When the boss behaves badly

by Scott Agthe

By now, most Texans are familiar with the embarrassment of the Travis County district attorney, who was recently jailed for drunk driving. For you non-Texans, here is a synopsis: Rosemary Lehmberg, one of the highest-ranking law enforcement officials in Texas, was arrested one Friday night last April. A 911 call reported her weaving across lanes of traffic in suburban Austin. A sheriff’s deputy found the DA in a church parking lot, with bloodshot eyes, slurred speech, and an open bottle of vodka on the passenger seat.

Upon arrest, Lehmberg admitted to having a hard week and drinking glasses of wine and two vodka cocktails. (Her blood-alcohol level was nearly three times the legal limit.) Video was soon released, and everyone was treated to her being cocky, insulting, and combative when she was booked into jail.

Lehmberg attempted to rehabilitate her tarnished image by promptly pleading guilty and accepting a 45-day jail sentence. The adverse consequences from the DA’s Animal House-like caper are still being felt. Many have called for her to step down as DA. A lawsuit to force her removal is pending. Governor Rick Perry struck funding for the DA’s Public Integrity Unit, which investigates crimes by state officials.

Lehmberg isn’t the only “boss” accused of misbehavior lately. The president of the NFL’s Detroit Lions and two top Denver Broncos officials recently were arrested for DWI. San Diego’s mayor has been exposed for being “grabby” with female guests and subordinates. Lehmberg broke one of the very laws she was elected to enforce, which undermines her professional credibility and future effectiveness. So what do you do when the boss behaves badly and breaks the rules?

For employers―and especially HR professionals―boss misconduct can be a very hot potato and can come in many forms. Adverse publicity for the employer and diminished effectiveness can result from a boss’s “Weiner-like” tweets or “sexting,” messy affairs, or substance abuse.

There’s no “standard” way to handle these inherently messy situations. For instance, embarrassments that attract media attention differ from dirty laundry aired within the organization. Here are some suggestions to consider that should help when you must react to bad boss behavior:

• Confirm the facts first. Investigate promptly and fully to find out what really happened. First reports may be wrong. More information may reveal a far worse (or better) situation.
• Define your objectives. Before acting, top management should jointly decide what’s at stake and what the best outcomes could be. Then, weigh all options and act on what seems most likely to maximize the best outcomes.
• Do no harm. Avoid making matters worse. A clumsy investigation or response can have unintended consequences. Be discreet and sensitive.
• Act quickly. The “bad press” train has left the station. You need to catch up and get ahead of it. Sometimes that means same-day action.
• Ask for help. Circle the wagons: Get the boss’s peers and the organization’s “heavies” to influence and contain the rogue boss. Get professional advice. Bad behavior posing a legal risk means you need a lawyer. Media inquiries? Get public relations help.
• Be creative. Often top executives are indispensable. Following precedent or standard discipline may not be feasible. Think beyond “keep or fire” and “demote or reassign.” Consider an apology, rehab or counseling, restitution, public service, etc.
• Check the contract. Is there a morality clause in the boss’s “just cause” contract? Maybe there should be now.
• Expect fallout. Your relationship with the boss will change if you take action that prioritizes the organization’s interests.

There’s no perfect solution to a badly behaving boss. Sometimes her job can be salvaged; sometimes it can’t. There will be casualties. Tackle the situation head-on in a professional manner. Make the best-informed decisions possible under the circumstances. And remember: This, too, will soon pass, whatever it is.

Scott Agthe is a partner in the Austin office of Constangy, Brooks & Smith, LLP, and chair of the Austin Bar Association’s labor and employment law section. He can be reached at sagthe@constangy.com.