AUGUSTA — The creator of the Cutler Files website, Dennis Bailey, a campaign operative and paid political consultant, provided false and/or misleading information on parts of the site, according to the Maine Commission on Governmental Ethics.

The commission’s draft finding is based on its staff investigation into the anti-Eliot Cutler website, launched during the 2010 gubernatorial campaign season. The finding states Bailey was aware his co-author had been researching Cutler’s background online as early as 2009.

“Neither of them had specific plans at that time as to how the research would be used, but it appears likely that JD1 thought it could be used somehow in the November 2, 2010 general election,” the finding states.

The finding also states that it confirmed Thomas Rhoads — who is only identified in the document as JD1 — did attempt to sell the research material to an opposing campaign. The finding does not disclose which campaign he attempted to sell the material to. Rhoads is married to Rosa Scarcelli, the one-time Democratic candidate for governor. Scarcelli came in third in a four-way race and was out of the running in June.

So far, the commission has failed to identify Rhoads, although his co-authorship with Bailey on the site has been independently confirmed by both the Portland Press Herald and the Sun Journal via multiple confidential sources.

The finding states that research work on the site began while Bailey was still working for Scarcelli, although she has denied involvement, and that failing to disclose who authorized and paid for the message on the site is a violation of state campaign laws.

“Throughout its history, the Cutler Files website did not contain a statement of who made the expenditure for the website, which is a requirement of the disclaimer statute,” the finding states.

The finding, which will get a final vote by the commission on Thursday, Jan. 27, also states the authors did not include for a short time a disclaimer that the site wasn’t paid for or authorized by any candidate.

According to the finding, the site also falsely stated it was the work of “a group of researchers, writers and journalists who are frustrated that Maine’s mainstream media is either unwilling or incapable of adequately investigating the backgrounds of the candidates for higher office. We are not authorized by or affiliated with any candidate or political party and we have not been compensated in any way.”

Bailey was, in fact, affiliated with two campaigns during the summer and fall of 2010 and was paid for his work by both Scarcelli’s campaign and the campaign of independent candidate Shawn Moody.

Scarcelli finished third in a four-way Democratic primary in June of 2010 and she was not a candidate in the November 2010 general election.

Rhoads, referred to again as JD1 in the finding, was a “private citizen unaffiliated with any candidate in the general election,” the finding states.

According the commission finding, the statement that the authors were journalists was also false.

“In fact, although Mr. Bailey is a former newspaper reporter, neither JD1 nor Mr. Bailey worked in those professions during the fall of 2010.”

In a letter to the commission staff, provided to the Sun Journal by Bailey, he refutes this finding.

“This is a badly out-of-date definition for what constitutes journalism in today’s world of websites, blogs and social media,” Bailey wrote. “You seem to be suggesting that only traditional media are exempt from campaign expenditure laws. As you know, political blogs and websites are ubiquitous today, and many of them are breaking news and uncovering stories that the traditional media have ignored.”

But the investigators also found the site was also not exempt from state campaign laws because it could not be considered a periodical publication.

“The content of the Cutler Files website was entirely dedicated to the single topic of gubernatorial candidate Eliot Cutler. The website existed for a specific and limited time only,” the finding states. “It first appeared just prior to the gubernatorial election and was taken down shortly before the election.”

The staff finding issues seven findings including:

A. The Cutler Files website is not a “news story, commentary [or] editorial.

B. By making expenditures, Bailey’s company, Savvy Inc., financed a communication that expressly advocated against the election of Cutler, and by not including within the website a “clear and conspicuous” statement of the person who paid for the site, the site was in violation of state campaign laws.

C. By not making the statement that the site was “not paid for or authorized by any candidate” for the period Aug. 30 to Sept. 9, Bailey also violated state campaign laws.

D. By failing to clearly disclose who did pay for the site, Bailey also violated campaign laws.

E. JD1 did most of the research and wrote some of the material for Bailey to use in developing the website, but JD1 did not pay the actual costs of posting the material and thus did not make an expenditure to finance a communication under the state campaign laws, so he did not violate the law.

F. Because the total spent on the site was less than $100, no independent expenditure report was required under state campaign finance laws.

G. Statements on the website describing the authors were misleading to the public, “given that Dennis Bailey was affiliated with a candidate during the entire period this website was publicly available, but there was no misrepresentation of the name or address of the person who made or financed the communication.”

Conclusions A-F were unanimously endorsed by the commission during a vote in December. Conclusion G was endorsed 3-2 by the five-member commission.

The finding recommends Bailey be fined $200 for his involvement.

In his response Bailey also laments the implications of the findings on First Amendment rights to free speech.

“It seems likely that disallowing the protections afforded by the First Amendment categorically to a person’s profession would not be upheld in the courts absent some evidence of otherwise unlawful behavior,” Bailey writes.

Bailey also states he is reserving his right to appeal the decision to a law court judge. The commission draft finding notes any party aggrieved by any final determination can seek a judicial review in Superior Court.

A message left for Rhoads at his home in Portland was not immediately returned Monday.

sthistle@sunjournal.com

Cutler Files Draft Filing BaileyCommissionLetter