[rpd] Appeal Committee ToR Version 3

[JORDI PALET MARTINEZ]

Hi Owen,

I disagree in one of your points, but it is an extremely relevant one.

In *all* matters related to the CPM/PDP, it is a mandate of the community *never* the membership.

The *only* reason why the AC is organized by the Board is because the community, in the PDP, section 3.5.1. *decided* to do that way, and we can change that at any time, and the Board, neither the membership can deny such a community right.

There is nothing in the bylaws, RSA, etc. that empowers the Board or membership about the AC. If, for example, the membership decides to change that and include the AC in the bylaws, then it will be a clear violation of the PDP. That will be totally equivalent to changing the bylaws change to incorporate there anything related to the PDP/CPM.

Consequently, it is *absolutely* a decision of the community to change the PDP to decide if we want to keep the current format of the AC (which at the time being we have empowered the Board *only* to appoint it - " ... with an Appeal Committee appointed by the AFRINIC Board of Directors." - nothing else), or an alternative one.

If there is such policy proposal, reach consensus, and the Board decides not to ratify it, it will be a clear attack and violation of all kind of laws (including the PDP and bylaws itself).

Hopefully that's not going to happen. At this time, I still trust the board and I believe they are trying to do their best, even if they do some clear mistakes, but I'm as close as a extra drop or watter in a full glass to completely change my mind if the Board insist in not hearing the community and keep violating the PDP and bylaws.

Regards,
Jordi
 

El 17/7/21 4:41, "Owen DeLong via RPD" <rpd at afrinic.net> escribió:



    > On Jul 16, 2021, at 09:36 , Fernando Frediani <fhfrediani at gmail.com> wrote:
    > 
    > Seems the Board really erred in not to circulate circulate it before is approval, such importance and impact it has on PDWG.

    At best they erred. In reality, I think it is far more likely that this was a deliberate attempt at a power grab in the hopes that if it was fait accompli, the community and members would have little choice but to accept it and that they could try and avoid the inevitable scrutiny that would occur if it were circulated first.

    > I can totally understand the Board caution on taking much of the stuff that is said in the PDWG into consideration because I am sure there are so many interests involved in these discussions that not necessary benefit Community or the RIR and they must be repealed, however it is also necessary that Board not to be so closed as it seems to have been in recent times maybe in the believe they know stuff better, know what they are doing, have enough understanding of PDWG business.

    You say that there are views from the community that do not benefit the community, but I must ask who it is that you think is allowed to define the difference between “benefit the community” and not. Surely it is the community that is best suited to make this determination and as such, all views have a right to be expressed and those views that do not benefit the community will not gain consensus within the community.

    > What would happen if the PDWG resolves to pass a proposal to detail in the CPM the composition of the Appeal Committee thus invalidating what this ToR says (if it is kept this way). Would Board deny its ratification with justification of "legal advice" again because it simply doesn't like it ? We can avoid that scenario with more cooperation between Board and PDWG members.

    I can’t speak to what the board would do in such a circumstance. However, i will point out that while the existence of the AC is currently mandated in the PDP, it does exist as a committee of the board and as such is subject to board governance and not governance in the CPM. If you don’t think it should be this way, most likely that will require a vote of the members on an update to the bylaws to change this structure.

    > Finally to resume the main points about new AC composition here a few points from my point of view:
    > 
    > - I don't have a problem with the Board choosing some of the AC members.

    I don’t have a problem with the board choosing ≤20% of the AC members. Anything larger and the quorum requirements would have to be boosted.

    20% of a body is close to 40% of quorum if quorum is a simple majority. Anything larger (e.g. 30%) could be a majority of quorum.

    Because the board is Judge and Executioner in the next step of the PDP if the AC upholds a proposal, it is inappropriate for the board representatives to have a potentially deciding role in the appeal committee. Otherwise, the appeal committee is a rubber stamp for the board and not an independent appellate body.

    > - There is no reason or justification to restrict ex Board members to only Chair or Vice-chair person. Basically any former member of the Board should be considered.
    Agreed.

    > - ASO-AC or Governance Committee representatives are so far something without much justification of why them. Need to improve that.

    Completely agree with this. Note that in my proposal, ASO AC members are only pressed into service in extreme circumstances involving 3+ resignations in the middle of an appeal. In reality, this SHOULD be so rare as to not merit consideration, but in AFRINIC, it just happened, so we must consider it.

    > - At least 2 seats in the AC should be for members from the Community. It does not need to be restricted only to ex Co-Chairs although that would be a pretty logical choice in many cases, but it could also be experienced members of community.
    > - Owen suggestion that current co-chairs to choose two former co-chairs doesn't make sense. The people who will be judged to choose their own judge ?

    In a committee of 5, I propose that they get to choose 2. I also set up the quorum requirements so that those two cannot be a majority of quorum. This allows the co-chairs to have representation on the committee, the community has representation on the committee, and the board has representation on the committee. I believe this is a balanced way to create an appellate body for the job at hand.

    > - I am not convinced electing the Community members by PDWG is a good thing at this stage. I would have no problem to leave this task to the Board for now.

    I am completely convinced that leaving this to the board is a sure way to turn due process into a pair of steel rails separated by wooden ties.

    Owen

    > 
    > Regards
    > Fernando
    > 
    > On 16/07/2021 07:05, JORDI PALET MARTINEZ via RPD wrote:
    >> Fully agree, very good perspective.
    >> 
    >> Awaiting for the Board inputs on all our recent questions and inputs.
    >> 
    >> Regards,
    >> Jordi
    >> @jordipalet
    >>    
    >> El 15/7/21 23:40, "Owen DeLong via RPD" <rpd at afrinic.net> escribió:
    >> 
    >>     This is a clear power grab by the board designed to allow them to place their thumb firmly on the scales of any appeal.
    >> 
    >>     I urge the community and membership to reject these terms of reference in favor of a terms that create an independent judiciary process to hear appeals rather than a rubber stamp for the boards desires.
    >> 
    >>     The sentence in (A)2 is utterly incompatible with the limitations expressed in (A)1.
    >> 
    >>     This is too small of a committee to provide valid representation of such a diverse community. A five member committee is relatively small, but probably about right for the tradeoffs of manageability. Ideally, IMHO, a five member committee with a quorum of 3 in order to transact business, but at least one from each of the last two groups described below.
    >> 
    >>     	One former board member appointed by the current board.
    >>     	Two former co-chairs selected by the current co-chairs.
    >>     	Two active members of the PDWG elected by the PDWG.
    >> 
    >>     Each appeal committee member other than the former board member should serve a two year term. The former co-chairs should be elected in alternate years, as should the PDWG members.
    >> 
    >>     The former board member should be appointed by the board on an annual basis.
    >> 
    >>     Should the board decide that a need exists to reconstitute the committee, the board should hold special elections and the PDWG participants should elect two former co-chairs and 2 PDWG members. The candidates getting the highest votes in each category should serve the longest remaining term while the shorter remaining term will go to the candidate with the next highest vote count. The co-chairs shall appoint a new former board member.
    >> 
    >>     No changes should be possible to the committee during an appeal save by resignation of committee member(s). In the event of such resignations, the committee should proceed with the remaining members until only 2 are left. In the unlikely event that at least 3 of the 5 members resign during an appeal, non-AFRNIC appointees to the ASO AC should be requested to fill-in for the completion of any in-progress appeals.
    >> 
    >>     For the appeal committee to properly act in its appellate role in the process, it must remain an independent judiciary body not subject to the political whims of the day or to undue pressure or influence from the current board of trustees. The above recommendations are intended to achieve that end.
    >> 
    >>     If others feel there is a better way to achieve such an end, I welcome an active and open discussion of the alternatives. However, it is quite clear that the ToR presented by the board do not constitute an independent judiciary and are designed to make the boards thumb weigh heavily on the scales of any appeal. This is contrary to the very ideals of an open bottom up transparent process.
    >> 
    >>     Owen
    >> 
    >> 
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