[NCSG-EC] Procedural errors

Robin Gross robin at ipjustice.org
Fri Aug 4 19:16:22 EEST 2017 

Relevant excerpt from the attached transcript of the 28 July NCSG EC meeting:

Robin:   Yes. Thanks, Tapani. I just wanted to - or I thought we should confirm for the record that Ed Morris has resigned from the NCSG. I’ve seen there would have been some discussion on the GNSO council list where they were not quite sure of his status. And so I thought it was important that we just confirm that for the record. Thanks.

Tapani:   Thank you, Joan. Yes, that is a bit confusing because Ed’s messages on the subject, at least the ones I have seen, have been a bit ambiguous. But the one I posted on the list earlier saying that please remove me from everything sounds enough like a resignation to me. So I guess we can conclude that he has resigned and confirmed it. Any ...

Robin:   Great. Thanks. Yes, that was my reading as well, because since he said he resigned from all lists, that would include the membership list. Thanks.

Tapani:   Okay. Anybody disagree on that? Okay, so we’ll remove Ed from the member database. Any other business? Now, I see we are in good time actually despite the long agenda. We managed to do that in less than time made available. So unless anybody has any other business at this point. No? Okay, we're done. thank you everybody. It was an efficient meeting. ...






> On Aug 4, 2017, at 8:05 AM, Robin Gross via NCSG-EC <ncsg-ec at lists.ncsg.is> wrote:
> 
> Tapani,
> 
> Thank you for agreeing that you do not have the authority to overturn an EC decision, but are instead unilaterally refusing to implement the EC’s decision to accept Ed Morris’ resignation from NCSG and that you are refusing to remove him from the membership and email lists.
> 
> Since you are holding up the implementation of the EC’s decision, I think your bringing the EC up to speed on what you have done in this matter is needed for us to decide what to do with your refusal.
> 
> 1.  What steps have you taken to resolve any perceived ambiguity about Ed’s resignation from NCSG and what is the status of any inquiry?
> 2.  What lists did you remove Ed from upon receiving Ed's email instructing you to remove him from “all lists”?  Any?
> 3.  How do you propose the EC decide to implement our decision to accept Ed's resignation?  Keeping in mind it is an EC decision, not a chair decision.
> 
> Thanks,
> Robin
> 
>> On Aug 4, 2017, at 5:30 AM, Tapani Tarvainen via NCSG-EC <ncsg-ec at lists.ncsg.is> wrote:
>> 
>> Dear Robin,
>> 
>> Thank you for the explanation. I'm still not quite sure I understand
>> where you're coming from, but perhaps we're getting closer.
>> 
>> First I had trouble understanding your complaint, because I thought I'd
>> done almost exactly what you ask: as soon as I became aware of the problem,
>> I notified the EC that we made a mistake we must fix. "Almost" because
>> I did let Tatiana's temporary alternate appointment stand without waiting
>> for the EC to reconsider it.
>> 
>> Apparently at least part of the issue is communication, I haven't expressed
>> myself clearly. When I said I'd put a decision aside, I didn't intend it to
>> mean I'll discard it, rather that I won't immediately implement what to me
>> seemed to be an obvious mistake and instead will bring the issue back to the
>> EC. Contrary to your claim, I explicitly chose *not* to implement the
>> decision about Ed before bringing it back to the EC. With Tatiana I
>> admittedly did, because time was short and it seemed less problematic.
>> 
>> I agree I could have phrased things better, now as well as any number of
>> times in the past I'm sure, more "hygge" fashion if you like. I will accept
>> chastisement in this regard and try to use more convivial wordings and
>> discussion style in the future.
>> 
>> But if the EC at any time makes another decision that seems to me to be a
>> simple mistake due to too much rush or whatever, I will do substantively the
>> same thing: bring it back to the EC before rushing to implementation. I think
>> I would be derelict of my duty if I didn't do that.
>> 
>> If the decision, whatever it is, is indeed obvious, redoing it properly
>> should not be a big deal.
>> 
>> 
>> Back to the issues at hand.
>> 
>> First, Tatiana's appointment.
>> 
>> You seem to be arguing there's no significant difference between a temporary
>> altenate and a temporary replacement and that I could simply have
>> reinterpreted the EC decision from alternate to replacement. If so, I must
>> disagree - then I would indeed have acted contrary to EC's explicit decision.
>> And in fact we could not have appointed her as a temporary replacement before
>> Ed's resignation from the council was confirmed.
>> 
>> Yes, I could have canceled her alternate appointment as soon as talk with
>> staff brought the problem to my attention (no, I did not make it up) and
>> waited for the EC to make a new decision, but time was short and I thought
>> the alternate appointment was in fact done properly.
>> 
>> What we could and in retrospect should have done is to appoint her as
>> temporary alternate then and, as a separate decision, decide to
>> appoint her as temporary replacement as soon as Ed's resignation from
>> the council would be confirmed.
>> 
>> Fortunately that is easy to fix: just do the latter decision now,
>> as I've already asked for you to do on the list. We really should
>> decide that before next Council meeting on August 24.
>> 
>> 
>> Second, Ed's status.
>> 
>> First I thought this would be easy as well. But clearly it is not.
>> Fortunately it's not urgent either, as far as I can see.
>> 
>> My real mistake was allowing it as a decision item in the first place.
>> 
>> For the EC actually has no right to make such decisions.
>> 
>> You're saying I'm refusing to accept Ed's resignation. If so, the only
>> person with standing to challenge it is Ed, nobody else - not you
>> (unless you're his attorney), not the EC.
>> 
>> As noted earlier, the issue is not removing him for a cause, which
>> would belong to the EC, but determination of his intent.
>> 
>> And maintaining membership data is responsibility of the Chair.
>> 
>> Under the supervision of the EC, yes. I have already invited you to
>> discuss the issue, seeking your advice before doing anything, and
>> in the end you have several means to exercise your supevision,
>> all the way down to removing me from office.
>> 
>> So, will not remove Ed from NCSG membership without further
>> discussion.
>> 
>> I have not decided what to do about it and remain open to persuasion.
>> 
>> But merely saying "it's already decided" won't cut it. A quick
>> last-minute AOB decision, arguably hard to distinguish from mere
>> discussion, does not count as supervision in my book.
>> 
>> And I would very much like to discuss the substance of the case in more
>> general terms, including if we should write down procedures for handling
>> this kind of situations in the future. As I said, I see no reason to rush.
>> 
>> Sincerely,
>> 
>> Tapani
>> 
>> 
>> On Wed, Aug 02, 2017 at 08:49:54AM -0700, Robin Gross (robin at ipjustice.org) wrote:
>>> 
>>> Tapani,
>>> 
>>> You are either missing or refusing to see the point: you are not a dictator to this committee.  The chair is supposed to carry out the duties UNDER THE SUPERVISION of the EC according to our charter.  You have routinely disregarded any supervision and done as you pleased, and in this case, in explicit contradiction to the decision of the EC and the request of the member seeking removal.
>>> 
>>> If you think there was a procedural problem with an EC decision that needs rectifying, you should come back to the committee and say “hey, I made a mistake.  How should WE proceed?  Here is what I propose...”
>>> 
>>> But you didn’t (don’t) do that.  Instead you come back and say “I decided this decision could not stand so I decided to overturn it do this other thing instead.”  And then implement your own unilateral decision without any supervision or opportunity by the EC to discuss your earlier procedural error and how WE might want to handle it.
>>> 
>>> You are again attempting to usurp the authority of the committee and replace the committee's judgment with your own unilateral decisions.  Minor procedural errors by your own creating do not grant you the authority to overturn EC decisions at your own unchecked discretion.  That is what you don’t seem to understand and what has been a consistent problem since you became you chair.
>>> 
>>> Robin
>>> 
>>> 
>>>> On Aug 2, 2017, at 4:26 AM, Tapani Tarvainen via NCSG-EC <ncsg-ec at lists.ncsg.is> wrote:
>>>> 
>>>> Dear Robin,
>>>> 
>>>> When I'm faced with two conflicting decisions to implement, I not
>>>> only can but I must choose which one to implement, if either.
>>>> I can't do otherwise any more than I can defy gravity.
>>>> 
>>>> But before (or hopefully instead of) digging deeper into legalistic
>>>> arguments, fun though that might be, let's talk about substance.
>>>> 
>>>> For there may be something more to this than it appeared at first.
>>>> I thought the procedural error would have been easy to fix by re-doing
>>>> the decision properly, but it seems I was wrong.
>>>> 
>>>> The question at hand was not removal for a cause, but simply
>>>> determination of Ed's intent, not something that should subject of
>>>> heated debate, and if we made a mistake there, we'd have to correct it
>>>> anyway.
>>>> 
>>>> We should be extra careful in removing members in unclear
>>>> circumstances. We spent a long time working on the member removal
>>>> procedures; we should not create loopholes or back doors that allow
>>>> members to be removed quickly, with last-minute AOB-item
>>>> interpretations of ambiguous messages, and thus bypassing all the
>>>> safeguards we'd otherwise be applying.
>>>> 
>>>> And Ed's message was ambiguous: the very fact that we're discussing it now
>>>> and indeed have discussed its meaning from the start is enough to prove that.
>>>> 
>>>> Moreover, Ed has had the opportunity to confirm it if resignation from
>>>> NCSG was his intent. We know he receives emails, in fact he reacted to
>>>> this very case by confirming his resignation from the Council, but he
>>>> did not do so regarding his NCSG membership, even though just as
>>>> easily could have.
>>>> 
>>>> And in the past we've never removed anyone who's resignation message
>>>> has been in the least bit unclear, but always acted only after getting
>>>> unambiguous confirmation or lost contact for a *very* long time.
>>>> 
>>>> So the decision to remove him from NCSG was not only procedurally but
>>>> also substantively wrong.
>>>> 
>>>> Frankly I'm having hard time understanding why you're making a big
>>>> issue out of this and why you wanted it dealt with so quickly by
>>>> bringing it to the EC as last-minute AOB item and now fighting for it
>>>> tooth and nail. Regarding his councillorship there was a need to
>>>> resolve it urgently, indeed that's why I thought you brought it up in
>>>> the call, but his membership in NCSG has no significant impact in
>>>> anything that I can see, certainly there's no urgency in it that would
>>>> prevent us from dealing it with good time.
>>>> 
>>>> Or is there something I don't know going on? Why are you so eager to
>>>> get him removed so fast? Even if it is really only to express your
>>>> dissatisfaction in my performance, in this context it looks more than
>>>> a bit odd, when this really should be easy to do right.
>>>> 
>>>> Tapani
>>>> 
>>>> 
>>>> On Tue, Aug 01, 2017 at 03:00:47PM -0700, Robin Gross (robin at ipjustice.org) wrote:
>>>> 
>>>>> Tapani,
>>>>> 
>>>>> The greatest procedural error in all of this seems to be your presumption that you have the authority to overturn a decision of the EC.  Had you simply framed Ed's appointment as a replacement rather than an alternate in the first place (your error) we wouldn’t be having these problems.  Also, Ed’s resignation from NCSG was clearly made in writing on 11 July and was unambiguous about him leaving council.  For you to try to use your mistake in word selection to overturn the EC’s decision to accept Ed’s resignation is rather remarkable.  There is nothing in the charter that gives the chair the authority to overturn EC decisions, procedural error or not.  You are illegitimately choosing an arbitrary binary as the only possible solutions to your error, but there is no basis in logic or in the charter for you to think you have the authority to set aside EC decisions at your discretion.  The charter gives you no such authority, especially not when you make the errors, that are now used to try to justify your over-turning the EC’s decision to accept Ed’s resignation.  We explicitly agreed on the EC call last week that Ed’s language was explicit enough to interpret it as a complete resignation.  The point was discussed and decided.  Perhaps you should check the transcript if you don’t remember that.  That EC decision stands and it is another usurpation of this committee’s authority for you to attempt to over-turn it.
>>>>> 
>>>>> Robin
>>>>> 
>>>>> 
>>>>>> On Jul 31, 2017, at 8:52 PM, Tapani Tarvainen via NCSG-EC <ncsg-ec at lists.ncsg.is> wrote:
>>>>>> 
>>>>>> Dear Robin,
>>>>>> 
>>>>>> With due respect I have to disagree.
>>>>>> 
>>>>>> We made two formally conflicting decisions, we could
>>>>>> not let them both stand. The first, Tatiana's appointment,
>>>>>> was clear and unquestionable, the second, Ed's status,
>>>>>> much less so for a number of reasons.
>>>>>> 
>>>>>> I don't think anybody would've been happy if I had
>>>>>> failed to appoint Tatiana because of the latter. Would you?
>>>>>> 
>>>>>> But, I agree that Ed's message was clear enough regarding
>>>>>> his council seat, and he has indeed just confirmed it
>>>>>> in a message to James Bladel, so there's no need to
>>>>>> debate that any more.
>>>>>> 
>>>>>> What we need to do, however, is to change Tatiana's
>>>>>> status from temporary alternate to temporary replacement.
>>>>>> 
>>>>>> Tapani
>>>>>> 
>>>>>> On Jul 31 15:34, Robin Gross (robin at ipjustice.org) wrote:
>>>>>>> 
>>>>>>> Tapani,
>>>>>>> 
>>>>>>> The EC made a decision last week to accept Ed’s resignation and note it for the record.  You do not have the authority to over-turn the unanimous decision of the EC.  Decisions of the EC must be unanimous by all members of the committee.  After the committee has made a unanimous decision, the chair has no authority to “undo” the decision, as you have attempted to do.  I don’t know what authority you think you have to over-turn a decision of the committee to accept his resignation from the NCSG.
>>>>>>> 
>>>>>>> Furthermore, there is nothing unclear or ambiguous about Ed’s resignation.  Surely people don’t have to list every single list they are a member of before their resignation can be accepted.  Ed's written resignation letter very explicitly said to remove him from “ALL lists” and this unambiguously includes the membership list.  This resignation comes as no surprise as it was long foretold by Ed and others, and your attempts to revive his membership have gone unanswered by him.  The only one this resignation seems “confused” to is you.
>>>>>>> 
>>>>>>> Robin
>>>>>>> 
>>>>>>> 
>>>>>>>> On Jul 31, 2017, at 9:47 AM, Tapani Tarvainen via NCSG-EC <ncsg-ec at lists.ncsg.is> wrote:
>>>>>>>> 
>>>>>>>> Hi Robin,
>>>>>>>> 
>>>>>>>> As I've already noted, Ed's email is not exactly clear, his talk in
>>>>>>>> Johannesburg much less so (saying he intends to resign is not same as
>>>>>>>> resigning, after all he'd said it many times before).
>>>>>>>> 
>>>>>>>> And our AOB talk on Friday was confused, in particular we didn't make
>>>>>>>> at all clear if we're talking about him leaving just the council or
>>>>>>>> his NCSG membership or what. So I want to do it properly.
>>>>>>>> 
>>>>>>>> Tapani
>>>>>>>> 
>>>>>>>> On Mon, Jul 31, 2017 at 09:22:42AM -0700, Robin Gross (robin at ipjustice.org) wrote:
>>>>>>>>> 
>>>>>>>>> I’m not sure where all the confusion and mystery is coming from.  Ed told many people in Joburg he was resigning, including yourself, which we discussed on this list.  Then he sent a resignation email to you on July 11 instructing you to remove him from all lists, which was forwarded to the EC weeks ago.  We don’t need for the EC to “agree" to his resignation for it to take effect.  We on the EC cannot keep a person on the membership roles when they have explicitly instructed us to remove them.  As Ed had resigned in writing on 11 July, Tatiana’s appointment should have been presented as a replacement instead of alternate to begin with.  Let’s just change it to replacement and get on our work.
>>>>>>>>> 
>>>>>>>>> Thanks
>>>>>>>>> Robin
>>>>>>>>> 
>>>>>>>>>> On Jul 31, 2017, at 9:00 AM, Tapani Tarvainen via NCSG-EC <ncsg-ec at lists.ncsg.is> wrote:
>>>>>>>>>> 
>>>>>>>>>> Hi Joan,
>>>>>>>>>> 
>>>>>>>>>> Thank you, but first we'll have to work out Ed's removal properly,
>>>>>>>>>> and we do need a new decision, by current EC.
>>>>>>>>>> 
>>>>>>>>>> What we could and probably should do is decide that Tatiana will
>>>>>>>>>> be appointed as replacement as soon as Ed's removal from the council
>>>>>>>>>> is formally confirmed, so there'd be no danger of a gap in our
>>>>>>>>>> council represenation.
>>>>>>>>>> 
>>>>>>>>>> Tapani
>>>>>>>>>> 
>>>>>>>>>> On Mon, Jul 31, 2017 at 11:24:06AM -0400, Joan Kerr (joankerr at fbsc.org) wrote:
>>>>>>>>>>> 
>>>>>>>>>>> Hi Tapani, All
>>>>>>>>>>> 
>>>>>>>>>>> I am responding to this email, because I was part of the meeting on
>>>>>>>>>>> Friday.  I support Tatiana as replacement instead of alternate.
>>>>>>>>>>> 
>>>>>>>>>>> <https://www.avast.com/sig-email?utm_medium=email&utm_source=link&utm_campaign=sig-email&utm_content=webmail>
>>>>>>>>>>> Virus-free.
>>>>>>>>>>> www.avast.com
>>>>>>>>>>> <https://www.avast.com/sig-email?utm_medium=email&utm_source=link&utm_campaign=sig-email&utm_content=webmail>
>>>>>>>>>>> <#DAB4FAD8-2DD7-40BB-A1B8-4E2AA1F9FDF2>
>>>>>>>>>>> 
>>>>>>>>>>> On Sun, Jul 30, 2017 at 11:16 AM, Tapani Tarvainen via NCSG-EC <
>>>>>>>>>>> ncsg-ec at lists.ncsg.is> wrote:
>>>>>>>>>>> 
>>>>>>>>>>>> Dear all,
>>>>>>>>>>>> 
>>>>>>>>>>>> Staff has pointed out that we made a procedural error in our Friday
>>>>>>>>>>>> meeting:
>>>>>>>>>>>> two decisions that are in conflict with each other, both cannot be let
>>>>>>>>>>>> stand.
>>>>>>>>>>>> 
>>>>>>>>>>>> Specifically, like proxy, temporary alternate can only be appointed for
>>>>>>>>>>>> a councillor who's formally still in office. When a councillor resigns,
>>>>>>>>>>>> proxy assignments and temporary alternate appointments are nullified,
>>>>>>>>>>>> and a temporary replacement (different from alternate) should be appointed.
>>>>>>>>>>>> So if we deem Ed to have resigned, Tatiana's appointment is void.
>>>>>>>>>>>> 
>>>>>>>>>>>> This should not be hard to fix, but as time is short, I am going to let
>>>>>>>>>>>> Tatiana's appointment stand as it is and set our decision regarding Ed
>>>>>>>>>>>> aside, or rather consider the latter to be mere discussion.
>>>>>>>>>>>> 
>>>>>>>>>>>> The practical reason for this is obviously the need to have Tatiana
>>>>>>>>>>>> in council for the vote tomorrow and we don't have time to make new
>>>>>>>>>>>> decisions before then.
>>>>>>>>>>>> 
>>>>>>>>>>>> There's also the formal point that member removal is a significant
>>>>>>>>>>>> decision, especially so when circumstances are unusual like now, and
>>>>>>>>>>>> non-trivial decisions should not be made as last-minute AOB items.
>>>>>>>>>>>> 
>>>>>>>>>>>> This should not be too hard to do properly, especially if we can agree
>>>>>>>>>>>> on the list about Ed's status and replacement (changing Tatiana's
>>>>>>>>>>>> status from alternate to replacement), or otherwise let's put it on
>>>>>>>>>>>> next meeting agenda.
>>>>>>>>>>>> 
>>>>>>>>>>>> --
>>>>>>>>>>>> Tapani Tarvainen
>>>>>>>>>>>> _______________________________________________
>>>>>>>>>>>> NCSG-EC mailing list
>>>>>>>>>>>> NCSG-EC at lists.ncsg.is
>>>>>>>>>>>> https://lists.ncsg.is/mailman/listinfo/ncsg-ec
>>>>>>>>>>>> 
>>>>>>>>>>> 
>>>>>>>>>>> 
>>>>>>>>>>> 
>>>>>>>>>>> -- 
>>>>>>>>>>> 
>>>>>>>>>>> Joan Kerr,
>>>>>>>>>>> 
>>>>>>>>>>> Social Entrepreneur, Humanitarian
>>>>>>>>>>> 
>>>>>>>>>>> T: +1 (416) 907-0783
>>>>>>>>>>> 
>>>>>>>>>>> Skype: joankerr_fbsc
>>>>>>>>>>> 
>>>>>>>>>>> fbsc.org, www.fbsc.eco
>>>>>>>>>>> 
>>>>>>>>>>> Chair: Victory Garden Leadership Implementation Team
>>>>>>>>>>> 
>>>>>>>>>>> Chair: IEEE Smart Villages Project, Sustainable Agriculture Working Group
>>>>>>>>>>> 
>>>>>>>>>>> Chair: Agricultural Track, IEEE Global Humanitarian Technology Conference
>>>>>>>>>>> 
>>>>>>>>>>> Chair: ICANN Not for Profit Operational Concerns Constituency
>>>>>>>>>>> 
>>>>>>>>>>> Advisor, IEEE Humanitarian Initiatives Committee
>>>>>>>>>>> 
>>>>>>>>>>> Advisor, Climate Smart Agriculture Youth Network, (CSAYN) Global
>>>>>>>>>>> Coordination Unit
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