AUGUSTA — An attorney for Eliot Cutler wants the state ethics commission today to publicly identify Thom Rhoads, the husband of former Democratic gubernatorial candidate Rosa Scarcelli, as one of the two men behind the Cutler Files website.

Richard Spencer, representing Cutler, who ran for governor last year as an independent, argues in a letter to the commission that there is no need to continue protecting the identity of Rhoads, who is identified in documents only as John Doe I.

By his own admission, John Doe II is Dennis Bailey, a political consultant who worked for Scarcelli during the Democratic primary and for independent Shawn Moody in the general election.

Rhoads has denied involvement in the website. The ethics commission found that John Doe I did not violate state law.

Last month, the commission voted to find Bailey in violation of state campaign finance laws for not posting the proper disclosure on the Cutler Files site. State law requires websites that advocate for or against a candidate to list the name and address of the person who paid for it.

Bailey was fined $200, and the commission is scheduled to review a formal determination today.

Spencer said he has argued all along that the public has a right to know the names of all of the people who were behind the site.

“It appears they’ve gone halfway there, and from what they’ve identified in their findings, it’s clear it’s Thom Rhoads,” he said. “It seems silly not to disclose to the public who was involved.”

Scarcelli, who has said she was not involved in the site, said Wednesday that neither she nor her husband wanted to talk before the commission made a final ruling.

“It’s important to let that process come to a final conclusion,” she said.

The commission’s executive director, Jonathan Wayne, has said he planned to identify Bailey — who admitted his involvement in a blog posting on Dec. 23 — at today’s meeting, but not John Doe I.

“Although he did most of the research and wrote some material for Dennis Bailey to use in developing the Cutler Files website, John Doe I did not pay the actual costs of posting the material on a publicly accessible site on the Internet, and thus did not make an expenditure to finance a communication within the scope of (state law) and did not violate that statute,” the commission’s formal finding says.

It also says the commission confirmed that before the website was created, John Doe I tried “to sell his research to another gubernatorial campaign and to a political party for their use, for a much higher value than the cost of gathering the research. No one ever agreed to purchase the research material for any price.”

Michael Nelson, the attorney who represents John Doe I, did not return a phone call Wednesday. In a letter to the commission, he urges the commission to continue to keep his client’s name secret because he wasn’t found to have violated state law.

“In light of the commission’s Dec. 20, 2010, order and First Amendment principles protecting anonymous speech, one would think that the matter of John Doe I’s right to anonymity would be closed,” he wrote. “However, the Cutler campaign apparently will not let go.”

Scarcelli’s campaign ended in June, when she finished third in a four-way Democratic primary.

The website went live Aug. 30 and accused Cutler of telling “outright lies on the campaign trail” and of being “a phony and a fraud.” It had several pages devoted to various parts of Cutler’s life, including his childhood, his investments and his time working for the federal government. It was taken down Oct. 29, four days before the general election.

Bailey’s attorney, Dan Billings, who now works for Gov. Paul LePage, argued that the people behind the site had a First Amendment right to anonymous political speech. He said the site didn’t cost much money — the ethics commission found that only $91.38 was spent on the site — and it was a form of citizen journalism.

Also, he said, the state’s disclaimer statute is too broad because “it compels ordinary individuals who are spending a modest amount of their own funds to speak about candidates to disclose themselves in their communications.”

Bailey has reserved the right to appeal the commission’s decision to Superior Court, and wrote in a letter to the commission that he was “perplexed” by the ruling. At the time the website went live, Bailey was an adviser to Moody, who had no involvement with the site, the commission found.

“It appears that the finding against me hinges on the fact that I was, at the time the Cutler Files was launched, advising another candidate, and because John Doe I was not, he was not found to have violated campaign disclosure laws,” Bailey wrote. “This is perplexing to me. The First Amendment is in no way less applicable to a political consultant just because he is a political consultant.” 

MaineToday Media State House Writer Susan Cover can be contacted at 620-7015 or at:

scover@mainetoday.com