After Jefferson Burton’s flyer campaign ad controversy, his legislative opponent lands in one, too

(Courtesy photo) Picture of a flyer with endorsements for legislative candidate Kari Malkovich. Spanish Fork says the ad improperly used a city logo, and Mike Mendenhall says he did not OK being included as an endorser.

Days after Jefferson Burton — the former Utah National Guard commander who now leads the Utah Department of Health’s COVID-19 efforts — acknowledged breaking military rules with a flyer in his legislative campaign, a mailer sent by his opponent is causing controversy.

Woodland Hills City Council member Kari Malkovich, who is running against Burton in House District 66, was sent a letter from Spanish Fork complaining that she had used its logo in violation of city rules in a campaign mailer.

Also, that flyer claimed she had won the endorsement of City Council member Mike Mendenhall.

Mendenhall says that while he likes Malkovich, he never gave her permission to use his photo or name as an endorser. Some others pictured in that mailer say the same. The flyer pictured four people — with logos of their businesses or positions — over a headline that says, “We support Kari Malkovich.”

“The first time I saw it was when somebody sent me a picture of it saying, ‘Hey, your face is on a flyer.’ I said, ‘Oh well, I wish I had known that,” Mendenhall said. “But purposefully, I was staying out of the fray because it’s not even a race I can vote in. That’s why I told [Malkovich] I would have appreciated seeing that.”

Malkovich downplayed the situation in a text she sent in response to questions from The Salt Lake Tribune.

“We have entered campaign ‘silly season’ when people will try to make mountains out of molehills. Clearly, some people are threatened by having a competent woman with a long history of service in this race,” she said.

“Each endorsement was freely given,” she added.

“Additionally, the use of logos is not prohibited in political campaigns,” she texted. “In fact, the Ninth Circuit Court of Appeals rules in Bosley Medical Center v. Kremer that trademark infringement law is ‘primarily designed to prevent confusion of potential customers, not to prevent political speech.’”

But the letter from Spanish Fork City Attorney Vaughn Pickell, obtained by the newspaper through an open records request, complained that use of the city logo was unauthorized. “As you know, the city cannot endorse a political candidate,” it said adding, “Use of the official logo gives the appearance that the city was involved.”

The letter asks that Malkovich refrain from using city logos “or otherwise giving the impression that the city supports or endorses you as a candidate.”

Two other people pictured in the flyer — Scott Rasband, owner of a Chick-fil-A in Spanish Fork, and Aaron Stern, owner of My Sister’s Closet — said that while they gave Malkovich quotes to use in campaign materials to show their support of her, they had not given her permission to use their photos or logos in the flyer. But they said they did not consider it a big deal.

For example, Stern said, “I didn’t give permission to use me or my company’s names or logos on the flyer, but I do believe the flyer was an honest mistake made by either her and/or one of her staff.”

The controversy comes after Burton last week acknowledged that his legislative campaign ran afoul of Department of Defense rules that ban featured photos of him in full uniform. The mailer in question also omitted a required disclaimer that the image should not be read to imply endorsement of his candidacy by the DOD.

Burton said he didn’t know about the rule, and few pictures of him exist where he is not in uniform.

“It was unintentional and I certainly don’t want to violate DOD protocol because I love DOD,” he told The Tribune. “So thanks for bringing it to my attention and we’ll take care of it.”

Malkovich and Burton are running in the June 30 Republican primary to replace Rep. Mike McKell, R-Spanish Fork, who is seeking a state Senate seat.

The winner of that primary essentially wins the overall race because no Democrat nor minor party candidate filed in the race.

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