Recusal from FO handling

[frivoal]

Fuzzy criteria for recusal are problematic: individual with only tangential involvement in the matter, or even with no real involvement at all in the matter, could be pressured into recursing themselves. Conversely, over-assertive individuals may fail to recuse themselves even when it would be appropriate. We may instead want to make a strict and non ambiguous criteria. It is also unclear how useful it is to require recusal from the person raising the objection, since that can easily be circumvented by asking someone else to file the objection on one’s behalf. For example, recusal could be required of (and only of): a Chair who issued the Chair Decision or Group Decision being objected to, and the CEO for objections against their own decisions and those of the Team.

See https://www.w3.org/Consortium/Process/Drafts/director-free/#addressing-fo

[wseltzer]

No one should be both a party and an adjudicator. We don't necessarily need to define further.

[TzviyaSiegman]

Well put @wseltzer

[nigelmegitt]

@wseltzer that's a really good general rule. From the tone of the issue text I sense that there is a lingering question: "who is a party?"

[swickr]

The decisions, however, affect the Web so at some level everyone has at least some interest in the difference of opinion. The parties shouldn't be excluded from the conversation, only from the final process by which the committee reaches its decision.

[dwsinger]

So, I think we converged.

No one shall be both a party and an adjudicator. The person making either the decision being objected to or appealed, and the person making the objection or appeal, must recuse themselves. Recusal means that they do not form part of the consensus or voting body that issues the decision; however, they may take part in deliberations leading to the decision.

[chaals]

@dwsinger wrote

No one shall be both a party and an adjudicator.

This makes sense, except perhaps where the decision being contested is a collective one and the decision-making body would normally be a substantial part of the council.

My suggestion for that is that the bodies do not recuse themselves. They make decisions by consensus based on the available information. Presumably an appeal to the council will bring some new information (perhaps only the unanticipated depth of objection, but that is information) which means the council reconsiders. And each body is less than half the council.

There is a bias toward the original decision in this case - much as I suggest there should be in cases where there isn't a strong (supermajority) agreement on the council to overturn a decision. I think that is probably OK...

[dwsinger]

ah, right, adjusting for clarity for that case:

No one shall be both a party and an adjudicator. The person making either the decision being objected to or appealed, and the person making the objection or appeal, must recuse themselves. Recusal means that they do not form part of the consensus or voting body that issues the decision; however, they may take part in deliberations leading to the decision. Recusal is individual; when the decision in question was made by the TAG or AB acting as a body, the entire TAG or AB is not expected or required to recuse itself.

[frivoal]

That proposed paragraph has multiple parts. Let's go over them individually. For reference, here is the director-free branch’s current text.

Part I: Required Recusals

Proposed wording:

No one shall be both a party and an adjudicator. The person making either the decision being objected to or appealed, and the person making the objection or appeal, must recuse themselves.

Current draft's wording:

Participants in the W3C Council must recuse themselves if they are the person who issued the decision being objected to, or if they are the person who registered the Formal Objection.

The proposal like an editorial improvement, so suggest we adopt it.

Part II: Defining Recusal

Proposed wording:

Recusal means that they do not form part of the consensus or voting body that issues the decision; however, they may take part in deliberations leading to the decision.

Current draft's wording:

Any person who has recused themself does not take part in its deliberations, determination of consensus, or votes on this matter. The W3C Council may still solicit and hear their testimony, as they can of anyone else in the W3C community.

The current draft's definition of recusal also blocks participation in the Council deliberations (but allows the council to solicit their testimony), which seems more appropriate particularly for a consensus-based decision. We suggest keeping the current text.

Part III: Clarifying group vs individual recusal:

Proposed wording:

Recusal is individual; when the decision in question was made by the TAG or AB acting as a body, the entire TAG or AB is not expected or required to recuse itself.

This point is not considered in the current draft; we would support adding it.

Part IV: Optional Recusals

In https://w3c.github.io/w3process/director-free/#WGArchiveMinorityViews, the director-free branch of the process also says that:

Participants may also [=recuse=] themselves for any reason.

As observed during the council experiment, this can easily lead to confusion about the purpose of recusals and the difference between recusing and being absent or busy. @fantasai and I suggest the replacing that with:

Participants <em rfc=2119>should</em> [=recuse=]
if they believe their participation would compromise the integrity of the Council decision.
However, recusal is disqualification from participation,
not abstention,
and <em class=rfc2119>should not</em> be used
to excuse an absence of participation.

-- @frivoal and @fantasai

[dwsinger]

Thanks, I agree on the last point. Recusal has a very specific meaning, (e.g. Cambridge) "the fact of a judge or a member of a jury not being involved in a trial because they have a special interest in its final result". We need to make this clear; people who are recused are excluded for a reason, not merely choosing or unable to take part. A lack of time, a lack of interest, a lack of expertise: these are not recusals, but a reason to abstain or stay silent. Indeed, if there is a vote, members may abstain or even be absent: that it not recusal. Given the confusion we have had, I think we need to add the definition, and explain that recused members have no influence and little or no visibility into the deliberations and decisions.

[jeffjaffe]

Thanks Florian, for refocusing on recusals.

I have a different set of observations from the experiment. I had planned to make those observations in the experiment post-mortem, but as long as we are going through the text, I might as well make those observations here.

Above, we required Council members to recuse themselves if they were the decider (of what is being objected to) or if they were the objector.

Looking at the experiment, I don't think that is strong enough. I'm talking about several people who participated in the Council and did not self-recuse and their decision is in accordance with the above guidance.

However, these people work for organizations who have business interests in the results. A priori, it is not obvious why they have less bias than the objector. So, imho, there were additional people who should have recused. I don't have a particular proposal at this stage - the levels of business interest vary - so we need discussion as to what level requires recusal.

[dwsinger]

I think we all (or most of us) have a business interest in the health of the world-wide-web, so I don't think that we'll easily find a bright line.

The reason to have a 'may recuse' is precisely for this case; if you feel, or someone suggest to you, that you appear to have too much interest in one side, then recuse. We'll never succeed in delineating all the cases; we're looking to people for an honest assessment of the propriety of being involved in the decision. 'My spouse filed the original complaint; I recuse myself as otherwise it might be seen as my support of my spouse.' for example.

That's why we set the automatic obligatory recusals so narrow. Perhaps we should explain this more around the 'may recuse'.

[jeffjaffe]

That's why we set the automatic obligatory recusals so narrow. Perhaps we should explain this more around the 'may recuse'.

Just be clear, I think we have set the automatic obligatory recusals to be too narrow. Objectors deserve better clarity that the Council Members ruling on their objections have no conflict of interest.

[dwsinger]

@jeffjaffe I disagree, or at least doubt that there is any other easily-defined 'bright line'. Almost everyone has some interest in the outcome. It's not a yes/no, it's a question of degree. The question is whether those factors rise to the level that they must be excluded.

Perhaps we can strengthen the 'request to recuse' part, and explicitly state that people who others perceive have a COI should recuse when that is brought to their attention. But I don't want to provide a weapon for getting rid of people perceived as 'troublemakers', either.

The Director has or had a COI when ruling on matters that affected his personal area of research or startup, for example.

[jeffjaffe]

The Director has or had a COI when ruling on matters that affected his personal area of research or startup, for example.

It was appropriate for the Founding Director to rule even when he had a modest COI. Given his stature - the advantages overwhelmed the disadvantages.

I don't think that applies as clearly as we create a new system. Quite the contrary, our new system needs to give confidence that it is as unbiased as the Director has been.

I don't have a proposal at this stage. I hope to discuss at the experiment debrief.

[frivoal]

To me, there's broadly two kinds of situations to consider:

• People who have some interest in the case, and whose position is likely to be biased. To one degree or another, I think this is everyone. Some are more closely involved than others, but we all care about the web, and so we all care about the outcomes. I don't think we can find a clear line between those who are too involved and should recuse, and those who are removed enough that they can be sufficiently impartial. I think we overcome this by being a large diverse group, with a fairly high level of trust thanks to being elected, and talking it through, not through recusals.
• People whose actions were are discussing, and whose mere presence is likely do distort the discussion. If I file a formal objection, and other members think my objection is abusive and I am a troll, they may have somewhat of a hard time expressing that if I am there for the discussion. Courtesy, respect for the CEPC, and the general awkwardness of criticizing people to their face, especially without having a chance to check with other people if they feel the same as you do, would stifle the discussion. I think recusal is appropriate for this case.

Also, if the bar for recusal is both somewhat fuzzy and somewhat low, I fear that this will bias against people with high integrity, which seems bad.

[jeffjaffe]

At the experiment debrief I pointed out that potential Council Members who work for companies who have a strong business interest in the results of the objection should be required to recuse.

We could include such a comment in the formal process, but that would then cause uncertainty about the definition of "strong business interest".

It would be worthwhile if we can make this more objective and less subjective by actually spelling out a defintion of strong business interest.

[dwsinger]

I am somewhat doubtful we can succeed in making a clear enough bright-line definition of "business interest". However, I do think we could consider even more subtle, layered approaches than the two-level we have now: mandatory (must recuse) and optional (may recuse).

For example, we could make it explicit and on the record that anyone, in or outside the council, could suggest that someone recuse. It can't be forced recusal, or it becomes a weapon to get rid of people we don't like.

We could allow 'both sides' some "peremptory dismissals" but I fear again for mis-use, and though the person filing the FO is usually clearly "one side", it's not always obvious who the "other side" is (e.g. in this case, where a charter was drafted by the team working with the chairs and other leaders and supported by people who want to advance some work items).

If we had an organizational pre-meeting (which seems to be a good idea), we could allow the council to consider whether someone needs to recused, and decide or vote on it.

For what it's worth, I think having a formal mention made of on-the-record requests-to-recuse (the first idea above) is probably enough. Maybe.

[frivoal]

Overall, I don't think recusal is the best too here to push back against "would be biased" for various degrees of bias. We counter that by having a large and diverse group, which on top of that derives legitimacy through election. I think recusal is more useful and more easily applicable to case of "would stifle the discussion and prevent the council from discussing the maters fully".

I do think mandatory disclosures of (potential) conflicts of interest is a good idea.

[nigelmegitt]

we are listing the reasons why someone should be considered for dismissal, and the existence of opinions, and their strength, is one factor to consider

I cannot see how it is a factor to consider. Perhaps it would be helpful to describe or exemplify what sort of strongly held opinion could be a cause for dismissal. Is the idea that all members need to go into the process with an open mind, and be able to assess the facts of the case on their own merit? That seems like a good aim, but even then, pre-existing strong opinions do not imply the person is unable to change their mind.

Narrowing this down a bit, perhaps we could consider that a publicly stated prior opinion about the specific FO being considered is an unhelpful starting point, since changing such an opinion involves some loss of face.

[dwsinger]

@nigelmegitt you seem to answer both sides of the question: it's true that the mere existence of opinions is not a disqualifying matter; but opinions so strong that acting against them would cause loss of face might be a concern. As I say, members of the community should be free to alert the Council to this, and a decision on whether to dismiss should be done with the best knowledge possible of all factors.

[chaals]

@dwsinger wrote

opinions so strong that acting against them would cause loss of face might be a concern.

But making a judgement that this is the case is essentially an expression of no confidence in someone's ability to be impartial, which means calling into question their ability to serve on the AB/TAG in general.

I'm not sure that asking the council to decide whether someone is too opinionated to adjudicate a matter is a good place to be going...

I want to see transparency, not recusal. Because holding an opinion irreversibly (something I have been accused of doing) also results in loss of face, and so I don't think it's a big risk. And having expressed an opinion is more helpful than keeping quiet about something you hold inviolable until a critical moment, since nobody had the ability to vote against you on the basis of your expressed opinions.

[msporny]

But making a judgement that this is the case is essentially an expression of no confidence in someone's ability to be impartial

I wouldn't say it is -- it's an expression of no confidence on someone's ability to be impartial for the matter at hand.

For example, I have a strong faith in @cwilso and @dwsinger wrt. almost every aspect that they deal with on the AB. I've seen what they've written and said and often agree with their position.

For the matter of the DID Core Formal Objections, they (or their colleagues that will be on the FO Council) have said a few things that give me pause. Couple that with their organizations commercial interests and I start to become concerned in a way that I'm not concerned wrt. their engagement on "Legal Entity" (for example).

To be clear, I'm not impugning their motives -- it's just that they have a certain background (working at massive corporations that create odd power dynamics on the W3C) /coupled/ with the other side of the argument (possibly) not being in the room.

All that said, I wouldn't be averse to removing 3.4 -- it is a bit nebulous and is only useful when you can clearly make the case for "this person is a Bitcoin maximalist - they have a podcast about how amazing proof of work is" or "this person is a decentralization maximalist - their research argues against all forms of centralization" or something else equally unlikely to materialize in the AB or TAG.

I do think that having Chairs/Editors/Staff at all meetings will make 3.4 fairly moot wrt. recusal.

I'll also note that people that fall into 3.1, 3.2, 3.3, and 3.4 should probably be in the room for most of the FO Council meetings (as witnesses to the process).

[dwsinger]

@chaals it's not only a question about the person, it's a question about the perception of the process and the integrity of the Council. "If we have this person on the Council, would it undermine community confidence in the result?"

It's never clearly demarcated; neither how well a person can separate their best judgment for the web and consortium from their personal opinions (it'll vary day by day and subject by subject), nor how well the community can perceive it.

As I say, I think it likely that the Council will rarely dismiss for such a reason alone; but it's important that the Council be able to say "yes, we knew of X's strong opinions on the matter, but on balance felt it was more important that they serve". We do not want "oh, we had not seen that blog post and were unaware of the vehemence of their expression prior to the Council format", and for that to cast a shadow over the proceedings and results.

[chaals]

@dwsinger I get that, but "we decided we didn't want to reach agreement with this person who has a strong opinion we'll probably go against" doesn't give much confidence either.

(And "we decided we wouldn't even hear from them" isn't an improvement...)

As noted, I don't see the value in the recusal exercise. I do see the value in allowing people to present their opinions, however strongly held. (Those should be presented freely, not under conditions, beyond the chair ensuring that everyone has a chance to present and people are actively discouraged from repeating themselves).

[dwsinger]

Revised again. This needs sorting into narrative, and then process; they are intermingled here.

There are these possibilities for potential council members:

1. The member renounces their seat on the council, for strong reason (e.g. that they have been instructed by their employer); the member may choose whether to explain, to the W3C membership.
2. The member is dismissed for reason by the rest of the council, to avoid the council decision being seen as tainted.
3. The member serves. (The degree to which they take part cannot be controlled, up to and including not affecting the consensus, or not voting, i.e. they abstain; managing this is a chairing question.)

Renunciation and dismissal are irrevocable; such members take no part in deliberations (unless invited for a specific discussion) or decisions, have no access to Council confidential material, and no ability to provide any other input than when explicitly asked.

1. No-one is automatically dismissed.
2. Any member may renounce their seat irrevocably, and may choose whether or not to declare their reason.
3. The team assignee must ensure a list is developed of all potential council members, and mark against each one possible reasons that they might need to be dismissed. Example reasons (none of which are diagnostic) could include:
   3.1 They filed the FO, helped author it, or work for the same organization as the author/filer
   3.2 They made the decision being objected to, were editor, or a major contributor
   3.3 Their business depends on the question (in either direction)
   3.4 They hold sufficiently strong pre-existing opinions in either direction (e.g. a well-known proponent or objector) that their ability to be open-minded may reasonably be in doubt
   3.5 They themselves offered the reason and asked that it be stated.
   3.6 A member of the W3C membership or team feels that they should be dismissed and has presented a reason
4. Before the Council forms, the team assignee presents the entire list to the potential council; the potential council then votes whether to dismiss each potential member, no potential member is allowed to vote on their own dismissal; each dismissal is decided by simple majority of those voting yes/no (abstentions on a question of dismissal not affecting the result).

In all cases, any person (including a potential member who renounced or was dismissed) may be asked questions or invited to present to the Council.

The chair may invite non-speaking observers. W3C members may request to the chair to be an observer.

[swickr]

I am getting questions on the difference between abstain and renounce. I think it's worth trying to explain with more words. I offer the following:

Abstain: A member who chooses to abstain is not prevented from attending meetings or participating in the discussion. A decision to abstain can be made at any time during the lifetime of a Council. Abstaining, or signaling an intent or expectation to abstain, is the appropriate response when someone feels that they lack time, or could not be helpful on the question at hand.

Renounce: A member who chooses to renounce their seat is formally excluded from attending meetings, participating in discussions, access to materials, or voting. This is the same level of exclusion as someone who is dismissed for conflict of interest or other reasons. A decision to renounce should be made before a particular Council begins and is irrevocable for that Council. A decision to renounce is made separately for each instance of a Council. Renouncing a seat is the way to indicate that, for example, your employer has instructed you not to serve in a particular Council, or if other formal constraints apply such that you must not serve.

Commentary:

"Why not the more frequent term recuse, which is also irrevocable?" I believe the answer is that recuse commonly connotes potential conflict of interest or inability to be impartial whereas renounce can have broader reasons.

[samuelweiler]

"Why not the more frequent term recuse, which is also irrevocable?" I believe the answer is that recuse commonly connotes potential conflict of interest or inability to be impartial whereas renounce can have broader reasons.

I would still expect and prefer "recuse".

[frivoal]

"Why not the more frequent term recuse, which is also irrevocable?" I believe the answer is that recuse commonly connotes potential conflict of interest or inability to be impartial

However, “potential conflict of interest or inability to be impartial” isn't what we're after here. That is being addressed through the dismissal process. Renouncing/recusing/???? yourself is more about cases where serving on the council would be a liability to you: your legal department has instructed you not to touch the case at all, etc.

[TallTed]

I see no reason why "recusal" is not appropriate for situations where "serving on the council would be a liability to you", as that itself seems an apt definition of a "conflict of interest"...

[dwsinger]

"Recuse" is used to describe when a person excludes themselves, because they think that they have a sufficiently strong conflict of interest, for example. We want uniform judgment about that, so we're using dismissal to judge COI etc., not recusal.

However, we still need to handle the case where someone is formally barred from participating (e.g. their employer says that they will be fired if they participate), when there is no judgment involved. The word we're using there is "renounce", as W3C thinks that they don't need to be dismissed and are eligible to serve. They need to be able to show that they had no access to material and no influence over the decision.

So, for dismissal and renunciation, it's a closed door shut-out that is irrevocable.

Then the easy case: people who don't participate much or at all; that's usual for volunteer work, and that's abstention. For abstention, people can change their mind, study, and get involved, if that's needed.

[dwsinger]

Partly as a result of this discussion, we dropped recusal and moved to dismissal and renunciation.

[frivoal]

see https://www.w3.org/Consortium/Process/Drafts/director-free/#council-participation

[frivoal]

Agreed to close in the 2022/10/28 Process-CG meeting.