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Lawyer: County Attorney had no authority to investigate AG Horne

A lawyer representing Attorney General Tom Horne’s alleged co-conspirator in his campaign finance case is arguing the case should be dismissed because the Secretary of State’s Office did not have the authority to bypass Horne and send it directly to the Maricopa County Attorney’s Office.

Attorney Timothy La Sota argued in his motion to dismiss that Secretary of State Ken Bennett did not follow state law that requires him to refer alleged campaign finance violations to the Attorney General’s Office. Under state law, La Sota said, Horne would have been required to send the case to an independent outside agency.

Instead, Bennett referred the case to County Attorney Bill Montgomery after Montgomery announced the findings of a joint investigation with the FBI. In effect, La Sota accused Montgomery of playing both police and prosecutor.

“Though it is not our standard practice to quote television shows in legal filings, ‘Law and Order’ gets it right with their well-known introduction about the police investigating crime and the district attorney prosecuting crime,” La Sota wrote in a filing with the Office of Administrative Hearings. “The county attorney’s office offers very thin reasons as to why this system has been abolished or never existed to begin with. But it remains our system for dealing with allegations of campaign finance violations.”

Horne and ally Kathleen Winn face charges that they illegally coordinated during the 2010 election, when Winn headed Business Leaders for Arizona, an independent expenditure committee that supported Horne in his race for attorney general. The investigation began after an investigator in Horne’s office alerted the FBI to possible campaign finance violations. The feds investigated the case with the County Attorney’s Office, which pursued civil charges after it found no evidence of criminal wrongdoing.

If Winn and Horne are successful in their effort to get the case tossed from the Office of Administrative Hearings, La Sota said the Secretary of State’s Office would no doubt send it back to the Attorney General’s Office, which would refer it to an outside agency. That would have the effect of only delaying the case, not ending it.

The Maricopa County Attorney’s Office cited several statutes it said give Bennett the authority to bypass Horne’s office, including a 2012 law that gave the Secretary of State’s Office the authority to hire its own outside counsel. But La Sota argues that the primary statute dealing with campaign finance enforcement required Bennett to send the case to Horne, and that outside counsel law passed last year doesn’t apply to law enforcement situations.

Horne had an obvious conflict of interest in the case. But La Sota said Bennett and Montgomery can’t make that decision for him.

“They don’t get to decide someone else has a conflict, so they’re going to just decide who to send it to. That’s not their choice,” La Sota said. “If someone did have a conflict but refused to send the matter out, I think you could file a special action against that person. It’s a matter of procedure. But you’ve got to follow the right procedure when you’re enforcing the law.”

In her response to La Sota’s motion to dismiss, Deputy County Attorney Colleen Connor said Horne acknowledged his conflict of interest in April 2012, when he appointed outside counsel to advise the Secretary of State’s Office on public records requests involving Horne’s 2010 campaign and Business Leaders for Arizona.

“Given the attorney general’s disqualification from providing legal services on all matters related to his 2010 campaign for attorney general and related to any other political committee that assisted Mr. Horne’s campaign, the secretary of state was authorized to seek attorneys to provide representation in this case,” Connor wrote in response to La Sota. “Moreover, under the circumstances presented in this case, the secretary of state was authorized to divest the attorney general of his role in the enforcement process and retain other counsel.

“Certainly the statutes were not enacted with the idea that the state’s top prosecutor would be the one to have allegedly violated the law.”

La Sota said the outside counsel was only for the public records issue.

Jerry Cobb, a spokesman for the Maricopa County Attorney’s Office, wouldn’t comment on the specifics of La Sota’s motion, saying only that Bennett had the legal authority to refer the case to Montgomery.

“It is our position that the relevant statutes permit the SOS to hire independent counsel in place of the AG in matters that present an obvious conflict with the AGO,” Cobb said in an email to the Arizona Capitol Times.

Cobb also noted that state statute says “any qualified elector” can initiate a campaign finance complaint with either the attorney general or the county attorney for the county in which the alleged violation occurred. Connor wrote in her response that the law authorizes the secretary of state and Maricopa County Attorney’s Office to initiate enforcement on their own.

Horne spokeswoman Amy Rezzonico said the Attorney General’s Office does not share the concerns voiced by Drake in his affidavit about Gila County’s capacity to handle campaign finance case. She said other attorneys general in the past have referred such cases to Gila County as well.

Connor also pointed out that the Legislature passed the 2012 law allowing Bennett to seek outside counsel. In a related filing, Assistant Secretary of State Jim Drake wrote that Bennett sought the outside counsel law, in part, because he was aware of the FBI investigation and was concerned that he would have to refer the case to Horne himself.

“This specific provision was the impetus for us to go to great lengths in the final days of session in order to ensure that our office would be able to independently obtain counsel rather than rely on the Attorney General’s Office,” Drake wrote.

Drake also wrote that the Secretary of State’s Office was concerned that Horne was referring independent expenditure enforcement cases to the Gila County Attorney’s Office, and that the office did not have the resources to adequately prosecute those cases. Drake wrote that the office wanted more control over which counties would oversee enforcement actions in the future.

However, in his testimony before the Senate Judiciary Committee, Bennett said he had no issues with the representation of the Attorney General’s Office, and said issues had arisen when Horne’s predecessor, Terry Goddard, was the Democratic nominee in the 2010 governor’s race against Republican Jan Brewer.

La Sota said the outside counsel law is irrelevant, because the Attorney General’s Office does not represent the Secretary of State’s Office in enforcement matters any more than the County Attorney’s Office represents the Phoenix Police Department when it prosecutes cases. In matters where the attorney general represents the secretary of state, the secretary of state is his client and he must follow his client’s directions. But in prosecutorial situations, La Sota said, it’s the attorney general who makes the decisions.

“If that’s what they wanted, they should’ve said it in the actual bill,” La Sota said. “I don’t think the text of it supports that.

Michael Kimerer, Horne’s attorney, joined Winn’s motion to dismiss. He also filed his own motion, arguing that the case should be dismissed because the allegations that Horne and Winn coordinated in fundraising for Business Leaders for Arizona would not constitute illegal coordination.

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