For the first time, a fired Minnesota Senate operative has made detailed accusations central to his federal wrongful termination lawsuit: a list of other lawmakers and staff members who allegedly carried on affairs over the years without losing their jobs.
The list opens the possibility that those people — some long gone from the Legislature — could ultimately be asked to testify about allegations of secret affairs that date back to the 1980s. Whether it helps Michael Brodkorb prove his case is an open question, experts say, because many of the alleged affairs are old and happened under different circumstances.
Brodkorb was the Senate GOP's communications director when he was fired after his extramarital affair with then-Senate Majority Leader Amy Koch became public in December 2011. Koch resigned from her leadership post immediately and left the Legislature following her term. Now, Brodkorb is seeking more than $500,000 in damages with an unusual gender discrimination claim that argues he was fired for an affair while many female staffers romantically linked to lawmakers were not.
Since Brodkorb filed the lawsuit last July, the litigation has cast a cloud over the Capitol with its suggestion that he would allege infidelities by other members of the Legislature. The list of affairs was included in a mistaken filing last week by Brodkorb's attorneys in a case that is under protective seal. It was put up briefly on a publicly accessible electronic federal courts website, then taken down, but not before The Associated Press downloaded the filing. A hearing in the case was scheduled for Thursday and court-ordered settlement talks could resume this fall.
Senate attorney Dayle Nolan said she will seek sanctions against Brodkorb's side for violating the protective order, but said the details don't change the case.
"To the extent there could possibly be a grain of truth to any of the allegations, which we do not concede, nothing supports the plaintiff's claims and nothing will have any impact on the litigation going forward," Nolan said.
Brodkorb's attorneys didn't comment either before or after a previously scheduled hearing on the case Thursday before U.S. Magistrate Judge Arthur Boylan. Brodkorb's allegations about affairs between other senators and staffers came up only in passing, with Senate attorney Chris Harristhal noting his side's plan to seek sanctions for the document disclosure. The hearing involved disputes between the two sides about the extent to which Brodkorb has disclosed personal information to Senate lawyers, with Boylan taking the matter under advisement.
Top senators and the Senate's attorneys have long maintained that past romances don't matter in defending against Brodkorb's lawsuit because he was an "at-will" employee who could be terminated at any time. The case has already cost taxpayers $225,000 and another $500,000 has been set aside for ongoing defense fees.
That his list became public now probably won't help Brodkorb build pressure for a deal in a case at least a year away from a possible trial, said Columbia University Law Professor Vivian Berger, who specializes in employment cases.
"The guillotine is more effective when the blade is hanging over you, not when the guillotine comes down," Berger said.
The document offers scant evidence to back up his allegations. The affairs would have occurred under different leaders than those who fired Brodkorb. Most of the supposed affairs involved no direct boss-subordinate relationship.
Despite her position as majority leader and his as chief caucus spokesman, Koch said Thursday she had no such relationship with Brodkorb, noting he reported to the GOP caucus chief of staff and then to the secretary of the Senate, not her. But the pair's working relationship is an issue in the case, with Senate leaders having argued in their defense that caucus communications directors have typically served as members of the majority leader's team and moved on when the lawmaker does.
Brodkorb names 10 legislators — all but one now out of office — whom he claims had an "intimate sexual relationship" with legislative staff members who remained employed afterward. It names six of the employees.
The AP is not naming the people identified on Brodkorb's list because they have not yet been called to testify or been accused of anything illegal. Many didn't know they were on it.
Brodkorb names both Republican and Democratic lawmakers of varying stature. The brief narratives make repeated references to the relationships being "widely known" in the Legislature. In one case, it suggests a male senator also had relationships with female members of the Legislature.
The AP attempted to contact those named and reviewed court records for those involved in divorces or other proceedings. Four flatly denied allegations read to them, with some expressing anger at being pulled into the case. Six declined comment or indicated they were consulting with an attorney. Five didn't respond.
One person confirmed the filing's assertion about her, which was backed up by a court record showing the other party to the affair admitting paternity of a child born during his time in office. Two sets of allegations include a lawmaker-staffer pairing who are now married.
One staff member named said she had been contacted by a private investigator while another told AP that a law firm asked a while back to speak with her about the affair. She said she declined.
In one case, the lawmaker and staff member independently denied the existence of an affair and said close working relationships that are routine at the Capitol can be easily misconstrued. The former senator said he regularly gave the staff member rides to and from the Capitol to spare her parking fees and to provide safe transportation after late-night shifts.
Employment law experts caution that allegations involving differing circumstances are viewed skeptically — if they are admitted as evidence at all at trial. Attorneys commonly spar over what information produced in the discovery phase is allowed at trial, and whether Brodkorb's examples involve similarly situated affairs will be up for debate as the case progresses.
There is little evidence to prove the affairs in the filing, though Brodkorb's attorneys could provide more details as the case goes on. "Discovery is continuing," the filing said.
Stephen Befort, an authority in employment law at the University of Minnesota Law School, said Brodkorb could find a discrimination claim more difficult to make if the other examples he cites vary widely from the lead-up to his own firing or happened under previous Senate regimes.
"I think it weakens the claims if it's not identical circumstances," Befort said. He added that the dated nature of some of Brodkorb's examples could also undermine his case. "The closer you are both in time and circumstances, the stronger the discrimination claim."
Beth Brascugli De Lima, president of California-based human resources firm HRM Consulting Inc., pointed out that employee codes of conduct could have evolved over time. She also said that the close connection between a supervisor and employee matters in workplace relationships because closer proximity can expose an organization to sexual harassment actions.
Yet employment lawsuits like Brodkorb's are rare enough that older cases or those that aren't identical could be valuable, said David Larson, an employment law scholar at Hamline Law School in St. Paul.
"As long as the facts are roughly analogous, they can be very helpful to the plaintiff," he said. However, Larson also stressed that those alleging employment discrimination have a high legal bar and "it remains extremely difficult to prove."