Subject: [Iasa20] Suggestion for "appeal" text in RFC4071bis

From: Brian E Carpenter <[email-masked]>
Date: Tue, 11 Dec 2018 14:55:55 +1300

I believe it is correct that involving the ISOC Board in the appeal
chain for LLC disputes would be an error, for reasons that others
have mentioned. So here are several suggested changes to section
3.8 of draft-ietf-iasa2-rfc4071bis-00. The idea is to remove
the ISOC Board from the chain, but to ensure that any serious
matters may be brought to ISOC's attention:

OLD:
If a member of the community is not satisfied with the IETF LLC
Board's response to his or her review request, he or she may escalate
the issue by appealing the decision or action to the IAB, using the
appeals procedures outlined in [RFC2026].  If he or she is not
satisfied with the IAB response, he or she can escalate the issue to
the ISOC Board of Trustees, as described in [RFC2026].

NEW:
If a member of the community is not satisfied with the IETF LLC
Board's response to his or her review request, he or she may escalate
the issue by appealing the decision or action to the IAB, using the
appeals procedures outlined in [RFC2026].

OLD:
The reviewing body (the IAB or ISOC Board of Trustees) shall review
the decision of the IETF Executive Director or IETF LLC Board to...

NEW:
The IAB shall review
the decision of the IETF Executive Director or IETF LLC Board to...

OLD:
In exceptional cases, when no other recourse seems reasonable, the
reviewing body may overturn or reverse a non-binding decision or
action of the IETF LLC Board.  This should be done only after careful
consideration and consultation with the IETF LLC Board regarding the
ramifications of this action.  In no circumstances may the IAB or
ISOC Board of Trustees overturn a decision of the IETF LLC Board that
involves a binding contract or overturn a personnel-related action
(such as hiring, firing, promotion, demotion, performance reviews,
salary adjustments, etc.).

NEW:
In exceptional cases, when no other recourse seems reasonable, the
IAB may request the IETF LLC Board to overturn or reverse
a non-binding decision or action.  This should be done only after careful
consideration and consultation with the IETF LLC Board regarding the
ramifications of this action.  In no circumstances may the IAB
request the IETF LLC Board to overturn a decision that
involves a binding contract or overturn a personnel-related action
(such as hiring, firing, promotion, demotion, performance reviews,
salary adjustments, etc.).

In the event that the IAB concludes that the IETF LLC has seriously
violated its operating agreement with ISOC, the IAB may draw this
to the attention of the ISOC Board of Trustees.

Regards
    Brian

---

From: "John Levine" <[email-masked]>
Date: 10 Dec 2018 21:28:22 -0500

>appeals procedures outlined in [RFC2026].

That doesn't seem like a good idea.  The IAB has nothing to do with
the LLC or the business management of the IETF, and this would open
the IAB to severe legal risk if, for example, it attempted to reverse
an LLC decision to sign a contract.

More to the point and apropos of Andrew's recent message, if people
are reasonable, it hardly matters what the formal processes are.  If
you have a concern about an LLC decision, you can write them a note,
they will think about it, perhaps do something, and write back.  If
people are unreasonable, it also hardly matters what the processes are
since unreasonable people will ignore them, and the remedy is to
recall the board and replace them.

So for the 102nd time, can we PLEASE stop inventing pointless
processes?  We have a formal way to recall the LLC board, and we may
have an informal way to ask them to reconsider decisions.  That's all
we need.

R's,
John

---

From: Brian E Carpenter <[email-masked]>
Date: Tue, 11 Dec 2018 15:41:54 +1300

On 2018-12-11 15:28, John Levine wrote:
> the LLC or the business management of the IETF, 

I didn't invent the choice of the IAB for this; without searching the
archive, I seem to recall a discussion of whether it should be the
IESG or the IAB.

> and this would open

Well, that is pretty much excluded by the restrictions in the text,
but that's also why I changed the text from "the reviewing body
may overturn or reverse a non-binding decision..." to "the IAB
may request the IETF LLC Board to overturn or reverse a
non-binding decision...". Whether that's safe enough should be
reviewed by the IETF's counsel (not the LLC's counsel).

> have an informal way to ask them to reconsider decisions.  That's all

I'm not the WG Chair, but I had the impression that people wanted
more than that. All it amounts to in my version is asking the
IAB to take a second look at the issue.

   Brian

---

From: "John R Levine" <[email-masked]>
Date: 10 Dec 2018 22:47:40 -0500

> archive, I seem to recall a discussion of whether it should be the

It really doesn't matter whose idea it was.  It's still a really bad idea, 
for all the reasons I listed.

> IAB to take a second look at the issue.

Regardless of one's impression, it's a bad idea.  Let's not do it.

Regards,
John Levine, [email-masked], Taughannock Networks, Trumansburg NY
Please consider the environment before reading this e-mail. https://jl.ly

---

From: Andrew Sullivan <[email-masked]>
Date: Mon, 10 Dec 2018 22:48:47 -0500

Hi,

No hat.

> reviewed by the IETF's counsel (not the LLC's counsel).

Was that intended to be "not ISOC's counsel"?  So far, AFAIK, Brad has
been IETF and IETF LLC's counsel.

> IAB to take a second look at the issue.

What I was trying to say earlier was something in response to that,
however.  There are two possible cases.

One is that people are in fact behaving more or less reasonably and
can be relied upon more or less reliably to do the right thing.  In
that case, the push back from the community (presumably through the
IESG or IAB or mailing lists or whatever) will cause the LLC Board to
do something.  Even if everyone is not satisfied with the outcome,
this is effectively the request for reconsideration mechanism we have
now, only without a formal mechanism for making it go.  Which is, I
would like to suggest, what actually happens most of the time around
the IETF anyway, so this is not actually different.

A second is that people are not behaving that way, and that they
cannot be so relied upon.  In that case, for corporate boards, you
need _legally effective_ mechanisms to solve the problem, or else you
are not solving a problem at all.  The legally effective mechanism in
this case is the removal of some or all board members, by the relevant
bodies (the rest of the board or, we hope never, by the member
itself).  Every other mechanism we can propose does not have the same
effect, because those other mechanisms will not have the legal power
to do what is actually necessary.  So if you invent such a mechanism,
its power will be at best reflected through the existing legal
mechanisms, and so you might as well just use those mechanisms anyway.

So, I am struggling to understand what additional value this further
mechanism you want could have.  What problem will it solve?  At the
same time, as both Brad and David have pointed out, creating such a
mechanism actually _creates_ problems, because it is at odds with the
structure of the corporations involved.

I do not think the IETF is legally sophisticated enough to be
inventing completely novel modes of corporate governanace, and I don't
think we have deep enough pockets to pay lawyers to invent those for
us.  Moreover, I have yet to hear the faintest valid argument why such
inventions are even a little bit necessary.  Unless you have something
like an argument for why this is a good idea -- and not just a
statement of preference, nbut an _argument_ -- I think the WG should
reject your proposal.

Best regards,

A

-- 
Andrew Sullivan
[email-masked]

---

From: Eliot Lear <[email-masked]>
Date: Tue, 11 Dec 2018 08:49:07 +0100

Hi Andrew,

Going right to the pointt:

> us.

I entirely agree.  In discussions I’ve had on this topic, and based on the advice we’ve heard here, I am pretty much in agreement with both you and John that we should not have an appeals flow from outside the LLC.

However, your (and John’s) argument hinges on recall being an effective mechanism, and yet we have no evidence that it really is.  We have seen precisely one serious attempt, if I am not mistaken, that ended when the individual resigned.  IMHO this WG and this document could benefit from the outcome of a discussion about whether the recall process is too difficult to effect, but that discussion needn’t happen either here or now.

Therefore, returning to the text in question, it seems like we must state what reality is and then move on.  Reality, as presented to us by counsel, dictates something closer to the following:

> Decisions of the LLC are not subject to appeal.  The community is always welcome to discuss any decision at any time in any forum, with the understanding certain aspects of decision making such as personnel matters must be held in confidence.  Feedback can be given directly to the LLC or to any of the bodies that select its membership.  In extreme cases, the recall mechanism specified in [REF] may be used.

Does anyone seriously disagree at this point?

Eliot

---

From: Andrew Sullivan <[email-masked]>
Date: Tue, 11 Dec 2018 07:22:55 -0500

Hi,

Once again, no hats.

On Tue, Dec 11, 2018 at 08:49:07AM +0100, Eliot Lear wrote:
> 
> However, your (and John’s) argument hinges on recall being an effective mechanism, and yet we have no evidence that it really is.  We have seen precisely one serious attempt, if I am not mistaken, that ended when the individual resigned.

Perhaps I am a cynic, but it seems to me that evidence is that the
recall process does in fact work.  The situation was serious, the
individual was not responsive, the mechanism got going, and the right
thing happened.  

> Does anyone seriously disagree at this point?

Well, I don't, and I don't see anything wrong with it.

I will note, for whatever it's worth, that this was more or less the
state of affairs we had with the IAOC _anyway_, because virtually
every decision falls into the bucket of things that can't be changed.
If we're going to have any kind of structure that can write contracts
and so on, we're going to have to trust the people who are going to do
it or else fire them when we don't.  That is no different from what
every one of us would do with professionals we engage ourselves -- I
trust that we do not all try to pico-manage our lawyers or accountants
or whatever.

Once we admit that there are things that cannot happen with the
collaboration of 1000 of our closest friends -- and employee oversight
and authorizing contract signatures above some dollar threshold surely
both qualify -- then there is no choice but to use the mechanisms
societies have developed over the last couple centuries to solve that
kind of problem.  An LLC is one of those kinds of things, and it has
rules.  We need to accept them and move on, IMO.

Best regards,

A

-- 
Andrew Sullivan
[email-masked]

---

From: "Livingood, Jason" <[email-masked]>
Date: Tue, 11 Dec 2018 14:14:49 +0000

> IAB to take a second look at the issue.

I didn't get the impression that there was consensus or even much momentum behind an appeals process. I think it more the case that text got carried over from 4071 and Joe initiated discussion of whether it was still needed / appropriate. Based on the weight of comments so far, and feedback on the list from both ISOC and IETF LLC counsel, it seems like we need little or nothing new here. I will reply in a moment with a suggestion to wrap this up.

JL

---

From: "Livingood, Jason" <[email-masked]>
Date: Tue, 11 Dec 2018 14:47:14 +0000

Based on list discussion, here is a proposal to resolve this. The proposed new text is immediately below, followed by the old text. This is the complete section, so you can see the whole picture.

NEW
Review of IETF Executive Director and IETF LLC Board Decisions
The IETF LLC Board is directly accountable to the IETF community for the performance of the IASA 2.0, including hiring and managing the IETF Executive Director. In extreme cases of dissatisfaction with the IETF LLC, the IETF community can utilize the recall process as noted in {{#director-removal}}.

A member of the IETF community may ask the IETF LLC Board for a formal review of a decision or action by the IETF Executive Director or IETF LLC Board if they believe this was not undertaken in accordance with IETF BCPs or IASA 2.0 operational guidelines. 

A formal request for review must be addressed to the IETF LLC Board chair and must include a description of the decision or action to be reviewed, an explanation of how, in the requestor's opinion, the decision or action violates the BCPs or IASA 2.0 operational guidelines, and a suggestion for how the situation could be rectified. 

The IETF LLC shall respond to such requests within a reasonable period, typically within 90 days, and shall publicly publish information about the request and the corresponding response and/or result.  

OLD
Review and Appeal of IETF Executive Director and IETF LLC Board Decisions
The IETF LLC Board is directly accountable to the IETF community for the performance of the IASA 2.0. In order to achieve this, the IETF LLC Board and IETF Executive Director are expected to ensure that guidelines are developed for regular operational decision making. Where appropriate, these guidelines should be developed with public input. In all cases, they must be made public.

If a member of the IETF community questions whether a decision or action of the IETF Executive Director or the IETF LLC Board has been undertaken in accordance with IETF BCPs or IASA 2.0 operational guidelines, or questions whether the IETF LLC has created and maintained appropriate guidelines, they may ask the IETF LLC Board for a formal review of the decision or action.

A request for review should be addressed to the IETF LLC Board chair and should include a description of the decision or action to be reviewed, an explanation of how, in the requestor's opinion, the decision or action violates the BCPs or operational guidelines, and a suggestion for how the situation could be rectified. All requests for review shall be sent to the IETF LLC, such as via email to [email-masked]. The IETF LLC shall in turn publish those and is expected to respond publicly to a request within a reasonable period, typically within 90 days. It is up to the IETF LLC Board to determine what type of review and response is required, based on the nature of the review request.
Based on the results of the review, the IETF LLC Board may choose to overturn their own decision, to change their operational guidelines to prevent further misunderstandings, to take other action as appropriate, or just to publish the review result and take no other action.

If a member of the community is not satisfied with the IETF LLC Board's response to their review request, they may escalate the issue by appealing the decision or action to the IAB, using the appeals procedures outlined in {{RFC2026}}. If they are not satisfied with the IAB response, they can escalate the issue to the ISOC Board of Trustees, as described in {{RFC2026}}.

The reviewing body (the IAB or ISOC Board of Trustees) shall review the decision of the IETF Executive Director or IETF LLC Board to determine whether it was made in accordance with existing BCPs and operational guidelines. As a result of this review, the reviewing body may recommend to the community that the BCPs governing IETF LLC Board actions should be changed. The reviewing body may also advise the IETF LLC Board to modify existing operational guidelines to avoid similar issues in the future and/or it may advise the IETF LLC Board to re-consider their decision or action. It may also recommend that no action be taken, based on the review.

In exceptional cases, when no other recourse seems reasonable, the reviewing body may overturn or reverse a non-binding decision or action of the IETF LLC Board. This should be done only after careful consideration and consultation with the IETF LLC Board regarding the ramifications of this action. In no circumstances may the IAB or ISOC Board of Trustees overturn a decision of the IETF LLC Board that involves a binding contract or overturn a personnel-related action (such as hiring, firing, promotion, demotion, performance reviews, salary adjustments, etc.).

---

From: "John R Levine" <[email-masked]>
Date: 11 Dec 2018 09:55:07 -0500

> The IETF LLC shall respond to such requests within a reasonable period, typically within 90 days, and shall publicly publish information about the request and the corresponding response and/or resu…

That lookss fine.  It's straightforward and doesn't have any unenforcable 
sanctions.

Regards,

---

From: Glenn Deen <[email-masked]>
Date: Tue, 11 Dec 2018 07:05:36 -0800

> On Dec 10, 2018, at 7:48 PM, Andrew Sullivan <[email-masked]> wrote:
> 
This is a very critical and true observation.  One great benefit we gain from the LLC being a legal entity is that the body of law on governance now applies to the LLC. Let me put this in IETF terms : The governance under Delaware and US federal law that now applies to the LLC is a widely adopted and tested standard with extensive years of deployment experience.  For the IETF to begin attempting to add onto, piecemeal to this established standard is not only beyond the skills of the IETF, it could easily create unintended consequences.  

As it is now there are powerful tools available to the IETF to deal with badly performing directors.  In extreme cases there is removal by other directors, and in extra extreme cases there is the power of ISOC to remove one board member up to all.   

These tools do not have limits on their use to only the small set of conditions the IASA2 WG could agree on  nor or are they based on the limited use cases we as the WG can think of.  

I’m fully in support of the IETF having effective means to deal with a poor board.  I believe we already have this via DE and US Federal law and the LLC’s operating agreement.

-Glenn

---

From: Glenn Deen <[email-masked]>
Date: Tue, 11 Dec 2018 07:10:37 -0800

The new looks good.

Sent from my iPad

> On Dec 11, 2018, at 6:47 AM, Livingood, Jason <[email-masked]> wrote:
> 
> _______________________________________________
> iasa20 mailing list
> [email-masked]
> https://www.ietf.org/mailman/listinfo/iasa20

---

From: Brian E Carpenter <[email-masked]>
Date: Wed, 12 Dec 2018 09:02:53 +1300

Hi,

I'm fine with the proposal below. I agree that the proposal in the -00 draft
is unworkable. The practical difference between Jason's proposal and the
one I made yesterday is that mine allowed the appellant to ask the IAB
for support. There's nothing in Jason's proposal that prevents that.

    Brian

---

From: Andrew Sullivan <[email-masked]>
Date: Tue, 11 Dec 2018 15:20:29 -0500

Hi,

No hat.

I'm ok with this.  I don't find it especially useful -- it seems like
an elaborate way to ask nicely -- but if others are willing to accept
this I can live with it.

Best regards,

A

-- 
Andrew Sullivan
[email-masked]

---

From: Eliot Lear <[email-masked]>
Date: Tue, 11 Dec 2018 23:32:00 +0100

+1.  It’s sufficient to the task.  Thanks for plugging at it, Jason.

Eliot

> On 11 Dec 2018, at 16:10, Glenn Deen <[email-masked]> wrote:
> 
> The new looks good.
> 
> Sent from my iPad
>