Tom Horne and the head of a supposedly independent campaign whom he subsequently put on the state payroll violated election finance law in Horne's successful 2010 bid for state attorney general, Maricopa County Attorney Bill Montgomery charged Monday.
Montgomery said an investigation by the FBI found that Horne coordinated with Kathleen Winn who was supposedly running an independent expenditure committee designed to promote Horne's election. Such coordination, Montgomery said, violates state election laws.
The charges, Montgomery said, are civil. But he also made it clear that he believes what he says Horne and Winn did merits a sanction more severe than he can bring.
"I believe the current enforcement provisions are inadequate to prevent the kind of conduct we're trying to prohibit,'' he said. "At the end of the day, there really is no sanction in the law for the conduct that would really deter someone from engaging in it again in the future.''
On paper, the law provides a penalty equal to three times the $513,340 that Montgomery said Winn's committee spent illegally on a television commercial.
Horne, however, said he won't be doing that because he did nothing wrong in his successful general election campaign against Democrat Felecia Rotellini. Wynn did not immediately return a call seeking comment.
The first step will be formally serving Horne with what amounts to a civil complaint. That goes to an administrative law judge, with the option of whoever loses seeking court review.
State laws spell out that candidates for office must disclose each and every contribution and expenditure.
Nothing in state law prohibits any group from conducting a separate campaign for or against that candidate. But the law says these must be truly independent, with no coordination between the candidate and those running this committee.
The FBI, acting on a tip, found that was not the case here.
What the federal agency came up with, according to Secretary of State Ken Bennett, were e-mails that "unquestionably demonstrate Attorney General Horne actively seeking funds for the independent expenditure committee.''
Montgomery provided details during a Monday press conference.
"There were contemporaneous e-mails and telephone conversations on how much money was expected from this particular source of funds,'' he said.
There was also information shared about what polling had shown needed to be the message of the independent campaign's television ad. And Montgomery said there were communications "about why some of the messaging needed to be changed.''
Montgomery said all that breaks the law.
"Just having a candidate and the head of an independent expenditure committee talking about the substance of a commercial or a product on behalf of the candidate is clearly prohibited,'' he said. "Going any further beyond that to talk about specifics just compounds the violation itself.''
Horne said investigators "misread'' the e-mails.
For example, he said there is a notation on an e-mail that Winn was sending to her consultant about what she wanted in the ad. And there's also a notation that Winn made that, at the same time, she was on the phone with Horne.
"We checked the records and she was on the phone with me about something else,''
Montgomery declined to say that voters who elected Horne on a 52-48 margin over Rotellini in 2010 were defrauded, saying that term involves specific criminal intent. But he did say that voters did not have information about the activities of Horne and Winn.
"Whether that information would have necessarily caused them to make a different choice in the voter booth, that's something we will never know,'' he said.
Montgomery said there can be benefits to candidates from independent campaigns. They can accept large donations from individual sources; Horne could take no more than $840 from any individual.
Business Leaders for Arizona, the committee Winn headed, got $115,000 shortly before the 2010 election from Richard Newman of Santa Monica, Calif., who has been identified as Horne's brother in law.
But Horne said Winn met his sister at the victory party after the Republican primary and his sister, Christine, said she would do what she could to help. Anyway, Horne said, he gained nothing by having the money put into Winn's committee.
"If I had known my sister was willing to contribute that much I would have asked for that for my campaign because it was legal for a relative to give unlimited amounts to a campaign,'' he said. "I would have rather had it for my own campaign where I can control it.''
Montgomery said his decision to pursue civil charges are not political.
He has specifically disavowed any interest in running for attorney general -- or any other statewide office -- in 2014. That latter category is significant because Horne has given indications he might run for governor as there will be no incumbent in office at that time.
And Montgomery said he would not take the job, even on an interim basis, if Horne were somehow forced out of office.
Montgomery also made it clear that everything in this case strictly involves Horne's activities -- as well as those of Winn -- on a personal level.
He said there is no evidence that Horne, who had been state school superintendent during the 2010 race, had done anything improper in that office.
Similarly, Montgomery said there was no indication of anything improper going on through the Attorney General's Office once Horne was elected. And he said there also was nothing to show that Winn, hired by Horne following his election for a $98,000-a-year state job, was being specifically rewarded for her activities.
Horne has blamed the entire inquiry on Don Dybus, whom he described as a disgruntled former employee of the Attorney General's Office. Dybus has acknowledged asking Bennett's office to look into the issue of illegal coordination between Horne's campaign and the committee being run by Winn.
On the issue of the scope of campaign finance laws -- and, specifically, the available penalties -- Montgomery said he will work with lawmakers to tighten them up. He said there needs to be some real deterrent to future violations, not only of this law but others related to campaign finance.
Last year Montgomery said he would not bring charges against several lawmakers who had apparently accepted trips and other benefits from the Fiesta Bowl and failed to report them. Montgomery concluded at the time that the reporting laws were insufficiently clear to gain a conviction.
But calls to tighten up those laws went nowhere during this year's legislative session.
Montgomery said Monday the latest incident shows the problems with the election laws are not limited to reporting requirements.
"I think it speaks to the need for a complete overhaul,'' he said.
"There are some instances where you need to go in with a scalpel and other instances where you need to go in with a chain saw,'' Montgomery explained. "I think this is one where you need to go in with dynamite.''