Regrets From A Man Who Hung The Moon

Jason Selch said he regrets walking into a conference room seven years ago and mooning his higher-ups on the corporate ladder.

For this, he was fired, denied $2 million in deferred compensation, and is now enduring headlines about his "$2 million moon," including one in the New York Daily News that read, "Hope it was worth it."

It was not worth it, in the end.

"It was significantly damaging to my career and it was very damaging to my pocketbook," Mr. Selch said in a telephone interview. "I'm spending a lot of time with my investors, trying to explain what happened."

Mr. Selch, 50 years old, is now a portfolio manager for Helios Energy Fund in New York. He is still rebuilding his life at a company named for the sun, and does not recommend flashing the moon.

"My wife is kind of devastated that it's in the newspaper," he continued. "She's hearing from everybody. Whether this was right or wrong is kind of a topic of conversation amongst people we know."

From 1994 to 2005, Mr. Selch was a successful energy analyst for Wanger Asset Management in Chicago. He said he was part of a team that delivered strong returns to shareholders and built the firm's assets under management from about $4 billion to more than $20 billion during that time.

To him, Wanger was his life. To Bank of America (NYSE:BAC), it was merger fodder.

Wanger, one of several funds acquired by Boston-based Columbia Management Investment Advisors, eventually became part of Bank of America in a series of mergers. Bank of America then sold Columbia for more than $1 billion to Ameriprise Financial Inc. in 2009. "For them," contends Mr. Selch, "this company was just a chip that they were moving around the desk."

Mr. Selch, who seemed measured and soft-spoken on the phone, said he became frustrated when the honchos decided to let go of a long-time friend and colleague. They did this abruptly, he said, without smoothing out concerns among co-workers. Everyone in the office was supposed to suffer it quietly. He decided to express his pent-up frustration in an unambiguous manner.

You have to understand: Mr. Selch studied economics at the University of Chicago, the global center of thought for lassez-faire capitalism. And there is nothing more lassez-faire than an exposed derriere.

"It was impulsive," he conceded. "It was basically only to let them know that they couldn't fire somebody without having any reaction from the surrounding employees."

After he was fired, Mr. Selch sued the bank for the deferred compensation that he was denied. He pursued the case for seven years, until he was delivered a losing ruling from the appellate court last week. Once the ruling was made public, headlines raged about his "$2 million moon." He has not spoken publicly about it until now.

Mr. Selch's immediate boss wanted him reprimanded, but not fired, according to court documents, including Illinois First District Appellate Court Justice Michael J. Murphy's affirmation of the lower county court's ruling. But higher ups at Bank of America wanted him gone. They also decided that while they were firing him, they would keep the $2 million he contended they owed him.

While the mooning may have been simple expression, court filings were not. Mr. Selch's complaint cited a letter agreement he reached with Wanger in 2001 that said he could only be fired "for cause." He also argued that a formal warning letter he received after the incident constituted a contractual agreement between himself and his superiors.

The court, however, ruled that Mr. Selch's "egregious" behavior voided his employment contract. And it sided with Bank of America's argument that at the time of his firing, Mr. Selch forfeited his deferred compensation, which would have otherwise vested a few months after his termination.

Mr. Selch's employment 2001 contract said it could be nullified if he was "fired for cause." It defined "cause" as a felony conviction, gross negligence, a material breach of fiduciary duty and -- this is the kicker -- "engaging in misconduct that injures the company." The appellate court ruled that the mooning was indeed injurious and denied Mr. Selch his pay.

Injurious is in the eyes of the beholder. The appellate court's ruling notes Mr. Selch's "mooning" was not done on his behalf, but because he was upset by the treatment of another employee. To me, he was selfless -- he was standing up -- or bending down -- for his friend.

A wise corporate leader might have taken the time to a) laugh at this creative expression of protest, and b) wonder why a top-performing analyst felt the need to march into a conference room and do this. This was uncharacteristic behavior from Mr. Selch, whose immediate boss considered him too valuable to fire, according to the appellate court documents.

"If you look at its track record, Bank of America has not been good at building a positive corporate culture," Mr. Selch said. "It isn't a company that people are dying to work for."

The court ruling he lost contains a message for all who would step out of line. Egregious behavior can void an employment contract. And if mooning can be defined as egregious, so can other gestures of frustration, including the middle finger, or even the slip of a profane tongue that corporate bosses sometimes inspire.

"This decision puts every employee at risk for losing their contractual rights if they misbehave in the office," Mr. Selch said. "It sends the signal that corporate America is much stronger than we expect, and that we better be very careful as employees."

I had hoped Mr. Selch was going to tell me that mooning his bosses was worth the price. See, I believe you can trust a money manager who speaks honestly enough to flash his posterior at powerful executives when he feels the situation calls for it. I also admire loyalty. I had framed him in my mind as a hero, sticking up -- I mean, out -- for a friend.

"I don't think that I am a hero," he said. "It may be that this is a form of expression that works in high school. It may be harmless. But in the corporate world, beware."