[rpd] Appeal Committee Terms of Reference (Version 1)

[Owen DeLong]

Mr. Chair and Board,

Thank you for this prompt and necessary action on behalf of the community. 

I think this is a good starting point. Most of my suggestions below are minor improvements and nit-picking in an attempt
to fortify the process and create an improved structure. While there are many of them, I think you will see that most of
them are very minor changes.

My suggestions in reading the Policy Appeal Terms of Reference (abbreviated TOR below):

Section 1.2 — Incorporate the PDP section 3.5 by reference rather than by duplication. This way, the TOR for the
	appeal committee are not at risk of falling out of sync with the PDP by updating the PDP without updating
	the TOR.

Delete sections 1.3 thru 1.6. They are redundant and also at risk of becoming out of sync with the PDP if the PDP
is updated without updating these TOR. Since the PDP is under the control of the RPDWG and the TOR are under the
control of the board, the documents cannot be synchronously updated without significant overhead, so such dependencies
should be eliminated wherever possible.

The relevant language from sections 1.3 thru 1.5 can be summarized alternatively as follows:

1.3 Several aspects of the Appeal Committee are not specified in the PDP and are left to the discretion of the board.
	These terms of reference are intended to document the decisions of the board in these regards. They may be
	updated by the board as decisions evolve or as additional issues are brought to light. It is intended to be
	a living document providing guidance to the appeals committee in carrying out their duties.

I believe that section 2.2(d) is impractical as written. Whereas the appeal must be “filed with the appeal committee”, the definition in section 3.5 of the PDP would seem to require the appointment of the committee prior to the creation of the appeal. As such, it is impossible to know who would be ineligible at the time of appointment unless all policy authors were excluded from the committee. Further, this would create a situation where a desire to author a policy may force resignation from the appeal committee. While I believe that 2.3 is intended to address this, I think it is better if those members are allowed to remain on the committee, but must recuse themselves from the appeal of the particular policy.

Thus, I would suggest, instead, that 2.2(d) and 2.3 be replaced as follows:

2.3 In the event that a member of the appeal committee is the author or co-author of a policy which becomes the subject of an appeal brought before this committee, any such member must recuse himself from the deliberations and must abstain from all votes taken by this committee in regards to such policy. If the committee or the board believe it necessary, the board shall appoint temporary replacement members to the committee based on the same eligibility requirements by which the affected members were appointed.

This has the added benefit that ti lines up with the language in section 4.2.

I suggest that 3.3.1 should be amended to require some form of supermajority of the board, possibly even unanimous action of the full board. Otherwise, 3.3.1 creates a substantial risk to the supposed independence of the appeals committee.

I suggest the following alternative for 3.3.2:

3.3.2 Each member appointed to the appeal committee shall serve a 3-year term unless they are replaced earlier under section 3.3.1. The board may, in its discretion and with the consent of the member, reappoint a member for a subsequent term.

I suggest the following alternative for 3.3.3:

3.3.3 At least once per board year, the board shall review any candidates appointed under section 3.2 and shall, if possible, replace them with candidates fitting the criteria in section 3.1. A board year shall commence with the appointment of elected board members after the AGMM and end with the retirement of board members whose terms have ended after the AGMM.

Delete section 3.3.4. It is redundant to section 3.3.1.

Suggest rewriting section 3.3.5 as follows:

3.3.5 Once an appeal is begun, absent voluntary resignation by a committee member, the committee as it stands shall process that appeal to its conclusion. If the board modifies the committee during this time, that shall effect only new appeals which begin after the board has made such changes. This may result in effectively multiple appeal committees simultaneously existing with different overlapping membership. This situation may cause complications to scheduling committee meetings.

This will help insure the independence of the review committee and prevent the appearance of the board attempting to tip the scales in a particular appeal by changing the constitution of the committee in mid-stream.

Suggest rewriting 3.4.1 as follows:

3.4.1 Vacancies shall be filled according to the processes outlined in sections 3.1 and 3.2, but the length of service for anyone filling such a vacancy shall be the remaining term of the vacated seat.

I suggest updating section 4.8 as follows:

4.8.1 The appeal committee may direct that the Chair(s) decision be remanded to the chairs for reconsideration or that it be reversed or that it be upheld. The committee must base such a decision on whether the PDP was followed and whether or not they believe that the chairs judgment of consensus or lack thereof was correct based on the record as it exists on the RPD mailing list, in the videos and/or transcripts of any PDPWG meetings, and in any other relevant records applicable to the PDP and available to all of the chairs, committee members, and members of the PDWG. The committee must publish a report of their findings pursuant to section 4.9 which must include not only the finding, but also a summary of the deliberations undertaken by the committee and the reasoning behind their decision.

4.8.2 The ruling of the appeals committee shall be final and binding on all concerned.

Delete the “4” at the end of section 5.1 (typo?)

Suggest rewriting 5.1(b) as follows:

5.1(b)	A complainant must have a good faith belief that the Chair(s) ruling erred and is not in accordance with the PDP or is inconsistent with the actual level of consensus in the PDWG.

Section 5.1(c) is not entirely consistent with section 5.2.
Suggest: 5.1(c) The complainant must discuss the matter with the Chair(s) of the PDWG and at least 3 other members of the PDWG. The complainant may hold these discussions in public on the RPD mailing list to engage the entire PDWG.

Suggest adding the following:

5.1(e) A failure to respond to or conclude discussions within one week of a request from a complainant by the Chair(s) shall be considered sufficient grounds under sections 5.1(c) and 5.1(d).

Delete the “8” from the end of the first sentence of 5.2(a) (typo?)

Suggest inserting before 5.2(c):

5.2(c) The complainant has 14 calendar days after submitting the complaint to recruit the support required in section 5.2(a). Said support must be expressed by an email from each of the supporters to the review committee. Each of these emails must include a statement that the individual participated in discussions attempting to resolve the dispute and that those discussions failed to resolve the dispute. Staff shall make an example email for such a statement available on the AfriNIC web site.

Corresponding to this change, i would also delete section 5.3(d).

Suggest modifying section 5.3(f) as follows:

5.3(f)	Link to or copy of an email announcement of the decision which is being appealed. In the event that an email is used, all headers not added in transport shall be preserved and included in the complaint.

I suggest deleting section 5.3(g). If the amendment to 5.2(c) I propose above is adopted, 5.3(g) becomes redundant.

Suggest rewriting 5.3(i) as follows:

5.3(i) Any additional material the complainant feels is relevant to the situation and will assist the committee in its deliberations.

Suggest modifying section 5.4 as follows:

5.4 An appeal and any statements of support required under 5.2(c) shall be sent via email to the appeal committee pdwg-appeal at afrinic.net. A copy of the appeal must also be mailed (in a separate message, not as a carbon copy or “CC”) to the RPD mailing list rpd at afrinic.net.



> On Jul 19, 2017, at 05:51 , Sunday Folayan <sfolayan at gmail.com> wrote:
> 
> Dear PDWG,
> 
> The AFRINIC Board of Directors intends to establish an Appeal Committee to give effect to the requirements in section 3.5 of the Consolidated Policy Manual (that is, the Conflict resolution portion of the Policy Development Process).
> 
> The Appeal Committee Terms of Reference (version 1) is published at https://afrinic.net/en/community/working-groups/policy-appeal
> 
> The Board calls for comments on the Terms of Reference for a 30 day period, ending on 19 August 2017. Comments may be sent to the RPD mailing list <rpd at afrinic.net>.
> 
> The Board intends to appoint an interim Appeal Committee without delay, to cater for the possibility that an appeal might be filed before the comments on the Terms of reference can be taken into account. We seek the cooperation of the community in this regard.
> 
> Sunday Folayan
> Chair of the AFRINIC Board of Directors
> 
> 
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