The New York State Gaming Commission issued a report on August 8 purportedly explaining its reasons for not reconsidering its decision to suspend trainer Richard Dutrow for 10 years. Dutrow’s attorneys asked the Commission to reconsider only the penalty provision and shorten the suspension to “time served,” which at this point is more than five and one-half years.
The August 8 report, however, is nothing more than a post hoc rationale justifying what I earlier described as a “bag job” by the Commission to target Dutrow. (That post explains the background of the proceeding which will not be repeated here.)
The report – given that it is dated August 8 – was not discussed at the secret July 16 meeting where the commissioners decided against reconsideration by a 4-2 vote. At the public meeting that followed, the vote was announced, but there was neither a discussion nor an explanation. The report not only misstates the positions advocated by Dutrow’s attorneys, but also some of the evidence. It is merely a continuation of disgraceful behavior by a government agency that has deprived someone of his livelihood.
The motion by Dutrow’s attorneys clearly states that they were not seeking to relitigate the underlying violations for which New York’s stewards imposed a 90-day suspension, but only for the “limited purpose of reviewing and modifying” the 10-year suspension subsequently imposed by the Commission.
The Commission’s regulations permit a reopening based on “newly discovered evidence” or for “other compelling reasons.” While Dutrow’s motion cited newly discovered evidence regarding a key Commission witness, it stated that “the most compelling reason to reopen this proceeding is that to do so will serve the interest of justice.”
The Commission basically ignored the arguments on fairness, and instead repeatedly claimed that Dutrow was trying to relitigate the underlying issues. It spent most of its 16-page report defending its original decision and the litigation upholding that decision, even though there was no contention by Dutrow’s attorneys that the Commission’s decision was wrong, or that they lacked the authority to impose the sanction they did.
Dutrow’s request for fairness is predicated upon the disproportionate penalties imposed when compared with “like or similar circumstances.” His attorneys claimed they were the “most severe ever imposed on a trainer in American racing at any of the leading racetrack venues” going back to 2005.
But the Commission’s report did not address the questions of “fairness” or “justice.” And there are undoubtedly people who think Dutrow is getting his just desserts and clemency is not warranted. That’s fine. But the Commission owes it to the citizens of New York as well as the hundreds of professional horse people supporting Dutrow’s reinstatement to explain why they think so.
I tend to be wary when a decision-maker is setting up straw men to knock down, as the Commission report does by focusing on the merits of the underlying violations – again, not arguments being raised by Dutrow. The thrust of his petition is the regulatory language permitting a reconsideration based on “other compelling reasons.” There is no better way to describe this fraudulent report than to quote the entirety of the Commission’s “explanation” on this issue:
“Finally, the Commission considers whether there are other compelling reasons for reopening the proceeding as to penalty.
Having considered all of these questions, the Commission concludes, in its sound discretion, that Dutrow has shown none of the circumstances that would be required for us to exercise our discretion to reopen this proceeding.”
Seriously. That’s it. Dutrow’s petition exhaustively cited numerous other cases in other jurisdictions in which the penalty imposed was less severe – or justifiably equally or more severe – and the Commission dismisses it in a single sentence with no explanation. Kind of like the way they announced their decision to not reopen the case.
One example cited by Dutrow’s attorneys concerned the Commission’s suspension of trainer Roy Sedlacek, who admitted administering opiates to two horses on race day. The drugs were illegal, not therapeutic, performance-enhancing and compounded in such a way as to avoid detection by a testing laboratory. For violations of anti-doping rules more severe than anything for which Dutrow was ever accused, the penalty was a five-year suspension – or less than what Dutrow has already served.
The Commission’s report detailing Dutrow’s “history of violations” is unable to cite anything of significance in the seven years preceding this case. There have been overages of legal medications, including one of the violations here – as there are with numerous trainers – but not one for an illegal drug.
I will not go into the Commission inaccurately recounting two factual matters that are contrary to statements in the Hearing Officer’s report imposing the severe penalties. Suffice it to say that it is more emblematic of an attorney’s spin on the facts. It is why many people distrust lawyers, but this is an adjudicatory body that has an obligation to dispassionately review evidence and make conclusions based on objective and independent analysis.
The Commission’s August 8 report is a shoddy attempt to cover up a decision they were apparently embarrassed to explain in a public hearing. That would be understandable given that they are unable to provide a coherent explanation as to why Dutrow was treated more severely than someone such as Roy Sedlacek.
My suspicion is that this is a political decision emanating from the second floor of Albany’s State Capitol. There was the communications from Ed Martin, head of the Association of Racing Commissioners International, urging a more severe sanction after the stewards imposed “only” a 90-day suspension. It was accompanied by a statement that a United States Senator from New Mexico had expressed his concern about the penalty. That would be the same Ed Martin who once chaired the Commission’s predecessor Racing and Waging Board that continued to license Dutrow. He is now the head of a national organization that continually rails against the evils of a national body telling a state agency what to do.
Regrettably, however, it is a risk-averse Governor running for reelection who is not looking for “independent” agencies in the Executive Branch to exercise any independence. The Gaming Commission is mostly comprised of Andrew Cuomo’s appointees. Reinstating Rick Dutrow would be a controversial decision even if it is the correct one. It is unfortunate that we cannot expect this state government to make the right decision if it could adversely affect the Governor, even at the expense of another’s ability to make a living.