PHOENIX — An administrative law judge could rule Thursday on whether
there’s enough evidence to conclude Arizona Attorney General Tom Horne illegally
coordinated campaign spending with an aide running an independent group during
his 2010 campaign.
Yavapai County prosecutors said they showed during a civil hearing in February
that Horne and aide Kathleen Winn broke campaign-finance law by working together
on outside ads targeting Horne’s Democratic opponent in the weeks before the
November 2010 election won by the Republican attorney general. They want Horne
to repay $400,000 to donors and up to three times that amount in civil fines.
Lawyers for Horne and Winn said there is no evidence the pair broke campaign
finance laws. They also argued that an FBI agent who investigated the case
Horne himself testified that he “absolutely never” had illegal communications
with Winn, an aide who was leader the independent campaign backing him during
his 2010 election bid.
“We absolutely never coordinated or violated any of the laws,” he said. “I
absolutely never did coordinate with Kathleen Winn.”
Judge Tammy Eigenheer of the Arizona Office of Administrative Hearings oversaw
three days of testimony in February. Her ruling is due Thursday, although it is
possible it will be delayed.
The decision will likely not be the end of the case, however, because Yavapai
County Attorney Sheila Polk can accept or reject her findings and impose
sanctions herself. Polk determined in October that Horne violated the law and
ordered the repayments and the filing of amended campaign-finance reports.
Horne and Winn could appeal any decision, dragging any final conclusion into
the election season, where Horne faces a challenger in August’s Republican
primary as he seeks a second term. If he wins the primary, he’ll likely face the
same Democrat he narrowly defeated in 2010, Felecia Rotellini, a former
prosecutor and bank regulator.
Horne and Winn are accused of working together on a campaign ad targeting
Rotellini that was paid for by an independent group Winn was running, Business
Leaders for Arizona. Such coordination would be illegal in Arizona.
But lawyers for Horne and Winn argued during the hearing and in court filings
that prosecutors came up woefully short of proving their case. Horne’s lawyer,
Michael Kimerer, wrote that the five examples prosecutors point to as providing
evidence of illegal coordination made no sense, and that they did not show that
there was substantial discussion connected with the ad attacking Rotellini.
Prosecutors needed to show “clear and convincing” evidence of a violation, and
they did not, he said.
One of Winn’s lawyers, Timothy La Sota, wrote that the case presented by the
Yavapai County attorney’s office is nothing but speculation.
“They were not a party to the conversations between Horne and Winn, they don’t
have a witness who was, and the witness they do have tells us that YCAO’s theory
actually doesn’t make sense,” La Sota wrote in a March filing. “They speculate
as to what the parties talked about and call this an ‘inference.’ ”
Prosecutors counter that there is a preponderance of evidence showing that
Horne and Winn spoke about the ad and Horne urged her to raise additional money
for it to be aired in the days before the election. They said in a court filing
that Winn spoke to Tom Horne by phone several times on Oct. 20, 2012, the same
day Winn exchanged emails with her campaign consultant about the content of the
ad. The timing of the calls outweighed testimony from Winn and Horne denying
coordination, they wrote.
They also said Horne sent strategic information to Winn on Oct. 27 and requested
that she attempt to raise $100,000 for Business Leaders for Arizona, which Winn
passed on to the consultant.
“Horne and Winn unambiguously coordinated on that day, and their acts also
corroborate the circumstantial evidence that they coordinated on October 20,
2010,” deputy county attorney Benjamin Kreutzberg wrote.
One of the key witnesses against Horne was FBI agent Brian Grehoski, who
testified that a witness told him by telephone that Horne didn’t consult with
Winn on a real estate deal. The pair said their conversations were in part about
The witness recorded two calls, and they didn’t include those
questions, and defense lawyers say he lied.
“Grehoski’s perjury is simply the latest in a long series of abuses that are
emblematic of someone who is willing to pin a charge on the Defendants here,”
La Sota wrote. “This Court should reject Agent Grehoski’s testimony in every
An FBI spokesman has said the agency’s Phoenix division stands behind Grehoski.