By Tom Loftus
The Courier-Journal

FRANKFORT - A judge Wednesday dismissed two of the five counts brought by Tina Conner in her lawsuit against Gov. Paul Patton, including the sexual harassment charge, and dismissed the state as a defendant in the suit.

In a two-page order, Franklin Circuit Judge Roger Crittenden ruled that such claims of sexual harassment can be brought only by an employee against an employer - and Ms. Conner never worked for Mr. Patton.

Judge Crittenden also ruled that Ms. Conner did not have standing for her claim that Mr. Patton wasted taxpayer money during his affair with her.

But the judge let stand three other counts in which Ms. Conner alleged Mr. Patton engaged in outrageous conduct, intentionally caused her emotional distress and defamed her.

Both Mr. Patton and Ms. Conner found reasons to be positive about Judge Crittenden's order.

Mr. Patton's attorney, Sheryl Snyder, said the order "is an important victory to us. We plan on filing a motion soon to dismiss the remaining counts and are hopeful that that motion will result in dismissal of the entire case."

Mr. Patton - facing investigations by the FBI, the Kentucky Attorney General's Office and the state's Executive Branch Ethics Commission stemming from his relationship with Ms. Conner - said, "I have faith in the outcome of the court system, and I'm confident that that outcome will be that I have in no way abused the office of governor."

The Covington-based federal grand jury investigating Mr. Patton's case met Wednesday in the federal courthouse in Covington, but did not hear testimony in the investigation against Mr. Patton, court workers said.

The grand jury, seated by the U.S. District Court for the Eastern District of Kentucky, is reviewing box loads of evidence, including telephone records, correspondence and travel records, from a variety of state agencies.

Ms. Conner said some of the issues that were dismissed might resurface in a federal lawsuit she has discussed with her lawyer.

Fred Radolovich, Ms. Conner's lawyer, said he wasn't disappointed that Judge Crittenden dismissed the charge about wasted taxpayer money. But he said he believed the harassment count should have stayed.

Ms. Conner, a Western Kentucky businesswoman, claimed in the lawsuit filed three months ago that she had a two-year affair with Mr. Patton. During that time, she alleged, she won favorable regulation from the state for her nursing home and other businesses. After the relationship ended, she claimed Mr. Patton retaliated by ordering state inspectors to crack down on her nursing home.

Violations found by state inspectors caused the nursing home, Birchtree Healthcare, to lose federal funding, forcing it into bankruptcy.

Mr. Patton tearfully admitted to an affair with Ms. Conner, but has denied ordering retaliation against her or abusing his powers as governor.

Judge Crittenden agreed with arguments made by Mr. Snyder that Ms. Conner had no grounds to allege sexual harassment because that law is intended to protect workers against harassment from their bosses.

As for Ms. Conner's charge that Mr. Patton wasted taxpayer money, Judge Crittenden said only that Ms. Conner lacked standing to make such a claim.

Two of the remaining counts allege Mr. Patton intentionally engaged in outrageous conduct that caused Ms. Conner severe emotional distress.

The final remaining count charges that Mr. Patton defamed Ms. Conner after she went public.

Mr. Snyder said he'll ask the court to drop the defamation charge "because the governor has an absolute privilege to freely answer questions from the press when he is being asked about doing his job."

Judge Crittenden's order removing the state as a defendant was based largely on the doctrine of sovereign immunity, which protects governments from most lawsuits.

"We're delighted with the result," said Anita Britton, an attorney with the Lexington law firm Stoll Keenon & Park, which was hired under contract to defend the state.

The contract, which called for paying the firm up to $50,000, drew criticism from some lawmakers. .

Ms. Britton said Wednesday she did not know how much the firm's final bill to the state would be, but she said it would be much less than $50,000.