

    • Sebastien Bachollet: welcome to the 5th meeting.

2.  Discuss the following chapters of the document (45 min) https://docs.google.com/document/d/192SDRXsnr5ujf1iVj4hj_WMf3fMmYiEhY1ur8E_T73g/edit?usp=sharing

     - Dependencies between the sub-groups

    • Sebastien Bachollet: Listing of liaisons.

     - ATRT2

    • Avri Doria: Presentation of ATRT2 recommendation to defer Ombudsman work listed for ATRT2 to CCWG WS2 Ombudsman.
    • Farzaneh Badii - Whistle blower vs Ombudsman? Should we analyze the ATRT2 recommendations to find what is relevant to us?
    • Avri Doria: on the Whistle Blower or other internal staff issues the Ombuds has no role currently - this keeps being discussed as to if there is a need to change this. This group should not look at the whistle blower policy as this is for the transparency sub-group but should look at the wider issue of the Ombuds vs staff issues. I will prepare a list of issues for this group from ATRT2 recommendations.
    • Sebastien Baachollet: action item: Avri Doria should send a document listing the Ombuds related recommendations from ATRT1 and 2.
    • Avri Doria: will start a Google Drive document listing specific texts from those reports.
    • Herb Waye Ombuds: It would be good to include the link to the independent review that was conducted for ATRT1 Avri

     - Stress Tests

    • Sebastien Bachollet: Have extracted relevant Stress Test from WS1 and have found 2: 13 and 34.
    • Farzaneh Badii: Can the Ombuds accept complaints vs a constituency?
    • Herb Waye: There is no such limitation. The Ombuds can be very accommodating. We are about process and not about decisions such as IRP etc.
    • Herb Waye Ombuds: It would be good to include the link to the independent review that was conducted for ATRT1 Avri
    • Mike Silber: Can we see the contribution before a decision is made as to whether it is included or not? I don't think that is the prerogative of the rapporteur, but of the group
    • Asha Hemrajani: But Herb, there is nothing that says that a dispute between members of different SO/ACs cannot be brought in front of you
    • Herb Waye: will look at the case files to see how requests which could block a policy decision have been dealt with.
    • Sebastien Bachollet: will check with Cheryl and Steve if there are examples related to this.

     - Current role of the ICANN Ombuds Office

    • Sebastien Bachollet: wanted to go over inclusion of the Ombudsman in PTI. any comments or information on this.
    • Herb Waye: action Item - will check on this next week.
    • Asha Hemrajani: it would be good to have the role of the Ombuds explicitly defined for PTI.
    • General discussion on enforceability.
    • Herb Waye Ombuds: No Jimson the ombuds can only make recommendations
    • Asha Hemrajani: @Jimson, we discussed that last time - no, not enforceable
    • Asha Hemrajani: they are recommendations
    • Jimson Olufuye: Ok, thanks!
    • Jimson Olufuye: Clear, thanks.
    • Farzaneh Badii: as a principle mediation does not yield to enforceable outcome in court. unless there is a settlement agreement
    • Farzaneh Badii: *unless
    • Farzaneh Badii: how would ombudsman enforce a resolution? it does not have a enforcement power!
    • Asha Hemrajani: Yes I am talking about a settlement agreement
    • Herb Waye: the Ombuds could  not enforce.
    • Farzaneh Badii: ombudsman cannot be an enforcement body
    • Asha Hemrajani: Thanks Herb...the question then is if the ombuds brokers a mediation settlement in ICANN, who helps to enforce that agreement
    • Edward Morris: If we want that then it's something different than an Ombudsman.
    • Karel Douglas: To make the Ombudsman recommendations into enforceable decisions would be to change the Ombudsman into a tribunal type body which would change its function
    • Karel Douglas: It would be a radical move away from the concept of what an ombudsman does
    • Edward Morris: There are some cases that may be more appropriate for an IRP , including the CEP, than for an Ombudsman complaint. Perhaps those disputes where enforcement could be problematic or foreseen as such should be sent to other accountability processes from the start. Goodwill is a key component of any Ombudsman process.
    • Herb Waye: results of mediation is very different vs a recommendation to the Board following a the results of a complaint.

3.  Next Meeting 12 Sept @ 19:00 UTC (5 min)

    • Asha Hemrajani: Can we have a doodle poll on the time of the calls? 1900UTC inconvenient for me.
    • Sebastien Bachollet: Staff are not doing doodles for the sub-groups. Also note that all three time slots for this call are well attended.
    • Asha Hemrajani: Bernard can we have a doodle on this?
    • Bernard Turcotte: Can do if requested by a Board member.
    • Sebastien Bachollet: If this is the case I can no longer be responsible for the timing of the calls. Please advise when the next call will be.

4.  AOB (5 min)

Documents Presented

Chat Transcript

  Brenda Brewer:Good day all and welcome to the Ombudsman Subgroup Meeting #5 on 6 September 2016 @ 13:00 UTC!

  Brenda Brewer:Google Doc link:  https://docs.google.com/document/d/192SDRXsnr5ujf1iVj4hj_WMf3fMmYiEhY1ur8E_T73g/edit?usp=sharing

  Herb Waye Ombuds:Hello all...

  Bernard Turcotte Staff Support:morning      LL

  Karel Douglas:HI ALL

  Karel Douglas:unfortunately I am not able to connect my audio

  Klaus Stoll:I have problems receiving the documents and also meeting invitations. Please send to kdrstoll@gmail.com

  Klaus Stoll:It might be that others have the same problem.

  Edward Morris:Also, if we could get sent the call details a half hour or so before the meeting it would be helpful as a reminder

  Bernard Turcotte Staff Support:if you are uncertain we are using the correct email address please email staff

  Brenda Brewer:Klaus I will update your email address.  The one I have on current record is different than the one you provide here.

  Brenda Brewer:Other inquiries may go to acct-staff@icann.org

  Klaus Stoll:@Brenda. Thanks!

  Asha Hemrajani:Good evening all. 

  Farzaneh Badii:what are we supposed to read to answer this question? materials on ATRT?

  Farzaneh Badii:whistle blower policy applies to ICANN staff if I am not mistaken. we should consider ombudsman applicability to dispute between ICANN (as corporation) and staff?

  Herb Waye Ombuds:https://www.icann.org/en/system/files/files/final-recommendations-31dec13-en.pdf

  Asha Hemrajani:between ICANN corp and staff - that should be in the realm of HR

  Asha Hemrajani:What are those recommendations Herb?

  Farzaneh Badii:Yes Asha

  Farzaneh Badii:that is why I am asking

  Avri Doria:it is ok, i should have this on the top of my mind for every meeting.

  Asha Hemrajani:Avri the last part of what you said - I couldnt hear - could you type?

  Herb Waye Ombuds:Item 26

  Herb Waye Ombuds:and a few other items, atrt2 was more of a reveiw of the previous atrt

  Farzaneh Badii:Thanks

  Herb Waye Ombuds:item 26 one of the atrt items from atrt1 that was reviewed in 2

  Asha Hemrajani:Thanks Herb

  Edward Morris:Agree with Avri here,

  Asha Hemrajani:That would be good Avri

  Farzaneh Badii:that's a good idea

  Herb Waye Ombuds:It would be good to include the link to the independent reveiw that was conducted for ATRT1 Avri

  Mike Silber:Can we see the contribution before a decision is made as to whether it is included or not? I don't think that is the perogative of the rapporteur, but of the group

  Asha Hemrajani:But Herb, there is nothing that says that a dispute between members of different SO/ACs cannot be brought in front of you

  Asha Hemrajani:Good idea Herb

  Farzaneh Badii:thanks Herb

  Edward Morris:Thanks Herb

  Karel Douglas:Good explanation - thanks Herb

  Bernard Turcotte Staff Support:Steve DelBianco

  Farzaneh Badii:Steve

  Edward Morris:Steve DelBianco

  Avri Doria:i have lost audio, will be back

  Avri Doria:ok, got audio back

  Edward Morris:Absolutely true. O and O subsidiary.

  Avri Doria:i thought properly speaking it is an affiliate since it is a non profit, but essentiially the same as a subsidiary

  Asha Hemrajani:fair enough Avri, but perhaps best to refer to it as a subsidiary so that we are clear on the relationship

  Jimson Olufuye:In addition to Asha's comment, I would like to ask if Ombudsman decision/s are enforceable?!

  Farzaneh Badii:no they are not Jimson

  Avri Doria:well, but it is wrong.  but ok.

  Herb Waye Ombuds:No Jimson the ombuds can only make recommendaitons

  Asha Hemrajani:@Jimson, we discussed that last time - no, not enforceble

  Asha Hemrajani:they are recommendations

  Jimson Olufuye:Ok, thanks!

  Jimson Olufuye:Clear, thanks.

  Farzaneh Badii:as a principle mediation does not yield to enforceble outcome in court. uless there is a settlement agreement

  Farzaneh Badii:*unless

  Farzaneh Badii:how would ombudsman enforce a resolution? it does not have a enforcement power!

  Asha Hemrajani:Yes I am talking about a setllement agreement

  Farzaneh Badii:I would not even hesitate! enforcement entityt?

  Farzaneh Badii:ombudsman cannot be an enforcement body

  Asha Hemrajani:Thanks Herb...the question then is if the ombud brokers a mediation setllement in ICANN, who helps to enforce that agreement

  Edward Morris:If we want that then it's something different than an Omudsman.

  Farzaneh Badii:Yes Ed

  Farzaneh Badii:but even settlement agreement normally is enforced by court. not by the mediator!

  Asha Hemrajani:agree Ed.  I am a mediator but am never involved in enforcement...the courts do that...but in our case, who?

  Karel Douglas:To make the Ombudsman recommendations into enforceable decisions would be to change the Ombudsman into a tribunal type body which would change its function

  Karel Douglas:It would be a radical move away from the concept of what an ombudsman does

  Asha Hemrajani:Yes that is clear, the question is who would do the enforcement?

  Edward Morris:There are some cases that may be more appropriate for an IRP , including the CEP, than for an Ombudsman complaint. Perhaps those disoutes where enforcement could be problemmatic or forseen as such should be sent to other accountability processes fromthe start. Goodwill is a key compoent of any Ombudsman process.

  Asha Hemrajani:Yes Seb, that is the question.

  Farzaneh Badii:Yes Herb, very important

  Edward Morris:+1 Herb

  Asha Hemrajani:Good point Ed

  Avri Doria:i will miss the next meeeting.  apologies

  Edward Morris:That's fine with me.

  Herb Waye Ombuds:Having it at this time will allow me to meet with ICANN staff in LA before the meeting

  Farzaneh Badii:more turn out doesnt necessarily more contribution :)

  Edward Morris:Doodle's are good for maximizing meeting attendance.

  Bernard Turcotte Staff Support:here - if being requested we can

  Bernard Turcotte Staff Support:by a Board member

  Farzaneh Badii:you have to be asked by a board member to do that?

  Farzaneh Badii:interesting

  Jimson Olufuye:I like this period.

  Farzaneh Badii:no thank you

  Herb Waye Ombuds:Merci Sebastien

  Farzaneh Badii:Thanks Seb for all the work :)

  Bernard Turcotte Staff Support:bye all

  Farzaneh Badii:Ciao

  Edward Morris:ThanksSebastian

  Asha Hemrajani:Thanks Seb


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