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Comey debacle a lesson in how not to accomplish a firing

by Michael P. Maslanka

Wow, talk about a week full of “breaking news” with President Donald Trump (a la his role in The Apprentice) telling FBI Director James Comey, “You’re fired.” To recap: Comey was fired in the midst of the FBI’s investigation into whether Trump’s presidential campaign colluded with the Russians to rig the results. 

I’ll leave it to the pundits to discern the termination’s political import. No, my focus is on “The Art of Firing” or, more to the point in this case, “The Art of Misfiring.” And while the circumstances are unique, the lessons are universal.

Lesson 1: Anger is your enemy, not your friend
Anger feels like your friend. Why? Because it provides a moment of false clarity. You feel as if you finally have control over a difficult situation. Firing in anger makes for bad decision making. Always.

News reports state that Trump was in a “white hot rage” when he decided to fire Comey. (It’s still unclear as to the cause of the rage.) A client wisely observed that when decisions are made in anger, the normal linear thought pattern of “ready, aim, fire” is scrambled to “fire, ready, aim.” Perhaps the president will repent in leisure. We will see.

Lesson 2: Fire sooner rather than later
Supposedly, Trump had decided to fire Comey in January shortly after he took office. If so, this is a classic example of a misfire. If you’ve decided to fire someone, do it. Right then after calm reflection (see lesson 1). Not later. Why? Well, circumstances change.

Comey’s termination looks very suspect because he got fired (1) after telling the U.S. Department of Justice (DOJ) that he needed more money to expand the Russia investigation and (2) after the U.S attorney issued a grand jury subpoena in its probe of Michael Flynn, Trump’s short-lived national security adviser. The subpoena was related to Flynn’s contacts with the Russians that Acting Attorney General Sally Yates warned the administration about.

Look, the lesson for Trump is the same lesson for the reader. You wait to terminate, and then all of a sudden the employee suffers a workers’ compensation injury or concludes that she is being discriminated against because of her gender and files a charge with the Equal Employment Opportunity Commission (EEOC). There is one word that sums this all up perfectly: optics.

Lesson 3: ‘No—wait, wait—I know why I fired him’

Never find yourself saying those words. When the news broke on the Comey firing, that’s exactly what happened. Here is the latest list: Attorney General Jeff Sessions and Deputy Attorney General Rod Rosenstein made the recommendation, and Trump merely acted on it, Comey handled the Hilary e-mail situation badly, Comey wasn’t doing a good job, Comey lost respect from the FBI rank and file, and the FBI has been in turmoil. And then after those reasons were floated, the president spoke in an interview and said it was about Russia all along. (See “Trump said he was thinking of the Russia controversy when he decided to fire Comey” by Devlin Barrett and Philip Rucker in the May 11 issue of The Washington Post.)

Here’s the deal: When shifting explanations are given for an action, then the public (in the case of Trump) or a jury (in a case of discrimination) are free, under the law, to conclude that another, more nefarious reason was the cause (although the interview comment by the president is pretty close to an employer saying, “Yes, I fired the employee because of his race”). So remember, measure twice, cut once.

Lesson 4: Create the right evidence
Note that I did not write “manufacture.” That is unethical. I am also not talking about compiling a “CYA” file. That is ineffective because it is a transparent effort to justify a termination. No, here I am talking about a termination letter. You do not need to do one, but if you do, then do it right.

The termination letter delivered to Comey’s office signed by Trump says this: “I have received the attached letters from the Attorney General and Deputy Attorney General of the United States recommending your dismissal as Director of the Federal Bureau of Investigation. I have accepted their recommendation.”

Well, that’s not the right evidence because Trump directly contradicted it in a subsequent television interview. Moreover, the letter then—in a ham-handed fashion—states that Comey assured him that he was not the subject of any investigation. (Sounds like a CYA letter.) This is sort of like saying, “You are terminated Ms. Employee for being a poor performer. Thank you for acknowledging in our termination discussion that you have been a terrible performer.” Neither is believable.

Look, a termination letter grandfathering in earlier performance discussions is fine provided they occurred. Like this: “You are terminated effective today. We have discussed your deficiencies in person and in writing (see attached). Because no improvement was seen in your performance, the decision was made to terminate you.” You only get one chance to create the right evidence. Do it right.

Lesson #5: Maintain radio silence
After the firing, keep mum. There is no upside in continuing to talk about it. The termination should do all the talking for you. Look at Trump calling Comey a “grandstander” and “showboater” after the firing. To what end? Also, during the interview, the president stated that he was thinking about the FBI’s investigation into his ties with Russia when he made the decision to let Comey go. If there was collusion between the Trump campaign and the Russians and Trump knew about it, Comey’s termination could be viewed as a criminal offense (obstruction of justice).

Here is the lesson: Once the firing is done, be done. Don’t take pot shots at a departing employee. You could open your company up to claims such as defamation and tortious (wrongful) interference with prospective employment. Perhaps the embers of anger are still burning. If so, review lesson 1 again.

An overarching lesson
Here is the final lesson. It is an overarching one, so I won’t give it a number. Never forget: When you terminate an employee, people will pay careful attention to the whys, whats, and hows. They will look at the process. That is true whether your audience is 100 million voters or 50 employees on the loading dock. From their observations, people form an impression that coalesces into an opinion that settles into a judgment about you, regardless of whether you are the president or just a boss. A few words to the wise: For employers, the final judgment may come down to 12 citizens in a jury box.

Michael Maslanka is an assistant professor of law at the UNT Dallas College of Law, a partner with FisherBroyles, LLP, and managing editor of Texas Employment Law Letter. He can be reached at Michael.Maslanka@untdallas.edu.

Need to learn more? Terminations and performance-related talks, as well as those where HR needs to address sensitive issues like employee behavior, hygiene and inappropriate dress, can be some of the most challenging conversations HR professionals must have. The on-demand webinar Difficult Conversations at Work: How to Master Delivery for Nail-Biting Scenarios and Minimize Your Legal Risks offers practical insights into the tools and tactics you should be using to handle difficult conversations in your workplace. You’ll gain practical knowledge on what steps to take to skillfully present difficult information to an employee, whether it’s to give a warning, advise of job responsibility changes or inform of a termination. For more information, click here.