Before: Arbitrator Eva Stöwe (A), Respondent: Stefan T (R), Claimant: Dirk A (C), Case: a20150823.1

Contents

  1. History Log
  2. Private Part
  3. Original Dispute
    1. Discovery for intermediate ruling
  4. intermediate Ruling
  5. Discovery
  6. decision: dismiss
  7. re-opening of case
  8. Discovery for final ruling
  9. Deliberations for Ruling
    1. Regarding a. - acceptance of relevant policies for the activity
    2. Regarding b. "standing" in the community
    3. Regarding c. expertise in the area of the activity especially in regard of security
    4. Regarding d. addressing of possible conflicts of interest
    5. Conclusion
  10. Ruling
  11. personal note of Arbitrator
  12. Execution
  13. References to Policies and other Cases

History Log

Communication prior re-opening

Re-opening of case

Private Part

EOT Private Part

Original Dispute

currently we're at Froscon together with several persons taking several
roles within the CAcert community.

Hopefully it's possible to do the ABC here to speed up the whole process.

It may be that he needs training for support before getting access, but
an ABC is independent of the training for the expected position/access
itself.

The respondent was named in the subject of the mail.

Discovery for intermediate ruling

There was a recent arbitration ruling given in a20140124.1. In that ruling, two points were made that might have relevance to this current running Arbitration.

  1. that the process used in that arbitration case for for arbitrated background checks (ABCs) is lacking and that it should be overhauled, and
  2. that no ABC should be conducted before the Arbitrator of a20140124.1 has reviewed any new process.

The first point is accepted, and information from that overhaul will be considered as and when it is available.

The second point is more problematic. It is not clear from the ruling as to whether this would effect an arbitration already in effect (that is, a case which already has an appointed Arbitrator) OR, whether it is limited to those cases that have not as yet been accepted by an Arbitrator, including un-filed cases and those waiting in the Arbitration queue.

Even for those cases it is questionable if such a ruling may hinder all other Arbitrators to pick up another case which is required to be handled by our policies - in the case of ABC this is the Security Policy (SP):

SP 9.1.1. Roles and responsibilities: "[...] Arbitrator: conducts ABCs. Authorises exceptions to policy."

This is especially true as our policies (and a previous ruling) tell us, that the process of each individual ABC is under the control of the Arbitrator of that case:

All this points into the direction that according to our policies and our preceding cases, there is no binding way how one Arbitrator may decide on the final process that another Arbitrator uses in their ABCs. (That does not remove the possibility of an appeal, where the used process is reviewed. Also it is possible to outline some process elements in general or good practices, or to declare a process that was tested to be lacking, as the Arbitrator did.)

The ruling of the Arbitrator of a20140124.1, that no ABC should be done until he has finished his review over a new process, could also be interpreted to only bind himself. Which would relieve him from the requirement of the SP to perform ABCs, until he has reviewed a new process. (Even as it does not seem to be the original intention.)

Luckily this question does not have to be answered finally in this case.

Without answering that question of examining the merits or details of the ruling of a20140124.1, the impact cannot on principle effect an already started and running Arbitration. If it were to do so, then any Arbitrator could interfere with any other arbitration simply by issuing a ruling; this would breach the general principle that the Arbitrator has the full authority as is expressed in DRP 2.1. As an absurd example, if it were the case that an Arbitrator could reach into another case, there might be a ping-pong effect as each Arbitrator sought to limit the interference with successive rulings.

It might be argued that an emergency might make such interference necessary, but even in that case, in general the risk of interference to arbitration as a forum is higher than the risk of the emergency. Also no such possible emergency can be seen in the current situation. (If at all there is the emergency of too few ABCs being performed to keep a necessary amount of candidates available for board to staff the critical teams.) To perform ABCs at least of a level where previous ABCs were performed, cannot be considered to create an emergency, when the Arbitrator of a20140124.1 did not question those old ABCs.

If we were to entertain such an oversight of a running arbitration, it should or must be done under some more formal channel than the routine ruling. The only likely channel we have under DRP is the appeal, and while it has been pointed out that Policy Group should consider how the process of appeal relates to a running arbitration, that stays a role for Policy Group.

intermediate Ruling

A ruling issued that purports to effect a running arbitration - that is one with an appointed Arbitrator - can only be voluntary in effect over that running arbitration. As a general principle, and as outlined under Dispute Resolution Policy 3.4, the only mechanism to effect the course of another arbitration is the appeal.

Arbitration is required to perform Arbitrated Background Checks by Security Policy 9.1.4 to enable board to add new members to the criticalteams. As there is a policy requirement, an Arbitrator should not decide voluntary to stop to perform them, after the case is picked up. This would also be an unduly interference with the authority of board to install new team members to critical teams.

This case should be continued as the ruling given in a20140124.1 does not affect this case.

Known issues regarding the interview process found in a20140124.1 should be considered. To allow this, the Arbitrator of a20140124.1 is asked to provide more details about the issues he found in the process of his case.

-- Cologne, 2015-09-21

Discovery

about status from ABC process:

additional remarks:

decision: dismiss

As the Arbitrator of a20150823.1 I hereby dismiss this case with the following provisions:
1. The case is dismissed because of no apparent interest of both parties.
2. There is no final decision made in this case.
3. The Security Policy requires to store the used material for ABC-cases. Because of this the Arbitrator and Case Manager have to keep the CV ofR in a save location. If this is done digitally it should be done encrypted.
4. The CV should be destroyed when it becomes clear that it is not needed any more, which would be the case
a) if it becomes known that the respondent will never be able to do an ABC any more or
b) if there is a decision in another ABC case over the respondent, that the CV of this case is not needed, any more.

2016-06-15
Eva Stöwe
Arbitrator of a20150823.1

re-opening of case

As the Arbitrator of a20150823.1, I hereby want to inform you, that I re-open the recently dismissed and already closed case a20150823.1 - "ABC for Stefan T" [1].

While I am aware that the DRP names the appeal process for re-opening of a case, the CM and me consider it to be acceptable to re-open the case directly in this situation.

Reasons are:
- The case was not finally ruled but dismissed because of no further answers and assumed no further interest from the parties.
- Directly after the dismiss and closure, the respondent added a request because he disagree with a provision named in the dismissal decision.
- If the request would have been known at the time of the former decision the decision would have been different.
- To address this request the case has to be re-opened and that decision to be adjusted.
- As the closure was only done because of no-reaction of the parties and by this on assumed wishes of the parties, the further request which is directly related to the case should allow for a re-opening if everybody involved agrees.
- CM, A and C agree to the re-opening of the case.
- The alternative named in the DRP (appeal) is a lot more complex and would lead to much more effort if it would be successful at all, so it is in the interest of the parties, as well as arbitration team and community if that could be prevented.
- The Arbitrator regards it as unlikely that an appeal would be successful.
- It is questionably if the respondent would accept/go appeal process instead he names "official filing", it is unlikely that the respondent would gain anything that way.

I hereby decide:
As the expressed request/wish of the respondent is accepted by the Arbitrator to be a relevant one for the decision and an appeal probably would not help and as there was no final decision the case a20150823.1 should be re-opened and continued to be able to deal with the late request of the respondent.

Eva Stöwe, 2016-07-03

Discovery for final ruling

The ruling is based on the following evidence:

  1. intermediate rulings in a20151125.1:

    • The respondent was found to violate CCA and DRP in major ways and assumed to not accept them any more, with the result that
      • access to critical systems was denied
      • assurer status was removed
    • The remedy about denying access to critical systems was removed later based on the fact that no interest for such access was seen, any more.

  2. findings in a20150916.1 and advise from Arbitrator of that case to use them in this case

    • It is a long list of violations of CCA and policies including DRP, which lead to the finding that the respondent does not accept CCA and those policies any more.

  3. SGM resolutions of SGM at 2016-04-09

    • Especially:
      • "The membership is disheartened by the recently elected committee and its persistent disrespect for properly established arbitration, policies and procedures."
      • "It is resolved, that the committee as constituted no longer enjoys the confidence of the members, and each committee member is removed from their position."
  4. multiple board decisions given with the voice of the respondent that were found to be violating the rights of arbitration, policy area, and members, which were later addressed by said SGM resolutions, by the reversal of the decisions by a later board and partly in the named arbitration cases.
  5. parts of the "CV" provided by the respondent [private, will not be revealed].
  6. comments from support regarding the ticket handling of the respondent and what kind of tickets handled by the respondent reached the Arbitrator, while the respondent was working at triage
  7. the respondent stopped to answer in the case

The evidence so far was enough to have allowed the final decision in this case. All of this was available at the first closure of this case, where the Arbitrator tried to prevent such a final decision.

Afterwards the activities of the respondent in the context of this case was visible, which now add to the above evidence:

  1. He did not answer the arbitrator when asked about a possible dismiss
  2. Shortly after the dismissal of the case, he requested that the CV is deleted regardless of this being prevented by a ruling.
  3. He did not address the Arbitrator about possible changes to the ruling just repeated his demands.
  4. He threatened with "escalation" and stated that this could not be an appeal and by this clearly refused the processes within the DRP.
  5. He also did not accept that there could be any provisions within the policies that would be relevant for the question of the deletion of the CV.
  6. He did not seem to accept the established NSW jurisdiction / governing law.
  7. He requested from two arbitrators to disregard a ruling and to destroy data against the provisions of that ruling. Further he tried to enforce this with threats.

All in all he clearly and absolutely did not accept the internal process of arbitration for handling such topics, as it is defined in DRP and SP. Which together with the above has to be seen as proof that he does not accept any of those policies.

Deliberations for Ruling

An Arbitrated Background Check (ABC) should provide clarification about four major points:

For the last point the CV and interview are essential. Other points can be examined without the interview and if necessary addressed in the interview, later. The interview is named to be the last step of the ABC process. [5]

In the current case, no interview was performed. But this is not necessary in this case to come to a decision, as even without the interview too many elements were discovered that have to lead to a failure of the ABC.

Regarding a. - acceptance of relevant policies for the activity

Relevant policies in critical areas are the Security Policy (SP) but also the Dispute Resolution Policy (DRP) as one of the responsibilities of all critical team members is to follow the rulings of Arbitration. Also for all activities within CAcert the acceptance of the CAcert Community Agreement (CCA) is crucial.

The provided evidence shows that the respondent does not accept any of them.

Details can be found within the named cases and in mails prior and after the SGM.

Regarding b. "standing" in the community

The assurer status for the respondent was removed by arbitration ruling in a20151125.1. The status of assurer is regarded as minimal status for critical teams in the ABC process. As only with assurer status a CAcert Assurer Reliance Statement (CARS) is possible to give and as a member of the critical team should be able to give those in different directions a missing assurer status should be considered to be something that prevents addition to those teams. At least if there are not good reasons why that status is missing.

The fact that that status was removed by a ruling based on prior activities of the respondent adds even more weight to this result.

Further, the respondent was a member of the first board of 2015/2016. That board was removed based on the above stated resolutions.

The accumulation of both leads to the result, that the "standing" of the respondent within the community stands against a positive ABC recommendation. The respondent had clearly managed to lose the confidence and trust of both CAcert Inc and Arbitration in a way that both have stated that they do not consider the respondent to be reliable.

Regarding c. expertise in the area of the activity especially in regard of security

The Arbitrator was informed about some "unusual" handling of tickets by the respondent while being in triage and the Arbitrator also saw multiple handling of tickets that were not according to procedures or policies.

As support was nearly inactive at that time, this could be considered as under "emergency situations". But in that case the respondent would have had to seek review and confirmation of those activities by arbitration. This was not done.

There was no deeper evaluation done to this point, as there was no interview which would be a relevant element to clarify this question.

However the investigation that was done would have lead to a recommendation for further training of the installed procedures and processes.

Regarding d. addressing of possible conflicts of interest

A possible conflict of interest was discovered in the CV. The Arbitrator doubts that it would have lead to a negative recommendation for critical jobs. But without an interview this could neither be confirmed nor denied. An interview would have been essential to answer this point.

Conclusion

As one of the essential points to pass an ABC - the acceptance of relevant policies at least in most points - could clearly be answered with "no", the other points would not be able to change the result of this ABC.

The additional fact that there were also a lot of issues regarding the standing within the community up to a declaration of CAcert Inc to not have confidence in the respondent any more, also would prevent a positive recommendation for the time being.

If the respondent would have changed his course after the SGM, maybe another result would have been possible.

But his later activities in the context of this case regrettably confirm the finding that he does not accept arbitration or our policies.

Ruling

I hereby come to the following ruling:

1. The recommendation to board regarding the reliability of the respondent to act in critical roles is negative. The respondent is not reliable to act in those roles.

2. Because of this the respondent should not be allowed to act in any responsible or critical role.

3. Even more the respondents refusal of basic elements within our policies especially regarding arbitration is so absolute, that his membership has to be terminated.

3.1. But as the respondent is party in the running arbitration case a20150916.1, the membership should not be terminated without the confirmation of the Arbitrator of a20150916.1 that this can be done without harm for that case, as long as that case is running.

3.2. The membership of the respondent will be terminated and his account will be deleted as soon as no arbitration case is preventing the termination.

3.3. Until then, all membership rights of the respondent are suspended. This includes but is not limited to the right to USE, RELY, OFFER or CREATE any CAcert certificate or to participate in Policy Group. For anything but running arbitration cases he has to be treated as a Non-Related Person and former member.

3.4. All his certificates should be revoked and his account should be blocked, directly.

3.5. The suspension of the membership rights and termination of membership is permanent. The respondent is not allowed to become a member of the CAcert community, again.

4. As the data in the CV was not of crucial relevance for this decision and it would only have been of relevance if there would have been a chance of a later ABC, the Arbitrator and the Case Manager should destroy that document as soon as possible. The destruction should be confirmed to the respondent and noted in the case file.

Eva Stöwe - 2016-07-08

personal note of Arbitrator

I just had to do something that I had hoped to be able to prevent: I came to a final decision about the ABC over Stefan.

Regarding my prior decision to dismiss the case I was of the believe to had acted in the interest of the respondent. Instead of giving the ruling above - which mostly would have been possible even back then - I "pretended" that there could be another result than the one I had to give now. From my perspective the "price" of leaving the draft "CV" with other protected arbitration data in the save-keeping of two persons who are already familiar with them, in a manner so that nobody else should be able to access them is minor to having this public ruling.

Just for explanation, why I believed so: The "CV" was described by the respondent himself as "very abbriviated Draft with all my Jobs since School. I have the duration of the jobs included, but not the beginning and end dates" in the according mail. Which seems to be a matching description.

Execution

References to Policies and other Cases

Arbitrations/a20150823.1 (last edited 2016-07-10 18:50:36 by EvaStöwe)