Subject: Re: IAOC Request for community feedback

From: [email-masked] (Noel Chiappa)
Date: Tue, 23 Oct 2012 15:21:35 -0400 (EDT)

> From: Michael StJohns <[email-masked]>

    > When would you consider the office vacant?

The complete data on what attempts had been made to communicate with him were
given to us all, so we can all form our own individual opinion as to whether
sufficient conditions had been met.

    > I'm currently in jury duty - and sequestered for a major murder trial?
    > ... Trapped in a hospital for 6 weeks for traction?

In all of these cases one presumably wouldn't vanish without a word of
explanation. It's that, as much as the non-performance, that's an issue.

You know as well as I do that in a normal company, if an employee stopped
showing up for work with no notice, no communication about the situation,
and that went on for months, the person would find themselves terminated.

    > From: Doug Barton <[email-masked]>

    > It is neither safe, nor appropriate, to assume that the subset of
    > people humming about this issue overlaps sufficiently with the subset
    > that hummed about establishing the procedure to justify this decision.

What, we can't change a procedure unless the set of people who previously
OK'd it now agree to change it? I don't think so. A hum is a hum is a hum.

	Noel

---

From: Doug Barton <[email-masked]>
Date: Tue, 23 Oct 2012 12:26:58 -0700

> OK'd it now agree to change it? I don't think so. A hum is a hum is a hum.

You're not proposing a change in procedure. You're proposing to ignore
one. Those are entirely different things.

You've also snipped out the entire portion of my message where I talked
about actually changing the procedure, and why that may actually be a
good thing. I can't tell if you're deliberately trying to confuse the
issue by arguing against a straw-man that I did not actually propose, or
if you just didn't understand what I wrote previously. If the latter I
apologize, and would be happy to clarify if necessary.

Doug

---

From: David Kessens <[email-masked]>
Date: Tue, 23 Oct 2012 13:07:13 -0700

Doug,

On Tue, Oct 23, 2012 at 12:26:58PM -0700, Doug Barton wrote:
> one. 

No procedure is ignored.

BCP 101 does not define the rules for declaring a position vacant. In
absense of such rules, the IAOC decided to consult with the community
whether the community agrees that the position is now vacant.

Another avenue, which is also mentioned in the BCP, that could have been
followed is the recall procedure. However, the IAOC felt that it was not
really intended for a situation where somebody apparently has vacated their
position.

David Kessens
---

---

From: Doug Barton <[email-masked]>
Date: Tue, 23 Oct 2012 13:19:26 -0700

>> You're not proposing a change in procedure. You're proposing to ignore

That is a matter of interpretation.

> whether the community agrees that the position is now vacant.

While I applaud the IAOC for not acting unilaterally on their beliefs,
what the community (at least parts of it) are saying is that their
belief that the situation is ambiguous is incorrect.

Or, put another way, no; I do not agree that the position is currently
vacant.

> really intended for a situation where somebody apparently has vacated their

It's the "apparently" that is troublesome. With due respect to Marshall
(since I don't know his circumstances) he seems to have become derelict
in his duty, therefore the recall procedure should be initiated. To do
otherwise would be setting a very bad precedent.

You asked for feedback, you have now received a non-trivial number of
responses saying that arbitrarily declaring the position vacant is not
an appropriate action. You have also received volunteers for the recall
process. Rather than spending more time on trying to justify declaring
the position vacant, why not get started on that recall?

Doug

---

From: John Leslie <[email-masked]>
Date: Tue, 23 Oct 2012 17:32:51 -0400

> the position vacant, why not get started on that recall?

   I strongly urge folks who think as Doug does to _read_ RFC 3777.

   Note that the recall process can only start with 20 "members of the
IETF community, who are qualified to be voting members of a nominating
committee" petitioning to the Internet Society President.

   If that happens, the recall process will start; if not, it won't.

   If the process starts, the Secretariat must go through the process
for selecting a nominating committee (separate from "the" nominating
committee) excluding the petitioners above. Presumably liaisons also
need to be selected. This process won't be "quick".

   BCP 101, IMHO, does allow for a vacancy to "occur" by other means
than recall, though it certainly doesn't try to specify these. Perhaps
it needs to be updated to cover vacancy by abandonment...

   I can but suggest that the nominating committee be asked to select
a replacement _promptly_ while we see whether a recall is started
and discuss the proper update to BCP 101. If that replacement is
selected before the issue is "resolved", the person could participate
"informally" without vote until there is some resolution.

   Myself, I don't expect to petition or volunteer to serve on a
recall committee. The recall process isn't intended to be "practical",
IMHO, and seems intended only to prod the subject of recall to resign.
In other organizations, I have lived through longish periods of
uncertainty about the exact status of an individual, and I no longer
find it scary.

--
John Leslie <[email-masked]>

---

From: Doug Barton <[email-masked]>
Date: Tue, 23 Oct 2012 17:47:48 -0700

First in regards to Bob's post a bit ago, I personally am not asserting
that the IAOC has broken any rules. I was sincere in my applause for
their requesting feedback on this question; in spite of the fact that I
disagree with their premise.

>    I strongly urge folks who think as Doug does to _read_ RFC 3777.

I watched the castle being built, I've no desire to live in it. :) I did
do a quick review of it just now, and at the risk of repeating myself I
think anyone who is interested in revamping it would be putting their
efforts to excellent use.

>    If that happens, the recall process will start; if not, it won't.

How very tautological of you. :)

[snip]

> uncertainty about the exact status of an individual, and I no longer

I tend to agree, which is one of the reasons I think the procedure
should be followed as written.

Doug

---

From: Andrew Sullivan <[email-masked]>
Date: Tue, 23 Oct 2012 23:47:37 -0400

> should be followed as written.

Let me get this straight: for the sake of procedures that are clearly
designed to be hard to use, and on the dubious principle that some
"precedent" is going to be set with respect to doing something that we
have never done before and hope never to do again (because we're going
to clarify the procedures right now), and in the face of an impending
decision by an already-sitting nomcom that is already doing all this
work, we're going to cleave to using the heavyweight procedure instead
of allowing judgement to carry the day?

I just want to be clear about this, since I'm busy running around the
NANOG meeting attempting to encourage operators to devote more of the
time they don't have to IETF activities.  I want to be sure I'm
correct in illustrating to them how we have all the bureaucratic
agility of the ITU-T or ICANN and all the legal and political
sophistication of the Occupy Wall Street committees.

Best,

A

-- 
Andrew Sullivan
[email-masked]

---

From: Doug Barton <[email-masked]>
Date: Tue, 23 Oct 2012 21:23:21 -0700

On 10/23/2012 8:47 PM, Andrew Sullivan wrote:

> designed to be hard to use,

While I think that 3777 probably errs on the side of too hard to use,
recalling someone from one of these positions _should_ be hard to do,
and should not be undertaken lightly.

> and on the dubious principle that some
> have never done before and hope never to do again

Thus, the definition of a precedent.

> (because we're going to clarify the procedures right now),

One hopes, but there are no guarantees in life.

> and in the face of an impending
> work,

That's one of the reasons that the documented procedure is more
palatable (barely).

> we're going to cleave to using the heavyweight procedure instead

The problem with that "judgement" that you'd like to use here is that it
may be all fine and good in this case, but what about next time?

> sophistication of the Occupy Wall Street committees.

With respect, you haven't spent much time with either the ITU or ICANN
if you think that 3777 is rigidly bureaucratic by their standards.

This is one of those situations where we have to take our medicine.

Doug

---

From: Eliot Lear <[email-masked]>
Date: Wed, 24 Oct 2012 06:51:51 +0200

On 10/24/12 6:23 AM, Doug Barton wrote:
> This is one of those situations where we have to take our medicine. Doug 

There are actually very few ITU rules, and very many guidelines.  The
latter are the exact opposite of rigid, but subject to overturning by
Member States at any time.  I had thought that we were roughly the same
in that regard, so as to avoid a perversity.  We've had any number of
debates on this list about not creating process without a reason. 
Fine.  The price for that is that you have to deal with these sorts of
circumstances as and when they arise, using rough consensus as your guide.

Eliot

---

From: Doug Barton <[email-masked]>
Date: Tue, 23 Oct 2012 22:01:39 -0700

> circumstances as and when they arise, using rough consensus as your guide.

I've repeated myself many times now, so you're going to get the last word.

I get what you're saying, but this is one of those times where (arguably
for the better) we've created a difficult procedure that should be
infrequently exercised. We should follow the procedure because it _is_
the procedure. And then use the opportunity to improve it.

Changing, or even overturning a procedure is quite a different thing
from ignoring one altogether.

Doug

---

From: Melinda Shore <[email-masked]>
Date: Tue, 23 Oct 2012 21:04:10 -0800

> circumstances as and when they arise, using rough consensus as your guide.

I was away from the IETF for several years and was surprised by the
degree of ossification I found when I returned.  I would very much
like to see us find some way to restore some agility.  That said,
consensus-y processes scale poorly in cases where there's substantial
disagreement.  On the other hand, what I've seen so far in this
discussion is two roughly sorted groups of responses:  1) "yes," and
2) "I am not comfortable with this process."  There doesn't seem to
be anybody saying "No" on the merits of the question, but concern
that saying "yes" will violate some processes we've put in place.

I am curious to know whether or not there are people who feel that
Marshall shouldn't be considered to have quit IAOC.  If there's
nobody who feels that way I'm personally great with going ahead
without a recall.  If we've got basic agreement that Marshall
needs to be replaced it seems to me that we're good to go ahead and
do so.  If we don't have agreement, then it's time to go through the
process.

Melinda

---

From: Brian E Carpenter <[email-masked]>
Date: Wed, 24 Oct 2012 08:16:39 +0100

> whether the community agrees that the position is now vacant.

Exactly. To my mind, a member who ceases to participate, and fails to
reply to messages indicating that the seat is about to be declared
vacant, has created a vacancy. I think the IAOC is behaving appropriately.

> really intended for a situation where somebody apparently has vacated their

Agreed. It could be used for that, but I don't see it as required.
We aren't dealing with alleged misbehaviour.

    Brian Carpenter

---

From: David Morris <[email-masked]>
Date: Wed, 24 Oct 2012 06:46:34 -0700 (PDT)

> We aren't dealing with alleged misbehaviour.

Where I come from failure to fulfill the duties of the position is
misbehaviour. I think it would be serious lack of respect for Marshall
to not follow the only documented procedure for removing someone
from a position. After all, he has spent many years contributing
to the IETF, including the definition of the removal procedure.

FWIW, in some sense, this is a good first test case for the
procedure in that I don't sense an inclination by anyone to
oppose the outcome of removal. At the minimum, there should
probably be a simpler procedure for removal in a case like
this where responsibilities have be abandoned. But we don't
have that alternative now, so I think we must follow what
we have already defined.

We might also want to consider a documented procedure
like the 25th ammendment for temporary removal.

David Morris

---

From: Andrew Sullivan <[email-masked]>
Date: Tue, 23 Oct 2012 23:36:35 -0400

Best,

A

-- 
Andrew Sullivan
[email-masked]

---

From: Margaret Wasserman <[email-masked]>
Date: Wed, 24 Oct 2012 08:49:09 -0400

> the procedure. And then use the opportunity to improve it.

The existence of the recall procedure does not imply that there isn't any other way for a seat to become vacant.  For example, a seat can become vacant when an I* member resigns or dies, and there is no need for a recall in those cases.  

I think it is reasonable for the IAOC to set it's own (reasonable, consistent) bar for deciding that a sitting member has vacated his/her seat through lack of attendance and lack of response.  No recall should be needed in that case to replace the missing member, any more than if the person had explicitly resigned.  The IAOC sent a long list of things that they have done to contact Marshall, and he has not responded.  It seems impossible that he has not received any of those contacts, so his lack of response is indicative, IMO, that he has indeed vacated his seat.

I share the hope of the IAOC and others that Marshall is okay, and that he will return to the IETF when he can.  I appreciate his contributions throughout the years, and I would be happy to see him return to continue making those contributions.  For now, though, he has vacated his IAOC seat and should be replaced.

Margaret

---

From: "Tony Hain" <[email-masked]>
Date: Wed, 24 Oct 2012 08:41:24 -0700

> David Morris wrote:
misbehaviour.

My thoughts exactly. 

To a first order the 'urgency' implied by those arguing to bypass the recall
process suggests masking another failure. 
In other words: failure to act on your part does not create a crisis on my
part ...

If the delay to run the recall process is creating a problem for the IAOC,
the petition for recall should have started earlier in parallel with ongoing
contact attempts. If contact occurred, the petition could have been
abandoned. On the other hand, since there is time to waste arguing to bypass
the recall process, there must not be any real urgency. 

While I can understand wanting to follow the simplest process, the expedient
thing to do is follow the established process no matter how long that takes,
because in the end you will end up there and will only have wasted time
trying to work around it.

As StJohns pointed out, there are repercussions outside the cozy den of the
old-boys&girls club here. Has anyone asked council for their take on his
points? If not, that should happen before anything else. 

Tony

---

From: Doug Barton <[email-masked]>
Date: Wed, 24 Oct 2012 12:34:26 -0700

On 10/24/2012 5:49 AM, Margaret Wasserman wrote:
>> I get what you're saying, but this is one of those times where
>> (arguably for the better) we've created a difficult procedure that
>> should be infrequently exercised. We should follow the procedure
>> because it _is_ the procedure. And then use the opportunity to
>> improve it.
> 
> The existence of the recall procedure does not imply that there isn't
> any other way for a seat to become vacant.  For example, a seat can
> become vacant when an I* member resigns or dies, and there is no need
> for a recall in those cases.

The 2 examples you gave are (as someone else pointed out)
incontrovertibly objective criteria, as is the explicit mention of the
use of the recall procedure in BCP 101. Nothing in the text suggests an
unfettered right of creating new definitions of "vacant."

For Melinda's benefit, in _addition_ to the process issue I am also not
in agreement with declaring the position vacant in this manner.

Doug

---

From: [email-masked] (Martin Rex)
Date: Thu, 25 Oct 2012 01:25:50 +0200 (CEST)

Doug Barton wrote:
> Andrew Sullivan wrote:

There is a good reason why procedures for recalling someone from
a position in a decision-making body with elected members is much
harder than electing the person into that body.

Sometimes, members are elected by only a small majority over competitors,
and they even may have been "weak supporting" votes, and those may even
be known to each member.  Now it happens that those decision bodies
have to occasionally make contentious or unpopular, but necessary
and hopefully rational and mostly unbiased decisions,

What you want to avoid is those members with "weak" votes to worry
about mainly pleasing one or a few very specific "voters" during
those decisions, that could otherwise have them recalled by just
those persons not voting for them again in the recall procedure.

On a different issue:  The "legal" procedure if someone does not
perform his agreed duties and falls into total inactivity would
be (German legalese "(Ver)säumnisurteil"), which Wikipedia maps to
this english term:

   http://en.wikipedia.org/wiki/Default_judgment

-Martin

---

From: Mark Andrews <[email-masked]>
Date: Thu, 25 Oct 2012 10:43:20 +1100

In message <[email-masked]>, Margaret Wass
erman writes:
> The existence of the recall procedure does not imply that there isn't any 
> other way for a seat to become vacant.  For example, a seat can become 
> vacant when an I* member resigns or dies, and there is no need for a 
> recall in those cases.  
> 
> I think it is reasonable for the IAOC to set it's own (reasonable, 
> consistent) bar for deciding that a sitting member has vacated his/her 
> seat through lack of attendance and lack of response.  No recall should 
> be needed in that case to replace the missing member, any more than if 
> the person had explicitly resigned.  The IAOC sent a long list of things 
> that they have done to contact Marshall, and he has not responded.  It 
> seems impossible that he has not received any of those contacts, so his 
> lack of response is indicative, IMO, that he has indeed vacated his seat.

But we don't have rules that say, "failure to attend for X period,
without permission, will result in the position being declared
vacant".  I we did this would be simple.  I don't think we have
any choice from a proceedural point of view other than to start
recall proceedings.

> I share the hope of the IAOC and others that Marshall is okay, and that 
> he will return to the IETF when he can.  I appreciate his contributions 
> throughout the years, and I would be happy to see him return to continue 
> making those contributions.  For now, though, he has vacated his IAOC 
> seat and should be replaced.
> 
> Margaret

-- 
Mark Andrews, ISC
1 Seymour St., Dundas Valley, NSW 2117, Australia
PHONE: +61 2 9871 4742                 INTERNET: [email-masked]

---

From: "John Levine" <[email-masked]>
Date: 25 Oct 2012 02:59:51 -0000

>any choice from a proceedural point of view other than to start

Having reread RFC 4071, I don't see a rule that says that the death of
a member will result in the position being declared vacant, either.
Nor are there any rules that say what documentation would be required
to establish that someone had died.

At some point we have to allow a sliver of common sense to intervene
so people can do reasonable things to solve problems.

R's,
John

---

From: Yoav Nir <[email-masked]>
Date: Thu, 25 Oct 2012 08:15:39 +0200

> those persons not voting for them again in the recall procedure.

All correct, except that the IAOC (and IAB, IESG) are not elected. Just as some companies have staffing committees which make the decision on who to hire and who to promote, the IETF has the NomCom. While they have the power to appoint people to vacant positions, they don't have firing power, and have no bigger say in a recall process than you or me.

There is a good reason to make it hard to unseat a president or prime minister. There is a good reason to make it hard to unseat an IAOC member if the claim is made that they're trying to get rid of him because he's voting against the decisions favored by Russ or Bob. This is not the case here. He has simply chosen a particularly strange way to resign.

If president Obama chose to hide in the presidential bedroom and not answer the phone, Mr. Biden would be sworn in within hours, not three months.

Yoav

---

From: Brian E Carpenter <[email-masked]>
Date: Thu, 25 Oct 2012 08:46:34 +0100

On 24/10/2012 20:34, Doug Barton wrote:
...
> ... Nothing in the text suggests an

You mean, new compared to the first definition in Merriam-Webster.com?

1: not occupied by an incumbent, possessor, or officer <a vacant office> <vacant thrones>

Objectively and factually, that seems to be the case. The IAOC is actually
going an extra mile rather than simply informing NomCom that the seat
has become vacant.

    Brian

---

From: "Tony Hain" <[email-masked]>
Date: Thu, 25 Oct 2012 08:08:07 -0700

Has anyone bothered to ask counsel for an opinion about the issues StJohns raised?

> -----Original Message-----
> From: [email-masked] [mailto:[email-masked]] On Behalf Of
> Brian E Carpenter
> Sent: Thursday, October 25, 2012 12:47 AM
> To: Doug Barton
> Cc: [email-masked]
> Subject: Re: Just so I'm clear
> 
> going an extra mile rather than simply informing NomCom that the seat has
> become vacant.
> 
>     Brian

---

From: Doug Barton <[email-masked]>
Date: Thu, 25 Oct 2012 11:40:57 -0700

> 1: not occupied by an incumbent, possessor, or officer <a vacant office> <vacant thrones>

C'mon Brian, not helpful. We're talking about the BCP 101 "definition of
vacant" which unfortunately is not nearly so precise. If there were no
mention of 3777 in the text then there would appear to be more leeway in
declaring a position vacant.

> Objectively and factually, that seems to be the case.

I get that this is what you believe to be true, however what some of us
are saying is that we don't agree. Given that the only choices are
"vacant, or recall;" and given that the vacant state of the seat isn't
100% clear, at this time recall is the only option.

Doug

---

From: Michael StJohns <[email-masked]>
Date: Thu, 25 Oct 2012 16:56:11 -0400

>Objectively and factually, that seems to be the case. 

The objective facts of the case are that Marshall is non-responsive and has not attended some number of meetings and teleconferences. Period.

To put a very specific point on this - in the real world, people get shot, or are other wise hurt and end up in coma's and are otherwise unable to fulfill the responsibilities of their office, and unless and until they resign from office or are removed by defined procedures, they remain the incumbent.

I can list at least a few examples from American politics if you desire.  In the academic world, a tenured named position does not become vacant when the incumbent goes on sabatical.  If there are administrative responsibilities associated with the position, generally the organization has defined procedures to deal with the absence.  

>The IAOC is actually

---

From: Melinda Shore <[email-masked]>
Date: Thu, 25 Oct 2012 13:08:48 -0800

On 10/25/12 12:56 PM, Michael StJohns wrote:
> To put a very specific point on this - in the real world, people get
> shot, or are other wise hurt and end up in coma's and are otherwise
> unable to fulfill the responsibilities of their office, and unless
> and until they resign from office or are removed by defined
> procedures, they remain the incumbent.
> 
> I can list at least a few examples from American politics if you
> desire.  In the academic world, a tenured named position does not
> become vacant when the incumbent goes on sabatical.  If there are
> administrative responsibilities associated with the position,
> generally the organization has defined procedures to deal with the
> absence.

I don't think that these are in any way analogous, since in each
case that you mentioned the individual who left was either incapacitated
or had pre-arranged an absence.  If someone simply disappeared from
work without notice or comment I expect it would be handled rather
differently.

It's not at all clear to me that a recall actually is required, but
it seems to me that in the interest of getting this resolved one
should be started.  Soon.  Now, if possible.

Melinda

---

From: Michael StJohns <[email-masked]>
Date: Thu, 25 Oct 2012 17:27:10 -0400

At 05:08 PM 10/25/2012, Melinda Shore wrote:
>don't think that these are in any way analogous, since in each

Professor A does not return from Sabbatical at the time he had previously indicated.  He is not reachable.

Congresswoman B goes into 90 day rehab suddenly.  Her staff says only that she's unavailable.  At the end of 90 days, she extends for another month.

I can go on.

We know that Marshall is unresponsive for a while and that is the ONLY fact we have.  We suspect (from the 2nd party Facebook conversation) that we know why.  But the truth may be (and probably is) somewhat different.

Later, Mike

---

From: Brian E Carpenter <[email-masked]>
Date: Fri, 26 Oct 2012 08:20:00 +0100

> declaring a position vacant.

There is no definition of "vacant" or "vacancy" in RFC 3777 (except for the
special case of a mid-term vacancy caused by the appointment of the member
to another IETF position). Therefore it seems reasonable to resort
to the dictionary.

> are saying is that we don't agree. 

Actually I haven't seen that. I've seen people assert that our process
doesn't document the case of a non-responsive absentee member, but I
haven't seen anyone deny that we have an empty seat.

  Brian

---

From: Doug Barton <[email-masked]>
Date: Fri, 26 Oct 2012 10:02:04 -0700

On 10/26/2012 12:20 AM, Brian E Carpenter wrote:
>>> On 24/10/2012 20:34, Doug Barton wrote: ...
>>>> ... Nothing in the text suggests an unfettered right of
>>>> creating new definitions of "vacant."
>> C'mon Brian, not helpful. We're talking about the BCP 101
>> "definition of vacant" which unfortunately is not nearly so
>> precise. If there were no mention of 3777 in the text then there
>> would appear to be more leeway in declaring a position vacant.
> 
> There is no definition of "vacant" or "vacancy" in RFC 3777 (except
> for the special case of a mid-term vacancy caused by the appointment
> of the member to another IETF position). Therefore it seems
> reasonable to resort to the dictionary.

Except that, unfortunately, it isn't (reasonable). The equivalent
situation is something akin to a corporation's bylaws. Given that there
are 2 procedures actually defined in BCP 101 (vacant, and recall) it is
not Ok to simply make up a new procedure.

With all due respect to Marshall, he has clearly abrogated his duty, and
is subject to recall. While the argument of "not communicative ==
vacant" is attractive for its expedience, the document not only does not
say that, it has specific language that defines what to do in the case
that a member is not doing their job, "abrogates his or her duties ->
recall."

>> I get that this is what you believe to be true, however what some
>> of us are saying is that we don't agree.
> 
> Actually I haven't seen that. I've seen people assert that our
> process doesn't document the case of a non-responsive absentee
> member, but I haven't seen anyone deny that we have an empty seat.

Several of us have said it several times now.

All that said, I agree with the previous poster who pointed out that
nothing new has been said on this thread for a while now, and it's high
time we got the opinion of competent legal counsel. If we have a strong
legal opinion that declaring the position vacant by fiat is an
acceptable course of action, I will drop my objection.

Doug

---

From: David Morris <[email-masked]>
Date: Sat, 27 Oct 2012 21:28:34 -0700 (PDT)

> haven't seen anyone deny that we have an empty seat.

I don't believe the seat is vacant or empty. Without some form of
rule or process documented, it isn't vacant. For unknown reasons
(we've had two different 3rd party reports, neither of which makes
sense given the individual's prior commitment to the IETF community,
we have a clear case of failure to fulfill the obligations assumed when
the position was accepted.

That isn't a defacto vacancy.