Subject: Re: RFC Series Editor (RSE) Statement of Work

From: Michael StJohns <[email-masked]>
Date: Thu, 1 Aug 2019 16:16:07 -0400

Hi Alissa -

Pruned - other comments in line.

On 7/31/2019 2:34 PM, Alissa Cooper wrote:
>
>>>> You could make it the LLC under an "employee with a contract model" and assign them to the LLC to manage, but there would still be a lot of things to work out.  Then there's "advancement" or the lack thereof.   For Ray, we punted - he was really a contracted for employee by the IAOC of a larger company (ISOC) as far as I can tell.
>>> Ray was an ISOC employee.
>> *sigh*  Either I need to take writing lessons or others need to read more closely.  I'm not sure what the correct answer is.
>>
>> Yes, Ray was an ISOC employee and as an employee was a contracted for resource of the IETF.  That contract might have been implicit or explicit, in kind or with a dollar value attached, but it was a contract between the IETF and the ISOC for Ray's services.   Maybe "contracted for employee, by the IAOC, of a larger company (ISOC)" would have been clearer?
> Since the thread had turned in the direction of discussing the details of specific employment relationships, it seems like the subtleties here matter. Since the IETF was organized as an activity of ISOC while Ray was IAD, there was no written contract to speak of between the IETF or the IAOC and ISOC that I’m aware of (though happy to be corrected if I’m wrong). The understanding of the IAD role was documented in RFC 4071. I wasn’t thinking of RFC 4071 as an “implicit contract” when I read your mail, but perhaps that is one way of thinking about it.

Given that Ray had no responsibilities (AFAIK) for ISOC duties, and that 
ISOC hired him on our behalf and that  (from 4071):

"Although the IAD is an ISOC employee, he or she works under the 
direction of the IAOC. A committee of the IAOC is responsible for hiring 
and firing the IAD, for reviewing the IAD's performance, and for setting 
the compensation of the IAD.",

it's reasonable to cast the relationship between the IAD and the IETF as 
a contract relationship of a flavor.    Even though 4071 said the above, 
it was all with the consent of the ISOC who was Ray's employer, and an 
attempt to do something in this vein that was against the ISOC HR 
policies would have been problematic even if "authorized" by 4071.  Even 
an attempt to fire Ray might have been met with some really interesting 
conversations between the ISOC and the IETF and perhaps lawyers.

You now have me curious - was there a separate agreement or MOA between 
the IAOC and ISOC covering the employment of the IAD where the ISOC 
agreed to the above?

>
> By contrast, Portia was not an employee of ISOC. She was a contractor to ISOC before the IETF LLC was created, and is now a contractor to the IETF LLC, under your definition of “contractor/consultant.”

Given that Portia is acting or interim (I don't actually remember which 
at this point), I don't know that her contractor status matters all that 
much or means anything for the future RSE or even for the future IAD.

What's a lot more interesting is what you (singular and I*) see as the 
target relationship for the to-be-hired permanent IAD - contract with 
LLC, employee of the LLC, contract with the IAD's employing 
organization, something else?

Later, Mike

> Best,
> Alissa
>> Later, Mike

---

From: Randy Bush <[email-masked]>
Date: Thu, 01 Aug 2019 13:20:35 -0700

when i was on the iaoc, it did performance review and salary recco for
iad.

randy

---

From: Michael StJohns <[email-masked]>
Date: Thu, 1 Aug 2019 16:24:56 -0400

> when i was on the iaoc, it did performance review and salary recco for

Which is why I was asking if there was some sort of formal agreement to 
allow this.  No worries - it's just an idle question.

Thanks - Mike

---

From: Benjamin Kaduk <[email-masked]>
Date: Thu, 1 Aug 2019 16:13:19 -0500

Hi Mike,

> Pruned - other comments in line.

Also pruning...

> organization, something else?

As a potentially implicated party, do you see "I*" as just referring to
IETF LLC, or to the IESG, IAB, and potentially other bodies whose names
start with I?

Thanks,

Ben

---

From: Andrew Sullivan <[email-masked]>
Date: Thu, 1 Aug 2019 17:30:32 -0400

Hi,

I'm now an ISOC employee and not speaking for it.  I was not an ISOC
employee at the time of the stuff I will mention below, which is
relevant to this discussion.

> when i was on the iaoc, it did performance review and salary recco for

When I was on the IAOC, in different roles, we were supposed to do
that but found we couldn't.  This is because in fact the IETF and by
extension the IAOC had no formal place in the ISOC corporate structure
and therefore could not even plausibly be included in the management
chain of ISOC.  So, bizarrely, we were in a situation where we were
supposed to evaluate someone's performance without reference to the
performance goals or evaluation as previously agreed, because those
were employment documents and therefore protected under applicable
law.

Indeed, this wart in the IAOC-supervises-IAD arrangement was prominent
(at least for me) in the list of things to address during the IASA 2
discussions (so it's not the first time I've mentioned it).  In my
opinion, they were so addressed during the creation of the LLC.

I am aware that earlier periods of the IAOC relationship was less
structured and perhaps less rigid about the handling of documents like
this.  One of the things about organizations that get older, more
mature, and that have more money in the bank is that they start to
evaluate risk differently, and that may be part of what happened in
this case (I don't know, since I wasn't responsible for the handling
of these documents). But I found I definitely had a problem in
undertaking my duty.

Best regards,

A

-- 
Andrew Sullivan
[email-masked]

---

From: Michael StJohns <[email-masked]>
Date: Thu, 1 Aug 2019 18:46:49 -0400

> IETF LLC, or to the IESG, IAB, and potentially other bodies whose names

Heh.

I know there was an RFP for the IAD, I don't know if that RFP listed a 
preferred form of engagement or if that was left blank. If you know what 
the preferred form as was listed in the RFP is, I'd be happy to accept 
that as an answer.  If it was left blank, I'm wondering whether the 
current I* leadership (LLC, IAB, IESG) has an idea of where they want to 
go with respect to adding overhead positions (e.g. employee or 
contractor or some other form of engagement) and why that form?  If the 
best candidates prefer another form of engagement, are we prepared to go 
in that direction?

The change to the LLC may have left a number of assumptions hanging...

Thanks - Mike

---

From: Michael StJohns <[email-masked]>
Date: Thu, 1 Aug 2019 18:55:20 -0400

> of these documents). But I found I definitely had a problem in

So you're basically saying that what was in 4071 didn't reflect the 
actual legal landscape.  E.g. the authorities granted to the IAOC to 
manage/control/evaluate the IAD didn't really exist and there wasn't 
actually a formal agreement with ISOC to allow for the setting of 
performance goals or even hiring and firing?

And I seem to remember in one of the message chains a comment that the 
6635 language that said "evaluate the RSE" got short shrift from ISOC as 
well?  So, from the ISOC's point of view, as the contract owner, at 
least part of 6635 did not reflect the actual legal landscape - correct?

Now you have me curious - what were the dates that the RSE and IAD 
contract(s) were assigned from the ISOC to the LLC and accepted by the 
individual contractors?

Later, Mike

---

From: Stephen Farrell <[email-masked]>
Date: Fri, 2 Aug 2019 01:56:40 +0100

On 01/08/2019 22:30, Andrew Sullivan wrote:
>  One of the things about organizations that get older, more
> evaluate risk differently, 

Excellent reasons to rejuvenate, continue to celebrate
immaturity, and have less money:-)

Despite the smiley, I do believe that.

S.

---

From: Brian E Carpenter <[email-masked]>
Date: Fri, 2 Aug 2019 13:24:02 +1200

Ben,

I can't reply for Mike, of course, but see below...

> IETF LLC, or to the IESG, IAB, and potentially other bodies whose names

If the topic is how does the LLC pick its ED, that really is LLC business
but they would be foolish to ignore the interests of the non-IETF parts of
the community. So I'd assume that they'll depend on input from the IESG,
representing the main customer, but also consult the IRTF Chair, and the RSE,
and any other parties likely to deal regularly with the ED. But anyway, that
process is well advanced (https://mailarchive.ietf.org/arch/msg/ietf-announce/4Slrq_DKzETrxmtS0d_GFZGJ_9M).

If the topic is as given in the subject field, that belongs on [email-masked]

Regards
    Brian

---

From: Andrew Sullivan <[email-masked]>
Date: Fri, 2 Aug 2019 12:48:29 -0400

Hi,

Still employed by, still not speaking for ISOC.

On Thu, Aug 01, 2019 at 06:55:20PM -0400, Michael StJohns wrote:
> 
> So you're basically saying that what was in 4071 didn't reflect the actual
> legal landscape.  E.g. the authorities granted to the IAOC to

I don't know how there could have been a "formal agreement" with ISOC
for this, since formally the IETF (and therefore the IAOC) was an
activity of ISOC.  It'd be like having a formal agreement between a
department of a corporation and the corporation itself.

Regardless, the basic idea was that ISOC was in fact responsive to the
IAOC's requests to the extent permitted by law, but the practicalities
of making the oversight work were much more convoluted than one would
like and resulted in these quite bizarre situations in which the
official version of what the employee received was not something to
which the nominal oversight body actually had access once that
official version was completed.  If one thinks about this for even a
second, it is obvious why: we all want our employment records to be
handled as confidential information by our employers, nobody on the
IAOC was under an NDA to ISOC, and only of them was an employee of
ISOC.  So there was no way to hand employment information for an
employee of ISOC to IAOC members, except of course the ISOC CEO.

I'm surprised any of this is news, since I think we went over it in
some detail during the iasa2 discussions.

> And I seem to remember in one of the message chains a comment that the 6635
> language that said "evaluate the RSE" got short shrift from ISOC as well? 
> So, from the ISOC's point of view, as the contract owner, at least part of
> 6635 did not reflect the actual legal landscape - correct?

I don't know about this.  The relationship among parties in a
contracting situation is quite different than the relationship among
parties in an employment situation.  In the case of the RSE, the
contract (which is available for anyone to inspect at
https://www.ietf.org/documents/232/RSE-2018-Independent-Contractor-24Oct17-Public.pdf)
makes it pretty clear that the Internet Society was acting at the
behest of the IAB and RSOC.
 
> contract(s) were assigned from the ISOC to the LLC and accepted by the

The IAD contract was never assigned from ISOC to the LLC, because the
IAD was always an employee.  But the IIAD contract was transferred
along with the RFC Editor contract and everything else associated with
this on 27 August 2018, according to
https://www.ietf.org/documents/181/IETF-ISOC-TSSA-Redacted.pdf.

The contractors didn't have a say in this assignment, since such
agreements contained an assignment clause permitting ISOC to assign as
it wanted.

Best regards,

A

-- 
Andrew Sullivan
[email-masked]

---

From: Alissa Cooper <[email-masked]>
Date: Fri, 2 Aug 2019 13:05:11 -0400

Hi Mike,

> On Aug 1, 2019, at 4:16 PM, Michael StJohns <[email-masked]> wrote:
> 
> Hi Alissa -
> 
> Given that Ray had no responsibilities (AFAIK) for ISOC duties, and that ISOC hired him on our behalf and that  (from 4071):
> 
> "Although the IAD is an ISOC employee, he or she works under the direction of the IAOC. A committee of the IAOC is responsible for hiring and firing the IAD, for reviewing the IAD's performance, and for setting the compensation of the IAD.",
> 
> it's reasonable to cast the relationship between the IAD and the IETF as a contract relationship of a flavor.    Even though 4071 said the above, it was all with the consent of the ISOC who was Ray's employer, and an attempt to do something in this vein that was against the ISOC HR policies would have been problematic even if "authorized" by 4071.  Even an attempt to fire Ray might have been met with some really interesting conversations between the ISOC and the IETF and perhaps lawyers.
> 
> You now have me curious - was there a separate agreement or MOA between the IAOC and ISOC covering the employment of the IAD where the ISOC agreed to the above?

Not that I’m aware of.

> Given that Portia is acting or interim (I don't actually remember which at this point), I don't know that her contractor status matters all that much or means anything for the future RSE or even for the future IAD.
> 
> What's a lot more interesting is what you (singular and I*) see as the target relationship for the to-be-hired permanent IAD - contract with LLC, employee of the LLC, contract with the IAD's employing organization, something else?

The IETF LLC Board did not specify this in the announcement of the executive director search [1]. The search is ongoing as Jason reported at the plenary.

Best,
Alissa

[1] https://mailarchive.ietf.org/arch/msg/ietf-announce/SyA1SbjCLw_9GBChHn-PV9t1xBA

---

From: Andrew Sullivan <[email-masked]>
Date: Fri, 2 Aug 2019 14:27:00 -0400

Hi,

I'm writing with my ISOC hat on.

> agreements contained an assignment clause permitting ISOC to assign as

Someone reminded me off-list that last October we did execute an
agreement with the contracted parties acknowledging and accepting the
assignment.  I'd forgotten about this until prompted.  It was
something I was pleased we undertook because I rather dislike
assignment without explicit agreement.  I nevertheless believe that
this was a bit of tidy up paperwork, because effectively the Internet
Society committed to the transfer in the August agreement I referred
to before.

My apologies for misrepresenting the details.

Best regards,

A

-- 
Andrew Sullivan
[email-masked]

---

From: John C Klensin <[email-masked]>
Date: Fri, 02 Aug 2019 14:43:13 -0400

--On Thursday, August 1, 2019 18:55 -0400 Michael StJohns
<[email-masked]> wrote:

>...
> So you're basically saying that what was in 4071 didn't
> reflect the actual legal landscape.  E.g. the authorities
> granted to the IAOC to manage/control/evaluate the IAD didn't
> really exist and there wasn't actually a formal agreement with
> ISOC to allow for the setting of performance goals or even
> hiring and firing?
> 
> And I seem to remember in one of the message chains a comment
> that the 6635 language that said "evaluate the RSE" got short
> shrift from ISOC as well?  So, from the ISOC's point of view,
> as the contract owner, at least part of 6635 did not reflect
> the actual legal landscape - correct?

Michael,

Independent of the substance of Andrew's reply --which I think
is more relevant than this note going forward -- I think we (the
IETF and its penumbra) actually have a considerable history of
documents that read as charters or legal requirements that are
actually no better than aspirational statements of general
intent.  They include various group charters that have not been
the result of formal EITF consensus calls even if the community
was asked for comment, IPR policies that depend on assertions of
copyright ownership that various of us have been told by
competent specialist lawyers would never told up and patent
policies that don't have explicit agreement of relevant/
controlling parties, at least one procedural MOU that a party
that was then required to sign off on to make it valid wasn't
consulted about, and probably a few others.  We've dealt with a
few other issues by just ignoring them and hoping that problems
would not arise (and, so far, they haven't).    For many of
those issues, the IETF's assertion that everyone is
participating as an individual independent of any employer
affiliations when people are attending with employer support and
employment contracts that effectively say otherwise is a
particular source of vunerability (something we've been
repeatedly told by at least the previous generation of IETF
legal counsel).   IANAL, but my understanding is that as long as
everyone behaves to a reasonable approximations of good faith
and does not specifically challenge them, such aspirational
statements and guidelines are just fine.   

If there were specific challenges involving real lawyers and
specific claims of damage being caused by how we do business,
things could get far too interesting.

The transition to the IETF LLC arrangement probably helps, or
will evolve to help, with some of those issues but is irrelevant
to others.  It may actually complicate yet a few others,
including posing choices between higher overhead costs and
higher-risk or more complex arrangements in some cases.   As one
example from earlier in this set of threads, the question of
"should X be an employee or a contractor?", especially if we are
using more than 50% of X's time, can be a matter requiring
skills HR and employment law advice that is sensitive to
jurisdictional issues.  For an organization the size that ISOC
is now, that is a necessary overhead expense that is spread
across the organization.  If ISOC is willing to lend their
sources of that advice without charging the IETF LLC, that is
clearly a win.  But, should some future ISOC administration take
the position that the IETF wanted to be a semi-independent and
disregarded entity and therefore that such issues are the IETF
LLC's problem, we, and the LLC Board members at that time, could
be faced with more constraints on choices than we would probably
consider ideal.

If we don't like or want to accept that situation going forward,
I suggest that we have a great deal of housecleaning to do, an
activity that would go far beyond the current RSE issues...
perhaps to the point that we would consider them far from the
greatest of the problems that would need cleaning up.

That is not legal advice or even an attempt at a summary of
legal issues.  Anyone who accepts in in lieu of either is likely
to get what they paid for or somewhat less.  It is, perhaps, an
over-long restatement and application of the old principles
about free lunches and about the difficulties of doing business
with one's head in the sand.

best,
    john

---

From: Benjamin Kaduk <[email-masked]>
Date: Mon, 5 Aug 2019 15:18:19 -0500

> best candidates prefer another form of engagement, are we prepared to go 

Speaking just for myself, I do not have an idea about whether employee or
contractor or other is better.  It's not really clear to me that I should
(with my IESG hat on, as opposed to as a member of the community), either
-- the IESG is generally seen as the technical management group for the
IETF and I don't really have a reason to think that this sort of HR-like
activity falls under that scope.  It seems more like something that the
IETF LLC Board is designed for, and I have plenty on my plate already.
That said, if I become convinced that it is something under the scope of
the IESG, I will of course attempt to inform myself and form an opinion to
the best of my ability, but I don't consider myself very qualified to do so
at the moment.

-Ben