Tom Noonan

The parties in the disputed election for President of the New York Thoroughbred Horsemen’s Association have now presented their evidence.  Challenger Terry Finley filed his side of the case on December 8.  Now, President Rick Violette, NYTHA’s Executive Director Jim Gallagher and Counsel Alan Foreman have filed their statements.  The complete papers are available on the NYTHA web site.  A NYTHA committee will review the competing submissions and rule on Finley’s challenge.

Before release of the statements by Violette, Gallagher and Foreman, the racing media dutifully reported Finley’s claims that the election was mired in incompetence, fraud or both.  None of the NYTHA personnel were responding to media inquiries, but now have stated their positions under oath.

I have read the entirety of the papers filed by Finley, as well as the complete filings from those responding to his charges.  I have not spoken with any of the parties, but have exchanged emails with Finley.  What follows, therefore is derived from publicly available documents in addition to the emails with Finley.

The election was conducted by mailing ballots to those on the membership list maintained by NYTHA.  Eligibility for NYTHA membership was determined by two factors:  one had to be licensed as an owner or trainer by New York state, and also had to race at least one horse at a track of the New York Racing Association between January 1, 2013 and October 1, 2014.  Membership was automatic, but one could register as a member on the NYTHA web site to ensure NYTHA had accurate contact information.

Ballots were counted at the office of an independent law firm on December 2.  According to Finley, the vote tabulation showed that Violette won by 14 votes, 625 to 611.  Finley filed a challenge of the election on December 8.

Finley’s challenge raises a host of issues regarding the conduct of the election, as well as alleged improprieties by Violette, Gallagher and Foreman.  Each of his claims is disputed vigorously.  Without specifically describing each charge, there are two broad categories into which they fall:  1)  NYTHA failed to maintain an accurate list of eligible members, resulting in up to 1,700 members not being sent ballots;  2)  members favoring Finley were deprived of ballots, thereby skewing the election in favor of Violette.

Membership list:  Although 3,410 ballots were mailed to NYTHA members, Finley claims that another 1,700 eligible members were not sent ballots.  His estimate is based on a statement by Steve Zorn, a member of the NYTHA Board of Directors, that the total membership was between 5,000 and 6.000.  Zorn, in his affidavit, does not dispute saying that, but acknowledges that he is neither authorized to speak for NYTHA, nor does he actually know the number.  He described his statement as being based on the “lore” within NYTHA, not fact.

Finley further attacks NYTHA for not engaging in “reasonable efforts to confirm the identity and address of each member eligible to vote.”  While one might think it is a reasonably simple matter to maintain an accurate membership list, it is not.  Eligibility is straightforward  –  being licensed in New York and racing at a NYRA track  –  but obtaining addresses is not simple, nor is it easy to determine which licensees actually raced a horse.

The licensing of owners and trainers is done by New York’s Gaming Commission, and a list of licensees is available to the public on the Commission’s web site.  What the Commission will not do, however, for the purpose of protecting privacy, is release the addresses of its licensees.  While Finley’s attorney tries to obfuscate this point, he does not actually provide contrary evidence.  Indeed, when he sought information on licensees from the Commission, he notably did not ask for addresses.

Jim Gallagher’s affidavit enumerates the steps taken by the NYTHA office to obtain addresses.  From each day’s racing program, they record the name of every owner who starts a horse, and then examine databases maintained by NYRA, and the track offices of the Gaming Commission and The Jockey Club to obtain updated contact information.  In addition, they sought current contact information through their newsletter and by sending emails.  They emailed the managing partners of 55 multi-owner partnerships to obtain contact information for their partners.  The upcoming election was covered by the major racing media.  And, an eligible member could register on NYTHA’s web site in a manner of minutes.  In short, NYTHA officials took substantial steps to ensure they had an accurate mailing list and that members were aware of the need to ensure that NYTHA had their accurate mailing addresses.

Distribution of ballots:  Finley is alleging fraud by NYTHA:  “By limiting the number of ballots sent to members whose political leanings were unknown, or failing/delaying to send ballots to members thought to be favorable to me, the incumbent administration was able to maximize the weight of each ‘pro-Violette’ vote, thus fabricating his razor-thin majority.”  In his appeal submission, he filed what he said are “sixteen” affidavits from people saying they were denied the right to vote, and if they had voted, they would have voted for Finley.

Finley makes the superficially appealing point that if only 15 of those votes had been counted, he would have overcome the 14-vote margin by which he lost.  I was able to only find 15 affidavits that made that point, so let’s call them the “Finley 15,” and see what Jim Gallagher attests to in his affidavit.

One of the 15 actually voted, but states “I came close to not being able to vote….”  Let’s call them the “Finley 14.”

When I first read Finley’s submissions, I was struck by a curious omission in seven of the affidavits (Exhibit Y in the Finley appeal).  Although there were only two requirements for membership  –  being licensed and having raced  –  none of these seven stated they had raced a horse during the required time frame.  According to Gallagher’s affidavit, three of them had not raced a horse during the applicable period.  Another stated, “[i]t is my recollection that I never received a ballot” although Gallagher attests that one was mailed.  Two others were mailed ballots, and neither contacted the office nor opened a reminder email sent by NYTHA.  The seventh affiant was not on the list provided by his racing partnership, nor could NYTHA find any other information that he had raced a horse.

Three more of the “Finley 14” claimed they received their ballots too late to vote (Finley, Exhibits BB and Z).  According to Gallagher, they were not on the list provided initially by their partnership, but were on a second list provided on November 20, and then were mailed a ballot.  A fourth person claimed that his ballot was mailed to the wrong address, even though he had given NYTHA the correct one.  Gallagher states that he was actually mailed three ballots  –  each to a different state  –  after his office called NYTHA.

Gallagher stated that another person called (the 12th of the “Finley 14”), was told the ballot was mailed, and NYTHA did not hear from him again.  A 13th person had problems registering on NYTHA’s web site.  NYTHA acknowledged the problem and corrected it on November 7, several weeks before the deadline for submitting a ballot.  NYTHA emails to her were returned with a SPAM prevention reply.  She did not vote.  Finally, the managing partner of a racing partnership was sent an email on September 22 requesting contact information for the partnership.  While he opened the email, he did not provide NYTHA with his own mailing address until November 18, at which time he was mailed a ballot.

In short, the affidavits of the “Finley 14,” when matched against that of Jim Gallagher, fail to demonstrate that they were deprived of their opportunity to vote (unless, of course, they were not eligible), or that NYTHA did not undertake reasonable efforts to provide them with ballots.  Nor is there even a shred of evidence that any of the issues they may have confronted were motivated by an animus to steer votes away from Terry Finley.

Once the key issues are addressed, what is left is a potpourri of allegations made by the Finley campaign alleging a flawed election process.  They are too numerous to address, but an interested person can read them, as well as the rebuttals, on NYTHA’s web site.  (Finley is also disputing the procedures established by NYTHA to decide his appeal.)  There are, however, a couple of interesting issues.

One is the sometimes contradictory positions taken by the Finley challenge.  That is partly the result of flinging so many allegations that at some point you will get caught up in contradictions.  An example is the Finley protest complaining that NYTHA did not contact all managers of racing partnerships, and that when it did it was too late.  Then he claims that NYTHA was asking the partnerships to “act against their own perceived economic interests by revealing in writing who their investors were….”  That seems like the restaurant patron who complains “the food is horrible and the portions are too small.”

Then there were the personal attacks on the integrity of NYTHA officers and staff.  In one, Finley accused Alan Foreman of misrepresenting his position on race-day medication at a November meeting of the Maryland THA.  (Foreman’s affidavit says he did not speak at the meeting about the election.)  Finley, in his campaign statement said:

What matters is having a board and members not duped into believing the “Lasix issue” is the only important matter on the table  –  this is NOT a single issue election  –  as Rick Violette would like you to believe.

(Emphasis in original.)  Since Violette is well-known for his position favoring the continued use of the race day medication, this would strongly suggest Finley is opposed.  Finley was also endorsed by the Water Hay Oats Alliance (WHOA), an organization that supports “the passage of federal legislation to prohibit the use of race day drugs in horse racing.”  Yet in response to what he characterized as Foreman’s misrepresentation, Finley’s attorney stated:

Mr. Finley has always made clear that he is not in favor of Lasix being eliminated as a race day medication, and that he is not in favor of the federal government being asked to regulate any medications administered to thoroughbred racehorses.

It is understandable that in a closely contested election, the unsuccessful candidate might resort to avenues of appeal.  Challenging the process is one thing, although both the Gallagher and Foreman affidavits point out that Finley was elected to two terms on NYTHA’s Board of Directors under the same procedures, and neither has any recollection of Finley suggesting changes to the process.

Finley’s challenge is clearly weak.  Even after running at least two full-page ads in Thoroughbred Daily News seeking disenfranchised voters, he was only able to muster the 14 individuals who filed affidavits, all of which are rebutted effectively by the Jim Gallagher affidavit.

But alleging fraud and the rigging of an election is a charge one should only make if there is evidence to support it.  In going through all of Finley’s papers, I found no evidence of fraudulent behavior by anyone associated with NYTHA.  At the risk of over-stating the obvious, ours is an industry that does not need unwarranted negative publicity.  Regrettably, the allegations are out there and believed by many.  It is one thing to take steps to correct a perceived grievance;  it is another to make baseless personal attacks with nothing to back them up.