‘Slanted’ election mailers sent on Niles taxpayers’ dime

Illinois law deals directly with using taxpayer money for politics: “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.”

The law does allow government to use taxpayer money to inform the public about a referendum — a question posed to voters on a ballot that, if passed, can mandate a change or serve as advisory, helping elected leaders gauge the pulse of residents on an issue — so long as it’s done in a “factual” way.

As the state code puts it, “This Section shall not prohibit the use of public funds for dissemination of factual information relative to any proposition appearing on an election ballot . . .”

So with that as a backdrop, we’re hearing concerns about whether pamphlets created by the village of Niles — and mailed on the taxpayer dime to thousands of residents before the Nov. 4 election — may have crossed the line. The mailers focused on a binding referendum in the election.

Advocated by a resident of the near north suburb named Joe Makula, the ballot question asked voters whether the mayor in town should be allowed to continue filling trustee vacancies (with the consent of the village board) or whether the seats should stay vacant until an election.

Voters overwhelmingly decided (roughly 5,000 votes to 1,500) to strip away appointment power from the mayor, who wanted to keep the authority.

The pamphlets were touted as educational, designed to explain pros and cons of the referendum. But to some, the mailers — sent by the village administration, ultimately overseen by the mayor — seemed to skew heavily toward the mayor’s point of view.

The village sent two separate pamphlets to Niles households, and both say the village “takes no position on whether the proposed change should be adopted.” But the first of the two mailers also offers this:

• “If three seats are vacant, the Board cannot carry out certain critical governmental functions which require approval by more [than] three Trustees, such as:
• “No borrowing or appropriations could be approved for emergency disaster relief
• “No leases could be approved for equipment and machinery, including office equipment and software licenses
• “Bonds to finance water systems and sewer systems could not be approved
• “Funds could not be transferred between Village departments, potentially causing shortages in some [departments] and surpluses in others”

Those are indeed possible repercussions if there are too many vacancies, based on what we’re told. But there’s no opposing view presented on the pamphlet. And having three vacancies at the same time is an unusual scenario.

The second mailer portrays a similarly gloomy perspective should the mayor lose appointment authority, even if there is a section on this pamphlet said to represent “proponents” and “opponents.”

Niles Trustee Rosemary Palicki told us she considers both fliers biased and inappropriate.

“They took a position on this [issue] even though they claimed not to,” Palicki said of the village, led by Mayor Andrew Przybylo. “You’re using taxpayer dollars to promote a particular point of view. … The village did not present both sides.”

Niles Village Attorney Joe Annunzio countered with a question, “Does the law say we have to present both sides, or just the facts? … If you don’t like a fact it doesn’t [necessarily] mean you’re being biased. … Then it comes to a judgment call of what facts are relevant.”

Either way, Palicki said the fliers were so slanted that she called the Cook County state’s attorney’s office to see whether the law was violated. She said an official there looked into the matter and told her “the village was skating on very thin ice,” but in the end nothing could be done. That official declined to comment to us when we followed up. But a spokeswoman for the office said via email:

“The State’s Attorney’s Election Fraud Unit did receive a complaint about this matter and it was investigated. The determination was made that the materials in question did not rise to the level of election interference because they distributed factual information and governing bodies are permitted under the law to disseminate factual information regarding referendums. The materials also stated that the Village of Niles was not taking a position on whether the proposed changes should be adopted.

“However, there were concerns on our part that the information distributed was in some ways skewed. So while we are not pursuing any charges in this case at this time, we will be sending the Village of Niles a letter outlining the legal obligations on the use of public funds in election matters such as this.”

Makula said the fliers “had all the bad parts and none of the good parts.” And he said Przybylo had a vested interest in the referendum because he stood to lose power depending on the outcome.

Przybylo, however, said he did nothing wrong and admonished us not to portray this as a “David and Goliath thing.”

Przybylo said the idea of the fliers came from the village’s lawyers, and the content was vetted by them.

What’s more, he said Makula had — and missed — the opportunity to offer suggestions on the first flier before it went out. And he said Makula did offer suggestions on the second flier, and many of his thoughts were included.

“If anyone politicized the process … he did,” Przybylo said of Makula. “We tried to do the right thing, and everything we did was run by [Niles’ legal] counsel.”

Makula responded, “I didn’t think there was any need to inform voters [through mailers], it was self apparent in the words of the referendum what it was about.”

Courting ‘Havoc’

The referendum question almost didn’t get on the ballot.

After Makula gathered enough signatures to present the matter to voters, another resident (who wouldn’t talk to us) objected and the issue went to the Niles electoral board, on which Przybylo sits.

The electoral board ruled the initiative should stay off the ballot – Przybylo said that’s how the village’s lawyers advised. Makula sued. A Cook County judge then reversed the electoral board’s decision, saying the referendum was OK to have on the ballot.

Speaking of the court case, both pamphlets highlighted part of the judge’s written opinion/order — another bone of contention with Palicki and Makula who believe what was used was taken out of context. Here’s what the fliers said: “Cook County Circuit Court found that passage of the referendum ‘may cause havoc in the operation of the municipal government.’”

But our read of the ruling shows the judge was nuanced, only noting that some have argued that havoc may occur, and noting it’s not “the role of this court” to “analyze the wisdom” of the referendum.

Either way, this all has proved costly for local taxpayers, with more than $35,000 spent by Niles on the mailings, lawyers and related costs, according to records and interviews.

Power of incumbency

So what’s so bad about the mayor appointing someone to an empty trustee position?

Well, to some folks it’s not bad. It keeps the government churning, working, they contend. Too many absences on a village board, with a long period before an election to fill them, indeed could grind the board to a halt temporarily – although that’s an unlikely situation.

But Niles has a history of trustee vacancies popping up and past mayors (including Nick Blase – who went to prison in a federal corruption case) filling them with political allies, which rubs other people wrong.

Makula said leaving such decisions up to voters is more democratic, and it evens the playing field for those running for office.

After all, if someone’s appointed to a political office, he or she then has the power of incumbency in the next election. They have time to get their name out there, create a public record of accomplishments. And that, in theory, provides a leg up on other potential candidates.

Currently, there are no vacancies on the Niles village board, and Przybylo has made no trustee appointments since taking office in 2013.

We talked to Blase briefly about his decades-long tenure in office and he recounted that, as mayor for 47 years, “you appoint a lot of people.”

This column was written and reported by the Better Government Association’s Robert Herguth, who can be reached at rherguth@bettergov.org or (312) 821-9030.