Kirk's ex-wife files FEC complaint questioning campaign payments
(By Katherine Skiba and Todd Lighty, Chicago Tribune, May 29, 2012)
Soon after Mark Kirk's ex-wife announced she would no longer support his 2010 run for the U.S. Senate, he brought her onto his campaign team, then quietly paid her after his victory.
But Kimberly Vertolli, a lawyer who received $40,000 from the campaign, again is at odds with her ex-husband, filing a complaint with the Federal Election Commission alleging that Kirk and his then-girlfriend may have broken campaign finance law.
The girlfriend, Dodie McCracken, who works in public relations, has acknowledged receiving more than $143,000 in fees and expenses for her campaign work. A former live-in girlfriend, she is no longer romantically involved with Kirk, according to a campaign aide.
Kirk's campaign has characterized Vertolli as an aggrieved ex-wife and labeled "groundless" her complaint filed late last year about payments to McCracken.
At the heart of the matter is Vertolli's assertion that the Kirk campaign may have improperly hidden money to McCracken by paying her through another company working for the campaign. Because the money was not paid directly to McCracken, her name does not appear in Kirk's federal disclosures.
Experts consulted by the Tribune said it's unclear how the FEC will view that arrangement, but they wondered why the campaign didn't simply hire McCracken or her firm directly. One Washington lawyer who handles election law said that generally speaking, "intentionally obscuring the actual payee of a campaign expenditure is a violation."
Vertolli also was not identified by name as receiving money, but she said there was nothing improper about that. Kirk's campaign paid the $40,000 to an obscure corporate entity she created shortly after joining the campaign, and it made the payment after the election was over, when reporters and the opposition would be less likely to check.
Federal law allows a candidate to pay a spouse, relative or friend for campaign work. In fact, Kirk routinely discloses that he pays his mother a salary and said he paid his stepmother for an auto during the Senate campaign.
Vertolli said Kirk brought her on the campaign in August 2010 after she gave a magazine interview critical of McCracken's role in his Senate bid. Vertolli's FEC complaint does not mention the money paid to her — money she says she now believes was given to "get me to be quiet about my misgivings about McCracken."
Eric Elk, Kirk's campaign manager, said the campaign did nothing wrong.
"While Sen. Kirk and Ms. Vertolli divorced amicably three years ago and she actively supported Mr. Kirk's 2010 Senate campaign, Ms. Vertolli has since filed a groundless complaint consisting of bitter personal attacks and is attempting to involve a federal agency in a divorce settled 36 months ago," Elk said in written response to the Tribune. "We are saddened that she decided to file this ill-advised complaint and abuse the FEC process to air personal grievances."
Kirk, 52, a North Shore Republican, served in the House from 2001 to 2010, when he won the Senate seat once held by President Barack Obama. Kirk declined requests for an interview.
The senator has made no public appearances since suffering a stroke Jan. 21. In April, a doctor pronounced him "mentally sharp," and this month, aides released a video of him in rehabilitation and discussing his return to the Senate. He also recently met with Poland's president, who was in Chicago for the NATO summit.
At the Tribune's request, Kirk's campaign provided a copy of his written response to the FEC. Kirk's lawyers told the agency that money to McCracken did not have to be disclosed because she was a subcontractor to The Patterson Group, a Wilmette-based ad firm.
The lawyers said the campaign was required only to disclose money paid to primary contractors, such as The Patterson Group, and that it did so. McCracken's more than $143,000 came out of $1.85 million paid to The Patterson Group, which is owned by Robert E. Vail Jr., a business associate and friend of McCracken's.
McCracken, 54, who was paid to work on Kirk's first House race, later became a top aide to him during his first years in Congress. Elk said McCracken and Kirk "were involved" after his marital separation in 2008, and Elk confirmed that they took a trip together to London, Athens and a Greek isle, Santorini, that November after his fifth House win.
Vertolli said the relationship was to blame for her divorce from Kirk in 2009 after nearly eight years of marriage.
Kirk and McCracken lived together in Illinois and Washington, D.C., from about June 2011 until January, Elk said. He said they remain friends.
McCracken declined Tribune requests for an interview. She released a redacted version of her response to the FEC, along with a statement saying that complaints to the FEC often are filed to "grab a quick headline to exact revenge or advance a personal or political agenda."
"I believe that is the case here and part of a pattern of behavior by Sen. Kirk's estranged ex-wife," she said.
A lawyer for McCracken told the Tribune that she was no longer involved in Kirk's re-election efforts. He is not up for re-election until 2016.
Vertolli, 39, who sat for a series of interviews with the Tribune, is a graduate of the U.S. Naval Academy and Northwestern University School of Law. She had been a Navy lieutenant and intelligence officer and a lawyer for the CIA.
While alleging that the payments to McCracken may have violated FEC rules, Vertolli said the money paid to her did not. Still, she said she believed the campaign wanted her compensation shielded from public view.
Kirk's campaign staff disputed Vertolli's account. Elk said she backed Kirk's Senate run, volunteering on the campaign before moving into a paid position in September 2010.
"Ms. Vertolli stood next to Congressman Kirk when he announced his Senate campaign ... and subsequently, she raised funds, made phone calls and contributed to scheduling and outreach plans as a volunteer and informal adviser," Elk said. "She later asked to make contributions in legal research and was added to various work teams."
Indeed, when Kirk announced his Senate bid in July 2009, Vertolli told reporters: "He'll make a great senator." But as the campaign advanced, he tried to contain Vertolli's public remarks. When she commented on a political blog — defending Kirk on issues related to his marriage and military service — Kirk emailed her. The Jan. 5, 2010, email, which Vertolli gave to the Tribune, said:
"hey, can I ask you to not post on the blogs? You have unique authority and power with our message, wasting it on the blogosphere is beneath you and me — there will be moments for you to comment but I would not add your name to a post — sort of like Jackie O cmmenting (sic) on a blog ..."
That summer, as Kirk's race against Democrat Alexi Giannoulias was heating up, Vertolli told Chicago magazine she could no longer support Kirk because of McCracken's influence. The interview was posted online Aug. 4 by the magazine, which is owned by Tribune Co., as is the Chicago Tribune. Vertolli told the magazine that McCracken was "a very pernicious force on his team who is wielding a disproportionate amount of negative influence on him. … She acts as this kind of Svengali figure in his life."
Vertolli said that Kirk soon asked her to join the campaign and that she agreed after Kirk assured her McCracken would no longer have a role. Vertolli, who said she signed a contract with the campaign, stopped speaking out. She declined to show the Tribune the contract.
Elk said Vertolli "was retained to assist with legal research projects, including reviewing FEC reports, opposition research and monitoring campaign developments for legal issues."
Kirk's campaign reports show Vertolli was paid a $15,000 retainer fee and $25,000 for 83 hours of legal research. Her name does not appear on those reports, however, as the payments were made to Athens & Sparta Counsel LLC, which Vertolli runs from her Alexandria, Va., home.
Virginia records show Vertolli formed the firm in September 2010. Kirk's campaign paid her the $40,000 in mid-January 2011, two months after the election.
"I was doing real work," Vertolli told the Tribune. "But I do think the motivation in actually putting me on contract was to try to, was to get me to be quiet about my misgivings about McCracken and get my energy focused on helping Mark win."
Vertolli complained to the FEC in a sworn affidavit it received Nov. 15 of last year. She told the Tribune she acted after receiving documents sent to her by an unknown person last July from a location in Highland Park.
Vertolli provided the FEC with receipts showing McCracken twice traveled to California, trips that the Tribune found coincided with Kirk campaign visits there. In her complaint, Vertolli said Kirk, his Senate committee and others may have misappropriated campaign funds "by intentionally misrepresenting and deliberately concealing the actual use, purpose and recipients" of the money.
"Mr. Kirk seems to have believed Ms. McCracken provided him with something valuable enough, that he acceded to, directed, or tacitly endorsed ... campaign donations being surreptitiously transferred to his girlfriend," Vertolli wrote.
McCracken, in her FEC response, reported doing a variety of tasks that included preparing strategic and crisis communications plans and providing branding and marketing advice.
"I recruited key members of the campaign's strategic communications team," she wrote. "As a member of the team I helped to build, I participated in their daily strategy call and nearly all key team meetings, working well in excess of a 40-hour workweek, many times seven days a week."
McCracken said The Patterson Group paid her $110,000 for consulting and $33,582 for expenses from August 2009 to August 2010. While the Kirk campaign said it paid The Patterson Group $1.85 million for "advertising," the documents sent to Vertolli and statements by Kirk's campaign show McCracken's role in the campaign went beyond that. Elk acknowledged she had a hand in fundraising, celebrity endorsements, event planning and helping draft responses to attacks on the military record of Kirk, a commander in the Navy Reserve.
"Like any other important member of a campaign team, Ms. McCracken made contributions on many campaign activities," Elk said, adding that her main duties involved message management, media strategy and placing paid ads.
Vail, owner of The Patterson Group, told the FEC that he has worked on all six Kirk campaigns. He said McCracken supervised radio and TV advertising production for the Senate campaign and guided him on media strategies. In a Tribune interview, Vail rejected Vertolli's allegations and said they were unfair to him and McCracken.
FEC spokesman Christian Hilland acknowledged receiving Vertolli's complaint but said confidentiality rules barred him from saying more.
The FEC, which handles civil enforcement of federal campaign finance law, could dismiss the case or find reason to believe a violation occurred. If it finds the latter, the agency could launch an investigation or enter into negotiations to settle the case.
Some experts said the payments to McCracken may be more of an appearance problem than a legal problem for Kirk.
Joseph Birkenstock, a Washington campaign finance lawyer, said the case may hinge not on how much advertising work McCracken did relative to other duties, but on whether there was proof she was "paid via The Patterson Group to avoid having to disclose that she was paid by the campaign."
"Speaking broadly," he said, "intentionally obscuring the actual payee of a campaign expenditure is a violation."
Birkenstock, former chief counsel for the Democratic National Committee, said the requirement that campaign spending be reported is to ensure donors know where their dollars are going.
Brett Kappel, who also practices campaign finance law in Washington and represents Republicans and Democrats, said federal election law is flawed because only a campaign's prime contractors must be disclosed.
"That's a general problem in campaign finance reporting," he said. "It's easy to set up corporations and subcontractors and avoid disclosure of facts the general public might be interested in and impact how they vote."