LEWISTON — A longtime Maine political consultant and the husband of a Democratic candidate for governor have been identified as co-editors of the controversial Cutler Files website.
As previously reported by the Portland Press Herald in October, the Sun Journal has confirmed through multiple sources that the site was the work of Dennis Bailey, the owner of Portland-based Savvy Inc., and Thom Rhoads, the husband of former Democratic gubernatorial candidate Rosa Scarcelli of Portland.
The so-called Cutler Files, titled "The Secret File on Eliot Cutler," was a compilation of research, much of it obtained on the Web, on independent gubernatorial candidate Eliot Cutler’s personal, financial, political and professional background, some of which Cutler disputed as incorrect and defamatory.
The site, which was taken off-line in November, and its co-editors have been the subject of a Maine Commission on Governmental Ethics and Elections Practices investigation.
On Monday, the commission voted that one of the two men had violated state election laws by failing to disclose who owned the site. Commissioners voted to fine that man — known only as John Doe No. 2 — $200. The other editor, John Doe No. 1, was not fined.
In a post on his blog, SavvySpin.com, Thursday night, Bailey admitted he was one of the co-authors and largely charged Maine’s media with ignoring the substance of the files.
"It was a short-lived website launched with all the best intentions that sort of backfired," Bailey wrote. "The idea was to set the record straight and tell the truth about a candidate for governor who we believed was fudging his record, misleading the voters and being less than candid about his past – character traits that should have attracted intense scrutiny by the mainstream news media."
The site fell under the jurisdiction of the ethics commission because it participated in express advocacy against Cutler, who lives in Cape Elizabeth. Cutler lost to Republican candidate Paul LePage, while Democratic candidate Libby Mitchell finished a distant third in the gubernatorial race.
Scarcelli lost her bid to be the Democratic nominee for governor in June but, according to a redacted and unsigned affidavit of the two John Does in response to 18 questions asked of them by the ethics commission, political research started as soon as Cutler announced his candidacy in August 2009.
The affidavit was obtained by the Sun Journal through a request to the ethics commission’s executive director, Jonathan Wayne, on Wednesday.
According to the affidavit, the opposition research was done from the John Does’ respective home computers and "was not done with any specific purpose or outcome in mind." The research, according to the editors, "was a project for purely personal reasons. The idea of a website did not emerge until the summer of 2010."
In their response to a question about how the work on the site was done, the John Does explained in their affidavit that one of them "primarily completed the research and the second individual primarily completed the writing and graphics for the website. The second individual also conducted a small amount of additional research and checked the references for some information." Both men, according to their statement, were "involved with the editing of the site content."
In his testimony before the ethics commission, Cutler’s attorney, Richard Spencer of Drummond Woodsum, testified that one of these individuals, "as we understand it, tried to sell the research on which the distortions were based to another campaign for $30,000."
According to Dan Demeritt, communications director for Gov.-elect LePage, the LePage campaign was not approached with this offer. Independent candidate Kevin Scott said no one approached his campaign; multiple calls to spokesmen for the Mitchell campaign were not returned Thursday.
Sometime after the June primary, Bailey began to work for a Cutler competitor, Shawn Moody of Gorham, another independent candidate. Moody said Wednesday he had no knowledge of Bailey’s involvement with the Cutler Files.
There is no indication that anyone from any of the gubernatorial campaigns purchased the files on Cutler.
The John Does’ shared affidavit does not provide the names of those behind the site, with numerous blank spaces where names would ordinarily appear on a sworn affidavit.
As part of its ruling Monday, the commission decided to allow both men to remain anonymous until its next meeting on Jan. 27, when its final findings and the material facts that led to the commissioners’ decision would be put into writing, said Phyllis Gardiner, a lawyer for the commission.
Gardiner said the state wasn’t withholding the names but wouldn’t release them until the material facts of the commission findings were put into writing. Monday’s commission meeting, in which the findings were discussed and voted on, was a public meeting broadcast live online.
Gardiner said the heart of the argument was whether the men could remain anonymous under the First Amendment right to free speech, or whether their political activity on the website could be regulated by the state’s election laws.
Commissioners found they had to disclose who was behind the site but decided on the unusual step of allowing them to remain anonymous pending the adoption of those findings in writing.
"It may seem unusual because the very nature of the claim is one over confidentiality," Gardiner said. "Whether they had to disclose or whether they had the right to remain anonymous."
She also said the names might still be kept secret if the parties are able to obtain a court order before the next commission meeting.
The commission’s decision Monday to shield the men’s identity has been challenged by the Sun Journal, which has filed a Maine Freedom of Access Act request asking Wayne to release documents surrounding the investigation. Gardiner agreed Wednesday that it was a complete, final finding, including the fine for one of the website’s editors.
Sigmund Schutz, a public access expert and attorney for the Maine Press Association with the Portland-based firm of Preti Flaherty, said Wednesday the decision by the commission to withhold the names of those involved begs the question of whether the commission will fight to enforce the state’s public information and campaign disclosure laws.
"It’s a question of whether (the commissioners) are willing to fight that fight for the public or whether they are going to make the public fight that fight themselves," Schutz said. "At some point, they’ve got to decide what their position is. There is no statutory basis to delay compliance with the public records law because you got a request from somebody to not provide the records; that would seriously defeat the objective of the right-to-know law."
Schutz said one of the core goals of the commission is to uphold fair and transparent elections. "But perhaps it isn’t always transparent in its own activities, investigations and enforcement actions, apparently," Schutz said.
Contacted Wednesday, Bailey declined to comment and referred all questions on the Cutler Files to Dan Billings, the Waterville-based attorney who has been representing Bailey and Rhoads.
Multiple messages left for Rhoads at his Portland home were not returned on Wednesday. But in an e-mail statement to the Press Herald in October, Rhoads denied involvement, writing: "I can unequivocally state that I am not the author, owner or creator of The Cutler Files, nor did I post any information on it or any other website."
Billings also declined to name his clients, but said at stake was the constitutional right of citizens to engage in anonymous free speech as protected by the First Amendment.
Billings said his clients voluntarily entered into the commission’s investigation under the impression that their rights as individual citizens, not directly associated with any political campaign, would be upheld. He called the threshold for Maine law on campaign disclosure "absurd."
"We could have run off to court and engaged in a very costly, protracted case," Billings said. "Instead, what my clients decided to do was voluntarily participate — showed documents that back up what they were saying and hoped (the commission) would reach the conclusion this was not a matter of concern for them."
Billings confirmed that only one of the two individuals involved actually had a connection to an active gubernatorial campaign at the time the Cutler Files were published online. "It was only that connection that the commission believed was at issue," he said.
Billings also said that because the amount of money involved in the Cutler Files was so minuscule, about $93, that it didn’t rise to the level of concern intended in campaign finance laws.
According to Billings, the next steps for the editors of the Cutler Files were still uncertain. He said he was uncertain whether they would seek to prevent the commission from revealing their identities, but they may do so in either the state or federal courts.
Billings, who has worked on the case pro bono, said he would likely not be the attorney on the case much longer because he had accepted a new job in the administration of Gov.-elect LePage. The case would have to be passed on to another lawyer, Billings said.
The Sun Journal contacted Bailey and Rhoads again on Thursday to provide each an opportunity to comment on this report, but neither returned a phone call.