Tom Horne

Jae C. Hong

PHOENIX — Attorney General Tom Horne did not violate campaign finance laws in his successful 2010 election, a state administrative law judge ruled Monday.

In a 30-page ruling, Tammy Eigenheer acknowledged there were phone calls and emails between Horne and supporter Kathleen Winn prior to the general election. At that time Winn was operating Business Leaders for Arizona, billed as an independent campaign committee.

Eigenheer also said state laws preclude a candidate from coordinating with an independent committee on how it spends its money.

Eigenheer said the Yavapai County Attorney’s Office, which investigated the allegation, had not proved that what either Horne or Winn did broke campaign finance laws.

The judge pointed out that there were reasons other than the election for Horne and Winn to have communicated with each other, including that Winn, who now works at the Attorney General’s Office, was helping Horne with a commercial real estate purchase.

Eigenheer said evidence of improper conduct in a key phone call between the pair was largely circumstantial.

“While there are inferences that can be made, there are also reasonable explanations that the communications related to Mr. Horne’s real estate transaction that was pending at the same time,” Eigenheer wrote.

The judge also rejected claims by the Yavapai County Attorney’s Office that Horne, in an email to Winn just weeks before the vote, was telling her how her campaign committee should spend its money. That email included polling information showing Horne was losing ground to Felecia Rotellini, his Democratic foe.

Eigenheer concluded there was no evidence anything Horne wrote to Winn had a “material effect” on how Winn actually spent more than $500,000 on a last-minute commercial attacking Rotellini.

“No new ads were produced and it does not appear that the distribution markets changed based on the email,” the judge wrote.

Monday’s ruling is not the last word.

Eigenheer’s findings are only a recommendation to Yavapai County Attorney Sheila Polk, who brought civil charges against Horne and Winn after reviewing evidence, which included information gathered by the FBI during surveillance of Horne prior to the 2010 election.

Polk can accept what Eigeneer concluded, reject it or modify it.

“The judge’s decision is lengthy and detailed,” Polk said in a prepared statement. “I will carefully review it and make my decision within 30 days.”

If she rejects Eigenheer’s conclusion, the case would go to Maricopa County Superior Court.

Horne called Eigenheer’s findings “a vindication.”

“It supports what I’ve been saying all along that there was no coordination,” he said. Horne said that’s why he would not settle the case — because it would have required him to admit he broke the law.

But Horne’s problems may not be over even if Polk does not pursue the case.

That FBI surveillance turned up other issues likely to come up in his GOP primary against Mark

Brnovich and, if he survives that, a rematch in November against Rotellini.

That includes a minor hit-and-run accident and allegations in an FBI report that Horne did not leave a note because he was trying to conceal an affair.

Monday’s finding relates to a last-minute $513,340 television commercial attacking Rotellini, paid for by Business Leaders for Arizona, in 2010.

There are no limits on how much independent committees can take from any one source. By contrast, Horne was limited to taking no more than $840 from any one source.

If there was coordination between Winn’s group and Horne, that made contributions to her group subject to the $840 limit. Any larger contributions would be illegal. The same is true for corporate donations that Winn could accept but Horne could not.

Polk ordered Horne and Winn to refund all donations above the limits, totaling about $400,000. They refused, leading to three days of hearings in February before Eigenheer.

Eigenheer said the Yavapai County Attorney’s Office interpretation of communications between Winn and Horne about concerns and possible changes in the ad were “plausible.”

But she noted Winn’s explanation was equally plausible, that the “we” in those exchanges referred to others in her independent group.

The events evolved from an email to Horne from Republican political consultant Ryan Ducharme suggesting ways to counter allegations against Horne in an ad produced by an independent group supporting Rotellini.

Horne forwarded the email to Winn, which Polk said showed Horne was trying to get Winn to use it to get an additional $100,000 from the Republican State Leadership Committee.

But Eigenheer said Winn had already gotten the extra funds elsewhere, and that there was no evidence the email changed how Winn was spending the money.