“The New York State Legislature has refused to turn over the information requested by the Moreland Commission…. As the old adage goes, if you’ve done nothing wrong, you have nothing to hide.
We believe the legislature’s position is legally indefensible, ethically repugnant, and disrespectful to the public’s right to know.”
— Spokesperson for the Moreland Commission, a group created by Governor Andrew Cuomo to investigate possible corruption in New York’s government, as quoted in the Times Union.
When the Governor forced out the former Board of the New York Racing Association and replaced it with one of his own creation, there was an implicit – if not explicit – message that the prior Board operated in secrecy and served primarily its own private interests. Because the new Board is now under state control as a result of Cuomo’s legislation, it is now subject to New York’s Freedom of Information Law or “FOIL.” So how open have they been? I have submitted several requests for documents and have regularly been denied access even though any reasonable person would conclude the documents should be public records. Here are four:
- CEO Chris Kay’s contract and performance standards entitling him to a bonus of $250,000:
When NYRA’s new Board decided to hire a new CEO, the Compensation Committee concluded that it would be untoward to have a government agency pay at the level of the prior permanent CEO (reportedly about $460K) and came up with a bifurcated package – a base salary of $300,000 and eligibility for the $250,000 bonus. David Skorton, Cuomo’s appointment as Chairman of the Board, emphasized that he wanted to be “very public about this,” and that as a “hard grader,” the bonus was not just a ruse to get the salary over the prior level.
So I asked for the records proving Skorton’s claims, specifically Kay’s contract and Skorton’s performance standards. NYRA denied my request, saying it would be “an unwarranted invasion of Mr. Kay’s personal privacy.” In an unusual twist, NYRA further stated that Kay’s “significant privacy interest” exists because he is not a public employee. So a guy bringing home $5769.23 each week and is in line for a cool quarter of a million has a greater right to privacy than the person answering phones at the DMV or a toll collector on the Tappan Zee bridge?
NYRA’s position is, of course, ridiculous and an argument they should be embarrassed to make. It is also contrary not only to Chairman Skorton’s supposed desire to be “very public about this,” but to the letter and spirit of New York’s public records law. (Let’s not forget that Kay’s selection was a secret process – for understandable reasons – but makes his contract award unlike so many others where you at least have a public procurement that defines what the state is buying.) If there is any truly personal information in either the contract or the performance standards, it can be redacted – as the law permits. New York’s highest Court has defined such information as that which “ordinarily and reasonably be regarded as intimate, private information” – not what one finds in the typical employment contract. But the CEO’s goals for NYRA, or any severance agreement? Since the state’s takeover of New York’s racing last year, many have wondered what the real agenda is, and whether there is even a plan for the sport. NYRA appears determined to keep us in the dark on both questions.
- NYRA’s efforts to implement the recommendations of a Task Force investigating equine fatalities:
After a number of racing fatalities at the Aqueduct meet in early 2012, a Task Force was appointed to investigate the causes and make recommendations. The Task Force consisted of some of the most respected voices in racing, and came up with a report that was comprehensive and far-reaching. There were 39 primary recommendations and 93 subsidiary ones. We know some significant ones were implemented because they required regulations from the state’s Gaming Commission. What we do not know is what NYRA has done to implement the recommendations (other than window dressing such as a hot line that as of August had received one call that could not be substantiated).
NYRA’s actions – or inaction as the case may be – are significant. There was a dramatic decrease in racing fatalities in the latter part of the Aqueduct meets that carried over to the Belmont spring meet. Unfortunately, that trend was halted when the Saratoga meet saw as many fatalities as last year’s meet, and the Belmont fall meet has seen as many racing fatalities (two) in its first two weeks as the entire spring meet – and that doesn’t include three recent catastrophic breakdowns on the training track.
The factors causing a breakdown are complicated ones, not lending to simplistic analyses and solutions – a conclusion convincingly made in the Report of the Task Force. The decline in breakdowns this year may have been the result of actions by the Gaming Commission or by NYRA – or it may have been the result of pure luck. The same can be said about the recent increase. But what we do not know because of NYRA’s refusal to release any records is what may have contributed to either the decline or the increase. There is at least one such analysis, prepared by Dr. Scott Palmer who was a member of the Task Force, that compares the Task Force recommendations with what has actually been done. I have been trying to get it since April 30. No one could expect NYRA to have implemented fully its portion of 132 recommendations, particularly since many of them required a substantial amount of work. But a progress report would be a useful way of measuring whether NYRA is on track to improve equine safety or has completely dropped the ball.
- Chairman of the Board Skorton’s decision to make the attorney for Rudy Rodriguez a “Special Advisor” to the Board:
At the February meeting of the NYRA Board, Chairman Skorton announced that he had appointed Attorney Karen Murphy as a “Special Advisor” to the Board. He neither explained the reason for the appointment, nor described her expected role, nor sought the Board’s input. Attorney Murphy is well-known for her representation of trainers accused of drug violations. Indeed, shortly after her appointment she was in the news as trainer Rudy Rodriguez’ attorney following allegations that one of the trainer’s horses had tested positive with an unusually high level of a medication. According to the Daily Racing Form, Murphy accused NYRA of not taking proper steps to monitor the barn area, and even raised the question of whether an unauthorized person had entered Rodriguez barn and administered the drug overdose. Around this time, Rodriguez planned on entering a horse in the Kentucky Derby. In an unusual step, Kentucky’s racing authorities required Rodriguez to appear before them before they would issue him a Kentucky license.
This appointment became even more puzzling when Murphy was “disappeared.” At the next Board meeting, she was not in attendance, nor was she identified as a “Special Advisor” who was not present. There was no explanation for her whereabouts or lack thereof. It was reminiscent of the “back in the USSR days” when someone photographed on the Kremlin wall was not there next time around.
I thought her appointment was a matter of interest given Chairman Skorton’s repeated statements of concern for equine health and safety, and the interest expressed by some Board members for NYRA to take a strong role in developing “house rules” that would root out the cheaters and subject them to increased penalties. I am not suggesting that trainer Rodriguez violated the drug rules in this instance (although he did serve two suspensions recently for drug infractions). Nor do I think an attorney should be held responsible for alleged misdeeds of a client. But if Chairman Skorton needed some outside expertise on drug violations, he perhaps could have picked someone who did not bring to the table the perception of a conflict-of-interest. Apparently NYRA’s attorneys agreed since one of the reasons for denying access to documents was the attorney-client privilege. While their argument may relate to her “unappointment,” it would not pertain to any documents explaining why she was named in the first place.
- Memo from New York’s Committee on Open Government requiring NYRA to comply with the public records law:
There could not be a better example of NYRA’s blatant flouting of the public records law than their response to my request for documents from other entities concerning NYRA’s obligations to act under both the public records law and the Open Meetings Law. They denied any such documents existed, even though there is an opinion from the Committee on Open Government – the state agency with responsibility for overseeing both of these laws – stating that NYRA was indeed subject to them. Chairman Skorton was copied on the memo.
In commenting on the Legislature’s refusal to turn over documents to the Moreland Commission, Governor Cuomo said, “This effort is all about restoring the trust, and restoring people’s faith in government, and I think the more information the better, especially when there are real questions people have been asking.” (Quote is from the Times Union.) Cuomo is at his officious best when talking about the shortcomings of others. When he dismounts from his high horse, perhaps he will explain why he does not apply the same standard to an agency he created with much fanfare a year ago, supposedly to address those questions of public trust. As for NYRA’s leaders, they may want to consider how far they are willing to sacrifice their own credibility in their effort to serve the Governor.
Update: After completing this post, I came across a reference in the Times Union to a significant capital project at the Cornell College of Veterinary Medicine. NYRA’s Board Chairman David Skorton is the President of Cornell. According to the Cornell Chronicle, the $63 million project is “predominantly funded by New York state,” and will entail the building of 65,000 square feet of new space and renovating an additional 33,000 square feet.
Tom: you raise significant issues that, in my lawyerly opinion, need to be addressed by NYRA. WERE I TO BE IN A POSITION TO INFLUENCE THE DECISION, IT WOULD BE IN FAVOR OF GREATER OPENNESS. AS YOU SAID, PREVIOUS NYRA administrations were overly secretive, and it contributed to their downfall. I wouldn’t want to see the new team fall into the same trap.