The legacy of Cal and the Deputy

In her latest fit of the vapors, Dayle Nolan, the attorney defending the Minnesota Senate, makes a grandstanding motion to complain that plaintiff Michael Brodkorb is a grandstander.

This one is an irony-meter pegger.

Even semi-faithful readers here know that I have written often about the travails of Michael Brodkorb since he was fired in December 2011 by the then-Secretary of the Senate, Republican Cal Ludeman. It is easily the most fascinating story to come out of the brief Republican interregnum of Senate control after the 2010 elections. Compared to it, the shutdown of state government earlier in the year had zero frisson.

Michael Brodkorb – even before the events of December 2011 – and Katherine Kersten are the two greatest website traffic drivers I’ve ever known. And I’ve made my share of fun of both of them. Really, kids, it’s what makes me get up in the morning. But a funny thing happened as I observed the comic events and the comic bluster of the Senate’s front man, Cal, after Brodkorb’s firing.

Against long odds, I began to see what Michael Brodkorb was complaining about. This did not come easily or naturally to me. I had, after all, made fun of Brodkorb for years.

But Michael Brodkorb was the best opposition researcher that the MNGOP ever had, with an uncanny knack of spotting the bullshit in political claims or statements and following up on them. He had a sharp tongue and sharp elbows, and he could put a salacious twist on stories, as he did as the proprietor of Minnesota Democrats Exposed. But give him his due; he didn’t just make stuff up. And he worked very hard for the MNGOP.

A trip down memory lane

For a little memory refreshment, let’s return to those thrilling days of yesteryear. In September of 2011, the feckless, inconstant deputy majority leader of the Senate, Geoff Michel, referred to by me frequently as the “Deputy,” as I will do here, got wind that Senate Majority Leader, Amy Koch, and Michael Brodkorb, both married, were carrying on an affair.

Brodkorb was Koch’s executive assistant [correction: exec. assistant to the MNGOP caucus], a post he was promoted to when Koch became the majority leader after the Republican election win in 2010. Michael Brodkorb was already an employee of the Senate, having been hired by Dave Senjem when Senjem was the minority leader. A lot of people don’t know that.

Koch the senator and Brodkorb the strategist were widely credited with the MNGOP’s winning the Senate; a condition that had not existed since the early ‘70s.

When he learned of the affair, the Deputy, as is his style, did nothing. I suppose he dithered about what to do, figuring the angles and trying to determine what was best for Geoff Michel and his hope of being governor one day, but it wasn’t until December and the matter was becoming notorious in the halls of the Senate, that he or anyone else in leadership acted.

Senator Koch is ambushed in the Minneapolis Club

The Deputy rounded up a posse of Republican Senators to confront – ambush would also be an apposite word – Koch in Tony Sutton’s favorite haunt, the Minneapolis Club. (You wonder who picked up the tab?) After a couple of sessions with the rubber hoses, Amy Koch agreed to give up her leadership position. (It seems entirely fit and right that the MNGOP would conduct an inquisition in the Minneapolis Club, doesn’t it?)

Geoff Michel, like Al Haig, assumed immediate command. On a Thursday evening, he sent out a press release saying that Koch had resigned, but not to worry; he had everything under control. Never mind that the Senate wasn’t in session. Perhaps he thought that the Senators and staff were worried about the fate of the Senate Christmas party.

The next day, Friday, with virtually no notice, especially to anyone with a video camera, the Deputy called an afternoon press conference. Chris Gerlach, David Hann, Dave Senjem, and the Deputy were in attendance. (You can see an MPR photo of the four at the presser many places around the ‘net, including here.) Rather than letting Koch resign quietly and perhaps minimize the damage to her family, and to Michael Brodkorb’s as well – as opposed to their own grasping political ambitions – they announced that Amy Koch was really Hester Prynne – a fact they had just learned – and they pinned a Scarlet Letter on her in abstentia.

That one came a cropper later when it became known that the Deputy, and almost certainly others in leadership, had known about the affair for months.

But, at all events, the press conference was a grandstander’s crème de la crème. Michael Brodkorb’s got nothing on these moral ciphers in the grandstanding department. The leaders of the institution that Dayle Nolan represents were more than willing to splash the Koch – Brodkorb affair all over the news.

Nolan’s client does not have clean hands when it whines about other senatorial affairs coming to light. None. If you read the link at the tippy-top of this story, you will see that Nolan, on behalf of the Senate, is moving to dismiss the entire case because of the brief, inadvertent disclosure of a list of some people that Michael Brodkorb asserts were involved in affairs in situations similar enough to his that they amount to an employment practice that should have applied to him, too.

We know it was inadvertent because the disclosure – actually a filing in court – was “unfiled” almost immediately. One of Brodkorb’s lawyers resigned over having done it.

Let s/he who has never hit the “send” button at the wrong time cast the first motion.

But we haven’t even really gotten to the story of Brodkorb’s actual firing yet.

Michael Brodkorb: the loose end

With Koch’s confession in his vest pocket, the Deputy dispatched his vassal Cal Ludeman to “take care of” Brodkorb. Like the hit men who fanned out to take care of the enemies after the Godfather died, Ludeman, the Secretary of the Senate, and who served “at the pleasure” of the Senate leadership, was tasked with the job of drowning Michael Brodkorb in a bowl of soup at a public restaurant in Mendota Heights. Regrettably, Cal muffed it and Michael survived.

This was the second ambush.

Ludeman fired Brodkorb in the most public and humiliating – and yes, grandstanding – way possible.

After catching his breath and wiping the wild rice and mushrooms off of his face, it occurred to Michael Brodkorb that lots of other employees of the Senate – remarkably, all women – had affairs with senators, and when discovered, were merely reassigned to other “duties” in the Senate.

This did not seem fair to him, nor does it to me. Recall that he was an employee of the Senate prior to his elevation to be Koch’s assistant [correction: caucus exec. assistant].

Brodkorb’s complains of his treatment

When Michael Brodkorb complained of the unfairness of it, Secretary Ludeman said to the press: Michael Brodkorb was an at will employee; we can do whatever we want with him. We didn’t fire him because of his affair with Amy Koch. Another example of pompous grandstanding. This was, of course, among the most transparent bullshit every uttered by a public official.

This probably did not occur to Cal to do by himself though – well, if you know Cal – as we’ll talk about in a moment. Cal was green lighted by somebody.

In an astonishing and candid moment, however, in resisting Michael Brodkorb’s claim for unemployment in 2012, the Senate said to the Department of Employment and Economic Development: Michael Brodkorb was fired for cause because of his affair with Senator Amy Koch.

I beg your pardon? Say again? Would you repeat that, please?

Why anyone, including a jury, would believe a word out of the mouths of anyone involved in Brodkorb’s firing at this point is beyond me.

Michael Brodkorb pressed his complaint about his treatment, and then Cal Ludeman called him a blackmailer. Blackmail is a crime, kids, and calling someone a criminal is slander per se, unless he is. You may have noticed that Michael Brodkorb has never been convicted, or even charged, with the crime of blackmail. This is not a matter of mere hyperbole. The chief executive officer of the Senate called a former employee a criminal.

The complaint is filed

If I was Michael Brodkorb, at this point the gloves would be so off. He filed a lawsuit and said he would put his money where his mouth is. And from that day to this, the Senate and its lawyer, Dayle Nolan, have engaged in backing and filling, pissing and moaning, breast beating and complaining in an effort to avoid the day when the Senate has to answer a simple question:

Why did you treat employee Michael Brodkorb differently than you did female employees who had affairs with their bosses?

It really is a simple question. But so far, the Senate has spent a quarter of a million dollars to avoid it.

Michael Brodkorb was an “at will” employee

“At will” employees can be fired for a good reason, or no reason, but not for a bad reason. That is a great beginning to a jury instruction about the law of gender discrimination, as applied to Michael Brodkorb’s situation.

The “at will” defense was parroted by Cal Ludeman, and since the take-over of the Senate by the DFL, by Tom Bakk, the new majority leader. But where did that come from? Because of the timing of the firing, it is almost certainly the advice of the Deputy, and of a Senate staffer lawyer, probably from the Rules Committee. My own money is on Thomas Bottern, although I don’t have confirmation of that. I also suspect that he’s the one who green lighted Cal to put Michael face down in the soup.

On information and belief, Bottern’s the one with the relationship to Dayle Nolan’s law firm, and perhaps the one with the most to lose professionally if the “at will” nonsense becomes unraveled. He’s still with the Rules Committee.

After being so downright loquacious about Koch and Brodkorb, the Senate leadership shortly thereafter became a model of prim rectitude in protecting its members and staff from embarrassment. (The insistent buzzer sounding in your head is your hypocrisy warning system.) Through its lawyers – who, as I say, have already spent a quarter of a million dollars defending the case – it has removed the case to federal court, made a motion to trim the case (which was successful, inexplicably deleting the defamation action against Cal Ludeman and the state for Cal’s calling Brodkorb a criminal), obtained an expansive gag order, and now seeks to dismiss the case entirely because of the inadvertent discovery error.

The protective order

I want to spend a moment discussing the protective order in the case. It’s a remarkable order, really. It permits the Senate (or Michael Brodkorb, too, although the order is of little use to him now, after the blabbermouths in the Senate already did their work) to designate any information about the case as confidential, and poof, it is confidential, unless relieved from that designation by the court in a laborious and expensive “captain, may I” exercise. Protective orders are common, of course, but this one permits, say, the Senate to claim that not only its information that it is disclosing to Michael Brodkorb is confidential, but it also says that information that Michael Brodkorb has, and has learned on his own by just listening and paying attention at the Capitol over the years, can be designated at confidential, too.

Think about that for a moment, if you will. Dayle Nolan, the instrument of the state, can define Michael Brodkorb’s First Amendment rights, by prior restraint, to boot. This is indeed a remarkable thing. It is doubly remarkable when you realize that Michael Brodkorb’s right to speak is also our right to know about the conduct of our public servants and an institution that we pay for.

But that is exactly what Nolan and the Senate are trying to do with the latest motion to dismiss. In addition to being another twenty thousand dollar plus pad to the public’s bill, it is, or ought to be, doomed to failure. It should fail because it is a wholly disproportionate response to an inadvertent discovery error. It should also fail because the protective order is unconstitutionally broad in its scope, especially when you recall the identity of the public institution defendant.

But one can certainly understand why the Senate wants to deal with this case on other than the merits. Every time some agent of the Senate open his or her mouth, a foot gets inserted. The Senate obviously needs to be protected against people like the Deputy, Cal, and the former president of the Senate, Michelle Fischbach, who admitted to Michael Brodkorb that there was an “incredible double standard” in his firing.

But what is this to me, you may reasonably ask. Well, a few things.

First, this started out as a public crushing of two people, and their families, by a bunch of gutless, bumbling Republican pols. I don’t care whether you like Amy Koch or Michael Brodkorb or not; this is not the way a public institution, which we all support, of which they were stewards, should treat people, especially an employee. This was bad enough.

But then, the DFL — my peeps — won the election in 2012 and took control of the Senate in January. And the new leadership has proven itself just as small, spiteful, and venal as the bunch that came before. This is the part that really chaps my hide.

And you have to ask, what kind of operation is being run in the Senate, by either party? If you’re a Senator and you have an affair with a staffer, you don’t have an expectation of privacy; Geoff Michel proved that!

Millions for defense and not a penny for tribute!

In addition to the quarter million already spent, the Senate Rules Committee set aside another half a million dollars of egg money for its continuing defense. You know where they got it, don’t you kids? For what? To keep the public from finding out what a screw fest the Senate really is? For shame.

 

N.B. Except for the link to the recent news story about the new motion to dismiss, this story has no links. That because everything I’ve written here I’ve written about before, and if you’ve been following along, you know that. If you have a question about any factual matter, please send me feedback, and I’ll address it.