Capitol Media Services is reporting that soon-to-be former Attorney General Tom Horne has dropped his claim against Maricopa County Bill Montgomery. Horne had hoped to stop one of many investigations into the operations of his campaign for re-election.
According to Capitol Media Services, “Horne filed the paperwork in such a way as to allow him to pursue the issue again, particularly if the investigation he failed to derail ultimately results in charges against him.”
Horne objected to the investigation based on the fact the Bill Montgomery is the Maricopa County Attorney, and Montgomery is a supporter of Horne’s opponent Mark Brnovich.
While Montgomery has been unabashed in his support for Brnovich, a records request of emails to and from Montgomery’s office revealed little campaign related emails to or from Montgomery regarding the Brnovich campaign. No emails were turned over that show any actual campaigning for Brnovich by Montgomery through the County’s email service.
Based on the emails, it appears that Horne’s claim against Montgomery was weak, and as Capitol Media notes, “Last month, Judge Mark Brain refused Horne’s request, based on that same claim of bias, to issue a restraining order blocking further inquiry by the County Attorney’s Office.”
Due to an alledged affair with an employee, Horne came under fire by the press and both political parties. His campaign was a disaster, as it was operated by mostly staffers and a handful of volunteers. As a result, the appearance of impropriety was unavoidable. One Maricopa GOP member noted, “I think Horne underestimated his enemies. He did not have much of a campaign. Remember, toward the end it ended up being run by a bunch of kids.”
The allegations being investigated by Montgomery were made by one another one “of those kids.” Sarah Beattie, a claimed that she was asked to work on the campaign on State time. If true, that would be an illegal use of State resources.
In response to an inquiry from the AZDI about possible conflicts, Montgomery emailed an explanation: “I have had nothing to do with Horne-related matters since the first campaign finance investigation where he improperly coordinated. So, other than trying to stall a potential investigation or possibly frustrate an ongoing one (I don’t know whether there is one or not. My people are really good at following instructions to screen me off like they have in previous matters.), there’s not much here. Plus, keep in mind that there is a difference between an investigation and then a prosecution or enforcement action.”
In an earlier campaign violation case, which is still in the courts, Administrative Law Judge Tammy Eigenheer found that Horne did not improperly coordinate with an IE in his 2010 election. Still, Montgomery has continued to claim that Horne improperly coordinated with the IE. In response to our inquiry as to why he continued to make the claim, Montgomery responded:
In administrative proceedings, the enforcement officer is responsible for the findings and related orders in campaign finance matters. In the first investigation/enforcement action that my Office handled (and the same process will hold for the Yavapai County action), we sent materials to the Secretary of State’s Office that supported a reasonable cause finding that certain violations occurred. When there is an allegation that a violation has occurred, § 16-924.A. Civil penalties; attorney general; county, city or town attorney, provides that:
A. Unless another penalty is specifically prescribed in this title, if the filing officer for campaign finance reports designated pursuant to § 16-916, subsection A has reasonable cause to believe that a person is violating any provision of this title, except for violations of chapter 6, article 2,1 the secretary of state shall notify the attorney general for a violation regarding a statewide office or the legislature, the county officer in charge of elections shall notify the county attorney for that county for a violation regarding a county office or the city or town clerk shall notify the city or town attorney for a violation regarding a city or town office. The attorney general, county attorney or city or town attorney, as appropriate, may serve on the person an order requiring compliance with that provision. The order shall state with reasonable particularity the nature of the violation and shall require compliance within twenty days from the date of issuance of the order. The alleged violator has twenty days from the date of issuance of the order to request a hearing pursuant to title 41, chapter 6.
The Order contains findings of fact. From there, Horne (and Winn) requested an Administrative Hearing as provided for. An Administrative Law Judge sits over a hearing that reviews what is set forth in the Order for Compliance. It is a civil-like proceeding and the burden of proof is a mere preponderance (more likely than not) of the evidence. An administrative law judge employed or contracted by the Office of Administrative Hearings must have graduated from an accredited college of law or have at least two years of administrative or managerial experience in the subject matter or agency section the administrative law judge is assigned to in the office. A.R.S. 41-1092.01.C.3.
The conduct of a hearing is not like a trial court proceeding. In fact, Arizona law permits that:41-1092.07. F. Unless otherwise provided by law, the following apply:
1. A hearing may be conducted in an informal manner and without adherence to the rules of evidence required in judicial proceedings. Neither the manner of conducting the hearing nor the failure to adhere to the rules of evidence required in judicial proceedings is grounds for reversing any administrative decision or order if the evidence supporting the decision or order is substantial, reliable and probative.
After an administrative law judge issues a decision, then the following applies: 41-1092.08.B.: Within thirty days after the date the office sends a copy of the administrative law judge’s decision to the head of the agency, executive director, board or commission, the head of the agency, executive director, board or commission may review the decision and accept, reject or modify it. At that point, 41-1092.08. F. The decision of the agency head is the final administrative decision. . . . A copy of the final decision, with findings of fact, is attached, too. Subsequently, the manner in which the case was handled was challenged and the case was returned to the Secretary of State’s Office and sent to Sheila Polk. Ms. Polk, as the Yavapai County Attorney, made similar findings of fact. Per the administrative hearing process, Mr. Horne (and Ms. Winn) have been found in violation of the relevant campaign finance statutes and penalties ordered. That matter, though, is under appeal to the Maricopa County Superior Court. It would be a misunderstanding of the process to suggest that it is similar to other civil or criminal proceedings where trial court findings are entered and punishment imposed. This is a different process.
It was under Horne that the players in Rio Nuevo matter were given a free pass, and the loss of $260 million was chalked up to poor management.
While Horne is known for his winning work on federal issues, his office has been plagued by its earned reputation for being uninterested in fraud and corruption cases; especially those involving government corruption. Instead his office has seemed focused on small time matters like busting mechanic shops for defrauding customers.