Forum: Protest Hearing Procedures

Conflict of Interest

Paul Zupan
Nationality: United States of America
Certifications:
  • National Judge
  • International Judge
  • Regional Umpire
The protest committee at a large regional event (that is a ladder event for qualification for the World Championship) is a three member panel of nationally certified judges. A protest has been received from a boat called Wicked against boat Wanton on an RRS 10 question. The judges assemble and review the protest prior to the hearing.

Judge C explains to the panel that he is the coach for Wicked which is preparing for the World Championship. C explains that he has coached Wicked in two training sessions and will do two more in the future.

Judge T explains to the panel that she is normally the tactician on Wanton. She has sailed with the boat for the previous three events and will sail with the boat during the remainder of the ladder events leading up to the World Championship.

The chair of the panel requests that the parties come into the room and she starts the hearing. The situation is explained to the parties and the chair asks the parties if they have any objection to the members of the protest committee. Neither party objects.

Should the panel proceed with the hearing?
Created: 18-Mar-09 22:33

Comments

Pat Lymburner
Nationality: Canada
Certifications:
  • Regional Judge
  • National Race Officer
4
The panel is in the position of direct conflict of interest and should not proceed regardless of the lack of an objection which could be a result of the direct relationship with the panel. The perception will be negative no matter what is decided. It is the "perception" of a conflict that should govern.
Created: 18-Mar-09 23:50
Bill Handley
Nationality: United Kingdom of Great Britain and Northern Ireland
Certifications:
  • National Judge
1
This is a clear case of Conflict of interest. It is covered in the RYA Case details of which are summarised below.

RYA 1984/2 A person with a conflict of interest does not cease to be such because a party to the protest is willing to accept him as a member of the protest committee.
Created: 18-Mar-10 02:05
Paul Zupan
Nationality: United States of America
Certifications:
  • National Judge
  • International Judge
  • Regional Umpire
0
We should always apply the rule and interpretations when confronted with a complex question. Rule 63.4 is the relevant standard. Case 137 is the interpretation along with the recommendations in RRS M2.3. I would suggest we can balance the conflicts here and agree to proceed. By the way, much of this is new for 2017. Thoughts?
Created: 18-Mar-10 15:52
Angelo Guarino
Nationality: United States of America
Certifications:
  • Judge In Training
  • Fleet Measurer
0
Bill, your RYA seems to directly conflict with 63.4(b)(a). How does that square in RYA's mind to your understanding? RRS 63.4 is specifically excluded to change by local authorities. - Ang

PS ... just a thought .. is the purpose of your RYA maybe to reinforce the requirement for declaration and documentation of the conflict? In other words, is this saying that the written descriptions are still required even if all parties approve, thus they "does not cease to be such because a party to the protest is willing to accept him" ..?
Created: 18-Mar-10 16:06
Pat Lymburner
Nationality: Canada
Certifications:
  • Regional Judge
  • National Race Officer
0
Interesting comments. 63 b(1) give the protest committee permission to proceed if neither party objects however the language in 63 c should insert common sense into the process. I, for one, if faced with this situation, would recuse myself immediately. Likewise, 63 d makes it abundantly clear.
Created: 18-Mar-10 16:47
Pat Lymburner
Nationality: Canada
Certifications:
  • Regional Judge
  • National Race Officer
0
My references were 63.4. With apologies.
Created: 18-Mar-10 17:03
John Culter
Nationality: Canada
Certifications:
  • National Race Officer
0
Pat Lymburner,'s first comment is the relevant opinion, never mind the possibility of varying national case law. Whatever was running through the minds of the competitors — Corinthian spirit; let’s just get it over and get to the bar; whatever — a few days later after an insider decision, all parties will be at least embarrassed. It’s a no go.
Created: 18-Mar-10 17:04
Paul Zupan
Nationality: United States of America
Certifications:
  • National Judge
  • International Judge
  • Regional Umpire
0
And I forgot to mention that it's 16:30 on Sunday with the awards ceremony scheduled for 17:00 - Wicked is in second and Wanton is in first in the standings...
Created: 18-Mar-10 17:49
John Thorne
Nationality: United States of America
Certifications:
  • Regional Judge
  • Regional Race Officer
0
There is way too much conflict in this situation. If it is essential that the protest be heard that afternoon, I think the first step should be to find a qualified judge the chair the committee, then one of the two judges with connections to Wicked should be excused. Finally, the parties should be asked if they will accept the panel.
Created: 18-Mar-10 18:02
John Mooney
Nationality: United States of America
Certifications:
  • National Judge
  • Regional Umpire
  • Regional Race Officer
1
Judges Favorite Answer (JFA) = "It depends". :)

Both Judge C and Judge T have conflicts. 63.4b1 now allows a person with a conflict to participate in the hearing if all parties consent, but 63.4d says: "However, for World Sailing major events, or for other events as prescribed by the national authority of the venue, rule 63.4b1 does not apply and a person who has a conflict of interest shall not be a member of the protest committee."

We don't know enough yet to know for sure if this event qualifies as a major event (we don't know the class, and we don't know if it's an international or national "regional championship"), but it seems likely, given the descriptions in the Principal Events Guidance document and Reg 25. If it is a principal or major event (or if the national authority of the venue has so prescribed), conflicts are forbidden, regardless of consent. If it's not a major or principal event and the national authority is silent on the matter, then pc members with conflicts may hear protests in which the parties give informed consent to their participation, but it's still a bad idea, for the reasons expressed above, and the jury should make every effort to avoid such participation.
Created: 18-Mar-10 18:03
John Allan
Nationality: Australia
Certifications:
  • National Judge
  • Regional Race Officer
0
While participation of the two judges is exactly permissible in accordance with rule 63.4( b ) (1) (unless one wants to quibble about some difference in meaning between 'consent' in the rule and 'neither party objects' in the OP scenario), I don't think this is an end of the matter.

Firstly, I suggest that there is no doubt that Judge C has a major conflict of interest: See, for examples ISAF RACE OFFICIALS COMMITTEE CONFLICT OF INTEREST RULINGS decisions dated 02/05/2013 and 22/11/2013.
I would further suggest that Judge T also has a major conflict of interest.

Judges Manual Sections C1 and C2, while strictly only applicable to International Judges provide guidance.
C1 Code of Behaviour
...
Judges are expected to:
...
• declare any conflict of interest before accepting a protest committee invitation. (See
section 3.2 and ISAF Regulation 34);

C2 C.2 Conflict of Interest
ISAF Regulation 34 - Conflict of Interest

...
34.2 When an ISAF Race Official is aware of a conflict of interest, he/she shall decline
an invitation to serve at a regatta at which an International Jury is appointed.
34.3 When the ISAF Race Official has any doubt whether or not there is a conflict of
interest, the ISAF Race Official shall promptly consult ISAF, prior to accepting
the invitation and be bound by its decision.

Given that these are not International Judges, their relevant MNA Regulations and Codes of Conduct will be relevant.

US Sailing Regulation 10.06: Race Management, Umpiring, and Judging

A General Policy

  1. No person may serve as a member of the umpire team, protest committee, or as the principal race officer at an event in which any competitor in the event is a close relative, an employer, or an employee. ...
  2. Volunteers shall comply with US Sailing Regulation 14 – Code of Ethics.
US Sailing Regulation 14 CODE OF ETHICS
14.01 SCOPE The US Sailing Code of Ethics (Code) applies to volunteers, employees, and representatives of member organizations when acting on behalf of US Sailing.
14.02 GENERAL
A. When acting on behalf of US Sailing, individuals shall refrain from placing themselves in a position wherein their ability to objectively perform their duties has been compromised or appears to be compromised. Any such individual shall refrain from participating on any issue in which he or she has a personal or pecuniary interest not common to other members of US Sailing, and shall disclose such interest before the issue is debated.
...
14.04 VOLUNTEERS AT US Sailing EVENTS; CERTIFIED OFFICIALS AT ANY EVENT
Any individual involved in running an event organized or sanctioned by US Sailing; any individual selecting competitors to compete in an event organized by US Sailing or in the Olympic, Paralympic or Pan American Games; or any individual holding certification from US Sailing as a coach, instructor or race official, whether acting in the capacity for which they hold certification or otherwise, shall:
A. avoid conflicts of interest, whether actual or perceived;

...
14.08 GUIDANCE AND REPORTS OF VIOLATIONS Questions or guidance regarding the applicability of this policy to specific situations, or reports of alleged violations, will be kept confidential to the extent possible, consistent with the need to conduct an adequate investigation. Questions or reports may be made by telephone directly with the ECO (Chair of the NGC), or in writing to: Ethics Compliance Officer US Sailing P.O. Box 1260 Portsmouth, RI 02871 EthicsComplianceOfficer@US Sailing.org

It would appear that Judges C and T have not complied with the relevant US Sailing Regulations.

Following the WS guidance in the CONFLICT OF INTEREST RULINGS they should not take part in hearings.

If an appropriate protest committee of members not having significant conflicts of interest cannot be assembled, then any dispensation of the right to appeal should not be applied.

Created: 18-Mar-11 00:20
Paul Zupan
Nationality: United States of America
Certifications:
  • National Judge
  • International Judge
  • Regional Umpire
0
John, do you think the US Sailing Code of Ethics 14.04 forecloses participation on a protest committee if there is any actual or perceived conflict of interest?
Created: 18-Mar-11 00:57
Bill Handley
Nationality: United Kingdom of Great Britain and Northern Ireland
Certifications:
  • National Judge
0
Ang - trying to work out what is going on in the mind of the RYA is way above my pay grade. My interpretation would be that even if 63.4(b)(1) allows for the protest to proceed the members would still be conflicted. Given that there are degrees of conflict then if that conflict is very significant as in this case then it would be best not to proceed.
Created: 18-Mar-11 01:51
John Allan
Nationality: Australia
Certifications:
  • National Judge
  • Regional Race Officer
0


John, do you think the US Sailing Code of Ethics 14.04 forecloses participation on a protest committee if there is any actual or perceived conflict of interest?

In general terms no: rule 63.4 provides an appropriate process for 'ordinary' events.

If there is any doubt, the Code of Ethics 14.08 provides a procedure to get an appropriate determination from US Sailing.

Once the situation is elevated to:
  1. an event where the right of appeal will be dispensed with;
  2. nationally accredited judges;
  3. serious conflicts of interest
Then, I think the WS Conflict of Interest Rulings tell us quite clearly that Judges C and T should not be on that protest committee.

I also think that is is very sad that the OA who invited the judges didn't immediately identify such blatent CofI and that the judges themselves didn't decline the original invitation.

I would expect that an aggrieved party would have a pretty good case under the Ted Stevens Act, that the protest committee was not 'disinterested' (I think that was the particular word used in the Act). Does US Sailing want another dispute in front of USOC?
Created: 18-Mar-11 01:58
John Allan
Nationality: Australia
Certifications:
  • National Judge
  • Regional Race Officer
0
Bill, your RYA seems to directly conflict with 63.4(b)(a). How does that square in RYA's mind to your understanding? RRS 63.4 is specifically excluded to change by local authorities. - Ang

PS ... just a thought .. is the purpose of your RYA maybe to reinforce the requirement for declaration and documentation of the conflict? In other words, is this saying that the written descriptions are still required even if all parties approve, thus they "does not cease to be such because a party to the protest is willing to accept him" ..?
The RYA Appeal has been amended to accommodate new rule 64.4.

The headnote reads

A person with a conflict of interest does not cease to be such because a party to the protest is willing to accept him as a member of the protest committee.

which is trite.

The last sentence of the second last paragraph puts the correct situation quite nicely

The chairman of the protest committee in this case would have been well advised to refrain from serving on it.
Created: 18-Mar-11 02:06
Paul Zupan
Nationality: United States of America
Certifications:
  • National Judge
  • International Judge
  • Regional Umpire
0
I think John Mooney got it right - it depends. This question was prompted by a recent review of a list I compiled of conflicts I observed or experienced over the last few years. It is a much more common issue than we tend to acknowledge. This question was framed to be right on the edge of the WS regulations which require that judges recuse themselves. And the MNA was intentionally not identified as I don't know how many MNA's might impose some restrictions.

But this example also included counter-balancing conflicts. Though we don't have any interpretation of how to evaluate this, M2.3 gives us the hint that we can consider some mitigation for conflicts that balance each other. Perhaps these "serious" conflicts can be downgraded somewhat because they balance each other.
Created: 18-Mar-11 02:29
John Standley
Nationality: Australia
Certifications:
  • International Judge
  • National Umpire
0
This does not pass the 'pub test'.
I agree with John Allen (comment 1197)
It must have been clear from the outset of the regatta that there was a real conflict of interest. Judges C and T should have raised the matter with the OA and the OA should not have appointed them.
Even if the protest involved boats other than Wicked and Wanton it is more than possible any decision by this PC could have affected the positions of Wicked and Wanton overall and in the series.
It is also unreasonable to place competitors into a position where they might feel forced to accept an unsuitable PC (advising that this is the only jury available and it is half an hour before the prize ceremony places competitors in a difficult position.)
So while the rules may allow this hearing to proceed common sense should have prevailed to prevent this situation arising.
As others have already stated I, like them, would not have sat on this jury from the beginning.
Conflicts of interest are often more perceived than real but any perception gives rise to grumbling and mumbling and neither the winners or losers in such a case really want to be involved with this.
Created: 18-Mar-11 04:00
John Mooney
Nationality: United States of America
Certifications:
  • National Judge
  • Regional Umpire
  • Regional Race Officer
0
John A., "counter-balancing conflicts" is a concept that appears from time to time in practice in the US (e.g., in inter-collegiate or inter-scholastic events, where coaches, including the coaches of each competitor, often form a PC and the presumption is that the two coaches will keep each other honest and any bias will be balanced out). Paul's observation about the line in M2.3 that refers to such balancing acts is also well taken, but I can't find the WS guidance about how such balances are to be struck referred to in M2.3 either, so I'm inclined to agree that it's tricky to "balance conflicts" within WS guidance - it seems to me that the ISSA and ICSA practice is really only newly supported by 63.4b1 - before that, I think it was illegal under the RRS, even though fairly common here (and supported by the procedural rules of those two organizations, if memory serves).

It seems pretty clear to me that both judges should have declared their conflicts before the event and declined to serve if they are either IJs or in the USA or GBR. (I'm not sufficiently familiar with AUS guidance to judge its requirements independently, but I take your word they are similar). As you say, those judges' manuals require such a declaration if the judge is aware of the conflicts, and it's pretty hard to imagine how they wouldn't see the problem coming. All of that is outside the boundaries of the original question, though, which sets the conditions that they didn't decline to serve, and now it's Sunday afternoon, etc., etc.

All of that said, I'm inclined to read "prescribe" closely, and am unclear how an MNA can "prescribe" something other than by prescription to the RRS (and doing so, even if possible, sounds like a recipe for trouble to me). Also, FWIW, US Sailing does have a prescription to 70.5a that says it must approve dispensing with the right of appeal at ladder events and refers to a procedures and guidelines document for gaining that approval (which I take to be effectively part of the prescription). That document includes restrictions about how the PC must be constituted (all IJs or NJs, and no "interested parties" - the document hasn't been updated to match the language in the new rules yet), which would seem to re-engage 63.4d, forbid any conflicts, and make this discussion moot if appeals are dispensed with in the US.

As to the non-partial PC member in the OP that you refer to, I agree he or she is in a dodgy spot, but I'm not sure how it's any worse than being the only person left after the other two judges have recused themselves (or been excused). At least with the other two there, the non-partial member has help laying the competing arguments out for him or her to decide, but either way, judges C and T have made a mess, and it could well end up smelling bad even if the PC somehow passes muster under 63.4b1.
Created: 18-Mar-11 06:10
Angelo Guarino
Nationality: United States of America
Certifications:
  • Judge In Training
  • Fleet Measurer
0
John A wrote ..

I would have no problem in these NOR 'prescribing' that rule 63.4(b) does not apply and a person who has a conflict of interest shall not be a member of the protest committee.

John, how do you see that happening (without special dispensation from WS as outlined in 86.2) if 86.1(a) specifically excludes all of 63.4 from alteration? Where do your find that local/organizational power granted lower down the food-chain? - Ang

Created: 18-Mar-11 13:52
John Mooney
Nationality: United States of America
Certifications:
  • National Judge
  • Regional Umpire
  • Regional Race Officer
0
Ang, John can certainly speak for himself (and I presume he will), but I'm of the impression that he refers to NOR written by US Sailing or another MNA, which have the power to write prescriptions to the RRS and therefore to modify the protected portions of the RRS in their own jurisdictions. I tend to agree with you that doing so as an actual RRS prescription (like US Sailing's prescription to 70.5a) would be tidier, would be certain to provide proper notice to WS about the change, and would more clearly meet the requirements of 86.1a, but John may be right that I'm being inordinately fussy about that. After all, "prescribe" isn't a defined term, and its common usage could include direction given by the MNA in other documents.

John, FWIW, I like your proposals for inoculation against repercussions for proceeding with the tainted jury (or with one improperly constituted due to the absence of the tainted members). It still leaves the non-aligned jury member in a tough spot, but at least it makes clear he or she has done everything they can within reason to do the right thing and avoid any appearance of bias in the outcome, and it provides some preliminary result on the day, even though that result is subject to further review. (BTW, my guess is that the OA will be abundantly aware that there is a protest that significantly affects the results, but it would be a good idea to advise them of the problem and how the PC intends to proceed.)

EDIT: Since John's proposals seem to have disappeared for some reason, I should add for clarity that he was suggesting that whether it proceeded with the two tainted judges or at reduced "strength" after they were excused, the PC should protect themselves and the competitors from allegations of bias by proactively submitting their decisions to review by an appeals committee, which would allow other eyes to view the proceedings and allow competitors who might think they had been treated unfairly a venue in which to raise those concerns. I don't know how various appeals committees would respond to a request for an expedited hearing, but I hope the response would be positive, and would do something to mitigate what seems to me an ugly situation.
Created: 18-Mar-11 16:24
Lloyd Causey
Nationality: United States of America
Certifications:
  • Regional Judge
  • Regional Race Officer
0
I agree with John Mooney. I also appreciate the detail he goes to explain his reasoning.
The Race Committee made horrible errors in setting this PC up for a ladder event to National Championship.The national championships where I have judged have independent PCs that often must be approved the class.

Created: 18-Mar-11 20:42
John Mooney
Nationality: United States of America
Certifications:
  • National Judge
  • Regional Umpire
  • Regional Race Officer
0
Paul, I suddenly can't see post numbers or e-mail addresses anymore, and we appear to have lost a couple of interesting and detailed posts from John Allen, which I thought were very valuable on this thread. Is something afoot?
Also, thanks Lloyd, for your kind words.
Created: 18-Mar-12 02:25
Paul Zupan
Nationality: United States of America
Certifications:
  • National Judge
  • International Judge
  • Regional Umpire
0
Several comments were rejected for posting the email addresses of other people. I thought, given the potential to do that, I'd better hide the email address of people leaving comments.
Created: 18-Mar-12 04:14
John Sweeney
Nationality: United States of America
Certifications:
  • Regional Race Officer
0
Clearly a conflict of interest, from which the would be judges are obligated to recuse themselves.
The conflict extends to the entire class - a consideration I find is too often overlooked - as judgments impact more than just the two parties of the hearing.
Additionally, if the OA succumbs to pressure of the awards schedule and circumvents proper hearing procedures, I contend that they need to re-evaluate their priorities and reconsider their event scheduling requirements (i.e. gets boats off the course earlier, or later awards . . .)
Created: 18-Mar-13 13:16
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