Howard and Pinsky win first round in case involving high profile legislators

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LEGAL NEWS PHOTOS BY CYNTHIA PRICE

by Cynthia Price
Legal News

Late last summer the Michigan news — and even occasionally the national airwaves — were dominated by the unfolding story of State Representatives Todd Courser and Cindy Gamrat,
Allegations that, in the course of conducting and trying to cover up an affair, the two House members abused the privileges of their office and used taxpayer money in illegal ways eventually led to expulsion, in the case of Gamrat, and an eleventh-hour resignation by Courser.

Both ran to regain their seats in the ensuing special elections, and both lost.

The representatives’ staff members, who were terminated at the beginning of July, were responsible for disclosing information about the events. They allege that they repeatedly went to the House Business Office over being asked to perform activities they knew were illegal.

So, on December 7, 2015, the staffers, Keith Allard and Benjamin Graham, brought suit in the U.S. District Court for the Western District of Michigan against the Michigan House of Representatives for violating their First Amendment rights, wrongful termination, invasion of privacy and retaliation.

Attorneys for the former staffers are Sarah Riley Howard and Rhett Pinsky of Pinsky Smith Fayette and Kennedy.

The federal complaint, which cites the Whistleblowers’ Protection Act as among the statutes violated, centers on the behavior of House leadership and staff members who, plaintiffs allege, knew of the situation as early as February 2015.

In a statement at the time of filing, Allard and Graham said, “We took the proper steps to redress this situation by quietly and consistently reporting the illegal and unethical actions of our former supervisors. Speaker Cotter’s staff assured us repeatedly that they would take action and yet did nothing. They attempted to cover up for former representatives Courser and Gamrat by condoning our terminations. Speaker Cotter only initiated an investigation when evidence was published in the media, many months after his senior staff originally learned of these issues.” 

A lawsuit was also filed on behalf of Allard and Graham in the Ingham County Circuit Court, against Todd Courser and Cindy Gamrat individually, in their role as former “agents” of the House of Representatives, and Wednesday marked the first appearance in court on that case.

Before Judge James S. Jamo, Gamrat, through her attorney Robert L. Baker — a small-firm practitioner based in Allegan — filed a motion for summary disposition, citing MCR2.116 (c)2\(2) insufficient process, (c)(4) lack of court jurisdiction, (c)(6)  another action initiated between the same parties involving the same claim,  (c)(8) failure to state a claim on which relief can be granted, and (c)(10) no genuine issue of material fact.

Baker contended that his client should not be sued individually because under House Rules, the House itself is the employer and not the representatives; in the state suit, the House was not named.

Howard argued that, because the discovery process has not been undertaken, there is insufficient information for the court to rule on whether Courser and Gamrat or the House should be deemed the employer.

She answered each point. Judge Jamo said he joined the plaintiff in wondering why the defendants “pled in the alternative” alleging a public policy violation (specifically,  “Defendants fired Plaintiffs solely in retaliation for Plaintiffs' reports to a governmental authority of violations of ethics rules”) when there seemed to be a sufficient case under the Whistleblower Protection Act.
Howard conceded she would only use that argument if the whistleblower argument was unsuccessful. Judge Jamo denied the majority of the dispositive motion, but granted the motion against the public policy violation argument.

Courser, who is an attorney, represented himself. He brought up the issue that the two staff members were not jointly employed by Gamrat and himself, He also asked for more specificity, particularly regarding the defamation claim. Howard responded that she had included more than enough specificity required to file, and that additional specifics will appropriately come out during discovery.

Jamo agreed that no more information was needed to justify filing, but since the federal complaint has more detail on the whistleblower claim, asked Howard to include more specifics in the state complaint, requiring that it be rewritten both with more specifics and to exclude, for the time being, the public policy claim.

“Everyone has been pleasant, all along the way,” Howard commented afterwards, and Pinsky agreed.

She added that, though she has 14 days to rewrite the complaint, “I intend to have it done by Friday,”

The attorneys met after the hearing and set the time period for discovery at nine months.

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