Secretary of the Senate Cal Ludeman initiated the furor with a statement issued late Wednesday announcing that the Senate had refused to mediate Brodkorb’s complaints of wrongful termination. “The attorney retained by the Senate has reviewed this matter thoroughly and concluded that his claims are without any merit whatsoever,” Ludeman wrote in the statement. “Despite Mr. Brodkorb’s efforts to disrupt the work of the Senate in the current legislative session, to distract members of the Senate, to extort a payment from the Senate, and to try his so-called claims in the media, the Senate will not allow that to succeed.”
The response from Brodkorb’s attorneys was swift and equally blunt. After acknowledging what most Capitol insiders had long taken for granted – that Brodkorb and Koch did indeed have an affair — they threatened to air years’ worth of the Senate’s dirty laundry in an effort to prove Brodkorb’s claim that he was subjected to unequal treatment because he is a man.
“Mr. Brodkorb has evidence that similarly situated female legislative employees, from both political parties, were not terminated from their employment positions despite intimate relationships with male legislators,” reads the notice of claims filed by Brodkorb’s lawyers with the Minnesota attorney general’s office on Tuesday. “It is clear that Mr. Brodkorb was terminated based on his gender. He intends to depose all of the female legislative staff employees who participated in intimate relationships, as well as the legislators who were party to those intimate relationships, in support of his claims of gender discrimination.”
The notice of claims was released at a press briefing called by Brodkorb’s attorneys to rebut Ludeman’s accusations. “Mr. Ludeman’s statement is false and dishonest in many ways,” said Phil Villaume, one of Brodkorb’s attorneys. “We believe the statement was meant to intimidate a former state employee from pursuing a claim against the state of Minnesota and the Minnesota Senate for wrongful termination.”
Brodkorb’s attorneys had been in negotiations with the Senate over a possible mediated settlement to the employment dispute, but that now looks unlikely given the rancor between the two sides.
Villaume said Brodkorb will file a discrimination claim with the Equal Employment Opportunity Commission and is prepared to proceed with a lawsuit in either state or federal court. He is seeking upward of $500,000 in damages. “We’ve been prepared to go to litigation from the get-go,” Villaume said. “Our client has indicated to us that if we can’t get the matter settled through mediation, which is what his preference was, that we should proceed to litigation.”
Villaume made it clear that he intends to cut a broad swath in potentially deposing senators and staffers who have been involved in affairs. “It could be present members, could be past members, could be present members of the staff, past members of the staff,” Villaume said. “Basically anybody in the current government structure is a potential witness in this case.”
Ludeman doesn’t anticipate additional efforts at mediation. He argues that Brodkorb’s decision to move forward with filing a notice of claims while mediation discussions were in progress fatally undermined those talks. “I don’t see any behavior yet that would even cause us to re-contemplate mediation at all,” he said.
Ludeman further said that he is not aware of any other inappropriate relationships between senators and staffers. “Rumors run around this Capitol forever,” he said. “But there’s no personnel information, no ethics complaints or reports, that reveal any of that. Do I know of any of these circumstances? The answer’s no.”
Ludeman also told reporters on Thursday that he would block efforts by Brodkorb’s attorney to depose lawmakers about extramarital affairs. But legal experts question whether that’s possible. Stephen Cooper, a former commissioner of the Minnesota Department of Human Rights and an employment law specialist, says that there is some special protection for lawmakers against being forced to testify in legal matters but that it only pertains to situations in which they’re being asked to explain why they voted as they did.
Marshall Tanick, another specialist in employment law, says legislators can sometimes avoid providing testimony while the Legislature is in session, but he doesn’t think that will shield House and Senate members. “I don’t think that’d be applicable here,” Tanick said. “If they have knowledge about an event, I think they’re fair game.”
Cooper says that if the case moves forward, it will likely hinge on whether Brodkorb can establish that female staffers who were “similarly situated” received different treatment. That likely means that if the women involved in affairs were low-level employees with little authority, their situation wouldn’t be deemed comparable to Brodkorb’s case because he wielded considerable influence within the GOP caucus. “If it turns out that the other people were in a similar situation, then he has a good case,” Cooper said.
Cooper points out that the fact that Brodkorb was an at-will employee — frequently cited in news reports — is irrelevant to determining the merits of the case. The only thing that will matter is whether illegal grounds were used to justify his firing. “If it was not illegal, than he has no case whatsoever,” Cooper said. “If it is illegal, he has a case regardless of whether he’s an at-will employee.”
Cooper further criticizes how the Senate has handled the case, from the initial news conference announcing the Koch affair to Ludeman’s blistering critique of Brodkorb on Wednesday. “One thing he’s really got going for him is this was probably the most blundered handling of a termination [imaginable],” Cooper said. “Virtually everything they did made this worse.”
Of course, it remains uncertain whether a gender discrimination case will ever be filed. The posturing on both sides is surely designed to create leverage and build public support for their conflicting positions. The two parties could eventually return to mediation to settle the conflict.
At Thursday’s news conference, Villaume denied that there was any threat being delivered in his statement that senators and staffers will be deposed to discuss extramarital affairs. “We don’t threaten,” Villaume said. “We’re trial lawyers. We litigate cases. We believe Mr. Brodkorb has a meritorious claim of discrimination based on disparate treatment. These are not threats. This is not blackmail. … We’re talking about litigation, and that’s what this is all about.”