[ChuckMcM]

I feel that this is a false dichotomy. As I see it 'no process' is the state where any process at all may be applied depending on the individuals that come into conflict. As such, that 'no process' state includes all possible processes that might be implemented for any given event.

Whereas a process without a notion of due process, is always worse than a process with a notion of due process.

I see it as the judgement a community makes is between dealing with the conflict openly (both accuser and accused are named and aware of each other and aware of the conflict) and avoiding open conflict. And in the interest of avoiding open conflict they sacrifice fairness.

[brudgers]

A code of conduct lets people focus on the community purpose of the project. It lets people know what to expect so they can decide "I disagree, and therefore this is not for me," or "I disagree but I can live with it," or "I agree and can live with it." Codes of conduct are practical tools allowing a community to handle people who decide "I disagree and will stay and not abide by it" and then behave in ways that disrupt the community from its purpose.

From a practical standpoint, due process can be simple as the people assigned to deal with complaints saying, "This is problematic. Please stop." The cost of lawyering up when the response is "So sue me," is disproportionate to what has been asked. Due process is a three way street.

[ChuckMcM]

I agree with your assessment of what a code of conduct is.

That said, just the 'code' is pretty useless without a process to give it life. This is exactly like laws that tell you what you can and cannot do, and the process tells you how you evaluate whether or not the laws have been broken.

So on the one hand you have a document that says, if you're part of this community you will be expected to do this, this, and this other thing. And then this process side is "if you don't, these are the consequences; further this is how we will evaluate whether you haven't followed this code ..."

   > From a practical standpoint, due process can be
   > simple as the people assigned to deal with
   > complaints saying, "This is problematic. Please
   > stop."

I see it differently, practical or not, the reason behind having a process that requires disclosing who made the accusation of failing to follow the process, and the evidence that such a failure occurred, and a rebuttal from the accused, puts the transgression into context for all parties so that a fair judgement can be made. In the absence of an investigating body it is the only way something can possibly be fair.

From the practical stand point the process can be as simple as the adjudicating group sending an email to the accused saying "Bob has accused you of violating our code of conduct, and offers as evidence the following; ... what do you say?" [2] There isn't any need for actual lawyers and you don't even need an appeal process. Once the adjudicating body has made its decision on whether or not there was a violation then they can enact what ever remedy is specified in the code of conduct.

In your example, the only way "people assigned to deal with complaints" could say "this is problematic, please stop." is if they take on the role of the accuser. And if they do take on that role they must only do so when they have direct, and for them incontrovertible, evidence of the violation, rather than hearsay from someone that there was a violation.

I feel it is important to understand why the process has to be at least this thorough because it prevents abuse and injustice. One of the most interesting things about the law for me is how it creates these sorts of processes to deal with the fact that people who have to run them may be bad actors. And then still generate fair results[3].

[1] Initially only to the adjudicating authority, the accused and the accuser.

[2] And of course the adjudicating body has the obligation to do everything in their power to corroborate the evidence presented and the rebuttal.

[3] In the absence of grand collusion between accuser and adjudicating body.

[brudgers]

After I wrote my previous comment, I went and looked up the applicable code of conduct. [1] I suspect the relevant passage might be:

  Project maintainers who do not follow or enforce the
  Code of Conduct in good faith may face temporary or 
  permanent repercussions as determined by other members
  of the project's leadership.

As I said, due process is a three way street. And the more I read the statement linked as the story here, the less I think this is about anonymous complaints and the more I think it is related to whether or not actions by a committee member reflect the level of good faith expected in order for the committee to function efficiently.

In some contexts, voting people off the island is sufficient due process. If it is not sufficient here then many people will have to have acted contrary to good faith. I don't see evidence to support that conspiracy theory.

[1]: https://github.com/nodejs/TSC/blob/master/CODE_OF_CONDUCT.md

[ChuckMcM]

Thanks for adding this: I don't see evidence to support that conspiracy theory.

I see you are concerned with other comments here and elsewhere arguing a conspiracy of some sort to get the author banned. I have no opinion one way or the other on that specific accusation. I also don't think it is germane to my claims in this thread.

I was remarking that "Due Process" the specific legal term associated with the how the legal system deals with accusations, was designed to avoid the situation the author writes about where he asserts he was not told who is accusers were, what he was accused of, or given an opportunity to refute those accusations. This works because it removes information asymmetry that can be exploited by the attacker or the attacked. An recent example of how this can be exploited is the story of a venture capitalist who was accused of sexual harassment anonymously by someone who turned out to be a competitor[1].

In a system where, as part of the process, an accuser and accused are made aware of the real identities of each other this would never has passed the first examination.

If such a process were in place in this particular case, and the code of conduct violation was the one you cited, then the email to the author would have said

   "These {insert identities} have accused you of failing 
    to enforce the code of conduct elements {identified paragraphs}
    in the following situations {links to exchanges between author
    and community}. We would like to hear your side of this 
    before we render a judgement." 

And they would get back the authors point of view, then they might ask the accuser or the author for more information, and then they would render some judgement and an explanation of why they ruled the way they did so that in the future people would either recognize that it wasn't an issue or that it was and to not do it.

Processes are like programs or math proofs, if you do each of the steps in the right order you get the right answer regardless of the intent or opinion of the people carrying out the process.

[1] http://www.mercurynews.com/2017/07/25/lawsuit-sexual-harassm...

[brudgers]

I believe it is likely that the author was told the nature of problem and that the nature of the problem is related to acting in good faith regarding the code of conduct as befits a community leadership position.

At the point where the legalese is called for, the working relationships necessary for a functioning committee within a voluntary association have already broken down. There aren't full time human resource staffers and legal council and there's no lateral move to another department available. The TSC's rules stipulate that removal of a member is by a normal committee motion.

I'm avoiding picking apart the statement because I don't want to pile into the internet witch hunt that is throwing titillation and innuendo at the twitters. I think it is a practical problem regarding the function of the organization. Part of it is probably a result of success changing the organization. Part of it is probably the result of changing attitudes among wider stakeholders. And for better or worse, part of it is probably deliberate choices by the people involved over a period of time.