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THE OMBUDSMAN

An unfair shot at Birmingham?

FORMER SENATE President Tom Birmingham feels deeply wronged by The Boston Globe.At issue is a July 29 story that examined, critically, how he managed Senate money before leaving office at the end of 2002. Birmingham adamantly denies the gist of the story -- that he spent too freely during a period that overlapped with his run for governor -- and is upset, too, about the way the story was reported. He feels he deserved more chance to respond.

Birmingham says the experience stands out in his 12 years of legislative service, and it left him feeling like the victim of the "journalistic equivalent of a drive-by shooting."

Globe editors are issuing no apologies.

The matter has festered too long. It deserves an airing and a look at whether the Globe was fair as well as accurate.

There are two disagreements of fact between Birmingham, now with the law firm of Palmer & Dodge, and the Globe.

By the Globe's account, Birmingham was nonresponsive from the start, failing to return reporter Raphael Lewis's repeated phone calls in May and June. But Birmingham says he's absolutely certain he got just one call from Lewis during that time, on June 26, and although he did not talk to Lewis directly -- he left that to his former press secretary, Alison Franklin, whom Lewis also called -- he promptly drafted a statement responding to the Globe's questions.

Lewis declined the statement, says Birmingham. As supporting evidence, he produces a copy of an e-mail dated June 26 from Franklin to the office secretary. The subject is "Latest draft of statement," and it says in part: "Raphael doesn't want anything now," because it would "feel stale to him" by the time he's ready to write.

Lewis calls "preposterous" the idea that he rejected any statement offered by Birmingham, and his editor backs him up.

The rest of the events are not in dispute. For the next month, Birmingham did not hear from Lewis. Birmingham says he thought the story was dead. He went on vacation with his family. Lewis, working with a second reporter, kept reporting, requesting state documents via the Freedom of Information Act.

Then, on the afternoon of July 28, the Globe got word that the new Senate president, Robert Travaglini, would convene a meeting of senators the next day to discuss the Senate's suffering finances -- revealing much of what Lewis had spent a month discovering. The Globe decided to publish what it had in the next morning's paper. The scramble began.

Around 4 p.m. Lewis left a message on Birmingham's office voicemail (which did not say he was on vacation) asking for a call back because the story was set to run. Birmingham, still on vacation, didn't get the message. The story ran the next day on Page 1 with a line saying Birmingham "did not return calls seeking comment."

Two days later, Birmingham heard about the story, which said he had "emptied the Senate's operating accounts in his final six months in office, approving tens of thousands of dollars for food and drinks, printing expenses and floor coverings, state records show." The second paragraph noted that "much of the spending, which left the Senate with a $2 million budget gap, took place during and after" Birmingham's unsuccessful run for governor. The 19th paragraph noted there was "nothing in the records to suggest that the spending was campaign-related."

Yet the story raised questions, noting for example that almost $3,000 from Birmingham's Senate accounts was spent at two area restaurants -- Sam LaGrassa's and Joe Tecce's -- between Aug. 19 and 22, 2002. While it is proper to buy meals for lawmakers and staffers during late-night sessions, the story noted, during those August days the Senate was barely in session.

Two more stories followed, on July 30 and Aug. 1, extending blame for the budget gap and reviewing how Birmingham had "burned through" Senate funds.

So, is Birmingham justified in feeling that his honest attempt to respond to the Globe had been shunned and that the paper proceeded to blindside him? Or is the Globe right to say Birmingham established a pattern of avoidance that denies him the right to complain now?

The disputed facts get in the way of absolute answers. But even if you write them off to a genuine miscommunication (maybe Birmingham never got Lewis's early messages; maybe Lewis didn't hear the offer of a statement) the Globe in my view fell short of its own fairness standard. It should have:

* Made a greater effort to track Birmingham down on the eve of the first story, calling his law office's main desk and his home or even going back to his former press secretary for a response. That would likely have revealed that he was on vacation, which could have been noted in the story. Ideally, the paper could have tracked him down on vacation for a response.

* Noted in every story, not just the first, that there was no evidence suggesting Birmingham spent Senate money on his run for governor. Without that, readers were denied important context for such phrases as, " . . . Birmingham emptied Senate spending accounts in his final months in office, in the midst of a run for governor last year. . ." The point may have been simply that Birmingham was distracted from Senate business, but it was too easily misinterpreted as something far more troubling.

* Held the initial story, or parts of it, until responses were gathered. For example, with time to talk to the manager of LaGrassa's restaurant, a reporter would have found that while it was correct that Senate money was paid to the restaurant in August, a time of little Senate action, the bill was for food delivered a month earlier, when the Senate was in session.

Given the chance, Birmingham could have explained that. And he would have argued that spending the Senate's reserve accounts, as he did, was standard practice -- similar to what the state has done with the general operating budget for three years. He could have said he had openly informed Travaglini that the reserves were spent and urged him to seek a higher appropriation for fiscal year 2004.

Whether Birmingham should have cut Senate spending even more than he did before tapping reserve accounts is a legitimate news inquiry and an interesting public policy question, but it doesn't lend itself to a "gotcha" treatment.

All of the above has left bad blood between Birmingham, an established presence in state political circles, and the Globe.

Globe editor Martin Baron says that the Globe has given Birmingham a chance to be heard.

When Birmingham first complained, says Baron, he was offered "an opportunity to speak to our reporters and fully lay out his position." Birmingham declined. (Birmingham says he later reconsidered, called Lewis, and delivered an "on the record" defense -- but did not inform Baron. No story resulted.)

Baron also notes that when Birmingham wrote a letter to senators offering his side of the story, the Globe "published a straightforward account of the letter's contents when we learned of it." Adds Baron, "I can only conclude that Birmingham did his best to avoid speaking to State House reporters as long as he possibly could."

Metro editor Carolyn Ryan says Birmingham had "ample opportunity" to respond to the Globe's initial story. She was the editor who assigned the story to Lewis, who is considered one of the newsroom's best young talents.

She says the Globe was "determined to speak with Tom Birmingham before this story appeared, and to reflect his views . . ." She takes as fact that Birmingham didn't return calls in May and June and rejects the notion that Birmingham issued a statement that Lewis declined. "It's obviously unfortunate that on the last occasion Raphael called, Tom Birmingham was on vacation . . . But that does not explain why Birmingham never responded to any of the previous messages," she says.

Would she do anything differently? Ryan says that on the day before the story ran, the Globe should have made sure it reached someone who could relay a message to Birmingham -- but, she adds, she is "still not persuaded he would have called back."

Birmingham, of course, says he thought he had responded -- with the statement he offered on June 26 (he provides copies of all three drafts). "We responded when he [Lewis] reached out to us, and there was a month's pause. I never thought it was up to me to call him. I thought the story had died."

Even if he had been in town, he says, it was not enough to leave one voicemail message at 4 p.m. before a negative story a month in the making. Having his defense published in a letter to the editor -- it ran Aug. 11 -- was too after-the-fact, he says, and was not enough to set the record straight.

As ombudsman, I come back to the the Globe's own fairness doctrine, finalized in June. It says, "In the cause of fairness, we must allow principal subjects of our stories a reasonable period of time to respond to any allegations against them." A longer response time should be given, the policy says, when stories are several days or weeks in the making.

"We also should be open to the possibility that a response may be sufficiently persuasive to justify significantly changing, holding, or even abandoning a story . . . ," the policy continues. "If the subjects of our stories cannot be reached, we should make every effort to explain why . . . [if] traveling, we should say so."

Finally, it adds, "Reporters should not assume that subjects of stories will not comment merely because they did not comment when they were asked to do so previously."

It's a good policy, worth using as a daily guide -- even when it seems at odds with a competitive newsroom culture.

The ombudsman represents the readers. Her opinions and conclusions are her own. Phone 617-929-3020 or, to leave a message, 929-3022. Our e-mail address is ombud@globe.com.

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