December 26, 2010

Cutler Files presented right-to-know dilemma

Ethics regulators had wanted to give the website's creators time to appeal a ruling before their identities became public.

By Susan M. Cover scover@mainetoday.com
State House Bureau

AUGUSTA - Despite the online confession of one of the authors Thursday, state ethics officials are still refusing to identify the people behind The Cutler Files.

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Political consultant Dennis Bailey, above, says he is one of two people behind The Cutler Files, a website that criticized independent gubernatorial candidate Eliot Cutler, below.

Press Herald file photos

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The website that launched in August criticized independent gubernatorial candidate Eliot Cutler. Until last week, its authors remained anonymous, despite a ruling Monday that one of the authors was in violation of state ethics rules for failing to identify himself.

State officials say they won't identify the authors until Jan. 27, the state ethics commission's next meeting, even though political consultant Dennis Bailey wrote Thursday that he is one of two people behind the site, and that he is the one found in violation of ethics rules. The delay, the state said, is to allow the authors to decide whether they will appeal the ruling.

"We're preparing a written determination to present to the commission," said Jonathan Wayne, executive director of the Maine Commission on Governmental Ethics and Election Practices, on Friday. "A fuller explanation of the facts will be available at that time."

Wayne declined to comment on Bailey's admission. His name had surfaced early on in the commission's investigation -- he disclosed his affiliation on his blog, savvyspin.com.

In September, Cutler, of Cape Elizabeth, filed a complaint with the state ethics commission because the website did not disclose who paid for it or whether it was authorized by another candidate.

The commission voted 5-0 on Dec. 20 to find one of two authors behind the site violated state law. That author, called John Doe II by the commission, was fined $200. (The other party, who did not violate state law, is John Doe I.)

Ethics officials have been careful not to reveal who is responsible for paying the fine, however, over concerns about protecting his or her First Amendment rights.

Wayne said keeping the identities secret is "unprecedented," but was necessary because of possible constitutional challenges.

"This is the only time we've conducted an investigation this way," he said.

The Portland Press Herald reported in October that Bailey and Thom Rhoads, the husband of former Democratic gubernatorial candidate Rosa Scarcelli, were the authors of the website. The Sun Journal of Lewiston also named Rhoads as a co-author in an article Friday.

The attorney for the Cutler campaign had accused a political consultant and a family member of a political candidate of authoring the site during an ethics hearing last week.

When asked Friday whether Bailey and Rhoads were the consultant and family member, Cutler campaign manager Ted O'Meara said he has no reason to believe their reported involvement is inaccurate.

Rhoads, when contacted by the Press Herald in October, vehemently denied the allegation.

O'Meara said Bailey's admission vindicated Cutler and his campaign team, who felt the website's authors needed to be identified in the spirit and principle of Maine law regulating campaign finance disclosures.

The site, said O'Meara, was nothing more than politically charged character assassination; he and Cutler's attorneys cited allegations that the material contained on the website was peddled to other political campaigns for a price -- reportedly $30,000 -- as evidence of its political nature.

The Cutler campaign caught wind of the authors' attempt to sell the information through other campaigns who were approached, said O'Meara.

Bailey, contacted Friday, said he was not involved with the attempt to sell the information, and declined to name his co-author.

In his detailed blog post, he described The Cutler Files as an attempt to "tell the truth about a candidate for governor who we believed was fudging his record," and blamed the media for not covering the story.

"The authors of the website were vilified, the candidate played the victim and freedom of speech took a major hit from which it may not recover," Bailey wrote, further describing the work as an example of online journalism.

(Continued on page 2)

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