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.

Can they do that?

Or, to be strictly grammatical,  the doer in this case being a single entity, if composed of several individuals, can it do that?

The “it” is the Executive Branch of the government of the state of Vermont, commonly known as the Douglas Administration. And the thing that it did was fire a state worker after the Legislature specifically told it not to fire that state worker, an instruction that Gov. Jim Douglas seemed to accept.

As with the grammar, the above description is imprecise. The Administration did not officially “fire” Jens Hawkins-Hilke, the scientist who provided expert advice to local planners involved in the Community Wildlife Program.

It just eliminated his position.

It did so even though the budget bill passed in late May stipulates with no apparent ambiguity that “(i)t is the intent of the general assembly that the fiscal year 2011 budget… funds two (2) limited service Fish and Wildlife Scientist II positions… The Scientist II positions shall continue to implement the landowner Incentive Program and Community Wildlife Program. “

A separate “Statement of Legislative Intent” filed by Appropriations Committee chairs Martha Heath (House) and Susan Bartlett (Senate) asserts that “the policy goal” of the provision is “to have continuity…for the wildlife related local municipal and regional planning…assistance these positions provide including wildlife crossing of roads in developed areas to improve planning for sustaining critical habitat for wildlife preservation.”

Douglas signed the bill on June 3. The next day, Jonathan Wood, the Secretary of the Agency of Natural Resources eliminated one (1) of those “two (2) Fish and Wildlife Science II positions, Hawkins-Hilke’s, the one that “implement(s) the…Community Wildlife Program.”

Could he do that?

Obviously he could because he did, though Hawkins-Hilke and the state employees union have filed a grievance. Until the grievance procedure runs its course, then, it’s premature to conclude that the termination (reduction in force, or RIF, in government jargon) was completely on the up and up.

But it isn’t too early to conclude whether the Executive Branch has the power to terminate a position even after it agrees (as at least implied by the Governor’s signature on the bill) not to terminate that position.

Apparently it does.

“The Legislature can put in language that says ‘you shall’ or ‘you shall not,’” said David Coriell, Douglas’s spokesman. “But when they say what the intent of the Legislature is, that’s a little fuzzier. Intent is not a mandate.”

Coriell, of course, works for the Executive Branch, and could be expected to interpret law and constitution in its favor. But Steve Klein, the head of the Legislature’s Joint Fiscal Office, a lawyer as well as a numbers whiz, agreed that in general “I don’t think legislative intent has the force of law,” and Paul Gilles, the Montpelier lawyer who is recognized as one of the state’s leading constitutional lawyers, said statutes are often “not implemented the way (legislators say) they’re supposed to be,” but courts are reluctant to intervene in jurisdictional disputes between the other two branches.

At any rate, the Legislature does not plan to take this case to court.

“We’re just urging the governor to follow the full intent of the law,” said Tom Cheney of Speaker Shap Smith’s office.

When one side in a legal dispute decides not to go to court, it’s usually because it doubts it can win.

So Hawkins-Hilke’s termination, while perhaps less than noble, arguably even dishonorable, appears to be within the Administration’s constitutional discretion.

Whether it violates the state’s contract with the Vermont State Employees Association is yet to be determined, and Hawkins-Hilke, not surprisingly, asserts that it does, and is therefore illegal.

“According to the union contract, (the RIF) has to be on economic grounds and has to be in compliance with the law,” he said. “The budget bill is law. It was signed June 3, and on June 4 administration continued with the RIF. So it is not in compliance with statute. Nor is it an economically driven cut.”

Yes, it is, insists ANR Secretary Wood, even though it saved only $16,000, the state’s half of Hawkins-Hilke’s pay. The other half came from the federal government.

“I would love the people who are saying that to live a little bit in my shoes,” Wood said. “The agency has had to reduce almost 100 positions…in the last couple of years. Unless you’re in state government it’s a little annoying to cavalierly talk about amounts of money as though they’re insignificant. This has been the largest reduction of state government in history. Every dollar is important.”

But Hawkins-Hilke and others suspect that the Administration wants to weaken environmental planning as much as it wants to save money. After all, it increased spending on some of its preferred functions, such as economic development.

And one email released by Administration Secretary Neale F. Lunderville’s office indicated that at least one Administration official, Human Resources Commissioner Caroline Earle, was “very concerned about this move in the light of the legislative language.”

Other officials, though, were confident that Wood had the authority to terminate the position.

Hawkins-Hilke pointed out that he is not the only environmental planner whose job has been eliminated.

“The only planner in Forest, Parks, and Recreation was RIFFED last year,” he said. The head planner for the Agency of Natural Resources was RIFFED  last year. The Basin Planning Program (part of the Water Quality Division) has taken a substantial hit.”

Dana Farley, president of the Vermont Planners Association, had a similar assessment.

“The planning community’s a little bit perplexed by it all,” she said. “Resources for planning have been cut for many years. We aren’t getting the kind of technical and funding support we used to. The loss of this position really tipped over the cart.”

Wood insisted that ANR would continue to help localities plan for wildlife conservation, though he acknowledged that the service “may not be quite as robust without having an individual dedicated to it.”

Evidence as to whether the position was terminated solely to save money might be found in the emails the VSEA is seeking from the Department under a Freedom of Information Act filing. According to Hawkins-Hilke, Lunderville’s office has complied with the request, and the Agency of Commerce and Community Development replied that it has “no communications whatsoever” on the matter, an assertion Hawkins-Hilke does not doubt.

But ANR is balking, arguing that though the VSEA does not want copies of the emails, only the opportunity to look at them, it must pay for the staff time required for the search.

This, too, could simply be because the hard-pressed agency needs to find all the money it can. On the other hand, just as a decision not to go to court usually indicates a weak case, a reluctance to turn over documents often means that the reluctant party does not want the documents in question to see the light of day.