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What legal issues might exist in Michael Brodkorb’s termination?

Employment attorneys cite “What was he told about it?,” “Is it fair?” and “Who was the employer?” as relevant questions.

Michael Brodkorb
Michael Brodkorb

The Friday before Christmas, during the last news cycle of the year (and possibly most poorly attended to), the media reported that ousted Senate Republican Caucus Communications Director Michael Brodkorb had hired a lawyer to look into his termination.

Possible explanations for the silence since then? Possibly, for whatever reason and quite uncharacteristically, erstwhile blogger and onetime state Republican Party deputy chair Brodkorb has chosen to exit quietly. Or possibly the attorney he retained, Greg Walsh, is having a devil of a time figuring out precisely how Brodkorb’s unique circumstances affect any legal remedies that might be available to him.

Walsh did not return a call this week from MinnPost. But according to Twin Cities attorneys with experience on both sides of employment and defamation cases, there’s virtually no end to relevant questions.

The most crucial of which is: Why was Brodkorb fired, and what was he, or anyone else, told about it?

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Brodkorb was fired Dec. 16, the day after then-Majority Leader Amy Koch admitted she had engaged in an “inappropriate relationship” with a Senate staffer. Koch stepped down from the post, in which Brodkorb had functioned as her chief spokesperson.

GOP leaders refused to confirm or deny that Brodkorb was the staffer. Separately, Brodkorb and Koch both refused to comment on his firing. So any discussion about potential legal issues regarding Brodkorb’s termination must be based on unconfirmed inferences.

Fired at suburban restaurant
The ensuing period of speculation firmly established that GOP leaders had known about the Koch affair for several months, and that Senate Secretary Cal Ludeman had fired the acerbic political operative at a Lilydale restaurant at the behest of GOP leaders.

According to an interview he gave Minnesota Public Radio, in the wake of Koch’s resignation as majority leader and before he knew he would end up firing Brodkorb, Ludeman called Brodkorb:

” ‘I was actually reaching out to him [in the hours following Koch’s resignation] to see if he [had] any reason to talk to me because I thought maybe he would have understood his position relative to [Koch’s],’ Ludeman said.”

Technically the employer of all Senate staffers, the secretary fired Brodkorb the next day on the recommendation of GOP leaders:

“‘I told [the leadership team] that all Senate employees are at-will employees. I said that if they make a recommendation to me that we should exercise that ‘at-will’ status and make sure someone is not employed by the Senate for whatever reason, that could be done,’ Ludeman said. ‘And that’s what they desired to have happen. …

“‘They didn’t give a reason, they just didn’t want him representing the Senate Majority relative to anything that happened … from Friday afternoon on,’ Ludeman said.”

Sensitivity of being a communications director
“It’s probably the sensitivity of being a communications director that makes this all happen this way,” Ludeman told MPR. “Because that is too important. Senators use that division for their information relative to the events of the day or session, etc. And with Amy Koch’s stepping down, without her there, it was important that he not be in the Senate.”

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In the view of Minneapolis attorney Stephen Cooper, a former state human rights commissioner who often represents aggrieved employees, if you infer that Brodkorb was the person involved with Koch, the first question is whether Koch misused her position to lure or coerce Brodkorb into a sexual relationship. The test: Was there a quid pro quo?

If there was, it would make Brodkorb a member of a protected class, which would make his firing — for reasons related to that status — problematic. 

Conversely, “If you have people involved in a voluntary relationship, then why are they firing him?” said Cooper. “If he was fired because of bad behavior on her part, they have a problem.”

Is it fair?
If he represented the defendant in a Brodkorb suit, the first question Minneapolis attorney Joseph Schmitt, who has represented numerous large employers as a partner at the firm Nilan Johnson, would pose is a basic sniff test. Minnesota is an at-will employment state, but “jurors and judges tend to look at things from the perspective of ‘is it fair?’ “

In sex harassment cases, subordinates rarely but sometimes merit dismissal. They might be trying to trade on the relationship to gain a workplace advantage, or using it to cover conduct like stealing.

“I would have first urged them to do a complete investigation before they took action,” said Schmitt. “One of the things we don’t know from where we sit is what investigation was done.”

There’s little downside to this, as the results would not need to be made public.

“Second, I would urge them to make sure they are treating people in similar ways,” Schmitt added.

Who was the employer?
Supposing the relationship was the reason for the dismissal and it was consensual, Brodkorb’s employer could still have some exposure, Cooper continued. Which makes the next question who was his employer?

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“If he were to bring a lawsuit you would see an immediate scramble of parties each saying the other was his employer,” said Cooper.

Ludeman may have done the firing, and the state may have printed Brodkorb’s checks, but Brodkorb served at the will of the GOP, which also controlled many of his working conditions. So who was his “boss”?

If this sounds far-fetched, it’s actually increasingly common, said Cooper. Sometimes the wrangling is between interconnected companies or related ventures, and sometimes it’s over the nature of employment, per se.

Also problematic: At the time of Koch’s resignation and Brodkorb’s dismissal, GOP leaders said they had found out about Koch’s inappropriate relationship just weeks before, not in September, when, they were later forced to admit, Koch’s former chief of staff reported it.

“The laws on sexual harassment require an immediate response” to any allegations, said Cooper. “Because of these long delays, they certainly invited speculation that they wanted Koch out.”

Koch: collateral damage?
According to reports by MinnPost’s Cyndy Brucato and others, GOP leaders may actually have been gunning for Brodkorb, whose support for a Vikings stadium ran afoul of party positions. In this scenario, Koch either also fell into disfavor because of her pro-stadium view or might have been collateral damage.  

Which again makes crucial the question of whose employee Brodkorb was. Public-sector employees have well-defined rights to freedom of expression, but someone employed by a private entity such as a political party can be fired for failing a litmus test — provided it is not for holding a legally protected belief such as a religious conviction.

Nor could that litmus test be that two married people working for a party engaged in a fight about marriage engaged in adultery: Marital status is a protected class in Minnesota and cannot be the basis for any termination.

If the practical answer is that Brodkorb was a political operative being paid by the government, then it’s a question of taxpayers’ and voters’ willingness to let the elected officials Brodkorb served use the Senate payroll in this way.

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Both Cooper and Schmitt believe that regardless who employed Brodkorb, he may have a defamation claim based on the way party leaders handled public statements about the termination. Defamation experts Mark Anfinson and Marshall Tanick, both attorneys in Minneapolis, disagree.

Impression … thats not defamation
“I don’t see anything that would make for a good defamation case,” said Tanick. For starters, the only statement about the grounds for dismissal is Ludeman’s “loss of will” comment. Beyond that, “If the impression is he got fired because he had an inappropriate relationship, that’s not defamation.”

Brodkorb’s public profile as a finger-pointing blogger and party message framer makes it very difficult to defame him under Minnesota law, added Anfinson. Someone who has thrust himself into the public spotlight has a much steeper climb in making the argument that he was damaged by a falsehood.

“He was obviously one of the big stirring sticks in the legislative process and in politics,” he said. “I just think the average judge would look at a case like this and say, ‘You live by the sword, you die by the sword.’ “