Isn’t anything going on in Vermont except this infernal political campaign?

Yes, actually. Quite a lot. For instance, on Thursday there is an evidentiary hearing in Superior Court in Woodstock in the matter of Galloway versus Town of Hartford, an important public records case (see Public (?) Records, August 4.)

On October 15, Superior Court Judge  Katherine A. Hayes denied the town’s motion for summary judgment, allowing the case to proceed. If possible, the News Guy will cover the hearing.

But here’s the thing about political campaigns: they end. This one is going to end in six days, making it hard to deal with anything else. So for now, we’ll continue with political stuff.

But first, this embarrassing admission.

Monday’s post ended with praise for how WCAX-TV anchors Darren Perron and Kristin Kelly questioned candidates Brian Dubie and Peter Shumlin during Saturday’s debate.

Except those who read the post before it was corrected (about 8:45 AM) did not see Darren Perron’s name. They saw the name of Anson Tebbetts, who is Channel 3’s news director, not its co-anchor.

Early (or perhaps not-so-early) sign of impending dementia?

Or just the kind of goof one can make toward the end of the day about two guys who work for the same station and both have two two-syllable names?

Either way, pluperfect dumb, and though it is not likely that either of these honorable gentlemen is insulted by being confused with the other, herewith apologies to the both of them.

Speaking of getting stuff wrong, during that debate Shumlin asserted that “Vermont lost more dairy farms in the last eight years (while opponent Dubie was lieutenant governor) than in any other time in Vermont history.”

Actually, no. Dubie and Gov. Jim Douglas took office in 2003, when there were 1,459 according to the Vermont Dairy Promotion Council. When U.S. Secretary of Agriculture Tom Vilsak visited Vermont last February, he was told there were 1,019 dairy farms.That’s a drop of 440.

In the eight years before the Douglas-Dubie team took office, the state lost 683 dairy farms, which, as it happens, is more, not less, than 440 and while no doubt a few farms have gone out of business in the last seven months, losses of the last eight years are clearly smaller than those of the previous eight years.

Yes, the more recent decline is slightly larger in percentage terms. But not much, and anyway, that’s not what Shumlin said. An email to his campaign asking where he got his (apparently  mis-)information was not answered yesterday.

(Not to mention that it makes no difference. Whoever is governor and whatever agriculture policies are followed, the number of dairy farms will continue to decline at a rate determined largely by factors well beyond the governor’s control).

In that same debate (and again in a VPR interview Monday) still trying to argue (to the distress of some of his strongest supporters) that Shumlin plans to release hordes of prisoners before their terms expire, Dubie twice mentioned an “August 15 Rutland Herald article in which Shumlin said he wanted to empty the prisons of 780 nonviolent offenders.”

Apparently not, the “apparently” is required here because the News Guy was unable to find that edition of the Herald either on line or in print. But at his request, someone else perused a printed (on dead tree) original version of the August 15 Herald and found…no mention of Shumlin releasing prisoners.

There was a Shumlin profile, a political column, and a “Capital Beat” column in the paper that day, the reader said, but nothing about letting lots of folks out of the pokey.

It is theoretically possible that both candidates will apologize for their misleading statements. It is highly unlikely.

Just as it is highly unlikely that the latest legal fracas is going to have much impact on the governor’s race. The state’s other news organizations have adequately covered the Attorney General’s suit against two political action committees, and the countersuit by one of them against him, so we won’t go into detail here. We’ll just answer three common questions:

Question One: Has there been and is there collusion between a candidate’s campaign and the supposedly “independent” entities that buy ads to support said campaign?

Answer One: Always. Take the following sentence both literally and as metaphor. In every capital city, all the political operatives (or at least all the political operatives of each party) drink in the same saloon. Since table-hopping can not be outlawed, information can always be shared (though the shrewd operative will first check to see whether any reporters – who also drink at those same saloons – are present).

What may have happened this year in Vermont is that somebody got careless and too blatant. According to official documents, the Republican Governors Association (one target of an AG suit) received a $22,500 in-kind contribution from the Dubie campaign on Sept. 22, and the Dubie campaign paid $25,500 for a poll five days later.

That would appear to be collusion, banned because the RGA is one of the “independent” entities buying pro-Dubie ads. It might have piqued the AG’s interest in seeing whether the RGA is registered as a political organization in Vermont. It is not.

Question Two: Doesn’t the U.S. Supreme Court Citizens United decision mean Attorney General Bill Sorrell and his assistant, Michael McShane, are going to have a hard time prevailing in court?

Answer Two: Possibly not. McShane said The AG’s office is only trying to get the RGA and Green Mountain Future  “to register as (political action committees) and file reports with the Secretary of State’s office.” Because they have not done so, McShane said, they have “violated Vermont law.”

(Try to keep all this straight. GMF is a creature of the Democratic Governor’s Association, which has registered as a political committee in Vermont, and which so far has spent more on the Vermont gov’s race than the Repubs. The RGA has not registered, nor has GMF, but the RGA’s front group, Green Mountain Prosperity, has).

Citizens United, though, was not about registration and disclosure. It allowed corporations and unions to make political contributions from their treasuries, not just from money specifically raised (and voluntarily contributed) for campaigns. Martha Wright, the attorney who helped Sorrell argue Vermont’s election law case before the U.S. Supreme Court (they lost) pointed out that Citizens United “upheld disclosure provisions that were challenged.”

That doesn’t mean the AG’s move can not be challenged. Vermont’s statutes on electioneering expenses might be “unconstitutionally vague,” Wright said, and its “definition of a political committee” can also be disputed.

All of which can help explain the rationale behind the RGA’s countersuit and answer…

Question three: Will all this influence anybody’s vote?

Answer three: Probably not. If the court hearings are held before the elections, the Republicans – and therefore Dubie – could appear sneaky. Hence the RGA countersuit, which, whatever its legal merit (challenging the power of the AG even to seek information to investigate does seem a bit over the top) plays into the average, middle-of-the-road voter’s assumption that “they all do it” (True. See Answer one above).

Finally: Today is the last day of early voting in Vermont. Early voting by everyone, not just the physically impaired or those who are going to be away on election day, has become increasingly popular all over the country of late.

It’s a very bad idea. It depresses turnout (see this in Monday’s New York Times). It interrupts the rhythm of a campaign, which is designed to end on election day. It provides an incentive for some people to vote before they’re gotten all the information they need (who knows how many would have voted for the other candidate had they waited?). It diminishes the communal experience of the polling place.

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.