At last week’s multi-candidate debate in Colchester, secessionist contender Dennis Steele, challenging Brian Dubie to try to bring Vermont’s National Guard troops home from Afghanistan, said, “we can bring home the Vermont National Guard if we want to,”

No, we cannot. As Louisiana’s Earl Long once told his segregationist opponent Leander Perez, “Da Feds got da A-bomb.” More formally, dey got da Supreme Law of da Land Clause, which leaves no doubt that when federal law conflicts with “any Thing in the Constitution or Laws of any State to the Contrary, ” federal law prevails.

You wouldn’t know this from reading the papers or watching the news accounts about the debate. Reporters such as Terri Hallenbeck in this account in the Burlington Free Press simply quoted the candidates.

Don’t take this as criticism of Hallenbeck (a good reporter) or the other journalists. First of all, the Constitutional explanation might have taken more minutes or column inches than they could afford (and certainly more than Steele’s candidacy is worth). More pertinently, though, the reporters were following the current journalistic ethic: We just write down what people say. Not only do we express no opinion, we possess no knowledge, or at least none we will convey.

Thus, if candidate Smith says the world is flat and candidate Jones differs, today’s mainstream reporter will quote Jones’s dissent, but leave it to the reader to decide which candidate is right.

Not a service to the reader. Reporters should not express opinion, or even allow it to influence what they report and how they report it (not as difficult a task as ideologues think, the typical mainstream journalist being indifferent to ideology, and sometimes even to policy). But readers depend on news outlets to inform them about reality, not simply to recite conflicting assertions. The assertions that the world is flat or that Vermont could order its National Guard troops home are false, and should be so described in news accounts.

Even when an assertion is not provably false, it is often quite unlikely. The reader/viewer/listener is entitled to know how unlikely, and why. Democrat Peter Shumlin did get a bit of pushback from the press over his insistence that he could bring a single-payer health care system to Vermont even though federal law now forbids it. But that was mostly after Republican Brian Dubie had challenged Shumlin over the issue.

Then there’s Dubie’s claim that an IBM official told him the company might move its Essex semiconductor production facility out of the state if the Vermont Yankee nuclear plant is not relicensed.

Dubie’s statement was widely reported, as were those from IBM public relations officials to the effect that the company was making no threats to go anywhere and had no plans to do so.

Well, what else are public relations officials to say? Even though Dubie refuses to name his source, it’s not unlikely that an IBM official did tell him that the possibility of leaving Vermont had been discussed. That plant uses a whole lot of electricity. If utility rates are going up, IBM has to consider every option. (Meaning that in his ‘Pinocchio’ ad, Shumlin was unjustified in using Dubie’s statement as evidence of dishonesty).

But a little reality, if you will. With or without Vermont Yankee, the price of power will rise. More without VY than with it? Could be, but probably not by much. Note the restraint over the issue shown earlier this year by the actual electric utilities (Central Vermont Public Service, Green Mountain Power, etc.), the guys who buy power from the producers and sell it to us. Not that they were against extending Yankee’s license another 20 years. But in the meanwhile, they had assured themselves of an adequate – and affordable – supply of power. Vermont’s economic prosperity may benefit from, but it does not appear to depend on, Vermont Yankee. The same can be said for the IBM plant.

Besides, where would it go? Assuming that it chose Vermont to begin with because of proximity to materials and markets and (probably most of all) a reliable, skilled work force, it can’t go anywhere else nearby with lower electricity rates. The closest state where power is cheaper is Pennsylvania. And the savings would have to be huge to offset the cost of abandoning the plant in Essex and building a new one elsewhere. All this information could have been part of the coverage.

There’s one other category of analysis that should be part of news stories about the campaign, but rarely is. It occurs when candidates make claims or put forth arguments that are neither factually incorrect nor even highly unlikely. They’re just pointless.

Dubie regularly quotes one or another businessperson who has told him that if only taxes were lower, the business would spend more money and hire more workers. It’s right in Dubie’s official campaign statement, where a typical quote is from “a small cheese maker in Bennington (who said) ‘If my taxes were lower, I could hire more employees… buy more Vermont milk from Vermont farmers, and I could make more cheese… But with taxes so high, I can’t afford to invest in my business and grow more jobs.’”

Dubie doesn’t identify this person either. But on the campaign trail, he often names the businesspeople who’ve made a similar argument, so there’s no reason to doubt that he’s telling the truth.

So are the businesspeople. If any of their costs were cut –  utilities, wages, insurance, and certainly taxes – they would have more money to spend. Then they might be able to expand, maybe even hire more workers. It’s true. It’s reasonable. It’s totally meaningless.

Because the same applies to everyone. If your taxes were lower, you’d have more money to spend, too. The problem is that taxes can’t be lower just for you any more than they can be lowered just for that cheese-maker. Your neighbors would get the same reduction, as would all the other cheese-makers. But then the state government wouldn’t have enough money, which would be very bad for the state’s economy – you, your neighbors, and all the cheese-makers.

Just take the example to its logical conclusion: eliminate taxes entirely. Then everybody would have more money to spend. But soon there would be no roads to carry the cheese to market. For all sorts of reasons – including maintaining a strong economy – a certain level of public services is required. So, by definition, is a certain level of taxation.

A case can be made that those levels are too high, and that the state would benefit from less spending and lower taxes. But quoting someone saying, “if my taxes were lower, I’d have more money to spend,” does not contribute to that case. It’s both a tautology and a nullity, which should be part of the campaign news coverage.

There’s at least one more area where reporters – including this one – have fallen down on the job in not refuting (or at least questioning) another campaign constant, this one regularly recited by both leading candidates, and indeed by almost everyone else who comments on what’s going on in Vermont. It has almost become part of the culture. It may be wrong.

Tune in Friday.

Four times in the last 17 years, Peter Shumlin’s fellow Democrats in the Senate have elected him as their leader.

Common sense indicates that they must have thought highly of him. They must have found him capable and energetic. It also follows that most of them trusted him. The party leader is the guy who negotiates with other members of his caucus, as well as with the opposition and the administration. No senator would choose a leader he or she found deceitful.

So why does Brian Dubie keep saying that a survey rated Shumlin the “most ethically challenged” member of the legislature, an allegation now included in a pro-Dubie television commercial?

Because it’s true.

Which is not to say that it’s true that Shumlin is more “ethically challenged” than other lawmakers. It’s just true there was such a survey, and that Shumlin got more votes than any of his colleagues to the “most ethically challenged” question.

Twelve votes to be exact. Twelve of the 30 cast, of the 400 questionnaires that Seven Days sent out to legislators, legislative staff, and journalists. On Vermont Public Radio the other day, broadcaster Mitch Wertlieb called the Shumlin designation “a dubious distinction from a small sampling.” Wertlieb was being much too kind. A better description would have been “total garbage.”

This was not a general public sample, sent to 400 randomly selected voters. The distribution was targeted to 400 insiders, by name. The small minority who bothered to answer the questions knew how to manipulate the results. Even with more participation, the conclusions would have been…well, inconclusive. With 28 real responses (two were apparently thrown out for being absurd), the conclusions are meaningless.

From which it does not follow that Dubie and his supporters should be condemned for using the information, or that Seven Days, by and large a positive voice in Vermont’s public discussion, should be condemned for shoddy journalism. In some paradise to come, a political strategist might look at such a survey, conclude that its results are statistically and intellectually indefensible, and ignore it. We do not live in that paradise. No politician of any party – Republican, Democratic, Progressive, Prohibitionist, Free Soil, or Whig – would look at this information as anything but a fat pitch right across the middle of the plate. You don’t let those go by.

As to the editors at Seven Days, they did not commit bad journalism here because these surveys are not journalism at all. They are promotion.

And what, prithee, is wrong with that?

Nothing. All news outlets, including this one, try to promote themselves. (If you don’t notice it about this one, it’s because the proprietor is no good at it, not that he finds it beneath his dignity). Lots of news organizations, especially alternative weeklies such as Seven Days, use contests and surveys as promotion devices. They’re kind of fun. On occasion, they even produce some useful information. This was not one of those occasions.

(Perhaps because we all knew it was promotion, not journalism, all 17 reporters who got the questionnaire ,including this one, did not fill it out and return it.)

In that same paradise mentioned above, editors might look at their meager results and decide not to publish them, or at least not the ones that can be distorted by political operatives. But it’s unreasonable to expect that the folks at Seven Days would have done that. It was their project, and they were probably gung ho about it.

Besides, almost all of them are likely to vote for Shumlin. They might have reasonably feared that holding back the results of that question could have exposed them to the allegation of political bias. All the folks who did fill out the questionnaire, including 18 legislators, knew the question was on the list. Among the 18 were probably several Republicans who’d named Shumlin the “most ethically challenged. So of course, the paper just published it all.

If Seven Days is to be criticized it is less for running the story than for its effort to explain away what it acknowledged was a meager response.  The 7.5 percent of respondents who replied made the rate “ better than direct mail…and not too much worse than the turnout for a Burlington election, which was 23 percent on Town Meeting Day,” the paper wrote.

But the direct mail comparison is not apt (see above for difference between random sample survey and targeted mailing), and according to arithmetic, 23 percent is more than thrice 7.5 percent, which is, indeed, “too much worse.”

None of which deals with the essential question: Is Shumlin “ethically challenged”?

Of course he is. So are we all, almost every day. “Ethically challenged” isn’t even the right term. It’s pop-psych jargon. The English translation would be “unethical.” The real question then becomes whether Shumlin is unethical, or, more precisely, whether he is more unethical (or unethical more often) than the average person, other members of the Legislature, other politicians in general, Brian Dubie in particular.

And the answer of course is that no one has the slightest idea. The Seven Days survey, even had enough respondents answered to make the results statistically respectable, does not constitute evidence.

What would constitute evidence would be something like a credible account that Shumlin had broken his word to another lawmaker, or promised the same committee chairmanship to more than one senator, or voted for legislation he really found abhorrent to please a big contributor. Were there such credible accounts, the Dubie campaign, thus far showing no sign of subtlety or restraint, would be shouting the news to the mountaintops. The lack of such shouting indicates that the evidence is not there.

Come to think of it, though, it would be surprising if there were no grumblings about Shumlin’s ethics, even if the grumbling has remained private. Shumlin has been the Senate leader, which in a way puts him at a disadvantage vis a vis Dubie, whose only real leadership position in public office was as chairman of the Essex Junction School Board years ago. A lieutenant governor is not a leader; he doesn’t have to displease anybody.

Leaders do. They have to make decisions their followers don’t like, and some of those followers then conclude that the leader has acted unethically. The athlete taken off the starting squad, the actor who doesn’t get the part, the applicant who doesn’t get the job is tempted to accuse the coach, the director, the boss of favoritism or some other unethical behavior.

Legislative leaders are constantly negotiating, with their own members, the opposition, the administration. Often, these negotiations conclude with compromise agreements. On both the political left and right – but more these days on the left – some true believers consider compromise unethical. It wouldn’t be surprising if a few of those 12 votes were from Democratic lawmakers who are to Shumlin’s left, and who resent the compromises he made with Gov.  Jim Douglas’s administration earlier this year.

In addition, negotiators sometimes hear what they want to hear rather than what has been said. When the leader says, “I’ll try to get your pet bill to the floor,” the member might hear, “I promise I’ll get your pet bill to the floor.” When it doesn’t get to the floor, the member thinks the leader lied.

Of course, it’s entirely possible that now and then Shumlin did promise to get a bill to the floor, and then not do it, either because he couldn’t or because he didn’t care. But “entirely possible” is not evidence, either, and with no evidence, there is only one word to describe accusing any individual of being unethical, That word is: unethical.

First, let’s briefly wrap up the confusion of Monday, when those who checked in early saw last Friday’s post, the system having disobeyed orders to put up the new one. Its (the system’s) insubordination was countermanded shortly before 9AM. Those who missed that post need only scroll down past this one.

Then let’s start today’s exercise calmly. The two (apparent) violations of state law about to be detailed do not portend the approach of a police state in Vermont. Jack-booted thugs are not combing the Green Mountains, nor are undercover agents listening to our innermost thoughts through transmitters placed in our tooth fillings.

Furthermore, the two incidents are in many ways not comparable. In one, nobody got hurt. In the other, somebody did.

Yet neither are they entirely unrelated. The thread that runs through them jeopardizes a free society.

Let’s first deal with the lesser offense. Earlier this year, the Legislature ordered the Education Department to prepare detailed budget-cutting recommendations to each of the state’s 283 school districts, and to have them finished by August 1.

That was Sunday. On Monday, a reporter for the Vermont Press Bureau (Rutland Herald and Barre/Montpelier Times-Argus) asked to see the report detailing the recommendations. Education Commissioner Armando Vilaseca refused.

In refusing, he almost surely violated 1 V.S.A. § 318, which states, “upon request the custodian of a public record shall promptly produce the record for inspection.”

Unless one of the 39 exceptions in 1 V.S.A. § 317 applies, and then “the custodian” (Vilaseca in this case) must stipulate which exception he is citing in his refusal.

He did not.

Vilaseca did not dispute that the report was a “public record.” In an interview Tuesday, after the Rutland and Montpelier papers had run the story, he argued that the report “hadn’t been finalized” and was “still in working form.” Furthermore, he said,  the law only “requires me to release (the report) promptly,” a standard he said he would meet by releasing it Wednesday at a press conference.

But according to the Legislative mandate, the report was finished, and the dictionary defines “prompt” as “without delay.” A two-day wait is a rather good example of a delay.

From an administrative and policy perspective, what Vilaseca did made good sense. He wanted to send the report out to the schools to make sure there were no errors in it, as there were, he acknowledged, in a report on standardized test scores his department sent out last year which mistakenly described two schools as among the lowest-scoring in the state.

In other words, he didn’t want to embarrass himself or his Department.

Under those circumstances, what’s wrong with keeping the information secret for another two days?

Only that it was against the law, which in this case has two disadvantages. One is that a law-breaking Education Commissioner does not set a good example for the kids. The other is…well, hold that thought while we describe – briefly, because it’s been in the newspapers – the other incident.

Over Memorial Day weekend, police in Hartford were alerted about a possible burglary at a home. They entered the house (the door was apparently unlocked), and found in a third-floor bathroom one Wayne Burwell, a 34-year-old Dartmouth graduate, athletic trainer, and, perhaps not incidentally, an African-American.

Burwell was naked. He was sitting on the toilet. He was apparently unresponsive, perhaps due to a blood sugar problem that has caused him to lose consciousness on occasion.

Not exactly the picture of a dangerous desperado. But the police unleashed enough pepper spray to make both Burwell and some of the officers require treatment later. Then they handcuffed him, covered him with a blanket, and either dragged or led him outside “to wash his eyes,” in the words of Town Manager Hunter Rieseberg, who acknowledged that “some pepper spray had been discharged.”

While Burwell was still inside, one of his neighbors, Bob McKaig, a 71-year-old retired police officer from New Jersey, had come over to the house to warn the police that Burwell was ill. When Burwell was brought out, apparently under arrest, McKaig tried to tell them that Burwell had not been robbing the house. He owned it.

At which point, McKaig said, a “female officer” threatened to have him arrested for interfering. Burwell was taken to Dartmouth-Hitchcock Hospital where, among other treatment, he needed stitches in his hands where the handcuffs had cut him.

At this point, a touch of uncertainty must be acknowledged. Only the police and Burwell (to the extent he was conscious) really know what happened in Burwell’s house. Rieseberg said when all the facts come out, “there will be some red faces, and they won’t be ours.” Perhaps something happened inside the house that gave the police reasons to be wary of Burwell.

But rarely does a burglar sneak into a house, make his way to an upstairs bathroom, take off his clothes and sit on the toilet in a semi-conscious state. Concluding that the police were  incompetent, or, as the Vermont ACLU director Allen Gilbert suspects, guilty of “racial profiling,” may be premature. Strongly suspecting it is not.

So what’s the connection between the Burwell case and the Ed Department report?

Under the same public records law, Anne Galloway, who runs the VT Digger web site, asked Hartford police for the arrest report. Police Chief Glenn W. Cutting and then Town Manager Rieseberg refused, as they had refused a similar request from the Valley News newspaper. The town argued that it has asked the State Police to investigate the incident,  triggering an exception to the public records law.

Yesterday, with the help of the ACLU, Galloway sued. The ACLU notes that the law specifies that “’records reflecting the initial arrest of a person’ are public and not exempt.”

(Full disclosure: As regular readers may know, the News Guy occasionally writes for VT Digger [see the link to it above] and knows, likes and admires Galloway as a first-class journalist).

The town’s response is that Burwell, handcuffed and pepper-sprayed though he may have been, was never arrested.

“No one was taken into custody. No one was transported to jail,” Rieseberg said. Nancy Sheahan, the Burlington lawyer who will represent the town, noted that “it is possible to detain someone without arresting him. In this particular case, there was not an arrest.”

Obviously, the courts will decide whether it was an arrest. At least some Vermont case law indicates that the Town may find it hard to prevail. Research undertaken out of the goodness of his heart by a prominent Vermont defense attorney found a 1990 Caledonia County case in which the court ruled that “the public interest clearly favors the right of access to public documents and public records (and) the exceptions listed in { 317(b) should be construed strictly against the custodians of the records and any doubts should be resolved in favor of disclosure.”

The lawyer also found a 1992 Supreme Court decision reversing a Chittenden County court decision denying a plaintiff “a list of names and addresses of taxpayers subject to a business gross receipts tax adopted by an ordinance of the City of Burlington.”

Needless to say, every case differs, and this one might have a different outcome. But the legal details really aren’t that important, because, while as acknowledged above, we can not know with 100 percent certainty what happened in Burwell’s house that day, we can know with about 98 percent certainty.

The cops messed up. And they want to keep the details secret because they fear that the details will provide powerful evidence that they messed up. That’s the main – if not quite the only – reason that officials want to keep records secret: to hide their misdeeds, or at least their foolishness. If the arrest report would make the Hartford police look good, reporters would have been invited to read it in comfort with coffee and muffins provided by the town.

And here’s why this is important: If police anywhere in Vermont  can handcuff and pepper-spray Wayne Burwell in his own house with impunity, then police somewhere in Vermont can do the same to you and to me. And the more they can hide the records of what they did, the more are they likely to do the same to you or to me.

Just as – though Armando Vilaseca’s offense was benign by comparison – if a high-ranking state official can ignore the public records law for 48 hours to make sure a few minor errors don’t embarrass him, another such official on another occasion may be emboldened to ignore it for 48 days or 48 weeks in an effort to cover up real malfeasance.

That’s why there’s a public records law to begin with, and why it ought to be enforced.