Fired staffer’s attorneys press publicly for a settlement
Nearly two months after a December whirlwind that saw Senate Majority Leader Amy Koch and her entire leadership team resign, the chamber’s Republican majority has moved into the 2012 session and put the upheaval in its rear-view mirror.
Former Senate staffer Michael Brodkorb has hired attorneys and is seeking lost wages after his sudden termination late last year. Brodkorb served as head of Senate GOP communications and executive assistant to former Senate Majority Leader Amy Koch, who stepped down in December after she was confronted by four Republican senators about an inappropriate relationship she was having with a male subordinate. Brodkorb was fired the following day.
While the details of Brodkorb’s termination have not been revealed, employment law professors and attorneys active in politics say he faces major legal obstacles given the nature of political regime change and his status as an at-will employee in the Senate.
While no legal action has yet been filed, threats of a protracted and public court fight have kept the scandal at the back of lawmakers’ minds this session. And with Brodkorb’s attorneys threatening a lawsuit within two months – one that they say could name as defendants sitting Republican senators as well as the institution itself – tensions from the December fiasco are unlikely to evaporate anytime soon.
Brodkorb’s legal team isn’t operating quietly.
Brodkorb’s attorneys blasted the news of their hire by way of a press release announcing that employment attorney Phil Villaume and personal injury specialist Greg Walsh have teamed up to represent Brodkorb. The Senate, meanwhile, has retained Dayle Nolan, an employment lawyer with Larkin Hoffman Daly & Lindgren.
The high-profile entree by Brodkorb’s lawyers could point to weaknesses in their legal case, some attorneys noted this week. The biggest hurdle for Brodkorb’s team is trumping the fact that Brodkorb was an at-will employee, meaning he could be let go at any time without explanation.
In addition, his job was closely tied to Koch’s, and turnover among personal staff is common during political leadership changes. As one lawmaker or party shifts in or out of power, staffers often turn out to be beneficiaries or casualties.
Brodkorb’s attorneys would have to prove that there was illegal action taken in his firing, said Deb Schmedemann, a professor at the William Mitchell College of Law. Walsh has said his client may pursue a wrongful termination claim based on gender discrimination, which would require demonstrating that a woman likely would have been treated differently in the same situation.
Or attorneys could argue that Brodkorb’s privacy was invaded in the events that led to his termination, but Schmedemann says that, too, would be a hard case to make. “Minnesota has come to invasion of privacy pretty late in the game,” Schmedemann said, adding that the state has generally been “pretty conservative about tort claims.”
Senate works quietly
By Walsh’s account, his client has a “wonderful” case, but both of Brodkorb’s attorneys acknowledge difficulties in working with the state Senate. They said this week that they’ve had little interaction with the Senate counsel, save a letter notifying them that Nolan was pursuing an investigation of the matter.
Villaume says he does not know what Nolan is investigating. Nolan did not return a request for comment from Capitol Report, but Secretary of the Senate Cal Ludeman characterized her investigation as an “assessment” of the liabilities the Senate “does or does not have” in the case.
“I don’t know that they are being non-responsive, but at the same time I don’t know if they are being responsive. It’s a mixed bag,” Villaume said of Senate officials. “I don’t think we are moving ahead as quick as we would like it to. I’m hoping that they are going to start meeting with us.”
Brodkorb’s attorneys have said they would prefer to reach a settlement outside of the courtroom, but Villaume added that if the parties aren’t moving toward a settlement, he plans to pursue litigation in the next 30 to 60 days. If Brodkorb is successful, any money he is paid would come out of the taxpayer-funded Senate budget. And while mediation is private, details of any settlement would be open to the public, attorneys say.
“I’m hopeful that we will get it settled, but you never know,” Villaume said. “Ninety-five percent of all claims settle, but if they are not willing to come to the table, then I think we move ahead with litigation.”
Ludeman said there have been no settlement talks between the Senate and the attorneys, but he acknowledged that the situation needs to be resolved. “The mere threat that seems to exist out there,” he said, “no one should say that about any institution and leave it sit there for an indefinite period.”
According to Twin Cities employment attorney Marshall Tanick, there are “pragmatic” reasons for both sides to want to settle in this case – most notably, the embarrassing details that could emerge regarding both parties if the issue escalates into a legal fight with discovery proceedings.
“Oftentimes settlements are not just based on the merits of the claim,” said Tanick. “Sometimes the timing of the case, and the potentially embarrassing things that could come out if the case is pursued, and the time and expense and agony of the litigation, can lead to settlement.
“Those non-legal considerations are part of it. Both sides have their own baggage in this case, and that’s irrespective of who’s right or wrong… There are a lot of reasons why both parties would not want to have this dirty laundry aired in public.”
Law and politics
Lawsuit or not, news of Brodkorb’s legal moves has circulated through the Capitol halls and kept the December scandal in the back of people’s minds. It’s been mentioned in debates on both the Senate and House floors.
Democrats in the House tied Brodkorb’s potential lawsuit to a lengthy debate on the floor over a package of lawsuit reform bills. DFL Rep. Joe Atkins raised the possibility that the Legislature was trying to protect itself from Brodkorb’s legal threats. Supporters denied those claims. (The bills were offered, and passed the Senate, last year.) “I’m ashamed of this bill,” Atkins said. “This is an obscenity.”
In the Senate, DFLers called on the Republican Senate caucus to keep them “apprised” of what’s going on with the case. “If the Senate has retained counsel, every one of us, all 67 senators, are the clients,” DFL Sen. Richard Cohen said on the Senate floor last week. “All I know… is what I read in the newspaper.”
Bakk made a similar argument in a letter to Majority Leader Dave Senjem, who vowed to keep the process open and transparent. Since then, Bakk has had multiple meetings with GOP leadership about the Brodkorb situation. He declined to comment on the content of those meetings.
The Senate is not the only party that could end up a defendant if Brodkorb goes to court. Walsh says that while they have no intention of naming Koch in any kind of litigation, they have not ruled out the possibility of naming other senators involved in the handling of her resignation and Brodkorb’s firing. Walsh said the other senators could be the object of invasion of privacy claims.