Thursday, May 11, 2017

FBI Terminations and Ruminations

It's always amazing to me that basic employment decisions, such as terminations, are routinely screwed up by people who should know better.

Such is the case with the Jim Comey termination, ostensibly the result of a DOJ review, but in reality, something else.

Full disclosure-Jim and I practiced law together at McGuireWoods 20 years ago. We were not close friends, but certainly said hello to each other in the hallway.

In dealing with what would appear to be a problematic termination-- and firing someone who is in the middle of running a foreign intelligence investigation against you and your staff is a problematic termination, just so we're clear--the most important thing is to establish a coherent narrative of the process.

What's a coherent narrative? It's a narrative that sounds believable to people who listen to it.

If a termination is sudden and unexpected, then the coherent narrative will identify some event or change that triggered the decision to fire the employee. Think assaulting someone at work, a drug arrest under circumstances in which it is clear the individual engaged in misconduct, or some other similar type of gross mishap that would cause people to nod their heads and go, "oh yeah, that's a goodbye move."

If the termination is the result of some kind of extended performance issue, or something that has been under consideration for some time, then the coherent narrative will typically involve some kind of measured consideration, communication with the employee, an opportunity to improve, followed by a decision point made by one or more people.

In every case, it's important to identify the decision-makers, and especially the person making the final decision.  It's also important to demonstrate that the employer followed its normal procedures in making the decision to terminate, or that there is a good reason why it did not.

It's absolutely crucial to not prove too much. Forcing a paper trail of post hoc, justifying documents into the record invariably creates the impression that the reasons for the termination are manufactured and hiding the real reason, whatever that is.

All of these lessons become quite clear and stark with the firing of the FBI director. First of all, the guy who supposedly initiated the termination, the Deputy AG Rosenstein, is apparently balking at his identification as such. Not good. Somebody has to take responsibility, and that should be established before the termination, not afterwards.

Second, the source document for the termination, its preparation, and the fact that Rosenstein was only in his job two weeks, indicates that somebody else was pushing the buttons on this decision. The source document, for example, doesn't say that Director Comey should be fired. It simply noted that confidence in the FBI had been damaged.  A decision document should be a decision document.

Finally, the people talking about the decision need to all be on the same page. It doesn't help the official story that White House aides are saying the decision was based on actions that occurred ten months ago, versus testimony last week that might have provided an updated basis for the firing.

I'm always surprised how screwed up something this basic can become. Rushing through a decision like this, even one at the request of an impetuous boss, almost always leads to more problems that it ultimately solves. I suspect that will be the case here.

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