The staff of Maine’s ethics commission is recommending that the panel drop a complaint against the Portland Press Herald for not reporting the donation of advertising space used to promote last fall’s effort to have an elected mayor in Portland.

The advice against further investigation into the matter will be taken up Feb. 17 by the Maine Commission on Governmental Ethics and Election Practices. The five-member panel is expected to hear additional testimony before deciding whether to accept the staff advice or seek more information in the case.

“Staff is recommending taking no action based on an application of the statute to the facts,” Jonathan Wayne, executive director of the commission, said Wednesday. “The commissioners will take an independent look at the issue.”

The 44-page staff report is the product of a preliminary investigation and was posted late Tuesday on the commission’s website (http://www.maine.gov/ethics/meetings/2011/20110217.htm).

Wayne said the staff concluded there was no clear evidence that the newspaper donated the ads with the purpose of influencing the election.

MaineToday Media Inc., the newspaper’s publisher, donated the advertising space at the request of the Portland Regional Chamber, which ran a series of full-page ads advocating for a “yes” vote in the Nov. 2 election. The newspaper’s donation — valued at $46,500 — was noted on post-election campaign finance reports filed by the political action committee that led the vote “yes” campaign.

Thomas Valleau, a former member of the Portland Charter Commission, complained to the ethics commission that the newspaper violated campaign finance laws by not registering with the city and disclosing the ads as gifts to the campaign. Valleau argued voters had a right to know the role played by the newspaper in the weeks before a close election.

The elected mayor question passed 12,963 to 11,825. The newspaper had endorsed the elected mayor proposal on the editorial page.

Representatives of the chamber and the newspaper told the commission’s staff that the donation was an extension of their ongoing business relationship, which included regular, smaller donations of advertising space, sometimes in exchange for sponsor status.

The staff report said the newspaper knew the chamber would use the ads to promote the referendum question and that donating six full-page ads leading up to the vote “could be consistent” with an attempt to sway public opinion.

But, in large part because of the newspaper’s ongoing relationship with the chamber and the fact it had no input into creating the ads, there was no clear evidence that it made the donation with the purpose of influencing the election, it says.

“The way the election law is written, the duty to register and file financial reports really hinges on what was the purpose of the Press Herald in providing the advertising space to the Portland Regional Chamber,” Wayne said. “There’s a lack of clarity about the newspaper’s purpose.”

The staff report also says the public ultimately was informed about the donated ads because the gift was noted on a Dec. 14, 2010, finance report filed by “Elect Our Mayor, Yes on 1!.”

The political action committee listed an in-kind contribution from the chamber in the amount of $46,507.74 with the description “advertising in the Portland Press Herald” and a note: “The Portland Press Herald did not charge the Portland Regional Chamber for the ad space.”

And, the staff report says, the newspaper may have reasonably expected the chamber or the PAC to report the donation.

Richard Connor, the editor and publisher of MaineToday Media, said Wednesday he was pleased that the report agreed with the newspaper’s position.

“Hopefully the commission will agree … that it shouldn’t be pursued,” Connor said. “Our purpose was not to support or to be against the (referendum) proposal in those ads, it was to provide them to the chamber as part of our relationship with them.”

Connor said he knew the chamber would use the donated ads to support the change to an elected mayor, “but it just didn’t matter to me. If the chamber had taken a position different from the one it took, if they had been against the ballot proposal, we would have still given them the space.”

Connor said he also maintains the newspaper’s donation was protected by the First Amendment of the U.S. Constitution. The ethics commission staff report, however, said giving away free advertising to one side in an electoral campaign is different from other protected functions of the press.

Valleau said he hopes to persuade commission members to reject the staff’s advice and make clear that public disclosure is required in such cases.

“In reading the report of the staff, they seem to affirm the elements of my complaint and then they conclude let’s dismiss the case anyway,” he said.

“If the Girl Scouts of America had made this mistake, I would cut them some slack. But the newspaper plays a very important and special role around election time,” he said. “I’m not thinking about last November’s election, I’m thinking about next November’s election.”

Staff Writer John Richardson can be contacted at 791-6324 or at:

[email protected]