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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