Hi everyone,
Thanks very much for volunteering to help with the review and consideration
of the future accountability role of the ICANN Ombudsman’s Office, part of
the CCWG Accountability effort. Although currently part of work stream two
of the CCWG process, there is enough overlap with some of the
accountability mechanisms in work stream one that it’s probably advisable
for us to get started with our efforts here. Towards that end, I’ve
prepared this post to hopefully kick start our conversation and group work.
While doing some preparatory reading in anticipation of our endeavor it
soon became apparent to me that the ICANN Ombudsman, like ICANN itself, is
a rather unique creation. Just as ICANN arguably is a private organization
with some public functions, the responsibilities of the ICANN Ombudsman’s
office is a mixture of that of a traditional organizational ombudsman
combined with some duties more associated with public sector classical
ombudsmen in an executive ombudsman setting. Our challenge, as I see it, is
to get that mix right and to do so in a way that meshes nicely with our
other accountability efforts.
What follows is an attempt to begin our work by scoping the issues we may
want to concern ourselves with and the parameters within which we’ll be
working. It certainly is non-exhaustive and would benefit from suggestions
and input from anyone able to do so. Suggestions as to work plan and mode
are also more than welcome.
For now, what I’d suggest is we start generating a discussion on the
substantive issues raised by the topical areas that follow in this post as
well as any additional areas of inquiry anyone would like to suggest. Once
we’ve generated a sufficient level of response I, along with anyone who
would like to help, will create a template containing our priorities and
options, as suggested on list, going forward.
*QUESTIONS FOR DISCUSSION*
*1. Should ICANN have an Ombudsman?*
In Istanbul it was suggested privately to me by a few people that the
concept of Ombudsman really didn’t fit into the multi-stakeholder model
very well and that the position should be eliminated. As we review the role
of the Ombudsman as part of our overall accountability scheme I’d recommend
that we first need to discuss whether the community believes such a
position has value and should continue to exist in light of all other
proposed accountability changes.
The validity of the following questions, of course, presumes an affirmative
response to the first question.
*2. In a general sense, what type of questions should the Ombudsman be
empowered to look at and what criteria should (s)he be allowed to use to
generate a recommendation / pronounce a decision? Who should be the
permitted clientele of the Ombudsman’s office and who, if anyone, should be
excluded from using the facilities of the Office?*
As currently constituted the ICANN Ombudsman is positioned to serve as a
“neutral dispute resolution practitioner” serving “as an advocate for
fairness” seeking to “evaluate and where possible resolve complaints about
unfair or inappropriate treatment by ICANN staff, the Board, or ICANN
constituent bodies” (ICANN Bylaws, article V,section 1 (2)). The focus is
on procedural fairness as opposed to substantive outcomes. Staff and
vendors are specifically prohibited from utilizing the services of the
ICANN Ombudsman (ICANN Bylaws, section 3(2)). (S)he also has no authority
on “administrative matters, personnel matters, issues relating to
membership on the Board, or issues relating to vendor/supplier relations”
(ICANN Bylaws, article V, section 3 (2)). In addition, the Ombudsman is
currently prohibited from instituting, joining or supporting “any legal
action challenging ICANN structure, procedures, or any conduct by the ICANN
Board, staff or constituent bodies” (ICANN Bylaws, article V, section 5).
*3. What tools should the Ombudsman be expected to use / be given to use in
performing her/his duties?*
The Ombudsman is currently empowered to use “conflict resolution tools such
as negotiation, facilitation, and “shuttle diplomacy” to achieve desired
results (ICANN Bylaws, article V, section 2). S(he) also has the right to
“have access to…all necessary information and records” from ICANN staff and
constituent bodies to aid in the conduct of his/her duties (ICANN Bylaws,
article V, section 3(3)).
*4. Should the Ombudsman be completely independent of any identifiable
group or interest, the Board being included as an identifiable interest? If
so, what measures can be devised to assure his / her independence?*
Amongst the current provisions that may be relevant to issues relating to
Ombudsman independence are:
1. Selection, term and dismissal – The Ombudsman is currently appointed to
a two-year team by the Board. (S)he may be reappointed to continue in the
position at the discretion of the Board for a length of time that is not
specified in the Bylaws (ICANN Bylaws, article V, section 2). The Ombudsman
serves at the will of the Board and may be terminated without cause upon a
¾ vote of the full Board. (ICANN Bylaws, article 5, section 1(3).
2. Budget – The Ombudsman creates and submits a proposed budget to the
ICANN President who then includes it without change in the “general ICANN
budget recommended by the ICANN President to the Board” (ICANN Bylaws,
section 1 (4)).
Comments received during the initial phase of public comments on the
Enhancing Accountability effort included suggestions that 1) the Ombudsman
be appointed by the community and 2) one which suggested s(he) be appointed
by the NomCom.
*5. Whom should the ICANN Ombudsman report to: the President and CEO of
ICANN, a community body, the Board or a combination of offices / bodies?*
The Ombudsman currently reports to the Board “as he or she deems
appropriate” (ICANN Bylaws, section 4 (4). (S)he is also required to
compile and publish on the ICANN website an annual report (ICANN Bylaws,
article V, section 5).
*6. The Ombudsman is constructed as an informal, flexible instrument of
accountability with a high degree of confidentiality. It has been argued
that this creates a process that is opaque and that the lack of
transparency inhibits rather than expands accountability. Best industry
practices, as defined by the International Ombudsman Association, places a
strong emphasis on the confidentiality of Ombudsman work practice and
procedure. What degree of transparency, and specific practices thereof,
should be required of the Ombudsman as s(he) carries out her/his duties?
What should be the proper balance between transparency and confidentiality?*
*7. What direct role, if any, would this subgroup suggest the Ombudsman
should play in the Independent Review Process?*
It should be noted that the Ombudsman is currently proscribed from acting
in matters where the independent review process has been invoked (ICANN
Bylaws, article V, section 2).
*8. What direct role, if any, would this subgroup suggest the Ombudsman
should play in the Reconsideration process?*
It should be noted that the Ombudsman is currently proscribed from acting
in matters where the reconsideration process has been invoked (ICANN
Bylaws, article V, section 2).
*9. What direct role, if any, would this group suggest the Ombudsman should
play in the DIDP process?*
Currently the Ombudsman is allowed to inspect “all necessary information
and records” from ICANN staff and constituent bodies in order to assess a
complaint and assist in dispute resolution. Information deemed
“confidential” is prohibited from disclosure or publication by the
Ombudsman (ICANN Bylaws, article V, section 3(3).
*10. Should the Office of Ombudsman have any role or obligation in
protecting “whistleblowers”, internal or external, by virtue of it’s role
in ensuring / promoting organizational fairness? *
*11. Should the title of Ombudsman be changed in the Bylaws and elsewhere
to that of Ombudsperson or to another more gender-neutral term?*
I look forward to the discussion that I hope will be generated by these
prompts, and those offered by others, and to the beginning of our efforts
to fully consider our options relating to the Office of the ICANN Ombudsman.
Best,
Ed Morris
*LINKS*
ICANN Bylaws, Office of Ombudsman provisions are in Article V:
https://www.icann.org/resources/pages/governance/bylaws-en/#V
Webpage of the ICANN Ombudsman:
https://www.icann.org/resources/pages/accountability/ombudsman-en
Frank Fowlie, *A Blueprint for an Evaluation of An Ombudsman’s Office: A
Case Study of the ICANN Office of the Ombudsman*:
https://www.icann.org/en/system/files/files/blueprint-for-evaluation-of-an-…
International Ombudsman Association, *Standards of Practice*:
https://www.ombudsassociation.org/IOA_Main/media/SiteFiles/IOA_Standards_of…
