DFL takeover of State Capitol raises new questions about Brodkorb suit

Behind headlines about the impending change in leadership at the State Capitol is the looming question of what newly empowered Democrats will do about a lawsuit filed against the Senate by former Republican staffer Michael Brodkorb.

As they assume control of the Senate, incoming DFL leadership has a number of options in how it handles the suit, which has cost the chamber at least $100,000 in taxpayer dollars.

Brodkorb, who used to serve as former Senate Majority Leader Amy Koch's top communications official, was fired shortly after it was revealed that Koch had an affair with a male staffer, though he wasn't officially connected to the scandal until months later.

Now, Brodkorb is suing the Minnesota Senate and the state of Minnesota for wrongful termination. Among other violations of the law, Brodkorb claims that other similarly situated employees who had affairs with lawmakers were not fired.

The Senate has argued that Brodkorb was an "at-will" employee; because his boss, Koch, had stepped down as majority leader, his services were no longer needed.

From now until Jan. 8, when the new legislative session begins and the DFL assumes control of both the Senate and the House, the suit remains in the outgoing Republican leadership's hands.

But the case is in a holding pattern said Brodkorb's lawyer, Phil Villaume. No depositions have been taken, and the parties are waiting for the judge to decide whether various claims from Brodkorb should be dropped.

"We're prohibited from talking about any settlement discussions" publicly, said Villaume. "As to the discussions of who's taking over the case or who we're going to be dealing with on the other side, we have no idea."

In a press conference following his party's Election Day victory, incoming Senate Majority Leader Tom Bakk, DFL-Cook, reiterated his belief that taxpayer dollars should not have been used to pay for the Senate's legal representation, but he was vague on how he plans to deal with the case should it spill into his term.

"All along I didn't think we should be using taxpayer money to pay for kind of the shenanigans of something that was clearly internal to the Republican caucus," Bakk said during the press conference. "They decided not to take me up on that. I can't force them to do that."

Bakk was unavailable to comment further.

A NUMBER OF LEGAL OPTIONS

But once Bakk takes over the chamber in January, he has a say in how the Brodkorb case goes forward, said former Secretary of the Senate Peter Wattson.

One option would be to agree to a legal settlement.

But Wattson said there's little incentive for Bakk to settle even if further legal representation will cost the Senate because Brodkorb's case appears to be weak.

"As a matter of principle, do you pay the hostage taker to get the hostage released? Or do you say no?" Wattson said.

Another option could be to order the minority to make further cuts to staff to pay for its legal bills, Wattson said. Already, Republicans are expecting to lay off personnel in addition to staff cuts associated with meeting the chamber's budget.

Secretary of Senate Cal Ludeman said that making this a caucus expense would be an unlikely and unprecedented approach.

"That institutionally would be a very, very dangerous precedent," Ludeman said. "This has always been an institutional issue for the Senate not for any caucus. And that standard was set even back in the Roger Moe lawsuit days when quite a bit of money was spent by the Senate to defend employees and Sen. Moe. This is very much in the same ballpark."

Earlier this year, the DFL minority balked at the idea of making major personnel changes within its caucus to trim the chamber's budget by $2.1 million.

If the case goes forward and the Senate finds itself in the position of having to pay an award to Brodkorb, it may be able to tap state funds for tort claims if the chamber doesn't have enough money, Wattson pointed out.

A third option is for Republicans to set up a legal defense fund, a suggestion Bakk has made in the past.

But incoming Senate Minority Leader David Hann, R-Eden Prairie, said he hopes to stay the course Republican leadership has been on since the suit was filed — a course that does not involve settling.

"We have no interest or desire in settling, because once you settle you send a signal that there was some reason that you want to keep from the public," Hann said.

Hann pointed out that the court has already dismissed some of Brodkorb's claims, and he's confident that the court will toss the rest of them, too.

If that ends up being the case, the Senate will ask the court to require Brodkorb to pay the Senate's legal bills, Hann said.

"If you file a lawsuit and all your claims get dismissed, I think you have a pretty good case to go and say 'Look. This was a frivolous lawsuit and it has cost us $100,000 to defend, so therefore we should not be burdened by paying those costs to defend a frivolous lawsuit,' " Hann said. "And typically courts agree."

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