Saturday, October 05, 2002

Lawyers dissect strategy in Patton case

Woman's lawsuit may not meet definition of sexual harassment

By Patrick Crowley
The Cincinnati Enquirer

        COVINGTON - The saga of Gov. Paul Patton's sexual affair with a west Kentucky businesswoman is eventually going to morph from political scandal to legal drama.

        Tina Conner, with whom Mr. Patton has admitted having a two-year affair, has sued the governor in Jefferson County Circuit Court in Louisville.

        Mrs. Conner claims that after she broke off their affair in 1999, Mr. Patton used his power as governor to target her Birchtree Healthcare nursing home for violations, eventually sending it into bankruptcy.

        The press has labeled the suit a “sexual harassment” claim, a description that would seem to apply. The facts Mr. Patton has admitted to and the charges Mrs. Conner has made - allegations Mr. Patton has denied - paint a picture of a powerful man engaging in a sexual relationship and then using the tools at his disposal to wage a vendetta after he is spurned.

        Generally speaking, that's what sexual harassment cases are, said Florence lawyer Ken Scott, a specialist in sexual harassment cases.

        “This is a very typical scenario,” Mr. Scott said. “Sexual affairs go on all the time. The problem arises in what happens when the affair is broken off. Was there economic detriment involved, and was that caused or influenced by the breakup?

        “What (Mrs. Conner) is going to have to prove is whether the governor influenced state inspectors investigating her nursing home and how he might influenced those inspectors,” he said.

        But is this a sexual harassment case? Or is it, as some lawyers are arguing, more a civil rights claim, in which Mr. Patton used his position as governor to punish an individual?

        In her suit, Mrs. Conner does claim that her rights were violated under Kentucky Revised Statue 344, the state's sexual harassment law.

        Barbara Bonar, a Covington lawyer, said from what she has read, Mrs. Conner does not have a sexual harassment claim.

        “Under the state statute, KRS 344, there has to be an employment situation for sexual harassment to occur,” Ms. Bonar said Friday. “And she wasn't employed by the governor.”

        Lawyer Randy Freking agreed with Ms. Bonar on the basics the case.

        “The elements of (Mrs. Conner's) case are essentially the same as sex harassment cases in an employment setting,” Mr. Freking said. “Essentially, she claims the governor took something away from her because of her refusal to continue to submit to this relationship. She will have to show that when she turned him down, somehow he retaliated.

        “But it's not really a typical sexual harassment case because she was not an employee of his,” he said.

        Cincinnati lawyer Bob Laufman said Mrs. Conner appears to have

        a claim that her civil rights were violated.

        In the suit Mrs. Conner said Mr. Patton's vendetta against her was done “intentionally, willfully, wantonly, maliciously, oppressively, fraudulently under color of (his) office.”

        “It looks to me like she is going for a civil rights violation under the Constitution,” Mr. Laufman said. “That she was deprived of her rights under equal protection, meaning she was treated differently because of her relationship with the governor - and that he came in and used his office as a government official to deprive her of certain rights.

        “Of course,” he added, “she has to prove that in court.”

        Ms. Bonar said Mrs. Conner is also making a claim that the governor's actions injured her business, a legal claim known as a tort, which is defined as a “wrongful act, injury or damage.”

        Mrs. Conner has said when state regulators came down on her nursing home, citing it for 163 pages of violations, she lost lucrative government contracts.

        “She claims he interfered with her contractual relations; that is a tort claim,” Ms. Bonar said. “From what I've read about the case, that could be a pretty valid claim.”

        The case, however, may never make it to court. Mrs. Conner has claimed that lawyers for Mr. Patton - his legal team includes Cincinnati lawyer Deborah Adams - have discussed settling out of court.

        In that event, Mr. Patton would most likely offer a cash settlement to Mrs. Conner. Lawyers say the amount could vary greatly.

        “It could be anywhere from $100,000 to $500,000,” Mr. Scott said. “Usually in sexual harassment cases plaintiffs who lost a job or were demoted go for back pay, benefits and some damages. Here, she would have to show what she lost in her nursing home but she would have to prove the governor's actions caused all of those losses.”

        In June the speaker of the Virginia House of Representatives, Republican S. Vance Wilkins Jr., paid a $100,000 settlement to a woman who alleged he harassed her by making unwanted sexual advances.

        Mr. Patton, 65, who is paying his lawyers out of his own pocket, is wealthy from his days in the coal business. Financial disclosure forms he has filed with the state have shown his net worth at about $4 million.

        If a cash settlement were reached, it would be paid by Mr. Patton, not the taxpayers, said Terry Sebastian of the governor's press office.

        Patton seeks Conner leak

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