Minn. Senate saga to cost public win, lose or draw

Published 11:56 am Monday, April 2, 2012

ST. PAUL, Minn. — Legal costs are mounting at the public’s expense even before former high-ranking state Senate staffer Michael Brodkorb sues over his dismissal.

The Senate has hired an outside attorney to protect the institution’s interest and defuse fallout from Brodkorb’s admitted extramarital affair with then-Senate Majority Leader Amy Koch. But officials are so far refusing to disclose the contract or the hourly rate of Dayle Nolan, who works for a large Minneapolis law firm.

And Nolan’s fees are probably just the start.

Threatened lawsuits by Brodkorb, who until his December firing was a senior Republican caucus aide, could pull more than a half-dozen lawmakers and his former colleagues into court. Some of those defendants could be entitled to state-paid legal expenses, too.

“I imagine there are people looking right now at what their legal rights and privileges may be,” said Minneapolis lawyer Marshall Tanick, who handles employment law cases. “I imagine some people are consulting with lawyers right now. The Brodkorb dragnet sweeps pretty broadly.”

Secretary of the Senate Cal Ludeman told The Associated Press last week that he believes the Nolan contract is covered by attorney-client privilege rules permitting him to keep it private. He said he is in regular contact with Nolan, and she was in the room consulting with an in-house Senate lawyer during an ethics hearing last month.

“There is no compulsion for her to submit a bill yet. She has not done so. I have not asked her to submit a bill yet,” Ludeman said, adding that he expects it to exceed a five-figure threshold that would force disclosure of invoices.

Brodkorb’s legal team is moving toward a federal gender discrimination claim against the state, arguing he was treated differently than other employees embroiled in workplace affairs. His lawyers have also said they might file separate state lawsuits against Ludeman, four senators and two GOP caucus staff members, one of whom blew the whistle on the affair.

Most are being accused by Brodkorb of “invasion of privacy” but Ludeman could face a defamation lawsuit for publicly calling Brodkorb’s legal pursuits akin to extortion.

Brodkorb attorney Philip Villaume said last week it’s “more likely than not that those claims will be brought.”

Minnesota law presumes the state will cover expenses, attorney fees, fines and settlements for public employees facing litigation connected to their jobs as long as they weren’t willfully neglectful or guilty of malfeasance.

Tanick said he suspects other employees and senators who are deposed or called to testify in any case could hire lawyers — and seek reimbursement — as well.

It’s not a given that employee legal bills will get paid. The law requires the employer to certify someone was acting within the scope of their duties. The attorney general has the power to overrule such a determination. A judge can also weigh in, particularly as it relates to elected officials.

Minnetonka lawyer James Sherman, who specializes in employment law, said the fight over who gets reimbursed for what could turn into a “big contested mess” that spawns a separate round of lawsuits.

“It’s a legal gray area as to whether or not the coverage could be extended,” Sherman said. And, he noted, “on the political end, it’s an election year.”