Wednesday, April 17, 2013

U.S. Senate Rejects Manchin-Toomey Amendment to Expand Background Checks for Gun Purchases

I’m sad that the U.S. Senate rejected the very limited expansion to background checks for gun purchases in the Manchin-Toomey Amendment. Mark Barden, father to one of the Newtown victims, spoke eloquently, as always. President Obama spoke with passion and resolve and offered one of the most insightful analyses by a president of why our political process often fails to reflect the will of the majority, capturing many of the insights of Robert Dahl, Yale University’s outstanding scholar on the American political process. This country needs more “profiles in courage” among its so-called leaders, who don’t lead at all, and fewer politicians scared of losing elections. The American style of muddling through isn’t working any longer and we risk becoming a 2nd rate power as well as a society with ever expanding inequalities in income and wealth. Listen and watch the attached video.

Friday, April 5, 2013

Rutgers Athletics: A Wake Up Call for Smartly Using the Straight Face Test

There are different names for it, depending upon the situation and one's profession.  The straight face test.  The embarrassment test.  The giggle test.  It's a standard often used in making decisions, whether to advance a particular legal argument, make a personnel decision, or the like.

Does the decision under consideration pass the straight face test?  In other words, is the decision reasonable enough that it will not engender laughter or disbelief or be considered beyond the pale.  But who is the audience?  Yourself?  Colleagues in the same line of work?  Your friends?  Higher management?  The press?  The public?  The audience you choose may make a significant difference in the outcome.  You may or may not actually be consulting that audience.  But you're anticipating how that audience will react if and when it learns of the decision.

With the electronic age, many more decisions reach a far wider audience than in the past.   And that means that you had better consider using a broad audience to evaluate the wisdom of your decision, particularly if that decision has a public impact.

Most recently, Rutgers University experienced the dangers of not using a wide audience to evaluate the wisdom of a personnel decision.  The men's basketball coach, Mike Rice, behaved in a completely unprofessional way in handling the team's student athletes.  And his behavior was videotaped.  He was seen pushing athletes, taunting them using gay slurs, and otherwise abusing them and his authority.  When his behavior, and the videotape, came to the attention of the school's athletic director last November, AD Tim Pernetti took disciplinary action.  The coach was apparently suspended and fined, directed to attend anger management class, and warned that any future repetition of the behavior would lead to termination.

But was that enough?  Did Pernetti apply the straight face test to his decision, in terms of whether his actions toward the coach would be deemed sufficient in the eyes of those who learned of it?  And, even if he applied the test, did Pernetti use the correct audience?  As events turned out, it appears that he did not.

Pernetti states that he thought of terminating the coach when he first saw the videotape but that others with whom he consulted felt "rehabilitation" through discipline and anger management training would suffice.  But the videotape reached the public when ESPN aired it.  And that changed everything.  The coach and the Athletic Director have both left their positions.  Rutger's general counsel has also resigned.  Public outrage was fierce and, not surprisingly, politicians followed suit.

Some might argue that any reasonable university official, be it the athletic director, personnel manager, or general counsel, would have fired the coach upon viewing the videotape; that the coach's behavior, particularly in today's climate including Rutgers' own recent history involving the suicide of a male student arising from an illicitly taped incident with another male, warranted immediate dismissal regardless of the public's reaction.  But not all necessarily agree.  Apparently, according to Pernetti, when the coach's misconduct came to the school's attention, "the consensus among school officials at the time was that it didn't warrant dismissal."  He wrote in his letter of resignation: “As you know, my first instincts when I saw the videotape of Coach Rice's behavior was to fire him immediately. However, Rutgers decided to follow a process involving university lawyers, human resources professionals, and outside counsel.  [¶] Following review of the independent investigative report, the consensus was that university policy would not justify dismissal.”  Workplaces often use progressive discipline, which usually calls for less severe sanctions for initial misconduct together with warnings that stiffer penalties up to termination will be given for repeat offenses.  To be sure, a policy of progressive discipline does not preclude instant termination for first offenses constituting extreme misconduct.  Then, too, Rutgers' decision-makers may have believed that terminating the coach would have negatively affected its men's basketball program.  They may have feared that firing the coach would bring his misbehavior into public view at a time when Rutgers was moving to another athletic conference, and that rehabilitation would change the coach's behavior.

Are there lessons to be learned?  In today's environment, where videos are easily recorded and posted to YouTube and elsewhere and sensibilities against bullying and mistreatment toward the LGBT community and others have been heightened, those making decisions with a public impact need to take into consideration the likely reaction of the public to those decisions.  They should assume that their decisions will at some point become known to a wider audience, including the general public.  They not only need to use the straight face test but to apply it to a larger audience than their own colleagues.  They need to ask themselves how the public will likely react were it to learn of the decisions and then to make the decisions factoring in this information.  

Making decisions with the public's reaction in mind may lead to unfairness in some instances given the excitability of the public and its tendency toward a herd mentality.  As such, mature decision-makers need to consider the public's likely reaction but not allow themselves to be stampeded by it. In some instances the decision-makers need to resist bowing to public sentiment, but they had better carefully have thought out their rationale before reaching the final decision and how they will explain it once public reaction ensues.  Following progressive discipline, being mindful of treating similarly situated individuals similarly, taking into consideration liability exposure, and applying standards of fairness and common decency are all factors to be considered when making these kinds of decisions.∎

Thursday, April 4, 2013

Rest in Peace, Roger Ebert

Siskel and Ebert. The best. Siskel’s easy going demeanor and personal reactions to films. Ebert’s incisive reviews. I enjoyed them both. They complemented one another. And when Gene Siskel passed away something was lost even though Ebert soldiered on with others. Now Roger Ebert has passed after a long battle with cancer. Rest in Peace, Roger. We will miss you. We miss both you and Gene.