[NCUC-DISCUSS] Case Zuan Zhang aka Peter Green

[Tapani Tarvainen]

Dear all,

Now that we have seen the statement from former EC members as well as
Zuan's response, it is time to review what happened and how, try to
understand what went wrong and why, and what lessons we could draw
from it.

I must admit I find a big puzzling suggestions that we should not
discuss this any more. Surely the point of making statements to the
membership is to allow members to review and discuss them. And there
clearly are open questions, issues that have not been discussed
anywhere near thoroughly.

Zuan was removed from the EC and by now his term would've expired long
ago anyway, in that sense the case is closed - but it's only been just
opened for analyzing what happened.

******

Transparency and due process are our core values, issues we keep
pushing for in ICANN. I may be naive or idealistic in that, but I do
believe we should try to live the way we preach as much as we can.

And in this case transparency and due process did not fare well.

Of course, being human we all make mistakes. I sure have made my share
of them. And errors are always easier to see with hindsight.

But when we do make mistakes, we should not try to forget them as soon
as possible. Instead we should try to learn from them so we can do
better in the future. It really isn't enough to say it "could have
been handled better" without any suggestion as to how, or to note
transparency concerns without actually addressing them.

My intent is not to blame or accuse or embarrass anyone or determine
guilt or anything like that. I see no reason to assume anyone acted in
bad faith, and I will not name any potential culprits. Rather this a
story of how even with the best of intentions things can go awry, and
as far as I can tell the fault lies largely in the process, lack of
proper procedures, and that's the main reason why I think it is
important to understand what happened: we need to fix that, write up
procedures so that things will be better next time.

So, I'm not so much concerned with the who or even with the what but
with the *how*.

This discussion is particularly timely because NCSG EC has been
working on detailed member removal procedural rules as per our charter
2.2.6., and we're planning to it bring out the first draft for the
membership to review within a few weeks. Having a precedent to reflect
on should be most useful there.

As for whether or not Zuan was actually ineligible for NCSG or NCUC
membership at the time, I've refrained from taking a stand because as
NCSG Chair I would not want to prejudge it in case it came to NCSG EC.
But for the present purpose it doesn't matter much: it is sufficient
to note it was not totally obvious, a foregone conclusion, but one
where reasonably people could disagree, one in need of both
fact-finding and rule-reading before reaching a decision.

Another issue is if NCUC EC had (has) the right to expel or suspend
its members. While there's no such right in old (current) bylaws, it
can be argued it could be derived from some general principles, but
surely that is not altogether obvious either.

I do think there *should* be a way to remove EC members and I'm glad
it's been taken care of in the proposed new bylaws. I don't see,
however, how that could somehow vindicate actions taken under the old
bylaws. If anything, the need for such a change could be seen
indicating the old (current) bylaws did not give such right to the EC.

But what I'm most worried about would be just as worrysome even if
Zuan had been utterly and obviously ineligible and even if there had
been explicit right in the bylaws for the EC to expel him (even though
in that case things would probably have happened differently).

******

Let's take a look at what happened, as far as is publicly known.

A brief timeline:

(1) July 2016 (uncertain): One or more people complained about Zuan's
eligibility to someone in the NCUC EC.

(2) July-August 2016 (exact dates unknown): EC members, excluding
Zuan, discussed the issue in a private email exchange and concluded
that Zuan was ineligible to NCSG (or NCUC) membership and that
therefore he should be removed from NCUC EC.

(3) August 2, 2016: Zuan was notified of this by private email,
stating it was NCUC EC conclusion, demanding his immediate
resignation.

(4) August 3, 2016: Zuan contacted NCSG Chair (me), having interpreted
the message as an official decision to expel him from the NCSG as well
as from the NCUC. I told him that NCUC EC had no right to make such a
determination about NCSG membership, as that belongs to the NCSG EC.
I also wrote to the NCUC EC members in question expressing my
disapproval of the process.

(5) August 8, 2016: the letter sent to Zuan was published on this list
and it sparked a discussion that went on for some time.
http://lists.ncuc.org/pipermail/ncuc-discuss/2016-August/019065.html

(6) August 12, 2016: Zuan announced he'd take the issue to the Ombudsman and
discussion on the list soon subsided, waiting for Ombudsman's actions.
http://lists.ncuc.org/pipermail/ncuc-discuss/2016-August/019114.html

(7) August 19, 2016: NCUC EC had a normal, recorded meeting to discuss
the issue. Zuan did participate, and the EC decided to suspend him but
did not replace him, instead leaving his seat vacant.
http://lists.ncuc.org/pipermail/ncuc-ec/2016-August/002991.html

(8) April 10, 2017: Former NCUC EC members statement about the case
was posted to this list.
http://lists.ncuc.org/pipermail/ncuc-discuss/2017-April/020478.html

(9) April 13, 2017: Ombudsman posted Zuan's response.
http://lists.ncuc.org/pipermail/ncuc-discuss/2017-April/020521.html

******

Observations and questions:

While current NCUC bylaws do not have anything about expelling members
from the EC anymore than from NCUC itself, NCSG Charter does.
Indeed the letter sent to Zuan only referred to NCSG rules, and in any
case the elibility rules for NCUC are essentially same as for NCSG.

So why wasn't this referred to NCSG EC? The initial complainants
might well have been unaware of these legalistic details, but
NCUC EC members certainly should have known them and notified
NCSG EC about the situation.

Second, if it was concluded Zuan was ineligible for NCSG (or NCUC)
membership, why only remove him from the EC? Wouldn't it have been
their duty to remove him from the entire NCUC (and notify NCSG EC so
he could be removed from NCSG)?

Third, the big procedural irregularity: why was the decision
made in a private, still not published, email exchange?

The only explanation given is that raising the issue in public "could
have been construed as an intimidating public attack on Peter".

While that's a fair reason as far as it goes, and I'm sure it was a
real reason, there must've been something else, too, as it begs the
question why Zuan was not included in the discussion earlier, indeed
from the very beginning.

He thought he was a member of the EC, equal to others. Then he is
being told that others have met in secret, without him, and judged him
without his participation and found him guilty, and are saying they
made an official decision about him - a decision of the EC he's
supposed to be a member of.

It shouldn't take much psychological insight to predict that would not
go down well. And trying to follow up by inviting him to defend
himself in an official meeting after he knows he's already been judged
and found guilty wasn't likely to help much either.

Equally puzzling is why NCSG EC was not involved. If the case for
confidentiality was good, there should have been no reason to assume
NCSG EC would not accept it as well.

We don't know what took place in that email exchange, so we can only
guess why all those decision were taken that with hindsight seem so
strange. And while I don't think we can force them to be published, on
the other hand I do see any reason why people involved couldn't
publish them if they so chose, and it might help us understand what
really happened.

I won't argue people should not have private conversations, but it
does become problematic if such secret discussions become de facto
fora for decisions that should be made publicly.

Especially so in a case like this: expelling a democratically elected
member of the EC is just about as momentous as decisions get, and
given that it was indeed unprecedented and that there were no explicit
rules about it in the bylaws, a public discussion would have been all
the more important.

But what is really unacceptable is to make and implement official EC
decisions in secret. It is really beyond the pale, it is what really
shocked me when I first learned about this.

You can't have your cake and eat it, too. If you make an official
decision it should follow all the rules and have all the trappings it
implies, including proper documentation. If you only have a private
conversation, its outcome is nothing but personal opinions, and
shouldn't be claimed as anything more.

******

Analyzing in any detail the motivations and thoughts of people involved
is beyond me and probably would not be constructive either. But I will
offer one speculative suggestion:

The real problem was (and remains) lack of trust.

It seems pretty clear that at least some members of the NCUC EC
distrusted Zuan, some distrusted NCSG EC and/or Chair, some people
didn't trust NCUC EC, and some distrusted the process, didn't trust the
rules we have to be good enough to handle the situation properly.

******

Finally, what could and should we do about this?

Trust is notoriously difficult to build and to maintain. I don't have
any magic solution to that. But there are things that can help there,
and things that can ameliorate the bad effects of distrust.

This will be important when we discuss the NCSG member removal
procedures later in NCSG-DISCUSS and consider the impact of various
procedural choices in detail.

For now I'll conclude with the observation that it would help to have
better, more explicit rules, and realistic rules, such that take into
account human weaknesses, including the need to save face. In
particular, if we think there're issues that should be discussed in
confidence, and there might be, we should make rules about how and
when it should happen.

Comments welcome.

-- 
Tapani Tarvainen