Tom Noonan

It’s been more than 10 days since the New York Racing Association was found to be in violation of the public records law and directed to provide documents to me “without further delay.”  But NYRA has refused to turn over CEO Chris Kay’s contract and his performance goals that will be used to determine if he is entitled to a $250,000 bonus on top of his $300,000 salary.

I originally requested the two documents in August, was refused by the public records officer, appealed and was denied by the NYRA appeals officer.  I asked the state agency responsible for monitoring the public records law for an opinion.  Their decision rejected every argument NYRA used to deny access.  NYRA’s lawyer is now saying they need more time to “review” a decision that is perfectly clear.

Now it is one thing to have a good faith dispute over the application of the public records law to particular documents.  While I thought NYRA’s reasons for denying access were bogus and not supported by any of the numerous decisions by New York’s Committee on Open Government, I realize that is what lawyers do.  (Full disclosure:  I am a lawyer.)  Now that the Committee has ruled  –  leaving no wiggle room  –  one can only surmise that NYRA has something to hide.

While one expects a government agency  –  which NYRA is  –  to comply with the law, what I find particularly aggravating is the blatant hypocrisy of top government officials in proclaiming their commitment to open government and then ignoring it.

When Governor Andrew Cuomo wrote the law that allowed the state government to seize control of the “old” NYRA, he entitled the legislation the “New York state racing franchise accountability and transparency act of 2012.”  The Chairman of the Board of the “new” NYRA, David Skorton, announced that he wanted to be “very public” about the potential bonus for CEO Kay being tied to serious performance goals.

Cuomo and his allies are never hesitant about criticizing others for the moral lapses that would not taint his administration.  When the Cuomo-appointed Moreland Commission request for documents was resisted by the Legislature, he pontificated:  “This effort is all about restoring the trust, and restoring people’s faith in government, and I think the more information the better….”  The Moreland Commission spokesperson said, “As the old adage goes, if you’ve done nothing wrong, you have nothing to hide.”  (Quotes are from the Times Union.)

Then there is Robert Megna, who is Cuomo’s Budget Director and a member of the new NYRA Board.  He is also a member of the Committee on Open Government (as is Cuomo’s Lieutenant Governor Robert Duffy).  When the Cuomo Administration was working to force out the “old” NYRA  –  which was not a state agency and thus not subject to the public records law  –  Megna was openly critical of that Board’s failure to produce information about the CEO’s contract and other documents.  Here is what Megna wrote to the then-Board Chairman:

This continuing failure to [produce documents] not only casts doubt upon NYRA’s good faith, but it also demonstrates a basic lack of moral character and fitness to fulfill its obligation as the thoroughbred racing franchisee under the [law].

What we are left with, then, is wondering what it is that NYRA is so intent on concealing.  Of course, perhaps it is not just NYRA.  No state agency in New York so much as restocks toilet paper dispensers without getting the approval of the Governor’s office.  We know Andrew Cuomo has sights on 2016, wishing to run up a victory margin to bolster his chances  –  just like Chris Christie did  –  so maybe he also wants to hide embarrassing details about the Kay contract.