PHOENIX — The question of whether Attorney General Tom Horne and an aide will be prosecuted for campaign finance violations is now up to Yavapai County Attorney Sheila Polk.
As required by a May court ruling, Secretary of State Ken Bennett forwarded allegations against Horne and aide Kathleen Winn, the result of an FBI investigation, to the Attorney General’s Office.
But Bennett did not send the files to Horne at the end of last month. Instead they went to Solicitor General Rob Ellman, an attorney in the office, along with a note from Bennett on how he expected the matter to be farmed out to some other agency.
Horne press aide Stephanie Grisham said Wednesday Ellman did just that, deciding on his own — and she said with no input from Horne — to have the issue handled by Polk.
“She’s really known for being a seasoned litigator,’’ Grisham said.
“She’s got a lot of experience in both the criminal and civil arenas,’’ she continued. “And she’s got really high ethical standards and just really you can’t anything she’s ever done that would be seen as anything less than ethical.’’
“I take this responsibility seriously,’’ Polk said in a prepared statement. “And it is my intention to address this matters expeditiously and ensure fair administration of the law.’’
But Polk said court rules prohibit her from addressing the specifics of the complaint.
At issue is $513,340 spent on a last-minute TV commercial in the 2010 race by Business Leaders for Arizona, a group run by Kathleen Winn. She had worked on Horne’s primary campaign, but then set up an independent committee for the general election.
Maricopa County Attorney Bill Montgomery, who got the initial report from the FBI, said that agency turned up evidence of coordination.
If that is the case, it would mean Horne effectively controlled that money, and that would violate laws that limit how much candidates can take from any one source.
It also would make Winn, who works in Horne’s office, guilty of illegal coordination.
Montgomery turned what the FBI found over to Bennett, as required by law.
In general, that same law says if Bennett believes there are violations of campaign finance laws, he has to turn that over to the Attorney General’s Office. But Bennett, arguing that would make no sense in this case, instead turned the case back over to Montgomery.
In May, though, Horne got Maricopa County Superior Court Judge John Rea to throw out the charges — at least as far as anything pursued by Montgomery.
Rea acknowledged Horne has a conflict of interest that would keep him or anyone in his office from investigating the charges. But the judge said the fact of a conflict did not justify Ken Bennett “completely ignoring’’ the law that requires him to refer allegations of election law violations to the Attorney General’s Office.
Bennett, in following the judge’s order, chose to send the complaint directly to Ellman. And just to hammer home the point that he expects Ellman and everyone else to adopt a hands-off approach, Bennett quoted from Rea’s order, which said “even the general acknowledges in his written argument that the matter must be referred from his office.’’
Michael Kimerer, Horne’s attorney, has said new charges against his client are not a sure thing.
He said the evidence against Horne is thin. And Kimerer said while Montgomery concluded there had been illegal coordination, another prosecutor might not.
But Kimerer has a backup plan: He contends the statute limiting how much candidates can accept violated Horne’s First Amendment rights because those limits are too low. If he gets Polk — or, ultimately a judge — to agree, that means the $840 limit on contributions from any one source didn’t apply during the 2010 campaign.
And that would mean it would not legally matter if Horne coordinated the committee run by Winn on how she spent the $513,340 because Horne would be legally to accept the money himself as a campaign donation.
In a curious twist, Horne has an ally on that argument: Montgomery himself testified at the Legislature earlier this year that he believes the current limits are “unconstitutionally low.’’
State lawmakers responded by boosting those limits, in some cases by eightfold, for future elections.
The whole FBI probe of Horne also produced a bit of a political sideshow.
Agents who were tailing him reported he drove into a parking garage where met up with one of his female employees. Then, wearing a baseball cap, he drove off in the car she had been driving to a parking garage just north of downtown Phoenix.
There, the agents said he hit and damaged a vehicle. He eventually pleaded no contest a misdemeanor to leaving the scene of an accident without leaving a note and paid a $300 fine.
But the intrigue did not stop with the mishap.
FBI agent Brian Grehoski asserted Horne did not stop because he was trying to conceal an extramarital affair he was having with the passenger in the vehicle, one of his employees. Horne subsequently called those allegations “completely baseless.’’
“If I thought there was damage, why wouldn’t I have left a note?’’ Horne said in October. “It’s no big deal for me to pay somebody $1,000,’’ which, according to police, was the repair estimate on the other vehicle.