According to reports, Michael Brodkorb, the former communications chief of the Minnesota Senate and and deputy chair of the state Republican party, has hired attorneys to pursue potential legal claims relating to his termination from his position in the Senate. Brodkorb was terminated in December, a day after former Senate Majority Leader Amy Koch resigned her leadership position for having an affair with an unidentified male Senate staffer. The fact that Brodkorb was terminated the next day has raised speculation that he may have been the staffer with whom Koch was having the affair.
So what possible claims could Brodkorb have against the Senate?
At the outset, it appears Mr. Brodkorb, as an employee of the Senate, was a member of the "Unclassified Service," which means he was not a member of a union. Generally, union member are subject to a contract called a "Collective Bargaining Agreement" (CBA) that oftentimes provides greater job rights and protections than are available to the average worker. Because Mr. Brodkorb does not appear to be a union member, he likely will not have any claims under a CBA. Indeed, the Senate is claiming he signed an agreement of some type which states he was an employee at-will, meaning he could be fired for any reason so long is it is not an illegal one.
It is difficult to know what claims Brodkorb has because there have been no reports as to the reason for his termination and no one has confirmed that he was the staffer who had the affair with Koch. If Koch, however, used her position to force Brodkorb into having sex with her, he may have a claim for sexual harassment. Such a situation, known as "quid pro quo," oftentimes occurs where the employee is either threatened with adverse job consequences if he or she fails to engage in sexual contact with the supervisor, or is offered job perks in exchange for sexual favors. All of this falls under the broad definition of sexual harassment found in the Minnesota Human Rights Act. However, a voluntary sexual affair is not actionable. From most reports, it appears that Koch's affair was one that was voluntary between her and Mr. X.
Brodkorb may also try to bring some type of defamation action claiming his reputation has been damaged. Typically, to prove defamation, one needs to show (a) that a statement was false, (b) that the statement was communicated to someone other than the plaintiff, and (c) that the person's reputation was harmed. Brodkorb would have significant other problems in bringing a defamation suit. By being such a high profile political figure and former blogger, he likely would be considered a public figure. Speech related to public figures and public issues is considered the most important type of speech by the courts. Because of the First Amendment's clause granting us the freedom of speech, the courts provide individuals commenting on public issues significant protection from possible censorship through a defamation claim or otherwise. Thus, public figures have to prove "actual malice" in order to succeed on a defamation claim. "Actual malice" was defined by the U.S. Supreme Court as when the speaker knows the statement is false or speaks with a reckless disregard for the truth. Courts rarely find that public figures are able to meet this standard.
It is difficult to know what Brodkorb would claim has been said about him that was defamatory. The secrecy surrounding the reasons and circumstances for his termination are remarkable given his public position and the media attention it has received. The Senate has not provided any reason for his termination. No one has been quoted as saying he was doing a poor job, was incompetent, screwed something up or was Mr. X in the affair with Koch. It is even more unlikely that he would be able to show any alleged statement met the actual malice standard. However, until further details come out, we simply won't know.
In sum, the information in the public record to date does not indicate that Mr. Brodkorb has any legitimate claims. Either way, given his public role and position, we have a right to know all the details of any alleged claim, especially if Brodkorb is paid a settlement with taxpayer money.
