Concluding some testimony to a hearing officer was “not credible,” Yavapai County Attorney Sheila Polk decided Wednesday to pursue Attorney General Tom Horne on charges he illegally coordinated his 2010 election campaign with an independent committee.
In a 9-page order, Polk rejecting the conclusion by Tammy Eigenheer, the administrative law judge, that Oct. 20 phone calls between Horne and Kathleen Winn were solely to discuss a real estate deal she was helping the attorney general complete. Winn was operating Business Leaders for Arizona which was registered as an independent campaign committee to help Horne get elected but could not legally coordinate its expenses with the candidate.
Polk said the timing of those calls, coupled with nearly simultaneous emails by Winn to campaign consultant Brian Murray, provides enough evidence that the pair discussed the upcoming election and TV ads that Winn's organization was producing.
Polk said the evidence also shows that Horne, in forwarding some strategic information about weaknesses in his campaign to Winn, directed her to not just raise $100,000 but also how to spend the money to combat those shortcomings.
What all that means is Polk is reaffirmed her October decision that both Horne and Winn broke the law and that the illegal coordination made Horne the beneficiary of more than $400,000 in illegal campaign donations. Her order requires him to refund the money, with a possible penalty of three times that amount.
Horne said he will seek Superior Court review of the conclusion reached by someone he dismissed as a “county politician.”
“This case was brought to an independent judge who could weigh all the facts and listen to all the witnesses,” Horne said in a prepared statement.
“She (Eigenheer) came to the very clear conclusion that no campaign finance laws were broken,” he continued. “This should have been the end of it, but a county politician has foolishly ignored the ruling of an independent judge.”
But Polk, in her order, said she expects her findings to be upheld.
Eigenheer said prosecutors from Polk's office, which investigated the allegation, had not proved either Horne or Winn broke campaign finance laws. Eigenheer said there were reasons other than the campaign for the pair to have communicated with each other, including that Winn, who now works for Horne, was helping him with a commercial real estate purchase.
“While there are inferences that can be made, there are also reasonable explanations that the communications related to Mr. Horne's real estate transaction that was pending at the same time,” Eigenheer wrote.
Polk, in her order, rejects that possibility.
She said even if the pair did discuss real estate, they also could have discussed the campaign, and Polk specifically said she did not believe testimony from Winn.
“Ms. Winn repeatedly changed her story throughout the progress of this case,” Polk wrote. “Her pattern of contradicting sworn affidavits to conform to newly revealed facts calls into question her credibility.”
Tim LaSota, Winn's attorney, called that assertion "disgusting.''
“They tried to distort what my client said in front of the (administrative law) judge and the judge didn't buy it one bit,” he said. And LaSota said Winn's testimony was “consistent” with that of Murray.
LaSota also pointed out that Eigenheer did find that someone did not tell the truth: FBI agent Brian Grehoski who the judge said testified about a conversation that never took place.
At issue is $513,340 spent by Business Leaders for Arizona on a last-minute television commercial attacking Felecia Rotellini, Horne's 2010 Democrat foe.
There are no caps on how much independent committees can take from any one source. By contrast, Horne was limited to taking no more than $840 from any one source.
If there was coordination between Winn's group and Horne, that made contributions to her group essentially contributions to Horne himself, subject to that $840 limit. It also would mean that corporate contributions to Winn's group, which are legal, would become illegal corporate donations to a candidate.
Polk's order requires Horne to refund all donations above the limits, totaling about $400,000, plus the possible penalty.
The legal options for Horne and Winn are not limited to challenging Polk's findings in court.
Attorneys for the pair also claim that the $840 limit on what Horne could take is unconstitutionally low. And if a court accepts that argument, it becomes legally irrelevant if he took amounts above that.