This will be a somewhat abbreviated post because the News Guy moderated a debate among Northeast Kingdom legislative candidates last evening and there is only so much one fellow can do in one day.

Oh, all right. Full disclosure. In addition to this public duty, the News Guy herewith admits another factor. As revealed in an earlier post (the one about Centennial Field and the Lake Monsters Take Us Out To the Ball Game? July 3, 2009)  among the News Guy’s private passions is that exotic past-time known as baseball, to which he devoted the latter part of the evening.

So for today, just a correction or two, a little mopping up, and then a tale, a true story that may or not be cautionary.

Wednesday’s post reported news of an “inter-active map showing poverty rates by state and county in 2009 when the poverty reached its highest levels in 51 No big surprises.”

Obviously that should have been the poverty rate which reached its highest levels in 51 years, period, end of sentence.

A few paragraphs later, the post listed the poverty rates for Vermont’s counties, but left out two of them. Thanks to the reader who pointed out the omission, and for those who read the post early, scroll down. All 14 counties are in there now.

And to the reader who asked what the under-five-year-old poverty rate is by county, stay tuned. The search is on.

Another reader had a good point on that post, and this time it was not just any reader but Doug Hoffer, the Democratic candidate for Auditor. Read Hoffer’s full comment (just go down to the bottom of Wednesday’s post and click on “3 comments,”) but his main point was that it isn’t good enough for Vermont’s poverty rate to be lower than in most other states; ten percent in poverty still too high and we’re all too willing to accept that state of affairs.

An interesting comment which deserves a full treatment soon.

Later in that same post was the report of a poll showing that “45 supported the idea, 36 percent opposed it, and 19 percent were undecided.”

No doubt you all figured this out for yourselves, but just for the record, that’s 45 percent.

The October 11 post, Ethical Quandary, reported that Lt. Gov. Brian Dubie was once a member and chairman of the school board in Essex. It was Essex Junction. Apologies to both municipalities and to Dubie.

OK, now to the tale, in which the names shall be changed to protect the innocent. So let’s call them Mr. and Mrs. Jones. They live in Charlotte, in the same house they had built more than 40 years ago. It isn’t a big house. Fifteen hundred square feet, Mr. Jones said.

The Joneses are not young. He’s 81. She’s 75. They’re not rich either. Last year, they said – and emailed tax records to back it up – their taxable income was $44,000. Because they own their home free and clear, they no longer have to make mortgage payments. They just have to pay their utility bills, buy food and fuel, whatever clothing they might need, and some incidentals.

Oh, and of course property taxes on their house. This year, their property tax bill is $11,252.

No, that’s not a typographical error. The Jones pay more than $11,000 – one quarter of their taxable income – for property tax.

Wait a minute. Doesn’t Vermont’s property tax system include an “income sensitivity” provision that protects middle-income homeowners from sky-high property taxes?

Yes, but earlier this year the Legislature passed a bill (H 783) effectively abolishing income sensitivity  when “the equalized value of a housesite (is) in excess of $500,000.”

That covers the Jones’s 1,500-square-foot house that they had built in 1967 for $22,000. It is now assessed at $1.4 million

No, neither of those was a typo, either.

The Joneses have made some improvements to their house over the years. But that’s not why its assessment shot up. It was, said Mrs. Jones, the much larger houses built all around them over the last several years that raised the assessed value of all the homes in the neighborhood.

The Legislature acted after some news stories in the Burlington Free Press and the Valley News (for some reason unavailable on its web site) that some residents of opulent homes were paying modest property tax bills based on their incomes.

The Legislature acted out of a combination of opportunism and controlled panic. The lawmakers were scrounging for all the revenue they could find. And they worried about being attacked for coddling the “wealthy,” even if these supposedly wealthy people earned average incomes.

It was not an unreasonable decision. Like the others so targeted, the Joneses will not suffer economically. They can sell their home, probably not for $1.4 million in the Recession, but for several hundred thousand dollars, which will allow them to live out their lives in comfort.

But they don’t want to move.

“This is our home,” Mrs. Jones said. “It’s where we raised our three boys. At my husbands age, moving will be hard on him.”

Surely this is not what the Legislature intended. But nobody has repealed the law of unintended consequences. And legislating on the basis of a few “horror stories” is a good way to activate that law.

The fight is on, and it promises to be a humdinger.

Attack and counter-attack. Quick response. Thrust and parry. Jab and hook. Give no ground or quarter. The best defense is…well, you get the picture.

All of which is lots of fun, but threatens to obscure the meaningful substantive differences between Republican Brian Dubie and either Peter Shumlin or Doug Racine.

In fact, “obscure,” may understate the case. “Pervert” could be more appropriate. The barbs each side is throwing at the other seem designed to convince voters that the opposition is extremist: that the Democrat would raise everybody’s taxes; that Dubie would permit the poor to starve on the sidewalks.

Not hardly.

As mentioned here the other day, the winner will be governor, not emperor. Even if Shumlin/Racine wanted to raise everybody’s taxes, the Legislature would not. Nor would it allow the poor to starve on the sidewalks.

Besides, the Democrats, who are prudent, do not want to raise everybody’s (or anybody’s) taxes, and Dubie, who is decent, does not want the poor to suffer at all, much less starve on the sidewalks.

“People who depend on vital state services are not going to be abandoned by state government,” said Dubie campaign spokesperson Kate Duffy.

Even the semi-defensible attacks are a bit over the top. There is some justification for Shumlin to argue that Dubie’s economic policies would lead to “deficits, unending deficits, tax cuts for the wealthiest Vermonters and budgets that don’t balance.”  Dubie’s determination to cut taxes and his vagueness about what programs he would cut do complicate the budget-balancing task.

But in addition to redundancy (deficits are “budgets that don’t balance”), the attack ignores Dubie’s pledge that tax cuts “won’t happen in one big step or one year,” but would be “incremental.”

Similarly, Dubie may not be dead wrong when he claims the Democrats have “only two solutions for the challenges we face: more government spending and higher taxes.” Both Shumlin and Racine are on record in the past favoring new programs and higher spending. But while they still favor  some new state initiatives, they are not for higher taxes.

Besides, there’s another candidate who proposes new government spending: Brian Dubie. The jobs plan in his “Pure Vermont” document calls for the state to “increase support for (Vermont Economic Development Authority’s) highly successful interest rate subsidy program,” “ increase public investment in the new Technology Lending Program,” “add support for (Small Business Development Center) counseling,” and create an investment tax credit.

All that costs money. Yet the heart of Dubie’s campaign is to hold the state budget to spending increases of  two percent a year. Because revenue is projected to rise at a higher rate, a Dubie Administration could then cut income taxes by a total of $240 million over four years.

This means, said  Duffy, that Dubie’s plan “is not making any cuts.” State spending, she said, would continue to rise, just more slowly than it has been rising, and more slowly than revenue would rise.

Dubie’s arithmetic is correct, except that he first pledges to close the projected $112 million deficit for the coming Fiscal Year (2012). That would require a spending cut of more than 9 percent, creating a new base. Increasing spending by two percent a year for the next four years on top of that new base would mean that spending would fall by an annual rate of about three-quarters of a percent over a five-year period. Extend the same policy out another five years, and spending does go up, but only at an average annual rate of slightly more than one percent.

That might be the smallest growth rate of state spending in decades, if not a century, raising questions about how realistic the plan is. Dubie claimed that in the early 1990s, Gov. Howard Dean actually level-funded (no increase) spending over a three-year period, a harsher reduction than Dubie’s proposed two percent growth.

Not really. Check the esoteric document available from the Joint Fiscal Office web site’s “Appropriations” page,called “Budget History FY 83-present.” It shows that while the General Fund budget actually went down for one year under Dean, it then started up again, and over a five-year period it rose by an annual rate of 3.4 percent a year.

That document provides other interesting information, both casting doubt on the assertion that Dean really “level-funded” spending and confirming that budgeting is a creative art. In those same recession years that Dean was spending less out of the General Fund, some new expenditures are recorded in the Transportation Fund.

Could it be that the state was using Transportation Fund money (financed from gasoline taxes, auto registration, etc) for non-transportation purposes? The document suggests, but does not prove, that the answer to that question is in the affirmative.

If so, it would not be unusual, in Vermont or elsewhere. One reason for that $112 million projected shortfall for the next Fiscal Year, for instance, is that the Legislature and Gov. Jim Douglas have been effectively filching from the Education Fund by not transferring into it as much General Fund money as the law required. (Legislatures and governors, who make laws, can change them as an alternative to obeying them). Reached at home where he did not have access to his records, Joel Cook, the executive director of the Vermont National Education Association, estimated that the shortfall was at least $50 million.

If the Legislature doesn’t repay that (as it said it would) or come up with enough money again this year, the Education Fund could be short tens of millions of dollars. That would require either deep cuts in school spending or substantial increases in local property taxes.

This poses a potential political problem for Dubie. He wants to cut everybody’s income tax rate by about a third, reducing the top rate from nine to six percent and the lower rates comparably. That’s good politics; everybody likes lower taxes.

But the Democrats will try to convince voters that the result would be higher property taxes, which are the taxes Vermonters really dislike. Democrats are already making that argument as well as claiming that, in Racine’s words, Dubie’s “numbers just don’t add up.”

“He wants to add money for various business promotion efforts…but he wants to cut taxes,” Racine said in a telephone interview. “This sounds like the federal budget discussion. Make promises of higher spending for business and lower taxes for everybody. That’s Washington. We don’t do that here in Vermont.”

That’s harsh, but standard political rhetoric. What came out of the Dubie campaign late yesterday may have crossed the line from standard to…well, to  false. In a statement released yesterday afternoon, Dubie said Racine had wanted to use money from the state’s “Rainy Day Fund” to “expand government-run services,” and that he opposed the “Challenges for Change” plan to make government more efficient.

The first of those accusations is simply incorrect. Racine has suggested dipping into the reserve funds, but only to support existing social service programs, not to “expand” government service. The second charge is minimally defensible, but a stretch. Racine supported “Challenges for Change” during this year’s legislative session, voting for it at least twice,  though he voted against the final Fiscal Year 2011 budget which incorporated “Challenges.”

“Fundamentally, Brian is a decent man,” Racine said. “If he wants to disagree with me, that’s fine. But don’t be deceitful.”

It could be a long two months.

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.