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This appeal has been brought to defend a fundamental principal of democracy in a republic: the public funds of a government cannot be used to support the political operations of a particular political party. The action of the Board of Elections in the ten cases before this Court, in which the Board summarily dismissed all ten cases without public hearing on the indefensible rationale of a lack of justifiable grounds, threatens this fundamental tenet of democracy. This Court is therefore asked to uphold the law.
Petitioners first claim is that that the annual Aldermanic stipend paid by the City of Chicago to maintain aldermanic service offices in each ward, have been used to provide rent-free office space for Democratic Party ward organizations, a blatant violation of law. Petitioners claim rests upon the Illinois Constitution of 1970 and Section 9-25.1 of the Illinois Election Code. This claim was made against all the Respondents below.
This appeal has been brought to defend a fundamental principal of democracy in a republic: the public funds of a government cannot be used to support the political operations of a particular political party. The action of the Board of Elections in the ten cases before this Court, in which the Board summarily dismissed all ten cases without public hearing on the indefensible rationale of a lack of justifiable grounds, threatens this fundamental tenet of democracy. This Court is therefore asked to uphold the law.
Petitioners first claim is that that the annual Aldermanic stipend paid by the City of Chicago to maintain aldermanic service offices in each ward, have been used to provide rent-free office space for Democratic Party ward organizations, a blatant violation of law. Petitioners claim rests upon the Illinois Constitution of 1970 and Section 9-25.1 of the Illinois Election Code. This claim was made against all the Respondents below.
Petitioners second claim is that while using public property, the Respondents below violated the Illinois Election Code by failing disclosure of the in kind contribution represented by the offices rented with public funds. Petitioner made this allegation against all Respondents below.
Petitioners third claim applies to only in three of the cases in this consolidated appeal, which are 05-3410 (Respondent Beale), Appeal No. 05-3411 (Respondent Thomas) and Appeal No. 05-3412 (Respondent Smith). In each of the three cases, the Respondent below was a Democratic Ward Committeeman that has not filed a Form D-1 Statement of Organization with the Illinois State Board of Elections. By filing as a political committee under the Illinois Election Code, Respondents would then be required periodic financial disclosure statements that will reflect the Committeemans activity, financial expenditures for Democratic Party candidates, and activities in the Ward. By operating without a ward organization political committee, the relevant Respondents below have been able to mask their political activities and expenditures.
Under the Illinois Election Code, a proceeding by a citizen is commenced by the filing of a Form D-4 with the Board. 10 ILCS 5/9-20 (2005). Upon filing the matter is referred to Closed Preliminary Hearing:Upon receipt of such complaint, the Board shall hold a closed preliminary hearing to determine whether or not the complaint appears to have been filed on justifiable grounds. Such closed preliminary hearing shall be conducted as soon as practicable after affording reasonable notice, a copy of the complaint, and an opportunity to testify at such hearing to both the person making the complaint and the person against whom the complaint is directed. If the Board fails to determine that the complaint has been filed on justifiable grounds, it shall dismiss the complaint without further hearing.
10 ILCS 5/9-21 (2005). If the Board determines that justifiable grounds exist, it then
must take some form of action to pursue the matter:
After the submission of the recommendations of the Examiner, the minutes, and the recommendations of the General Counsel, if any, the Board shall determine whether the complaint was filed on justifiable grounds. If the Board determines that the complaint was filed on justifiable grounds, and if the respondent is unwilling to take such action as is necessary to correct the violation or refrain from the conduct giving rise to the violation, it shall order a public hearing to be conducted in accordance with the provisions of Subpart C of this Part.
26 Ill. Adm. Code 125.262(a)(2005). Importantly, at the public hearing stage, the Complainant is entitled to discovery, and the Board can issue subpoenas for evidence. 26 Ill. Adm. Code 125.350 (2005); 26 Ill. Adm. Code 125.360 (2005). The Board is empowered to hold hearings upon such complaints, 10 ILCS 5/9-18 et seq., and to issue orders, and to issue civil penalties for violations. 10 ILCS 5/9-21, 9-23 (2005).
In each of the consolidated cases before this Court, Petitioner filed a complaint that consisted of the affidavit of a witness; photographs of the premises in question; sworn financial statements of the respondent demonstrating no acknowledgement of the free rent arrangement; uncontested entries from the websites of the City of Chicago and the Cook County Democratic Party that showed co-location of the Aldermanic Service Office and the Democratic Committeeman, and City of Chicago financial records, obtained by Freedom of Information requests, that demonstrated the rent payments made by the City of Chicago for the premises in question. In every case, the Hearing Officer specifically found met the requirements of the Illinois Election Code.
In nine of ten cases before this Court, upon hearing evidence in a Closed Preliminary Hearing, the Hearing Officer found that Petitioner had demonstrated the required justifiable grounds to proceed to public hearing and recommended that the cases proceed to public hearing. In the one case that the Hearing Officer recommended dismissal, he stated that the respondents witness, an Alderman, was argumentative, combative and, at times, evasive. (Appeal 05-3408, R. 70), and accepted her account solely because she testified under penalty of perjury. Ibid. As will be shown herein, documents of record in this case throw grave doubt upon the account given by that Alderman.
In the face of substantial documentary evidence presented to the Hearing Officer, testimony under oath in closed hearing by Petitioners affiants, and the recommendation of the Hearing Officer for public hearings in nine of ten cases, the Illinois State Board of Elections utterly abdicated its lawful responsibility, by engaging in the inexplicable and improper dismissal of all the cases brought by Petitioner, each on ground of lack of justifiable grounds without the issuance of findings or rationale.
As this brief will demonstrate, the burden upon Petitioner to demonstrate justifiable grounds was extraordinarily light, in that the procedure was created to prevent specious claims in the heat of an election season, not the pursuit of documented claims seeking to end unlawful use of public money, the evasion of financial reporting requirements, and the evasion of a procedure as basic as creation of a documented Ward Organization pursuant to the Illinois Election Code. Reversal of the Board of Elections and remand for public hearings is the only just result.
Importantly, thus far Petitioner has brought forth only that evidence available to it as a private entity, and without use of the discovery and subpoena provisions granted under the Illinois Administrative Code. Thus, a public hearing before the Board of Elections is not simply a new forum to hear the same evidence considered by the Hearing Officer below. Instead, it is the referral of the claim to a new level of investigation, using the greater powers of the Board, in its truth-finding function. Petitioner has come forward with evidence of violations of the law, and is entitled to further hearings before the Board of Elections. I. PETITIONER DEMONSTRATED JUSTIFIABLE GROUNDS FOR FULL HEARINGS BEFORE THE BOARD OF ELECTIONS.
Petitioner met the extraordinarily light burden of demonstrating justifiable grounds before the Board of Elections. The legal test is perhaps best defined by the Board of Elections Hearing Examiner in this case:
The purpose of a closed preliminary hearing is for the Board to determine whether the complaint was filed on justifiable grounds, while giving each party an opportunity to present its arguments. 10 ILCS /9-21. Brennan v. Ill. St. Bd. of Elections, 336 Ill. App. 3d 749, 762, 784 N.E.2d 562 (2002). Although a definition of justifiable grounds does not appear in the Act or in the Boards rules and regulations, the term means some preliminary showing that the complaint was based on reasonable grounds and that the violations alleged were within the ambit of the Boards cognizance under the statute. Troy v. Ill. St. Bd. of Elections, 84 Ill. App. 3d 740, 742, 406 N.E.2d 562 [,40 Ill. Dec. 556]([1st Dist. ] 1980). (Appeal 05-3407, R. 70.) The Illinois Administrative Code defines the Closed Preliminary Hearing as follows:The closed preliminary hearing is not an adjudication, but shall be an inquiry to elicit evidence on the question whether the complaint was filed on justifiable grounds, and having some basis in fact and law. 26 IL Admin Code 125.252 (2005).The facts of Troy v. Ill. St. Bd. of Elections, 84 Ill. App. 3d 740, 742, 406 N.E.2d 562, 40 Ill. Dec. 556 (1st Dist. 1980), are instructive. In Troy, a lack of justifiable grounds was found by this Court when the Petitioner came forward with no more than newspaper stories, several of his own interviews, and inferences and assumptions newspaper accounts. Troy, 84 Ill. App. 3d at 743, 40 Ill. Dec. at 558, 406 N.E.2d at 564. By contrast, in the hearings held in the cases at bar, Petitioner presented affidavits, Board of Election financial fillings by the respondent organizations, photographs of the premises in question, and uncontested website entries for the City of Chicago and the Cook County Democratic Party. Petitioner made a substantial factual presentation that more than met its burden of a preliminary showing. The origin and legislative purpose of the closed preliminary hearing is relevant to review of the Boards decision in this case. The creation of the procedure stemmed from the concerns of members of the General Assembly that the Board might be used as a forum in which baseless complaints are filed against a candidate and/or a political committee associated with the candidate during the course of an election. Illinois Republican Party v. Illinois State Bd. of Elections, 188 Ill. 2d 70, 78-9, 241 Ill. Dec. 776, 780-1, 720 N.E.2d 231, 235-6 (1999) (Freeman, C.J., dissenting). As stated by Justice Bilandic: [T]he purpose of a closed preliminary hearing is to prevent the Board being made an instrument for the transmission of unfair accusations of wrongdoing made by political partisans against their opponents under circumstances in which the accused have an unfair and inadequate opportunity to defend themselves, such as untrue or ill-founded accusations filed a scant few days before an election. Ibid., 188 Ill. 2d at 89, 241 Ill. Dec. at 786, 720 N.E.2d at 241 (Bilandic, J., dissenting), quoting Illinois Republican Party v. Illinois State Bd. of Elections, 294 Ill. App. 3d 915, 924, 229 Ill. Dec. 233, 691 N.E.2d 169 (4th Dist. 1998). No such circumstances are presented in any of the cases before this Court. No candidate was involved in either side of the dispute, and no election season existed. Instead, the proceedings were simply an attempt by one political party to end an ongoing unlawful advantage of public funding enjoyed by an opposing party. Accordingly, the Boards review should have been even more preliminary. A. Free Rent from a Municipality to a Political Party Constitutes a Violation of the Illinois Constitution, Illinois Public Policy and the Illinois Election Code.
The fundamental principle in play in this case is well stated in Article VIII of the Illinois Constitution:
Public funds, property and credit may only be used for public purposes.
Ill. Const. 1970, art. VIII, sec. 1(a). In keeping with this constitutional mandate, Section 9-25.1 of the Illinois Election Code reads in relevant part as follows:
(a) As used in this section, public funds means any funds appropriated by the Illinois General Assembly or any political subdivision of the State of Illinois. (b) No public funds shall be used to urge any elector to vote for or against any candidate or proposition, or be appropriated for political or campaign purposes to any candidate or political organization.
10 ILCS 5/9-25.1. The purpose of Section 9-25.1 is well recognized in law:
In our view, section 3 of the Act (Ill.Rev.Stat.1985, ch. 46, par. 103) [recodified as 10 ILCS 5/9-25.1] appears to have several, interrelated objectives. First, it helps to ensure that public funds will be devoted to the public purposes for which they were levied and not to the personal political interests of public officeholders. Taxes should, after all, support the operation of government; they ought not to be treated as campaign contributions to government officials. Similarly, the statute serves to eliminate the advantage which incumbent officeholders might have in affecting the electoral process if they were permitted to use the public monies at their disposal in support of their own political agendas.
Jenner v. Wissore, 164 Ill. App. 3d 259, 269-70, 115 Ill. Dec. 1220, 1227, 517 N.E.2d 534, 540 (5th Dist. 1988).
A key aspect of the prohibition in Section 9-25.1(b) is its mandate that public funds cannot be used to urge any elector to vote for or against any candidate or proposition. 10 ILCS 5/9-25.1(b) (2004)(emphasis added). The term be used is capable of multiple and broad definitions. Revealingly, the Legislature did not limit the term to direct as opposed to indirect use, or any other restriction on the broad verb to use. By adopting so expansive a term as be used without qualification, the Legislature obviously intended a very broad interpretation of Section 9-25.1(b).
This conclusion is only reaffirmed by consideration of the prohibition on private use of public funds contained in Article VII of the State Constitution. This court is under a duty to interpret a statute in a manner that upholds its constitutionality if it can be reasonably done. People v. Fisher, 184 Ill.2d 441, 448, 235 Ill. Dec. 454, 705 N.E.2d 67 (1998). It will be presumed that in enacting a statute legislature acted in the light of the provisions of the Constitution and intended to enact statute not inconsistent with the Constitution. Gill v. Miller, 92 Ill. 2d 52, 445 N.E.2d 330 (1983). The provision must be interpreted as not allowing the municipality to support the political office, because to do otherwise would violate Article VIII, Section 1(a) of the Illinois Constitution.
While Respondent asserted below that a narrow interpretation is mandatory because Section 9-25.1 is a criminal statute, that is error. In codification of the Election Interference Law, the General Assembly transferred the provision into Article 9 of the Illinois Election Code, entitled "Disclosure of Campaign Contributions and Expenditures." P.A. 87-1052. , Art. 5, Sec. 5-30, eff. Sept. 11, 1992. The current Illinois Election Code grants authority to the Board of Elections to supervise compliance with the Code, 10 ILCS 5/1A-1, 13. Under Section 9-20, the power to commence proceedings is granted to the public, not prosecutors: Any person who believes a violation of this Article has occurred may file a verified complaint with the Board. 10 ILCS 5/ 9-20 (2005). The Board is empowered to hold hearings upon such complaints, 10 ILCS 5/9-18 et seq., and to issue orders under Section 9-21 that are subject to Court review under Section 9-22. The Board is authorized to issue civil penalties for violations. 10 ILCS 5/9-23 (2005). No provision exempts violations of Section 9-25 from these procedural provisions. Only when an order of the Board is ignored is the target entity subject to court proceedings and referral to prosecutorial authorities. Ibid. Accordingly, Section 9-25.1. is not longer a criminal statute, and this Court is free to interpret the provision broadly.
Free rent from a municipality more than meets the test of being a contribution under the Illinois Election Code, and therefore a violation of Section 9-25.1. Under Section 9-1.4(5), a contribution, is anything of value. 10 ILCS 9-1.4(5)(2005). The term anything of value is further defined in the Code as all things, services or goods, regardless of whether they may be valued in monetary terms according to ascertainable market value. 10 ILCS 5/ 9-1.12 (2005). The free use of real estate is excluded from being an in kind contribution only when done at an individuals residence and in an aggregate value of less that $150. 10 ILCS 5/ 9-1.4(5)(2005). A political partys free use of a municipal office for political operations constitutes a contribution under the Election Code.
B. Petitoner Presented Sufficient Evidence to Demonstrate Justifiable Grounds for a Public Hearing before the Board of Elections, including Use of Subpoena Powers of the Board.
Petitioner made a sufficient showing that the Respondents below were conducting political activity out of the offices in question, in order to justify further inquiry and investigation though the open hearing process. It must be kept in mind by this Court that the various Respondents are either Democratic Party ward organizations or, where no committee has been disclosed to the Board of Elections by an appropriate filing, Democratic Ward Committeeman. The very purpose of the Committeemen and ward organization is to perform political work on behalf of the Democratic Party and /or its candidates.
For example, the stated purpose of the Respondent on Appeal No. 05-3407, the 4th Ward Democratic Organization, as stated in filings with the Board, is Democratic political activity in the 4th Ward. Petitioner asserted below, and asserts here, that given that the Fourth Ward currently is represented by an Alderman, Mayor, State Representative, State Senator, Congressman, Governor, and two United States Senators, all of whom are members of the Democratic Party, it is a fair inference that some Democratic Party political activity is occurring in the Fourth Ward, and, in light of its stated purpose as a political committee, The 4th Ward Democratic Organization plays a role in it.
In each of the cases before the cases before this Court, the Respondent below has a address listed on the Cook County Democratic Party website that is the same address as an aldermanic ward office. In each case, Petitioner attached photographs in which the dual role of the office in question is advertised. In each case, Petitioner presented an affidavit, and testimony from the affiant that supports the assertion that there is no visible demarcation between aldermanic and ward functions. In each case, Petitioner demonstrated that funds of the City of Chicago were paid as rent for the premises in question. Petitioner has made a case for a violation that is strong enough to proceed to further hearing.
1. Fourth Ward. (Appeal No. 05-3407).
In the D-4 filing in against the Fourth Ward Democratic Organization, the Petitioner demonstrated that the website of the Cook County Democratic Party lists the address of the 4th Ward Democratic Organization as 4646 South Drexel Boulevard, Chicago Illinois (R. 33.) The City of Chicago lists the Drexel address as the ward office of 4th Ward Alderman Toni Preckwinkle, (R.31.) Petitioner submitted photographs of the premises of 4646 South Drexel demonstrated that on the storefront windows of the address, large letters are painted stating 4th WARD DEMOCRATIC ORGANIZATION, and TONI PRECKWINKLE, COMMITTEEMAN while a small sign over the only entrance to the office states Toni Precwinkle, 4th Ward Aldermanic Service Office. (R. 26-29).
Petitioners witness testified that he entered the offices at 4646 South Drexel, to find an open layout of a functional office with desks, computers, phones and a copy machine. (R. 107.) Persons in the office affirmatively responded to questions on whether the office was political work was done, volunteers would come, yard signs would be passed out, and where palm cards would be handed out. (R. 103-5.)
Records of the City of Chicago demonstrated monthly payments of $1,170.43 to Shorebank for Aldermanic lease payments on behalf of Alderman Preckwinkle. (R.37. )
The Form D-2 financial disclosure statements, submitted under oath by the 4th Ward Democratic Organization, demonstrated an erratic smattering of payments in January, February and March, 2004, no payments at all for July though September, 2004, and small payments in October and November, 2004. The organization paid nothing for rent from January 1, 2005 through June 30, 2005, the last reporting date prior to the filing of the Form D-4 by the Petitioner. (R. 9-10.)
At the preliminary hearing conducted on October 5, 2005, the Respondent offered no witnesses or documents of any kind to oppose the statements and evidence of presented by the Petitioner.
2. Fifth Ward. (Appeal No. 05-3408).
The website of the Cook County Democratic Party lists the address of the Fifth Ward Democratic Organization as 1900 E. 71st St., Chicago Illinois. (R. 31.) The City of Chicago lists the 1900 East 71st St. address as the ward office of 5th Ward Alderman Leslie Hairston. (R. 29.) Petitioner Submitted photographs of the premises of 1900 E. 71st St., Chicago Illinois, which demonstrated an awning on the front of the premises that states Alderman Leslie A. Hairston, 5th Ward Committeeman. (R. 25-27.)
Petitioners witness testified that upon entering the premises, he saw a large room with six desks laid out in an open area. (R. 82.) People were working a the desks. (R. 85.) Persons in the office affirmatively responded to questions on whether or not this is the office were the political work for the Ward was done, where volunteers would gather and so forth,, and whether yard signs and palm cards were distributed from the office. (R. (R. 19-20.).
Records of the City of Chicago demonstrated rent payments of $17,625.00 to a Bernsen Management for Aldermanic lease payments on behalf of Alderman Hairston. (R. 35.) The Aldermanic stipend was used to operate the 71st Street office. (R. 110.)
The Form D-2 financial disclosure statements, submitted under oath by the 5th Ward Regular Democratic Organization, list no rent payments whatsoever during the two year period of July 1, 2003 through June 30, 2005. (R. 10, 12, 14, 15.)
Alderman Leslie Hairston testified that she did her political work in the Ward out of her house. (R. 96.) She denied that any political activity occurred at the 71st Street office. (R. 129-30). Alderman Hairston offered no explanation for why the Democratic party website listed the 71st Street facility as her Committeemans office, rather than her home, and further admitted that the phone number listed for her as Ward Committeeman on the Democratic website was in fact the main number of the 71st Street aldermanic service office. (R. 125.)
Other evidence circumstantially indicated that political activity was indeed occurring at the 71st Street office. The Forms D-2 filed for the committee demonstrated repeated purchases of food, frequently in purchases of over $200.00, at restaurants and food stores located on the same block as the 71st. street office, which expenses were identified on Forms D-2 as election day expenses. (R. 10, 12, 15.) Alderman Hairston gave testimony that the Hearing Officer described as argumentative, combative and, at times, evasive. (R. 70). For example, Alderman Hairston testified that the purpose of the 5th Ward Regular Democratic Organization was to elect Democratic candidates, her role as Democratic Committeeman was not Democratic or Republican, but just to oversee elections. (R. 123, 111). Ms. Hairston could not identify any other locations that were used for volunteers in the 2004 election, and claimed that she could not specifically recall the 2004 Presidential Election between John Kerry and George Bush. (R. 106, 113-4.)
3. Seventh Ward. (Appeal No. 05-3409).
The website of the Cook County Democratic Party lists the address of the 7th Ward Democratic Organization as 2552 East 79th Street, Chicago Illinois (R. 31.) The sworn Form D-2 filings of the 7th Ward Democratic Organization also list the political organizations address as 2552 East 79th Street, Chicago Illinois. (R. 9, 12, 14, 18.) The City of Chicago website lists the Aldermanic Ward Service Office as having the same address. (R. 29.) Petitioner submitted photographs of the premises of that showed storefront windows with the lettering storefront windows of the address, large letters are painted stating COMMITTEEMAN WILLIAM BEAVERS (R. 26.) Petitioners testified that the offices at 2552 East 79th Street. only one entry door (R. 21.) Upon entry, he saw a visitors areas separated by a reception counter.
Alderman Beavers testified that one lease covered the premises of 2548, 2550 and 2552 East 79th Street, which are successive storefronts facing the street. (R. 138). The City of Chicago pays the rent of $1900 per month covering all three storefronts. (R. 139.) While Alderman Beavers rents the three storefronts on the single lease, the City pays, though vouchers, for the rent, as well as the bills for gas, telephone, heating and the like. (R. 18-19.)
The Alderman specifically admitted that political activity was occurring in some of the three storefronts. (R. 139). He admitted that he runs the 7th Ward Democratic Organization out of 2550 East 79th St., the middle storefront of the three connected offices. (R. 135.) Additionally, political literature is disseminated from the site, and political meetings of volunteers are held there. (R. 135, 136.) Additionally, political literature is disseminated from the site, and political meetings of volunteers are held there. (R. 135, 136.)
The sworn Form D-2 financial disclosure statements for the 7th Ward Democratic Organization disclose no rent payments, or rent reimbursements to the City, during the period July 1, 2003 through June 30, 2005. (R.9- R. 18.) Alderman Beavers testified that given his voluminous operations, the City stipend of $33,000 a year fails to meet all of his office expenses, at which time political committees provide additional funds. (R. 142-3). The Committeeman admitted that the payments by those committees were not reimbursements to the City, but instead funds used to supplement his own activities. (R. 19.)
4. Ninth Ward. (Appeal No. 05-3410).
The website of the Cook County Democratic Party lists the address of the 9th Ward Democratic Committeeman as 34 East 112th Place, lower level, Chicago Illinois. (R. 21.) The streetfront of 34 East 112th Place in Chicago contains a large sign and lettering painted on storefront windows stating 9TH WARD ALDERMAN/COMMITTEEMAN ANTHONY A. BEALE (R. 16-17.) The website of the City of Chicago lists the 34 East 112th St. address as the ward office of 9th Ward Alderman Anthony Beale. (R. 19.) The City of Chicago pays $12,000 per year in rent for the entire building. (R. 25, 127.)
Complainants affiant and witness, entered the offices at 34 East 112th Place on August 10, 2005. (R. 102.) He saw a wide open, functioning office with desks. (R. 103.) The affiant inquired into political activity from a female employee in the office, asking if the premises were where volunteers would gather to do political work, if yard signs, palm cards are passed out, and questions of the nature to establish that political work was done from this office. (R. 103.) The staffer answered in the affirmative, and indicated that the first floor office was the location of the activity. (R. 109).
Anthony Beale, Alderman and Democratic Committeeman for the 9th Ward admitted that political activity was conducted in the lower level of the building. (R. 119.) The Alderman testified, for example, that distribution of political literature in the 9th Ward occurs from the premises, and that deliveries of political literature are made to the 34 East 112th Place address (R. 129.) The Alderman admitted, however, he has a lease for the entire building, upper and lower levels, and that the City pays for the rent for the entire building, including the lower level. (R. 127.)
Alderman Beale testified that a political committee, Citizens for Anthony Beale, pays for utility expenses and occasionally pays the rent (R. 119-20.) But as found by the Hearing Officer in his report, the purpose for Citizens for Anthony Beale stated on the Form D-1 organizational filing with the Board of Elections states the purpose as to support the candidacy of Anthony Beale for such office as determined by the Committee. (R. 86.) Further, The manner in which the expenses and contributions were recorded make it difficult to determine how the Respondent separated aldermanic activities from Committeeman activities. (R. 86-7.)
5. Fifteenth Ward. (Appeal No. 05-3411). 6. Twenty-Eighth Ward. (Appeal No. 05-3412).
The City of Chicago Aldermanic Office Listing states that the Ward Aldermanic Office for 28th Ward Alderman Ed Smith 118 N. Pulaski. (R. 21.) The Cook County Democratic Party Committeeman Office Address Listing revealed that the Committeeman for the 28th Ward was Ed Smith, and the office was also listed as 118 N. Pulaski. (R. 24.) Complainants affiant, Thomas Swiss, Mr. Swiss testified that the location at 118 N. Pulaski was shuttered, and Complainant offered a photograph of the boarded up location. (R. 123, 19.) A sign on the shuttered 118 North Pulaski storefront directed persons to the address of 259-261 North Pulaski. (R. 124.) Financial records of the City of Chicago indicated that the City pays for rented space at that location for the 28th Ward Alderman. (R. 27.)
Complainant submitted photographs of the premises of 259-261 Pulaski address. The signage at 261 N. Pulaski indicates Alderman Ed H. Smith, Committeeman, and the signage at 259 N. Pulaski indicates Ed H. Smith Alderman 28th Ward and Annazette Collins, State Representative, 10th District. (R. 15-17.)
On August 10, 2006, Complainants witness, Thomas Swiss entered the offices. and spoke to a person he regarded as a receptionist. (R. 117.) He asked if the two buildings of 259 and 261 North Pulaski constituted separate offices, and was told by the woman that they were not. (R. 120.) His affidavit contained his visible observations:
At the office of the 28th Ward, the signage makes the distinction between the 28th Ward Democratic Organization and the Aldermanic Service Center which is also combined with the 10th District State Representative Collins. The office has one (1) functional entrance at the south end of the building. The lower end of the office houses a countered reception area. It is possible to walk straight into the back area where the offices are housed by passing through a door at the end of the room. There is a sign on that door that states to the effect that only officials are permitted beyond the door. This sign is to block visitors from the street from in-advertently walking into the office area (answered per inquiry of first receptionist). All operations are co-mingled. There is no visible or physical distinction or demarcation between aldermanic and political functions that I could observe.
(R. 79.) Mr. Swiss inquired about political work at the office:
I believe there is political work being done there because that is when I went in to find out, I specifically asked the questions I was asking of people that worked in these offices along with the corresponding City of Chicago - - City of Chicago aldermanic office shows the same address as the committeeman from the Cook County Democratic Party.
(R. 132-3.)
Respondents witness, Jason Ervin is a partner in the partnership that owns the building. (R. 133.) The City of Chicago leases space at 261 N. Pulaski as well as a portion of 259 N. Pulaski, and Alderman Smith has space available to him in both 259 N. Pulaski and 261 N. Pulaski. (R. 138.) Mr. Ervin works on the premises as Secretary of the 28th Ward Democratic Organization to assist with organizing and distributing literature to volunteers, meeting with local precinct captains, and assisting in election day activities. (R.143, 145-6.) Mr. Ervin engaged in the questionable assertion, which Petitioner intends to challenge in discovery and open hearing, that while political work took place in Mr. Ervins office at 261 N. Pulaski, no political work took place in the offices leased by the City of Chicago. (R. 151.) At a minimum, Petitioner demonstrated a contestable issue as to whether political activities were, as asserted by Respondent, limited to the small office of Mr. Ervin. Petitioner certainly met its burden to demonstrate that its allegations were made in good faith and had some basis in fact and law. Further proceedings should have been granted.
7. Thirty-first Ward. (Appeal No. 05-3413).
The website of the Cook County Democratic Party lists the address of the 31st Ward Committeeman as 4502 West Fullerton Avenue, Chicago, Illinois (R. 25.) The City of Chicago lists the same location as the ward office of 31st Ward Alderman Ray Suarez. (R.22.) The storefront windows of the location contain large painted signs stating 31st WARD DEMOCRATIC ORGANIZATION, Alderman Ray Suarez, and Committeeman Commissioner Joseph Berrios. (R. 19-20.) Records of the City of Chicago demonstrated monthly rent payments of $1,600.00 for the office. (R.37.)
On August 10, 2005 Petitioners affiant entered the offices and saw commingled operations, with not demarcation or distinction of political and aldermanic roles. (R. 82.) In a conversation with a woman behind the counter in the office who asked if she could help him, the woman confirmed that the office was where political work was done, where volunteers gather to do political work, and where palm cards and yard signs would be passed out. (R. 86, 122-3.)
The Form D-2 financial disclosure statements, submitted under oath by the 31st Ward Democratic Campaign Fund list an address of 4502 West Fullerton, Chicago, Illinois. (R. 9.) The Form D-2s list no rent or other expense for the period July 1, 2003 through June 30, 2005. (R. 9-12.)
Respondents witnesses only more strongly demonstrated that the functions of the Ward office and political activities are completely entwined at the Fullerton Avenue office. Respondent 31st Ward Democratic Campaign Fund called, the 31st Ward Democratic Committeeman Joseph Berrios admitted that he maintains his Committeeman office at the 4502 West Fullerton location and that political activity occurs in the office. (R. 143-4.) Mr. Berrios acknowledged that the City paid the entire rent for the office. (R. 133-4, 149-50.) Mr. Berrios asserted that computers and furniture of the office were paid for by various campaign funds along with some 50 percent of the office expenses, but no expenses are paid by the Respondent 31st Ward Democratic Campaign Fund. (R. 134-7.) The master lessee of the premises, is the 31st Ward Democratic Campaign Organization, a separate corporate entity that is not even registered as a political committee with the Illinois State Board of Elections. (R. 138.)
In recommending further proceedings, the Hearing Officer accurately noted that [T]he evidence suggests that political activities were occurring at 4502 West Fullerton without any meaningfully attempt to separate the aldermanic functions and costs from the committeeman function and costs. (R. 62.) Further proceedings and an open hearing should have been ordered by the Board.
8. Thirty-Ninth Ward. (Appeal No. 05-3414).
The website of the Cook County Democratic Party lists the address of the 39th Ward Regular Democratic Organization as 4404 West Lawrence Avenue, Chicago Illinois (R. 29.) The City of Chicago lists the 4404 West Lawrence Avenue address as the ward office of 39th Ward Alderman Margaret Laurino. (R. 26.) Signage at the office of the 39th ward indicates it housed the Committeeman Randy Barnette, the 39th Ward Democratic Organization, Alderman Margaret Laurino, and State Representative DAmico (R. 22-4.) Records of the City of Chicago demonstrated rent payments of $1,000 per month to a John Rentas for Aldermanic lease payments on behalf of Alderman Laurino for the office. (R. 32.) Form D-2 financial disclosure statements submitted under oath by the 39th Ward Regular Democratic Organization, list the 4404 West Lawrence Avenue address, but no rent payments whatsoever during the two year period of January 1, 2004 through June 30, 2005. (R. 9-13.)
Complainants witness entered the office at 4404 West Lawrence on August 10, 2005, where he observed one functioning, busy office. (R. 14.) He could not distinguish any demarcation between aldermanic and political functions by observation. (R. 106.) The witness spoke for approximately four to five minutes, to a person was seated at a desk in the office, performing office work of answering phones and working on a document. (R. 85-8.) This person confirmed that political yard signs were distributed from the office, that palm cards were distributed from the office, and that political volunteers worked out of the office. (R. 109-113.)
Respondents witness merely confirmed the intertwining of political functions with the ward office rented by the City. Respondents witness testified that during the period 2003-2005, some 50% the expenses for the office at 4404 West Lawrence were paid by Friends of Margaret Laurino, a political committee. (R. 120-2.) Upon being shown Forms D-2, the witness could only identify three rent payments by that committee, none later than December 2004. (R. 126.)
The Hearing Officer accurately found that considering the fact that political activities of the 39th Ward Democratic Organization may have been subsidized by rent payments made by the City of Chicago for the office at 4404 W. Lawrence this required that the matter proceed to an open preliminary hearing where these unanswered questions may be addressed. (R. 66.) Petitioner met its initial showing of fact and law. Open hearings should have been ordered.
9. Fortieth Ward. (Appeal No. 05-3415).
The website of the Cook County Democratic Party lists the address of the 40th Ward Committeeman as 5850 North Lincoln Avenue Chicago, Illinois (R. 22.) The City of Chicago lists the 5850 North Lincoln Avenue location as the ward office of 40th Ward Alderman Patrick OConnor. (R. 19.) Records of the City of Chicago demonstrated monthly rent payments of $1,857.38 to Ted Sim for Aldermanic lease payments on behalf of Alderman OConnor. (R. 25.) The Form D-2 financial disclosure statements, submitted under oath by the 40th Ward Regular Democratic Organization list an address of 5850 North Lincoln Avenue Chicago, Illinois. (R. 9.) The Form D-2s list no rent or other expense for the period July 1, 2003 through June 30, 2005. (R. 9-12.)
Petitioners witness, Eric Kohn, stated that he entered the offices at 5850 North Lincoln Avenue in the morning of August 22, 2005. (R. 68-70.) He observed a reception desk closest to the entrance, behind which was a woman in later 50s, as well as six to eight desks or work stations. (R. 71-2.) Mr. Kohn asked the woman if he was in the aldermanic office of Alderman OConnor, and received an affirmative reply. (R. 74.) He also asked if this was the office to come to for political work, and again received an affirmative response. (R. 76.) The woman confirmed that the office was the location to go to for those interested in doing work for the local Democratic Party. (R. 81-2.)
At the preliminary hearing conducted on October 5, 2005, the 40th Ward Regular Democratic Organization offered no witnesses or exhibits, but asked the Hearing Officer to find and consider Forms D-2 filed for citizens for Patrick J. OConnor. (R. 58.)
In recommending that the case proceed to open hearing, the Hearing Officer found:
From looking at the purpose, set forth in the statement of organization of Citizens for Patrick OConnor and the scheduled attached thereto, one cannot determine, as suggested by Respondents counsel, that the 40th Ward Democratic Organization chose to engage in political activities through Citizens for Patrick OConnor. Complainant, on the other hand, has presented some evidence indicating that Democratic political activities were being conducted out of the 40th Ward office, that the address of the 40th Ward Committeeman Organization and 40th Ward aldermanic office were the same and that rent was being paid by the City of Chicago for the space at 5850 N. Lincoln.
(R. 58-9.) Petitioner more than met its initial burden to show some basis in fact and law. Further hearings should have been ordered by the Board.
10. Forty-Ninth Ward. (Appeal No. 05-3416).
The website of the Cook County Democratic Party lists the address of the 49th Ward Committeeman as 7356 North Greenview Avenue Chicago, Illinois (R. 48.) The City of Chicago lists the 7356 North Greenview Avenue location as the ward office of 49th Ward Alderman Joseph Moore. (R. 44.) Records of the City of Chicago demonstrated rent payments of $1360 monthly to Jarvis Plaza for Aldermanic lease payments on behalf of Alderman Moore. (R. 50.) The Form D-2 financial disclosure statements, submitted under oath by the Democratic Party of the 49th Ward list an address of 7356 North Greenview Avenue Chicago, Illinois. (R. 9.) The Form D-2s list no rent or other expense for the period July 1, 2003 through June 30, 2005. (R. 9-32.)
Petitioners witness, Eric Kohn, stated that he entered the offices at 7356 North Greenview Avenue, Chicago Illinois, on August 22, 2005. (R. 99.) Upon initial entry, Mr. Kohn found a walled off entry with a reception counter that blocked further progress. (R. 100.) A person was behind the counter, and Mr. Kohn said that he would like to ask a few questions about the office, the duties of the Alderman and the services available though the office. (R. 101.) Mr. Kohn was introduced to Kevin Cosgrove, the Chief of Staff for Alderman Moore, and take to a private office. (R. 103-4.) When Mr. Kohn asked about doing political work in the ward, he was told that he would need to talk to the Committeeman David Fagus, who has a desk at this office. (R. 107.) Mr. Kohn testified:
Q. But its also correct that Mr. Cosgrove said he would refer you to the Committeeman?
A. He said he would if I wanted to do political work, he would refer me to Committeeman Fagus. And when I inquired if this was Mr. Faguss office and if he was there, he indicated to me that Mr. Fagus had a desk at that location and that he was not there at the time. In addition to that, I should say that in addition to that being the location where Mr. Fagus received his mail.
(R. 112-3.) Mr. Cosgrove asked if Mr. Kohn would be interested in handing out flyers that coming weekend for the local Democratic organization. (R. 107.)
At the preliminary hearing conducted on October 5, 2005, the Democratic Party of the 49th Ward offered no witnesses or exhibits, but asked the Hearing Officer to find and consider Forms D-2 filed for Citizens for Joe Moore (R. 119.) In a section of his Report entitled Findings of Fact and Recommendations the Hearing Officer recommended that the case proceed to Open Preliminary Hearing. He noted:
From looking at the purpose, set forth in the statement of organization of Citizens of Joe Moore and the schedules attached thereto, one cannot determine, as suggested by Respondents counsel, that the 49th Ward Democratic Organization chose to engage in political activities through Citizens for Joe Moore or any another political committee.
Complainant, on the other hand, has presented some evidence indicating that Democratic political activities were being conducted out of the 49th Ward office, that the address of Democratic Party of the 49th Ward and the 49th Ward aldermanic offices were the same (until 8/30/05) and that rent was being paid by the City of Chicago for the space at7356 North Greenview, Chicago, Illinois.
(R. 84.)
In each case before this Court, Petitioner more than met its light initial burden to show some basis in fact and law. Further hearings should have been ordered by the Board.
II. PETITIONER DEMONSTRATED JUSTIFIABLE GROUNDS OF A FAILURE TO REPORT THE IN-KIND CONTRIBUTION OF FREE USE OF CITY OFFICES.
Not only did Respondents below engage in unlawful use of City facilities without charge, they violated the Election Code by failing to account for the free rent on their financial disclosure statements filed with the Board of Elections.
The use of office space without charge constituted a contribution under the broad definitions of the Illinois Election Code. Under Section 9-1.4 of the Code, a contribution is defined as anything of value. 10 ILCS 5/9-1.4 (2005). The term anything of value is further defined as all things, services, or goods, regardless of whether they may be valued in monetary terms according to ascertainable market value. 10 ILCS 5/9-1.12 (2005). Upon receipt of contributions, the Treasurer of the political committee is required to identify such contributions in periodic filings with the Board. 10 ILCS 5/9-10(a) (2005). In each case before this Court, Respondents below failed to make disclosure of the highly valuable free rent that was provided by the City of Chicago aldermanic voucher payments, intended for aldermanic ward service offices. (Fourth Ward, R. 9-10; Fifth Ward, R. 10, 12, 14, 15; Seventh Ward, R. 9- 18; Ninth Ward R. 9, 26-52; Fifteenth Ward, _______________; Twenty-Eighth Ward, R. 9, 29-47; Thirty-First Ward, R. 9,; Thirty-Ninth Ward, R. 9-15, Fortieth Ward, R. 9-12; Forty-Ninth Ward, R. 9-32.) III. PETITIONER DEMONSTRATED JUSTIFIABLE GROUNDS OF A FAILURE TO ORGANIZE APPROPRIATE WARD ORGANIZATIONS BY FILING WITH THE BOARD OF ELECTIONS.
The Board of Election erred by refusing to find justifiable grounds that three Committeeman had unlawfully failed to organize Democratic Ward Organizations as political committees under the Election Code. As stated by this Court, [T]he nature and purpose of the Election Code is to ensure fair elections by requiring political committees to disclose their contributions and expenditures. Brennan v. Illinois State Bd. of Elections, 336 Ill.App.3d 749, 759, 784 N.E.2d 854, 862, 271 Ill. Dec. 300, 308 (1st Dist 2002). The relevant Election Code provision is as follows:
§ 9-1.7. "Local political committee" means the candidate himself or any individual, trust, partnership, committee, association, corporation, or other organization or group of persons which:(a) accepts contributions or grants or makes expenditures during any 12-month period in an aggregate amount exceeding $3,000 on behalf of or in opposition to a candidate or candidates for public office who are required by the Illinois Governmental Ethics Act to file statements of economic interests with the county clerk, or on behalf of or in opposition to a candidate or candidates for election to the office of ward or township committeeman in counties of 3,000,000 or more population;
10 ILCS 5/9-1.7 (2005).
The three Committeemen are the subject of Petitioners claim under 9-1.7, which are Respondent Anthony Beale of the 9th Ward, (Appeal No. 05-3410), Respondent Theodore Thomas of the 15th Ward (Appeal No. 05-3411) and Respondent Ed Smith of the 28th Ward (Appeal No. 05-3412). In each case, the Respondent has engaged in substantial political activities and expenditures on behalf of the Democratic Party, but has done so using Committees that have individual names, and purposes that do not include promotion of Democratic candidates.
The Hearing Officer found that both the signage outside of 261 N. Pulaski and the testimony by Mr. Ervin indicated that the 28th Democratic Ward Organization obviously existed, but that Respondent, as Committeeman for the 28th Ward, failed to file a Statement of Organization for the Democratic Ward Organization. (R. 81.) The Hearing officer recommended an Open Preliminary Hearing on the issue of whether the Respondent had unlawfully failed to file a statement of organization of the 28th Ward Democratic Organization with the State Board of Elections. (R. 82.)
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