Yavapai County Attorney Sheila Polk rejected an administrative law judge’s recommendation that campaign finance complaint against Attorney General Tom Horne be dismissed and will instead move forward with charges that he illegally coordinated with an independent expenditure committee during his 2010 campaign.
“Based on the totality of the evidence presented, including the events of October 20, 2010, and October 27, 2010, YCA concludes it is more probable than not that Mr. Home’s and Ms. Winn’s communications on those dates constituted coordination sufficient to render BLA’s subsequent expenditures non-independent,” Polk wrote.
Administrative Law Judge Tammy Eigenheer in March recommended that the complaint be dismissed against Horne and Kathleen Winn, who ran the IE committee, Business Leaders for Arizona. Eigenheer said Yavapai County prosecutors did not present sufficient evidence that Horne and Winn coordinated.
Horne and Winn will appeal the ruling, said Horne spokeswoman Stephanie Grisham.
“This case was brought to an independent judge who could weigh all the facts, and listen to all the witnesses. She came to the very clear conclusion that no campaign finance laws were broken,” Grisham said in an emailed statement. “This should have been the end of it, but a county politician has foolishly ignored the ruling of an independent judge. She will undoubtedly lose on appeal.”
Polk could have accepted or rejected the nonbinding recommendation, and chose to push ahead with the case. The Yavapai County Attorney’s Office demanded that Horne and Winn repay about $400,000 in what it deemed illegal in-kind contributions to Horne’s campaign. Under state law, if a candidate and IE coordinate, all contributions to the independent committee are considered contributions to the candidate’s campaign.
During a three-day hearing in February, Yavapai County prosecutors said a flurry of phone calls between Horne and Winn showed that the two coordinated on BLA’s ad. The phone calls coincided with several emails between Winn and BLA’s consultant, Brian Murray, regarding the wording of the ad. In several emails, Winn references unnamed other people who provided input on the ad, and prosecutors say those references were to Horne.
Horne and Winn’s attorneys said the phone calls were about a real estate transaction that Winn, a mortgage broker, was assisting Horne with. At the time, Horne was swapping a strip mall he owned in central Phoenix for another property in the West Valley. Defense attorneys said the unnamed other people Winn referenced in her emails to Murray were BLA’s treasurer and Winn’s colleagues at AmeriFirst Financial.
Defense attorneys also accused FBI Agent Brian Grehoski of perjury on the witness stand. They allege that Grehoski fabricated a conversation with a witness who allegedly said he was unaware of Winn playing any role in Horne’s real estate deal.
Polk said she did not find Winn to be credible and accused her of changing her story. While Polk agreed with Eigenheer that Winn’s explanations were plausible, she said it was more plausible that Winn was communicating with Horne about the ad, which attacked Felecia Rotellini, Horne’s Democratic opponent.
The timing of Winn’s calls with Horne and the wording of her emails suggests that she was talking with Horne about the ad, Polk said. She noted that Winn received an email with the voiceover for the ad while she was on the phone with Horne, and responded to Murray minutes after the call ended that “we” didn’t like the wording.
Polk said it’s plausible that Winn was referring to BLA treasurer George Wilkinson, as Winn testified. But it is more probable that Winn played the audio file for Horne before emailing Murray, Polk said.
She reached similar conclusions about comments by Winn as to whom she was referring when she emailed Murray that she must answer to “several masters” and that “strong personalities” were debating the wording of the ad.
“YCA finds it highly unlikely that two unnamed employees of AmeriFirst Financial would be debating the merits of the BLA commercial on company time in such a fashion and with such authority that Ms. Winn would characterize them as ‘two strong personalities debating,’” Polk wrote.
In addition, Polk said an email Horne forwarded to Winn containing campaign advice from a Republican strategist, along with a suggestion from Horne that she use it to raise more money for BLA, undermines their claims. Winn subsequently forwarded the email, which Horne sent after the BLA ad started airing, to Murray.
“The October 27, 2010, email from Mr. Horne to Ms. Winn casts grave doubt on the denials of both Mr. Horne and Ms. Winn that coordination occurred,” Polk wrote.
Winn’s attorney, Timothy La Sota, said Polk has decided that the conclusions of an impartial, neutral judge are irrelevant. Eigenheer’s ruling, he said, was the correct one.
“Sheila’s been called out by the umpire. She’s not leaving the batter’s box,” La Sota said. “Frankly, their case was a house of cards of speculation and conjecture that I thought fell apart completely on scrutiny. And the chief witness, the FBI agent, lied under oath. Now she’s proceeding anyway.”
Yavapai County Attorney Sheila Polk’s order