(Mostly) upbeat racing story

Posted by noonante on May 18, 2015
Posted in: Horse Racing. Tagged: , , , , . 1 Comment

Mike Repole, a major owner of thoroughbred racehorses, claimed Be Bullish from Belmont’s third race yesterday and immediately announced his intention to retire him, according to David Grening at drf.com.

The ten-year old gelding had earned over a million dollars and was running for a $16,000 tag.  Repole had owned the horse twice before for six of his 87 starts.  Grening quoted Repole saying “All great athletes have to retire at some time….  If every horse could have an ending like this, the sport would be in a much better place.”  The horse will be pensioned to Old Friends at Cabin Creek near Saratoga Springs.

Two of the major issues negatively affecting racing are the use of drugs and the care of thoroughbreds once they retire.  Repole, who in the past has matched donations to Old Friends, is to be commended for giving back to the equine athletes by whom he has done so well.

Of course with racing, nothing can ever be an unblemished good.  Grening quoted trainer David Jacobson who lost the horse via the claim box:  “If Mike Repole claimed this horse to retire him, I don’t see it.  I think it’s foolish.  He shouldn’t be taking this horse away from the public.”  Thanks, David, for advancing the interests of the sport.

NFL’s incompetence again shines brightly in Deflategate report

Posted by noonante on May 9, 2015
Posted in: Political/Social commentary. Tagged: , , , , . Leave a comment

The National Football League released its report on the investigation of whether the New England Patriots used under-inflated footballs in the AFC Championship game against the Indianapolis Colts.  The authors of the report concluded it is “more probable than not” that Patriots’ employees under-inflated the game balls and that quarterback Tom Brady was “at least generally aware of it.”  While I think the conclusions of the report are sound, the report implicitly highlights  the incompetence of NFL officials in enforcing its own rules.

At the outset, I should say that I am a Patriots fan, although the last time I attended a game it was when they were using Boston College (sic) as a home field, and in an exhibition game against Washington the stands caught on fire and fans had to be evacuated.  Now that was your father’s Patriots.

The report on the so-called “Deflategate” was released on Wednesday by the law firm retained by the NFL to investigate an allegation that the Patriots had used footballs that were not inflated within the permissible limits of 12.5 and 13.5 pounds-per-square-inch (psi).  The evidence showed that the balls used by the Patriots were closer to 11 psi, while the smaller sample of balls used by the Colts were within legal limits.

Having read the full document except for the scientific evidence, I think the “Wells Report” was thorough, professional and its conclusions correct.  Significantly, Brady has yet to deny that he was aware of the under-inflated balls.  In a statement released by his agent, John Yee, not only was there no denial, but an allegation that the NFL and the Colts may have participated in a “sting operation.”  Perhaps Agent Yee did not consider that a successful sting operation only catches the guilty.

Now if you think that the ball in a football game is treated like the ball in a baseball game  –  you take a new ball out of the box and put it in the game  –  this report is illuminating.  (It’s not even that simple in baseball, where balls are “treated” before being used.)  In the NFL, however, each team has its own balls used when they are on offense, and they are not just taken from the box.  Brady had a complete routine for selecting the balls to be used in a game.  The balls may have been broken in at practice, treated with oil, and inflated to the desired level.

Once Brady selected his 12 balls and Andrew Luck, the Colts’ quarterback, picked out his, the balls were brought to the referees in their locker room.  The Patriots’ employee in charge of the balls, Jim McNally, informed referee Walt Anderson that Brady liked the balls inflated at 12.5 psi.  The standard practice, according to the report, was that the balls remained with the referees until the game was about to begin, and then brought to the field under their supervision.  According to the report, Anderson measured the inflation of all the game balls to ensure compliance with the rules, and then placed each team’s balls in its own bag.  This is when it gets interesting.

The report concluded that McNally took the bags of balls and headed toward the field without any game official aware of it.  He stopped in a restroom for 1 minute and 40 seconds.  It was enough time to let air from the 12 Patriots’ balls.  When Anderson and the other officials could not find the balls when it was game time, they were “surprised and concerned.”  Anderson told the investigators it was something that had never happened in his 19 years of officiating.  McNally was then found on the field with the balls.

This is where the NFL’s handling of this comes into question:

  • The NFL had been notified by the Colts of their concern that the balls used by the Patriots in their regular season game had been under-inflated;
  • At least seven NFL officials were informed of the Colts’ concern, and three of them said they would confer with the game officials before the game;
  • Anderson confirmed he was aware of the allegation;
  • Anderson said McNally’s removing the balls from the dressing room without authorization was a “breach of standard pre-game procedure,” although other evidence indicated that McNally did this regularly;
  • While the referees dressing room was crowded before game with “security and operations personnel,” apparently none of them were there to keep track of the balls;  instead they were there for the free food and to watch the ending of the NFC Championship game;
  • It was only when the Colts intercepted a Brady pass and reported what appeared to be under-inflation that the game balls were re-tested;
  • When the balls were re-inflated, it was not to 12.5 psi, but to 13 psi  –  a violation of the NFL rule;
  • The Patriots were already in a post-season controversy from their preceding playoff game with the Baltimore Ravens over substitution patterns, one of which may have been illegal;
  • The Patriots had a prior history of violating rules from the “Spygate” controversy from 2007.

The report also identified another instance in which the inflation level of the Patriots footballs was an issue.  In this case, it was Brady who complained that the balls for an October game against the Jets were over-inflated.  One of the Patriots’ employees involved in this matter informed the investigators that he tested the balls after the game and recorded readings near 16 psi, well above the legal limit.  The report also identified other game officials who adjusted the levels of all balls to 13.0 psi to ensure “consistency”  –  again, a violation of the NFL’s rule.

For the AFC game, we have a referee who admits to being apprised of the Colts’ concern, had the game balls under his supervision disappear  –  the first time it happened in his 19-year career  –  and still did nothing to check the balls before the game began.  For the NFL’s part, it states it did not take action to check the balls during the game  –  as the Colts requested  –  because the Colts “did not provide specific factual support” for their concerns.  When the balls were re-inflated for the second-half, it was done in violation of the NFL’s rule that required the inflation level go to 12.5.

It is, of course, not surprising that a crew that did not think of asking for all security footage when Ray Rice was seen dragging an unconscious woman from an elevator would bungle something they now supposedly believe to be an important matter.

How important is the level of a properly-inflated football?  Tom Brady obviously thinks so because he and Peyton Manning were behind the adoption of the current rule permitting teams to use their own balls on offense.  The Patriots, however, led the Colts by 17-7 at half-time using the under-inflated balls.  With the pressure increased for the second half, they out-scored Indianapolis 28-0.

Does the NFL think this is important?  The report identifies instances in which game officials clearly violated the rule.  Even in the AFC Championship, the second-half balls were inflated to 13 psi even though the rule requires they be inflated to 12.5.  I suspect the only reason the NFL thinks this is a big deal is because of the criticism they took over the past year for the Ray Rice and Adrian Peterson cases.

Here is a sensible solution:  Accept the findings of the report.  Then acknowledge that the report identified deficiencies in the NFL’s compliance with the inflation rules in other instances, including in the AFC Championship game.  After all, if their own officials cannot apply the rule correctly after being warned of possible non-compliance, it may be better for all parties to just move on.  This would, of course, require the Patriots and Brady to acknowledge their fault.

How likely is this happening?  I think it is about equal to the chances of Ocho Ocho Ocho winning the Kentucky Derby.

 

New Cuomo biography is engrossing

Posted by noonante on April 10, 2015
Posted in: Political/Social commentary, Politics. Tagged: , , . Leave a comment

Michael Shnayerson’s unauthorized biography of New York Governor Andrew Cuomo, The Contender, is both engrossing and devastating.  It is definitely not to be confused with Cuomo’s own memoir, which could set a record for fewest sales by a possible candidate for the Presidency.

Cuomo may well be the most fascinating personality on the national political landscape.  His father Mario, a three-term Governor of New York, was often portrayed as the “Hamlet on the Hudson” for his flirtations with running for the Presidency.  I am not conversant enough with my Shakespeare to know which character Andrew resembles, but I know there must be one.

Although he was the son of a long-serving Governor, Andrew was not born with the proverbial silver spoon in his mouth.  He grew up in working class Queens, and worked his way through school by driving a AAA emergency truck at night.  He is a skilled automobile mechanic.  When working on his father’s campaigns, he did not hesitate to shimmy up utility poles to staple a Cuomo election poster.  He is also rumored to not being averse to removing ones of an opponent.

Of course his father did not hinder his getting high level government positions with the federal Housing and Urban Development agency.  Even so, Cuomo had plenty of night-time meetings when he went out to neighborhoods to sell a controversial development project.  He got a boost from his father, but he also paid his dues.

It is the force of the younger son’s personality, for better or worse, that got him where he is today.  He has had a signature achievement  –  getting marriage equality passed through a recalcitrant New York legislature.  While that is notable, describing it as an act of courage misses the point that he had little to risk by pushing it.  Indeed, it is legislators from conservative districts who voted their conscience, many of whom were defeated for reelection, who can be cited for taking a courageous position.

The Governor may be inclined to point to the passage of five consecutive on-time budgets as demonstrating his ending the traditional dysfunction that has characterized New York politics on the state level.  First of all, getting a budget by the beginning of the fiscal year does not warrant accolades  –  it is a basic of your job.  It might be an easier sell on ending the dysfunction, however, if one of your partners in the first four did not have to miss the fifth following his federal indictment, causing him to resign as Speaker of the Assembly.

It was the Governor’s push for a new gun control law  –  the SAFE Act  –  following the killings in Newtown that are more emblematic of his style of leadership.  Rather than working with the differing interest groups and having an open debate to build public support, Cuomo rammed through his version of an ideal law.  Because he failed to listen to others, the law limited the size of magazines to seven bullets instead of the ten permitted under federal law.  Since seven-bullet magazines are not manufactured, it made little sense.  But two important aspects were at play.  First, it was tougher than the federal law, even if it was foolish.  Perhaps just as important, however, Shnayerson speculates that the Governor’s real motivation was to beat President Obama to the punch on his proposed federal legislation.

That ignoring of good advice and getting the better of other politicians are traits the book amply demonstrates.  Then there are the constant manipulations and deceptions that seem to be Cuomo’s second nature.  A close adviser and supporter of both Cuomos was quoted:  “Andrew is like a younger brother to me, but if there’s ever a moment when he can take political advantage, he’ll cut someone off at the knees, me or anyone else.”

The Governor does not appear to get along with any other political leaders, with the possible and puzzling exception of New Jersey Governor Chris Christie.  Christie, of course, poses no threat to Cuomo in New York, but Cuomo’s idea of a “threat” is someone else who might get credit for a good idea or accomplishment.  (Shnayerson does raise the possibility that Christie’s “Bridgegate scandal” may have been initiated by one of Cuomo’s appointees to the Port Authority that runs the George Washington Bridge.)

Cuomo is a well-known micro-manager.  Shnayerson’s book also is replete with examples of the Governor being petty, vindictive, deceptive and untrustworthy  –  all to advance the career of one Andrew Cuomo.  While he is unquestionably a skilled political tactician and strategist, he also comes across as an arrogant jerk.  This is not someone who is going to go far if he gets a chance to run for a national office.

 

Best 30 minutes of TV you’ll see this year

Posted by noonante on April 8, 2015
Posted in: Political/Social commentary, Politics. Tagged: , , , . Leave a comment

The April 5 edition of John Oliver’s Last Week Tonight on HBO may be the best 30 minutes that will appear on any network this year.  Not only does it deal with one of the most pressing issues facing our country  –  at least one that should be  –  but does it with humor that left me with tears running down my face.  It is a brilliant work of genius.

The issue is the surveillance of Americans by the National Security Agency disclosed by Edward Snowden.  It is an urgent matter because the Patriot Act under which the spying took place expires on June 1.  If it is again renewed without amendment, the deep intrusion by the government into our personal lives will continue.

I know there are those who will say, “If you have nothing to hide, why are you concerned?”  For starters, I do not care to have the government or anyone else invading my privacy without my consent.  More significantly, however, is what the government could do to political opponents with unfettered access into personal matters.  We do not need a technologically powerful J. Edgar Hoover using such information against his adversaries.  Some may think that requiring citizens to have health insurance is tyranny.  But real tyranny is what is made possible by the intrusion into our personal lives by the NSA’s surveillance.

Oliver makes the point that Americans do not care about this issue, using “person-on-the-street” interviews in Times Square to show that people do not even know who Edward Snowden is.  Oliver went to Moscow to interview Snowden.  The interview took place across the street from KGB headquarters, a fact that puts the NSA behavior in a most unsettling context.

Oliver, now in the second season of his program following his departure from Jon Stewart’s The Daily Show, has the ability to take complex issues and not only explain them, but to leaven the serious topic with great humor.  We are talking someone who was able to make the subject of civil forfeiture by the police both entertaining and alarming  –  another topic, incidentally, that should inflame anyone concerned about liberty.

Oliver extended his standard 30 minute broadcast to 45 to accommodate the Snowden interview.  The NSA portion of the program is about 15 minutes in.  It can be seen on YouTube, on demand, or HBO GO.  It may well turn out to be the most important 30 minutes that will be anywhere on TV this year.

NYRA doesn’t do the one thing required by law

Posted by noonante on April 1, 2015
Posted in: Horse Racing, Political/Social commentary, Politics. Tagged: , , , , . 2 Comments

When Governor Andrew Cuomo seized control of the New York Racing Association almost three years ago, he wrote a law putting the government in charge of the state’s premier racing.  Under that law, the “Reorganization Board” of NYRA was given one specific responsibility:  recommend legislation that would put the NYRA franchise back in private control by October 18, 2015.  They failed to do it.  Now the budget just passed by the Legislature extends state control for an additional year.

According to today’s Saratogian, NYRA CEO Chris Kay told the Wall Street Journal that a re-privatization plan “hadn’t been voted on by the board or presented to the state because of more pressing issues in Albany, such as state ethics reform.”  Seriously?

Ethics reform was not even mentioned in the Governor’s State of the State and did not become a “priority” until Assembly Speaker Sheldon Silver was arrested in January.  Kay, who was hired on July 1, 2013, never made a public comment about his goals without mentioning the re-privatization.  And NYRA has no role in the ethics debate.

The NYRA Board was presented with a proposed re-privatization by its General Counsel at its meeting on November 12, 2014.  That meeting was a unique one in the history of the Reorganization Board because it was substantive and meaningful.  It was also the last time the re-privatization effort was discussed with the exception of Kay saying there would be two Board meetings to discuss it, with the first one being in March.  They now have not met in four months.

I am anticipating that NYRA may say it could not act because the Governor’s initial pick as Chair of the Reorganization Board had announced his resignation and a successor had not been named.  The original Chair, David Skorton, announced last May that he had accepted an offer to lead the Smithsonian Institute, so the need for a replacement has been known for some time.  It was not until yesterday, however, that current Board member Anthony Bonomo was announced as Skorton’s replacement.

When the original proposal for a government-takeover of NYRA was announced, I was shocked. Not because of any anti-government bias  –  I worked in government for almost 40 years  –  but because the state had no business in seizing control of a private enterprise.  And that’s before we get to whether it had the competence to run horse racing.  When they cannot accomplish their sole obligation required by law in 30 months, it will be little wonder if the public’s confidence continues to decline.

Spring cleaning

Posted by noonante on March 30, 2015
Posted in: Horse Racing, Political/Social commentary, Politics, Saratoga thoughts. Tagged: , , , , , , , , , . Leave a comment

There are a number of things I failed to comment on promptly, so here is an attempt to do some catching up:

  • Now that’s a March surprise:  No not the NCAA’s, but the Israeli election.  Candidates in American elections fear the “October surprise” from their opponent  –  an event so close to the election that there is no time to respond.  Bibi Netanyahu delivered not one, but two such shockers.  First there was the renunciation of the two-state solution to create a distinct Palestinian country.  Then on election day he tweeted about the “droves” of Arabs turning out to the polls.  While he has walked back from the first and apologized for the second, I wonder what his enablers in our Republican Party thought of those two developments.  The two-state solution has been a long-standing tenet of United States foreign policy, although the GOP apparently now thinks it is OK to have its own foreign policy at opposition to the elected leadership of the country.  I fear that many may secretly admire Netanyahu for blatantly playing the race card.  Incidentally, for a disturbing account of seemingly wide-spread anti-Semitism in Europe, read Jeffrey Goldberg’s piece in this month’s Atlantic.
  • Speaking of the GOP, buy this guy a dictionary:  I have long thought that Representative Steve King of Iowa is one of the biggest nitwits to hold elected office.  He is the one who talked about Mexicans with calves the size of cantaloupes from carrying backpacks filled with drugs into the country.  More recently, he made a typically asinine comment criticizing Democrats who boycotted Netanyahu’s speech to Congress for being “Democrats first and Jewish second.”  When Representative Steve Israel demanded an apology, the always erudite King responded that “I defend Israelis from Leftists & misogynists.”  Huh??  It was reminiscent of a state legislator from Massachusetts who once defended himself from charges that he was anti-immigrant by saying, “I am not a bigamist.”
  • Saratoga Springs does the right thing  –  so far  –  on monstrous parking garage:  It’s good to know that the big-money interests don’t always win.  First, the City Council decided against applying for a casino license, and now the Zoning Board of Appeals has voted down a five-story garage to be built on city property that would have been a monumental eye sore near the center of town.  Interestingly, Mark Baker, President of the City Center was a leading opponent of the casino, but the major proponent of the garage.  If a parking garage is the most desirable use for this valued parcel in downtown  –  it’s already a parking lot  –  the ZBA decision gives time for a rational planning process.
  • NYRA equine fatalities decline remarkably:  There was no shortage of publicity when there was a dramatic increase in racing fatalities on Aqueduct’s inner track.  There were 14 catastrophic injuries suffered in less than two months in December and January.  Since January 26, however, there has been one racing fatality and another on the Belmont training track.
  • Why was NYRA not planning to race on Dubai’s World Cup day?  Were it not for the large number of weather-related cancellations, NYRA  would not have run a card this past Saturday even though it is one of the biggest days on the racing calendar.  NYRA now focuses on its own “big days,” but doesn’t growing the sport mean educating a potential fan base that there are big races in addition to the Triple Crown and Travers?
  • New York’s disputed election ends up with right result:  I have written previously about the hotly-contested election for President of the New York Thoroughbred Horsemen’s Association.  Unsuccessful challenger Terry Finley lost to incumbent Rick Violette by 14 votes from over 1,200 cast. The NYTHA Board conducted an appeal process and made their decision earlier this month upholding the results.  I know that there are loud dissenting views  –  this is, after all, horse racing  –  but I think a fair-minded observer would conclude that the appeal was taken seriously and the decision-making process was fair.  NYTHA posted all of the written submissions on its web site, as well as the transcript of the hearing and then its written decision.  That is not the behavior of an organization with something to hide.  The hearing transcript was particularly revealing.  Board members had obviously gone through the voluminous evidentiary submissions and asked pointed and pertinent questions.  It was thorough and professional.  I hope we can move on from what has, unfortunately, had an unnecessary personal aspect.
  • NCAA tournament is, once again, riveting:  Several years ago I decided against filling out a bracket because I did not want to be rooting for heavy favorites in order to win some cash.  Now I can just enjoy the games, and this year’s tourney has been worth it.  Of course, there are the inevitable annoying commercials and the suspicion that the NCAA is able to cram more of them into a 40-minute game than even the National Football League can with 50 per cent more time.  But my personal most-hated spots are the Rob Lowe ones and the promos for Tru-TV programming.  People actually watch that dreck?
  • A final note of sadness:  Racing lost one of its true giants with the passing of Allen Jerkens.  I did not know him other than by observation, but it was one the highlights of my life when I met him on the Saratoga backstretch a couple of years ago after another one of his patented upsets in a graded stake.  Others can write more knowingly of him (see Steve Haskin here and Teresa Genaro here), but it is unfortunate that his type of horsemanship is fading from the scene.

Gaming Commission rubber stamps Cuomo on another casino

Posted by noonante on March 24, 2015
Posted in: Political/Social commentary, Politics. Tagged: , , . 1 Comment

After the board charged with evaluating proposals for casinos made their recommendations in December, Governor Andrew Cuomo stepped in and decided the board was wrong, and that an additional casino should be sited.  Yesterday, New York’s Gaming Commission went along with the Governor, approving his “recommendation” in two minutes.

Discussions on government procurements are ones that cause eyes to glaze over, and I have contributed to that soporific effect with this overly-wonky piece.  Yet, the issue of casinos and the power exerted by this Governor are significant ones that should be discussed.

When New York voters approved locating up to four non-Indian casinos in upstate, they activated legislation that specified how the decisions were to be made.  The Gaming Commission has the ultimate decision on what licenses to award, but they designated a separate Facility Location Board to review competing proposals and make a recommendation.  The Board did that in December, deciding on one casino in each of three regions, but declining to award a fourth.  The Board issued its full report in February.

When the Gaming Commission first discussed making a fourth award at its meeting on February 23, the members decided they wanted to first review the report of the Facility Location Board before deciding on whether a fourth casino was appropriate.  With the report now available (on-line here), the Commission did not hesitate in approving a new request for applications (RFA).

The report is 1700 pages long.  Most of it, however, is the sort of filler reminiscent of the delusional college student who thinks the professor will ignore the lack of insight in favor of bulk.  For example, the entire RFA is included.  We even have the instructions on fingerprinting.

There is, however, a curious omission.  The December 17 recommendation of the Facility Location Board, in which they announced their choices, is not included.  In that report, they stated:

The Board has declined to select a fourth Applicant in the belief that a second competing new gaming facility in any of the regions would make it significantly more difficult for any gaming facility to succeed in that region.

You don’t have to be an expert in the economics of the gaming industry to realize there is an increasing saturation of the market that will only be exacerbated with the opening of three casinos in Massachusetts, and a proposal to open one at New Jersey’s Meadowlands.

Yet the Facility Location Board ignored its own conclusion in approving the Governor’s proposal to add a fourth site, and the Gaming Commission meekly went along, with no debate  –  let alone an acknowledgement of the Facility Location Board’s initial reticence that raised a legitimate policy question.

Most of the Gaming Commission members are appointed by the Governor;  the Commission appointed the members of the Facility Location Board.  Despite their resumes, however, they appear to be no more than compliant pawns in Andrew Cuomo’s micromanaging of every detail in his Administration.  What is particularly surprising is that none of them are paid, so it’s not as though they will be out of a job should they take an independent stance.  Of course, given the way things work in Albany, there may well be other financial considerations in play.

When the Gaming Commission set up the original RFA process, it established rigorous rules designed to ensure a decision free of unwarranted influence.  Since then, however, the Facility Location Board created a secret evaluation criterion that was used to effectively disqualify six bidders in Orange County.  Now it has reversed its own decision on awarding a fourth casino with no explanation justifying its new position.  The Gaming Commission’s two-minute consideration of this consequential matter does not exactly calm fears that this is merely a political process.

The Governor and the Commission hope that a new procurement will not just have the discredited proposal from a prior bidder, but well-financed bids from major players in the casino industry.  After the shallow and shoddy initial decision of the Facility Location Board, good luck getting the deep pocket gaming interests to have any confidence in the integrity of this process.

Are New York casino decisions legitimate?

Posted by noonante on March 2, 2015
Posted in: Political/Social commentary, Politics. Leave a comment

The Board designated to make the initial recommendations for casinos in New York released its report on Friday.  Although the purpose of the report is to explain fully why the Board recommended three of the bidders for casino licenses, and none of the unsuccessful competing 13 bidders, the report raises as many questions as it answers.  At the risk of overstating the obvious, awarding casino licenses tend to be controversial, and this report does little to quell any disputes.

The law authorizing the licensing of non-Indian casinos gave the state’s Gaming Commission the responsibility for overseeing the procurement process and making the final decisions to award licenses.  The Commission appointed a Gaming Facility Location Board to issue a request for applications, receive and evaluate bids, and then make a recommendation for awarding licenses in the three up-state regions of the state specified by the law.  The Board could recommend a second license in one of the regions, but had no obligation to do so.

On December 17, the Board announced its decision, recommending licenses in each of the three regions, but not a fourth license.  The Board stated it would issue a full report explaining its decisions, which it did on February 27.  The Board  –  and the staff from the Gaming Commission  –  faced a substantial challenge.  They had to evaluate a significant amount of material submitted by the bidders detailing their approach to the 20 evaluation criteria mandated by the statute, including a review of financial information and detailed casino plans.

The Board’s Report, available on the Gaming Commission web site, is almost 800 pages long.  What should be the meat of the report  –  explaining why it recommended certain bidders and not others  –  takes up a mere 27 pages. That is less than two pages per bidder, following a process in which each bidder had to submit a $1 million licensing application fee and expend additional millions in crafting their bids.  In addition, there is a much lengthier review of the bids by the Gaming Commission staff that takes up an additional 269 pages.

It’s not the page count that disturbs me, it is the content of those pages  –  although being able to reduce an analysis of 20 evaluation criteria to less than two pages is inherently suspect.  The essence of a fair and open process is announcing the rules and then abiding by them.  In the procurement world, this means that you announce the criteria by which bids are to be evaluated, the respective weight given to each of those criteria, and then a comprehensive analysis that permits the public to meaningfully assess the integrity of the process.  This may seem like procurement esoterica, but it is the essence of an open and accountable decision.

The evaluation criteria were established by the law.  The weight given to the three broad categories of criteria were also set in the law.  Thus, 70 per cent of the evaluation was to consist of the assessment of “Economic Activity & Business Development Factors” such as:  maximizing revenues received by the state;  providing the highest number of quality jobs;  and, building a gaming facility of the highest caliber.  Twenty per cent was assigned to “Local Impact and Siting Factors,” with the remaining 10 per cent assigned to “Workforce Enhancement Factors.”

While one might think the Governor and Legislature were fairly specific when they enacted the 111-page casino law, the Board decided to create an additional criterion.  There was no public notice of this prior to their announcing it at the December 17 meeting when their decisions were made public.  The law gave them this authority, but the Board’s explanation for creating this new criterion was to effectuate the “intent” of the law.  Thus was established the notion that a purpose of the law was “providing economic assistance to disadvantaged areas of the State.”

If that indeed was the intent of the law, it is surprising that neither the Governor nor the Legislature thought to mention it anywhere in those 111 pages.  But the Board’s additional criterion had a profound effect:  it effectively disqualified six of the nine proposals submitted for a license in what is referred to as Region One.  Those six were all for a proposal to build a casino in Orange County.

Now if the true intent of the law was that proposals from Orange County should not be considered, the Governor and the Legislature would have done what they did for other counties in the state  –  specifically exclude them from consideration as they did with all of New York City, Long Island and other counties bordering Orange.

Not only did the Board adopt a rationale for their new criterion based on questionable legal authority, but they decided to apply it differently among the regions, without specifically stating what percentage weight was to be given this new factor.  Thus, in Region One, the Board accorded “considerable weight” to its newly established criterion.  In the other two regions, it simply “considered” it.

In making its determination that certain counties in the state were “disadvantaged,” the Board identified five statistical measures provided by the Division of the Budget.  On page 10 of its Report is a chart comparing those indices for each county in the respective regions.  I picked out a sampling of counties (two from each region) and created the following chart:

 

Median Income             % w/ BA         Home Prices        Unemploy Rate        Poverty Rate

$81,000                                27                 $195,000                   5.4%                          12.5%

$76,000                                29                  $198,000                  5.7%                          13.6%

 

$75,000                                  31                   $172,000                   5.0%                        11.6%

$75,000                                  27                    $171,000                   5.2%                        12.4%

 

$66,000                                   21                     $147,000                    5.1%                       12.9%

$63,000                                   30                     $113,000                     6.0%                       17.3%

 

I had formatting issues.  The first two are “A” and “B.”  The next two “C” and “D.”  Then “E” and “F.””A” and “B” are different counties from the same region, as are “C” and “D” and then “E” and “F.”  The median income and home prices were rounded to the closest $1,000.  Percentage of those with at least a bachelor’s degree is designated “% w/ BA.”

The Board looked at this data and reached some surprising conclusions.  In the region in which “A” and “B” submitted bids, the Board gave “considerable weight” to the criterion it established.  It then determined that the economic indicators of “economic distress” were “less severe” in county “A” than in county “B.”  County “A” is Orange.

When comparing proposals in a different region for counties “C” and “D,” the Board decided that county “C” “was more strongly positioned economically” than the other county.  It further concluded that County “D” had below average home prices when compared with County “C.”  County “C” is Rensselaer, County “D” is Schenectady, the site of the successful bidder.

In its justification for recommending a license for the proposal in County “E,” the Board cited that “median home prices were far below the New York State average.”  Of course, this bidder was not competing against the rest of New York state, but against other proposals in its region.  The Board’s failure to compare the proposal in “E” with the median home prices in “F” that were 23 per cent lower is a glaring omission.  County “E” is Seneca, site of the successful bidder, while County “F” is Broome.

Now setting aside whether the statistical measures provided by the Division of the Budget are the best ones, and setting aside the possibility of wide disparities within a county, the above chart demonstrates that measuring economic distress is not as clear as the Board apparently thinks.  That it appears to be the basis for the Board’s decisions is troubling at best.

Then there are the actual assessments made by the Board of competing proposals.  I decided to pick two for comparison.  I went with the Region One winner, Montreign, and the unsuccessful proposal from Genting for a facility in Orange County.  (I am not suggesting that Genting should have prevailed, particularly since there are legitimate environmental concerns, and the reality that they have not been a particularly good partner in their joint venture on the Aqueduct property.  I use them only to review how the Board assessed the competing bids.)

One of the “70 per cent” factors is “providing the highest number of quality jobs.”  (One thing I have learned in following the casino debate is that all casino jobs are “quality”  –  at least according to the casino operators.)  Montreign proposed 1,209 full-time positions and 96 part-time ones.  Genting bid 3,129 full-time and 1,614 part-time ones.

Regarding state revenues, the Board approvingly cited Montreign’s commitment to pay an additional $1 million in addition to the required $50 million licensing fee.  You cannot find what Genting proposed in the Board’s summary, and have to go to the Gaming Commission’s analysis, where you learn that Genting promised an additional supplemental licensing fee of between $240 million and $380 million.  It is little wonder the Board decided to omit that tidbit from its summary.

Then there is the another “70 per cent” criterion of “building a gaming facility of the highest caliber.”  Now I have only been to a casino (as opposed to racino) once, and made no wagers and could not wait to leave.  But the Gaming Commission’s description of what Genting proposed was actually enticing.  Montreign’s?  Not so much.

This is not to say that the Board made the wrong decision.  It may have, but it has a lot more explaining to do.  Tossing an impressive proposal because you decide to create a last-minute evaluation criterion does not actually inspire confidence in the fairness  –  let alone integrity  –  of your decision.

Regrettably, the Board has also demonstrated it is willing to buckle to political pressure.  After releasing its recommendations on December 17, Governor Andrew Cuomo asked the Board to consider granting another license in the so-called “Southern Tier,”  citing  –  you guessed it  –  the “intent” of the law.  Here is what the Board said in its December 17 report on awarding a fourth license:

The Board has declined to select a fourth Applicant in the belief that a second competing new gaming facility in any of the regions would make it significantly more difficult for any gaming facility to succeed in that region.

That straightforward statement of resolve dissolved as quickly as the Board could convene a meeting and thump their chests about the great process and how agreeing to the Governor’s request did not mean a new license would be recommended.  Right.

There are additional aspects of the process that gives one pause.  One is that Attorney General Eric Schneiderman’s staff is interviewing disgruntled bidders.  The other is a report from Gannett’s Jon Harris that a law firm retained by the Gaming Commission as a consultant under a $4.9 million contract had previously represented each of the winning bidders.  The potential conflicts were disclosed, and the Commission concluded there was no conflict.

Now nothing in the preceding paragraph means there was any inappropriate conduct.  But the reason for following standard procurement practices is to ensure the public that everything is above board, and that government  decisions are fair and accountable.  Unfortunately, there is enough to indicate that the Gaming Facility Location Board has not done an adequate job of either documenting its decisions, or adhering to generally-accepted government contracting practices.  And the political interference by the Governor only adds to reasonable skepticism that this is a decision New Yorkers can be proud of.