Minnesota Lawyer
Senate staffer Michael Brodkorb, left, was fired in December a day after Majority Leader Amy Koch stepped down from her post. Brodkorb filed a gender-discrimination complaint with the Equal Employment Opportunity Commission, which most observers deem a prelude to future legal action. (Staff photos: Peter Bartz-Gallagher)
Quiet for now, next chapter could put incendiary fight back in the news
Timing matters.
It’s been approximately 12 weeks since former Senate staffer Michael Brodkorb, who was fired last December a day after Majority Leader Amy Koch stepped down from her post, filed a gender-discrimination complaint with the Equal Employment Opportunity Commission (EEOC). Now his lawyers say it will be just a few more weeks until the EEOC makes a ruling on the matter.
From there, Brodkorb — who revealed this spring that he was the staffer with whom Koch had engaged in an affair — has 90 days to make good on his repeated threats to take the Senate into an ugly, drawn-out court battle over the matter that could include depositions of other Capitol staffers and lawmakers who have had affairs. Politics watchers and legal experts say a full-blown court battle is likely at this point — one that could bring bad publicity to Senate Republicans as they fight to maintain their first majority status in the chamber in nearly 40 years.
While an actual lawsuit between Brodkorb and the Senate would likely take between 18 months to two years to adjudicate, the Senate could face plenty of bad PR over the case between now and Election Day, legal experts say. That could include public political fights over legal costs, a potential defamation lawsuit against Secretary of the Senate Cal Ludeman, and fallout from Brodkorb’s main legal complaint, a public document that attorneys say could detail other Capitol affairs to prove he was treated differently from others.
“I think it’s definitely bad for Republicans. It’s been a distraction,” said David Allen Larson, an employment law professor at Hamline University. “They have other issues this fall like gay marriage and the photo I.D. amendments that I’m sure they’d like people to be paying attention to. This takes all the attention away from those things.”
Calm before the storm?
In the months since Brodkorb’s March filing with the EEOC, there has been little chatter in St. Paul surrounding the December revelations, which commanded local news headlines for weeks last winter.
The last person to make noise on the matter was DFL Minority Leader Tom Bakk, who said two weeks ago that he was loath to sign off on the $46,000 in legal fees accrued by the Senate from January to March of this year. (The Senate’s attorney, Dayle Nolan, is charging more than $300 an hour for her services.)
The bill cannot be paid until authorized by both Republican Majority Leader David Senjem and Bakk. Bakk wants the majority leader to hold public hearings on the matter first. “I am reluctant to sign off on dispensing tens of thousands of tax payer dollars until we establish an accountable and transparent process for handling these legal expenses,” Bakk said in a statement. “$46,150 is just the early down payment on what I expect to be a long, contentious, and expensive ordeal for the state Senate.”
While the move was construed by Republicans as a way for DFLers to keep the scandal in the headlines, even Bakk declined to comment on legal proceedings this week.
As this issue of Capitol Report was going to press, a Rules Committee meeting to approve legal fees was scheduled for Wednesday morning at 9 a.m. Senate Republican spokesman Steve Sviggum would not comment on he case, saying he couldn’t speak to “personnel matters.” Ludeman, the secretary of the senate, did not return calls seeking comment.
Brodkorb’s attorney, Philip Villaume, also refused to comment on whether they were in talks with the Senate on a settlement. “Everything is sort of on hold,” he said. “We are kind of in a holding pattern right now.”
The public, pre-courtroom fight
That could all change very quickly.
Villaume says he’s been in talks with the EEOC, and has been told there will be a ruling within a few weeks. While the EEOC could take on the case itself, Larson says it’s more likely that they will merely make a procedural move to open the door for Brodkorb to file a lawsuit.
“The EEOC is understaffed, and my suspicion is Brodkorb wants to move quicker than the EEOC will be able to,” Larson said. Within days, even hours, of a ruling, Brodkorb could file a complaint to take the Senate to court.
Brodkorb is threatening a termination lawsuit, saying he was treated differently in the situation because of his gender. To prove that claim, he says he will depose legislators about past affairs at the Capitol (10 to 15 of them in all, Villaume told the Associated Press) in which staffers were treated differently than in Brodkorb’s case.
His lawyers have also said they might file a separate legal action against Ludeman, who released a statement during session saying Brodkorb was trying to extort payment from the Senate over his firing. Brodkorb is also threatening to sue the four senators and two GOP caucus staff members who revealed the affair for “invasion of privacy.” Those lawsuits could start at any time, and would lead to even more public fights for the state Senate.
Most say a settlement between Brodkorb at the Senate seems unlikely.
“I don’t hold a lot of hope for it settling, because it’s beyond one person’s judgment as to whether this thing should just be closed up,” said Jim Sherman, an employment attorney from Minnetonka. “There are just so many people involved.”
Larson agrees. “People get entrenched in very emotional positions to the point where it gets hard to negotiate any kind of settlement,” he said. “People have taken public positions now, and it’s going to be difficult for them to back down.”
While any depositions of staffers and legislators would be private, Brodkorb could also put some of those details into his initial legal complaint to try and strengthen his case. Lawyers say changes in Minnesota law over the last several years have increased the level of specificity needed to make an individual’s legal case. Those details could potentially be embarrassing to the GOP caucus.
“Certainly there could be political ramifications, not knowing the details and supposedly the unflattering types of allegations that might be in there for politicians,” Sherman said.
There’s also the issue of money. The Senate GOP will likely have to hold a public hearing of the Rules Committee to approve the use of more legal funds. Senate Republicans only authorized up to $50,000 to spend on attorneys in the interim, and Bakk has made it clear he wants to make any spending a public issue.
Twin Cities employment attorney Marshall Tanick says that price tag could skyrocket if depositions start. Each staffer and lawmaker who is deposed by Brodkorb could also retain counsel, and those individuals would likely seek reimbursement for legal fees from the state.
“There’s been so much bad publicity, I just don’t know what could make it much worse at this point,” Tanick said. “It will be an inconvenience at a minimum, but more likely it will lead to finger pointing internally and fighting amongst themselves. I’d almost be more worried about that than the bad publicity.”
