The No Surprises Rule

Justice officials learned the hard way why blindsiding employees is a bad idea.

On Dec. 7, 2006, a subordinate of Attorney General Alberto Gonzales, Michael Battle, executive director of the office that oversees the country's 93 U.S. attorneys, called seven to ask them to resign. He thanked them for their service and gave them until January to clear out. He was just delivering the message, and when pressed by the attorneys for a reason, he gave none that satisfied them.

U.S. attorneys are political appointees and, as such, have none of the due process rights that career civil servants have when faced with removal. Due process proceedings force managers to justify their actions and to explain why they want to fire an employee. But political appointees can't file a grievance through a union or submit an appeal to the Merit Systems Protection Board. They serve at the pleasure of the president, which means that no reason needs to be given for their removal.

That at least is the way the law sees it. While the law might not care, the U.S. attorneys who were let go are human, and humans like to know why. For several months, the attorneys were unable to get answers from their bosses in Washington as to why they were let go. Political appointees might not have access to the federal employee appeals process, but they do have access to Congress. And that is where they took their why.

So it was on March 6 that three of the attorneys who received calls from Battle last fall-Carol Lam of San Diego, David Iglesias of Albuquerque, N.M., and John McKay of Seattle-appeared before the Senate Judiciary Committee to wonder why, out loud, to a roomful of legislators, reporters and onlookers.

"I think the difficulty here," Lam told Sen. Sheldon Whitehouse, D-R.I., a former U.S. attorney himself, "was sort of the mystery that surrounded the calls we received on Dec. 7." As the attorney firings came to light this year, Justice Department officials explained they were dissatisfied with Lam's strategy for immigration and gun prosecutions, but Lam said no one above her had told her to shape up on those issues or ship out.

"Generally, I think if there were events that were going to lead up to a request for resignation, there would be some sort of ramp-up, some sort of transparency to what the issue was, at least between the United States attorney and the Department of Justice," she said. "I think the fact that the recipients of the call were all shocked and trying to inquire what the reason was, I think is what, for me, causes the greatest problem for the remaining United States attorneys, that there's no notice or awareness, and therefore, it becomes a guessing game as to how it is that the department is displeased."

The U.S. attorneys scandal revealed a basic tenet of good management, or perhaps the failure to adhere to it. It's the "no surprises rule." Managers should clearly explain what is expected of employees, measure their results, and reward or punish them accordingly. If an employee is surprised by a reward or punishment, then management hasn't been doing its job.

Justice actually has a formal evaluation system for U.S. attorneys. It is exhaustive, with teams of reviewers descending upon each office to examine how the attorneys prioritize and manage cases, deal with subordinates and stakeholders, and generally administer their offices. The reviewers assign ratings on a host of criteria. But the rankings through that system were not decisive in Justice's decisions on who to fire. Some of those who were asked to resign were among the highest ranked attorneys in the formal evaluation system.

Had they been poorly rated, the attorneys would have understood why they were let go. If they had been told why, they might have left the department quietly, even if they disagreed with the decisions. Even if some other formal process of evaluation had been used to make the personnel decisions, the attorneys would have been on notice that their days could be numbered. Instead, as documents and testimony revealed-more publicly than in any federal personnel matter in recent memory-the out-of-the-blue calls on Dec. 7 followed an informal effort by Gonzales' deputies to identify U.S. attorneys to replace. At best, the ad hoc review relied on anecdote and impression, rather than a clear set of criteria, established beforehand, so the attorneys knew the expectations. The ad hoc approach left the decisions open to the allegations that short-term political gain, rather than professional administration of justice, was the deciding factor in the dismissals.

The no surprises rule is something of a corollary to the Golden Rule: Do unto others as you would have them do unto you. It was the Golden Rule that Sen. Tom Coburn, R-Okla., alluded to at an April 19 hearing, during which he questioned Gonzales about the firing of the attorneys. "Why would we not use the same standards to judge your performance in handling this event that you applied to these same individuals?" Coburn asked Gonzales.

"I've acknowledged mistakes," Gonzales said during the subsequent back-and-forth. "We all make mistakes."

Coburn, a hawk on management issues in the federal government, was not satisfied. "Mr. Attorney General, it's my considered opinion that the exact same standards should be applied to you in how this was handled," he said. "I believe you ought to suffer the consequences that these others have suffered. And I believe the best way to put this behind us is your resignation."

Coburn's call for resignation was the bombshell of the hearing, but given the events that led up to this, it was no surprise.

Brian Friel covered management and human resources at Government Executive for six years and is now a National Journal staff correspondent.