The audiotapes that Senate staffer Michael Brodkorb made after he was fired in December 2011 are part of an escalating pre-trial drama in his wrongful-termination lawsuit.
While they may have little evidentiary value, they can be a useful public relations tool to break loose a settlement agreement, according to an employment lawyer with no connection to the case.
“In my opinion, the highest and best use of these tapes is to rattle cages and get publicity,” said Daniel Kelly, an employment attorney with the Felhaber law firm in Minneapolis.
Brodkorb made the recordings after he was fired as communications director for the Republican Senate caucus following the revelation of his affair with then-Majority Leader Amy Koch.
Kelly, whose firm generally represents defendants — the Senate position in the Brodkorb case — said that Brodkorb’s recordings of conversations with senators and staff must meet a certain threshold before they can admitted as evidence.
“Tapes of these kind oftentimes constitute hearsay and, therefore, may not be admissible in court,” he said.
But that doesn’t mean the tapes can’t be useful, depending on exactly what they contain.
Brodkorb’s attorneys have acknowledged the existing of three recordings: a conversation with Senate Chief of Staff Kevin Matzek and former Secretary of the Senate Cal Ludeman; one with Republican Sens. David Senjem and Julianne Ortman; and one with Sen. Michelle Fischbach, who was president of the Senate when the Republicans were in control.
The Fischbach recording could be the most damaging. According to a source who has heard the recording, Fischbach acknowledged that several state senators had been involved with staff members who were not terminated as a consequence of their relationships.
“The basis of the Brodkorb case is that different people were treated differently,” said Kelly. “The person who said that [Fischbach] would be subpoenaed, put under oath and would be asked, ‘Are you aware of other situations where people engaged in similar behavior and were treated differently?’ ”
Then there’s the public relations value. After news reports on the Fischbach audiotape, there were at least two published calls for a settlement of the case, including an editorial in the New Ulm Journal.
The editorial noted Senate approval of another $500,000 to cover future legal expenses, a sum added to the $200,000 already paid to the Larkin Hoffman law firm.
But Brodkorb isn’t necessarily on public-relations high ground, according to attorney Kelly.
Although secret recordings of conversations are legal in Minnesota as long as one party is aware of the recording, they aren’t crowd-pleasers. “Surreptitious tape-recording of conversations is not popular,” Kelly said. “It looks sneaky, and juries don’t like sneaky people.”
But a jury may never be seated in the Brodkorb case. “Most cases, in excess of 90 percent of cases, will settle,” Kelly said.
Still, DFL and Republican Senate leaders have stated publicly that they do not intend to settle the case. Senate attorneys recently filed a 35-page affidavit asking Brodkorb for a wide range of personal information, including medical records and the status of his relationship with Koch.
So, the Brodkorb case may continue to make waves in Minnesota politics, with the added threat of exposure of other legislators and staffers who engaged in similar office romances.