Tom Noonan

NYTHA election again – The Blood-Horse spits the bit

Posted by noonante on February 22, 2015

Posted in: Horse Racing, Political/Social commentary. Tagged: Eric Mitchell, NYTHA, Terry Finley, The Blood-Horse. 1 Comment

In Eric Mitchell’s column in The Blood-Horse, he calls for a new election for President of the New York Thoroughbred Horsemen’s Association. Mitchell, apparently, accepts the arguments of challenger Terry Finley without looking at the contradictory evidence provided by NYTHA officials. Further, he attacks the integrity and transparency of NYTHA.

As for the purported lack of transparency, NYTHA has posted the submissions from all the principals on its web site. So anyone, including Mitchell, can go to those submissions – made under oath – and evaluate the competing claims. I’ve done that, and what follows is based on the submitted evidence, and not on what I have been told by any of the principals.

Mitchell bases his conclusion that a new election is needed on three assertions:

30% of eligible voters did not receive a ballot;
Receipts required for NYTHA to issue a replacement ballot were not available at the law office where the votes were counted;
There was a separate voting list maintained by NYTHA that was not provided to the law firm.

Needless to say, making ballots available to eligible voters is an essential component of any fair election. NYTHA’s ability to identify those voters is the heart of the dispute here. NYTHA eligibility has two components: being a licensed owner or trainer in New York, and starting a horse at a track of the New York Racing Association in 2013 or 2014. While the identity of licensees is available on-line at the web site of the New York Gaming Commission, the Commission had refused to provide addresses to NYTHA, citing privacy concerns. Finley’s attorney was initially denied access to the addresses, but eventually obtained them following the intervention of New York’s Committee on Open Government.

The next piece of the puzzle is to then identify those owners or trainers who raced at a NYRA track. The affidavit of Jim Gallagher, NYTHA’s Executive Director, describes the steps taken by NYTHA staff to identify those owners and trainers by going through each day’s racing program and searching available data bases. That, however, would not identify those individuals who own a horse through a partnership, such as Finley’s own West Point Thoroughbreds. For that, NYTHA contacted the managers of 55 such partnerships to provide contact information for its members.

So, identifying the pool of eligible voters is not as simple as coming up with a voting list in Saratoga Springs – although NYTHA eligible members can simply register on NYTHA’s web site and provide contact information.

Finley retained an expert witness to estimate how many eligible voters there were in NYTHA. (Mitchell’s article did not identify the witness as being paid by Finley.) Now, “expert” is not synonymous with “infallible.” Such a witness is generally proffering an opinion, and is often subject to challenge by the opposing party. In this instance, a key “fact” leading to her conclusion that 30% of voters did not receive a ballot had been disclaimed by the source for her information before she completed her affidavit. Much was made of NYTHA Board member Steve Zorn’s statement that NYTHA had between five and six thousand members. In an earlier stage of this litigation, Zorn submitted a sworn statement essentially saying he had no factual basis for making such a comment.

The expert’s affidavit (Exhibit D to Finley’s Supplement 1) actually lends support to the difficulty NYTHA confronted in coming up with a comprehensive list of voters when she stated, “between 2,488 and 6,028 owners were presumptively eligible to vote.” That is a level of precision that clearly means that the Finley camp’s assertion that 30 per cent of voters were not mailed ballots is nothing more than a wild guess.

The second major point made by Mitchell pertains to a requirement of NYTHA’s by-laws that a replacement ballot can only be issued if the voter submitted a signed receipt indicating the original was not received. In Finley’s initial submission he argued that NYTHA issued replacement ballots “without obtaining a single receipt.” That assertion was later watered down to the receipts not being at the office of the outside law firm that oversaw the election. Why that is a matter of any significance is beyond me, but Mitchell does not state that copies of more than four dozen such receipts are part of the evidence submitted by Jim Gallagher.

Finally, Mitchell appears to be arguing that there was a secret “master list” of eligible voters maintained by the NYTHA office that was not provided to the outside law firm. NYTHA had retained the independent law firm to run the election after NYTHA’s Counsel, Alan Foreman, spoke with Finley in August and was convinced that he would “challenge every aspect of the election.”

Ballots were mailed to the firm which retained possession of them through the counting of the ballots at their office. An attorney with the firm submitted an affidavit (Halder Affidavit) describing efforts to verify that the ballots were eligible voters by matching the returned ballots against voting lists provided by the NYTHA office, and annotating the voting list with the date the ballot was received. The list of voters who returned ballots is part of the evidence. It can be examined on the NYHTA web site as part of the Halder Affidavit. There was no “master list” kept by NYTHA and not provided to the law firm.

This latter assertion is a particularly puzzling one. The identities of those who voted are in evidence. It is a relatively simple matter to go through the Halder exhibits, count the ballots received by the law firm, and measure that against the final vote tally. If there was a separate list not provided the law firm, it would be obvious. Interestingly, Finley does not claim that there is a discrepancy in the vote tallies, instead relying on the secret “master list.”

It is disturbing when a regular columnist for a leading industry publication impugns the integrity of one of the sport’s major organizations without bothering to do even basic research into the validity of his claims. The evidence presented by both sides in this bitter dispute is there for all to see. Yes, it requires a lot of work to go through hundreds of pages of documents, but that should be a prerequisite before calling into question the integrity of others.

Random political thoughts

Posted by noonante on February 8, 2015

Posted in: Political/Social commentary, Politics. Tagged: 2016 election, Andrew Cuomo, Charlie Baker, Cornel West, Donald Trump, Hilary Clinton, Republican Party, Sarah Palin, Thom Tillis. Leave a comment

I have finally given up on not writing about the 2016 election, but at least we are within a year of the first real votes being cast. Some observations:

What deep Republican bench? The Conventional Wisdom, especially among wise Republican pundits, is that the GOP’s bench of candidates for 2016 is deep. Seriously? I know we are missing two of the biggest clowns from 2012 with Bachmann and the Pizza Man not running, but who of this group looks like a President to you? I realize that when a party has only had one successful candidate in the past six elections, and it was George W. Bush, the bar is not set very high. Many of the leading names are politicians of some repute, but being a Governor does not necessarily make you presidential material. Just say President Christie, President Walker or President Perry a few times and see how it sounds. Then there are the candidates from the Senate – Ted Cruz, Marco Rubio and Rand Paul. When the likely favorite of the “Establishment” is someone who has not run for election in 13 years, and has the last name Bush to boot, I don’t understand the sentiment by some that we are awash in talent.
But there is no Democratic bench, only the JV: It’s hard to envision a scenario in which Hilary Clinton is not the Democrats’ nominee. No one else can raise the money, has the charisma of a Barack Obama, or is willing to spend the next 4/8 years being screwed by Clinton, Inc. It is also difficult to think of a less exciting candidate than this Clinton. I read recently that she was thinking of waiting a few more months to announce her inevitable decision so she could spend more time developing her “message.” Uhh … she first ran eight years ago – she doesn’t have a message? Sign me up.
Is there no end to the idiocy of the Republican message? I was surprised that more national figures did not jump on the measles vaccination issue. It was a refreshing – if albeit brief – interlude when science and fact prevailed. Then comes Senator Thom Tillis of North Carolina. That is United States Senator Tillis, not state senator. He doesn’t think restaurants should be required to post notices in rest rooms reminding employees to wash their hands after using the facility. Maybe it is just me, but I think when you hear the words “fecal-oral infection,” you want to be opposed. There was a time when the Senate was routinely described as the “world’s greatest deliberative body,” but only a satirist would use that expression today.
Their 15 minutes is loooong gone: It would be no loss to the polity if these three never made another public utterance: Sarah Palin – how did her recent incoherent speech differ from any previous one? She is that rare individual whose thoughts are not limited by the 140 characters of Twitter. Donald Trump – is there any sentient being, let alone reporter, who actually thinks he will run for President? Cornel West – wake me up the next time he says anything meaningful or insightful. He appears to be the Mainstream Media’s idea of a thoughtful black figure. Watch Larry Wilmore to see dozens of African-Americans with something to offer.
Massachusetts Governor Charlie Baker is off to a solid start: The Bay State’s latest Republican Governor has been impressive in his first month in office. He’s had two major challenges with a substantial deficit left by his predecessor, as well as a ton of snow. It’s easy to get off on the wrong foot – see Patrick, Deval – but Baker has been low-key, and is paying attention to all sorts of constituencies that are often ignored after an election.
New York Governor Andrew Cuomo has already established his retreat on reform: It’s a unique environment when the leading spokesperson on rooting out corruption in a major state is the United States Attorney. Cuomo, who disbanded a commission investigating corruption after it came too close to his own donors, was embarrassed when one of the objects of that commission, the former Speaker of the Assembly, was charged with bribery and graft by the U.S. Attorney. Cuomo, seeking to deflect attention from his own conduct, has announced that he will not sign a budget unless it contains what he describes as significant ethical reform. He has yet to be specific about what that will be, and has omitted one of his favorite fund-raising devices from the ultimatum. When he ended the corruption panel last year he cited the enactment of legislation that was his original goal – much to the surprise of anyone who was paying attention. With this year’s undefined, amorphous reform package, he has already engineered this year’s retreat.

New York racing election dispute – the other side of the story

Posted by noonante on January 30, 2015

Posted in: Horse Racing, Political/Social commentary, Politics. Tagged: disputed election, Jim Gallagher, NYTHA, Rick Violette, Terry Finley. 1 Comment

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.

Saratoga parking garage controversy

Posted by noonante on January 25, 2015

Posted in: Political/Social commentary, Politics, Saratoga thoughts. Tagged: Mouzon House, Saratoga parking garage, Sustainable Sartoga. Leave a comment

Last weekend, we went with friends from out-of-state to the Mouzon House on High Rock Avenue for dinner. They are frequent visitors to Saratoga, and as we walked across the adjacent parking lot, I said there are plans to build a five-story garage on the site. They were incredulous. We all should be.

The City Center wants to build the garage on the site to add about another 300 parking spaces to the existing lots. They also wish to have a walkway over Maple Avenue so City Center visitors can go directly to their vehicles without stepping outside. Not to put too fine a point on it, but their plan would plop a monstrosity down on a valuable piece of city-owned land only three blocks from the center of the city.

The structure would also tower over the Mouzon House, and block sunlight from ever reaching its outdoor dining spaces and bar. In the interests of full disclosure, I think the Mouzon House has some of the best food in Saratoga, and an atmosphere that is second-to-none. It is the go-to place for my wife and me on special occasions.

It is also an historic structure. The Pedinottis who own the building and the restaurant purchased it about 10 years ago, and are only the third owners since its construction in 1883. Their remodeling of the building has resulted in one of the most interesting interior in the Spa. From 1919 until its purchase by the Pedinottis, it had been the home of the family that gave the restaurant its name. The original owners were a husband and wife, one of whom was a full-blooded Cherokee Indian and the other an African-American. One can only imagine what it must have been like for them in the Saratoga of almost a century ago.

According to Saturday’s Saratogian, Monday’s meeting of the Zoning Board of Appeals (7:00 p.m.) will consider a request for a variance sought by the City Center that would allow it to build a structure that not only exceeds maximum height restrictions, but would impede the use of solar panels on the roof of the Mouzon House.

It is somewhat ironic that Mark Baker, President of the City Center, was a leading opponent of the attempt by Saratoga Harness to add a casino to its property. He was, of course, interested in preventing competition with his convention center. One of the more persuasive arguments against the casino was that it would alter the character of Saratoga, and detract from the locals business, including restaurants, that now flourish in downtown.

Sustainable Saratoga, a non-profit organization that promotes “smart land use and efficient urban planning” as part of its mission, has sent a thoughtful and detailed letter advocating a more thoughtful and inclusive process. It does not necessarily oppose a parking garage on the site, but has suggested alternatives that would not only prevent the construction of an eyesore, but could also result in the development of additional local businesses. Nor do the Pedinottis oppose any parking garage on the land. They point to alternatives that would be conducive to the environment, as well as bringing additional business to the area.

If the facility proposed by the City Center is built, it will have a lasting impact that will add nothing to Saratoga’s charm and beauty and, indeed, detract from it. By my count, there are already three parking garages and two parking lots – each of which is free – within three blocks of the corner of Broadway and Lake. While adding this new structure may benefit the insiders who control the business community in Saratoga, it does little for the rest of us who just live here. And all this, for an additional 300 parking spots.

Saratoga Springs is often referred to as the home of “history, health and horses.” Do we need to add “parking” to that triumvirate?

Sheldon Silver charges – trouble for Cuomo?

Posted by noonante on January 22, 2015

Posted in: Political/Social commentary, Politics. Tagged: Andrew Cuomo, Moreland Commission, Preet Bharara, Sheldon Silver. 1 Comment

To his credit, Sheldon Silver has outlasted three of his counterparts in the Massachusetts House of Representatives who were each convicted of federal crimes during Silver’s tenure as Speaker of the New York State Assembly. But when word leaked that he was paid a “substantial” sum of money by a New York law firm that was not the one in which he was a partner – and pulling out in the neighborhood of $650,000 per annum from that one – it just seemed a matter of time before this day came.

I had recent occasion to review the 2010 report of New York’s Inspector General following his investigation of a scandalous procurement award to the Aqueduct Entertainment Group for the right to operate the Video Lottery Terminals at Aqueduct. He was commenting on the bizarre provision of the law giving the Governor, Assembly Speaker and Senate leader the authority to make the procurement decision:

At the time of this report, only Speaker Silver retains his role, as Governor Spitzer was forced to resign in the wake of a prostitution scandal, and Senator Bruno resigned and then was indicted and convicted on federal charges of depriving the state of his honest services.

Bruno’s conviction was later overturned and he was acquitted in the subsequent trial. Spitzer’s resignation was not related to government corruption, but had more to do with his sanctimonious hubris and hypocrisy. Silver, of course, is presumed innocent.

The Inspector General’s Report was an eye-opening look at what has been called a “culture of corruption” in New York State. Andrew Cuomo ran as a reformer in his campaign for Governor the year the report was released. Then, as he was gearing up for a reelection bid, he appointed a “Moreland Commission” to investigate corruption in the state, even saying the commission could investigate him. Of course, all that changed when the Commission started to pursue evidence from major Cuomo contributors. The New York Times has reported that high-level Cuomo confidantes brought pressure on the supposedly independent Commission to back off.

As part of the budget bill from early 2014, there were insignificant measures addressing political “reform,” but also the surprising announcement that Cuomo had decided to disband the Moreland Commission because the dubious reforms accomplished his goals.

Unfortunately for the Governor, the United States Attorney in New York City had a different take on the progress being made to root out New York’s seemingly rampant corruption. He acquired the files from the disbanded Moreland Commission, went to work and convened a grand jury. The first result of that effort was the Thursday arrest of Sheldon Silver, who until that point had acquired an image to rival that of the Teflon Don. He is now accused of taking millions from the corrupt use of his government position.

While this is undoubtedly not the greatest day in the Speaker’s life, things cannot be all that rosy for the Governor either. For starters, he has to explain why he disbanded a panel tasked with rooting out corruption only to have the United States Attorney Preet Bharara, in less than a year, charge one of the biggest fish in the state. And, there is only one bigger fish.

But the truly disturbing aspect for Cuomo has to be whether the Speaker will be rolling over to give the feds the conversations that led to the dismantling of the Moreland Commission for the laughable legislative accomplishments that Cuomo claimed achieved his goals of reform. If the allegations against him are solid, the only thing he may have to bargain is what he and Cuomo discussed prior to the Governor’s dismantling of the Moreland Commission.

And I have to guess that Bharara, who is clearly not enamored of the Governor’s zeal for reform, thought the arrest of the Speaker, on the day after Cuomo’s latest budget proposal, may be a fitting bookend to the deal arrived at the end of last year’s budget process.

Aqueduct racing deaths are not the whole story (republished)

Posted by noonante on January 22, 2015

Posted in: Horse Racing, Political/Social commentary, Politics. Tagged: Andrew Cuomo, Aqueduct fatalities, corticsteroids, equine deaths, FOIL Task Force on Racehorse Health and Safety, NY Gaming Commission, NYRA, Scott Palmer, Teresa Genaro. Leave a comment

Recent news accounts have focused on the dramatic increase in fatalities occurring in races on the Aqueduct inner track. The 12th catastrophic injury since early December occurred on Friday. It seems to be a sharp reversal from the progress made by the New York Racing Association since a similar increase in the 2011-12 meet. Yet that progress has not been replicated in reducing the fatalities that occur during training hours. Just as troubling, however, is that recommendations by a special Task Force following a spike in racing fatalities in 2011-12 are not being followed.

I studied the record of all fatalities from the web site of New York’s Gaming Commission for the same three-month period, September through November, for each of the last four years. Racing fatalities had dropped significantly, from a high of 13 in 2011 to a low of six in 2013 and then eight in 2014. Conversely, training fatalities had increased from a low of six in 2011 to a high of 14 in 2013 before dropping to 10 in 2014. When the number of racing and training fatalities are totaled, there has been almost no change. We went from 19 in 2011 to 18 in 2014, with the intervening years being 16 and 20.

The inverse relationship between racing and training fatalities is curious. It is further amplified when one considers that the high number of racing fatalities in 2011-12 and 2014-15 was matched in each instance by almost no training deaths on the inner track. In this current period, there has been one fatality in the morning (but three at Belmont). When a task force in 2012 looked at that meet’s 21 racing fatalities, it found no training fatalities at Aqueduct (but there were seven at Belmont).

Dr. Scott Palmer, New York’s Equine Medical Director, is aware of the disparity between New York’s overall success in reducing racing fatalities in contrast to the lack of success in cutting the numbers from morning training. I asked him about this last summer, and he identified the factors that made identifying at-risk horses during training so much more difficult than for those racing.

Each horse who is entered to race is examined in the morning by a NYRA veterinarian to determine if the horse is sound, or has a condition that warrants the vet scratching the horse. The vet should also equipped with records pertaining to the horse that might cause a red flag. Horses in training, however, do not receive any scrutiny by NYRA’s vets. While NYRA has on-track personnel to look for problems, including a new position of “Safety Steward,” it is close to being an impossible task to catch every potential problem. Dr. Palmer did say that he continues to work on possible solutions to the training track fatalities. NYRA did not respond to my request for comments on training breakdowns.

The spike in Aqueduct’s racing fatalities must be doubly embarrassing for NYRA. The fatalities in 2011-12 were one of the factors supposedly used by Governor Andrew Cuomo to seize control of NYRA and replace it with a Board of Directors consisting mostly of state appointees. And last week, the Kentucky Horse Racing Commission announced that it had experienced 12 racing fatalities for all tracks for the entire year.

Catastrophic breakdowns are a difficult issue with many possible causes. All one has to do is look at a thoroughbred’s legs to realize that an awful lot of weight is being supported by those legs travelling at high speeds. New York investigated the causes that led to the 2011-12 Aqueduct fatalities by appointing a blue-ribbon Task Force that issued a comprehensive report identifying several possible causes. The Task Force also made over 100 recommendations that could serve as a bible for any racing jurisdiction seeking to reduce fatalities.

Unfortunately, it is not clear how committed New York has been to implementing the recommendations of its own task force. Teresa Genaro, writing in Brooklyn Backstretch, has recently written about two shortcomings.

One has to do with the state’s monitoring of compliance with rules and protocols concerning the administration of corticosteroids. Corticosteroids is a class of therapeutic medications used to treat a broad range of medical conditions (according to the Task Force Report). It can also, however, have a side effect of masking unsoundness if administered too close to a vet examining the horse. Repeated administration can also have serious long-term consequences. The Task Force Report identified it as a potential factor in several of the horses suffering catastrophic injuries during the 2011-12 meet.

Even though treating a horse with intra-articular corticosteroids required a report to the state’s regulatory agency (now the Gaming Commission), the Task Force concluded that the agency neglected to monitor compliance with the regulation, describing it as a “serious deficiency.” The Task Force recommended that the existing rule be enforced, and that a trainer who claimed a horse should be provided with the record of all IA corticosteroids within 48 hours by the prior trainer. This last requirement is particularly important given the potentially harmful effects of over-administering the drug.

Nonetheless, monitoring of these requirements by the Gaming Commission has been deficient, according to Genaro. While the Commission did conduct an audit in 2013, they do not appear to be aware of the extent of compliance with the reporting requirement. Just as troubling, the transfer of records from one trainer to the claiming trainer appears to be close to non-existent.

According to the Genaro piece, the Gaming Commission spokesperson said that while 600 horses were claimed in 2013, he did not receive a single request for records. Trainers are understandably reluctant to pursue the issue with a trainer they just claimed from. The Gaming Commission has developed a software program that will enable the Gaming Commission to notify the claiming trainer of corticosteroid injections reported on the ESAL, a Commission database, and that it should be running in a few weeks.

A second troubling shortcoming identified by Genaro is the manner in which the state has implemented a panel charged with examining the cause of any exercise-related fatality that occurs on a NYRA track. The Task Force recommended that the NYRA top racing official, the horse’s trainer and attending veterinarian, as well as others be part of the review. Importantly, the Task Force recommended that the “report of the review board proceedings should be made part of the [Gaming Commission] investigative report.”

But Genaro found that those recommendations have been watered-down. The top NYRA racing official, Martin Panza, does not attend the meetings. In addition, there are no reports generated. In true government fashion, Panza shifted the blame, saying that a report would have to come from Dr. Palmer of the Gaming Commission, even though the panel is a NYRA responsibility.

But the failure to implement either the letter or the spirit of the Task Report from 2012 does not end there. In a response to the series of recent breakdowns, the NYRA Communications Department issued a list of what NYRA has done recently to address fatalities. One of those innovations is that all fatal breakdowns, both racing and training, would be sent to Cornell for a necropsy. This was recommended by the Task Force Report of September, 2012. But it was also something NYRA stated it was doing in the summer of 2013. Apparently, this is yet another important safety recommendation that has fallen through the ever-widening cracks at NYRA.

Given the effort that went into the 2012 Task Force Report by four of the industry’s most respected figures – Dr. Palmer, Dr. Mary Scollay from Kentucky, Alan Foreman and Jerry Bailey – any serious inquiry into what is happening at Aqueduct should measure the state’s performance against what was recommended. Instead, NYRA has come up with steps to address the crisis, several of which seem to be of questionable utility.

One is to not allow a horse to race if it has raced in the past 14 days. Of the 12 recent fatalities, four had a race within the preceding 14 days which might make this seem to be a sensible step. (Three of the four also had poor finishes in the last race, finishing more than 20 lengths behind the winner.) But many well-regarded trainers will bring a horse back in a shorter period of time, and I have never observed any relationship between a quick turnaround and a breakdown. If anything, trainers who do that as a matter of course have a good record with it.

Another is to reduce the number of races. Again, I am not aware of any causal relationship between the number of races on a card and breakdowns. But this is something NYRA wants to do anyhow – this is the second time the current leadership has proposed this with the stated purpose of safety – and I am skeptical when a purported safety rationale comports with what they want to do for other reasons.

If NYRA explained their rationale with supporting data, it would be one thing. But this smacks of nothing more than a PR fig leaf to get past a crisis. There are, however, meaningful steps they could take to address this problem, although none of them would provide the short-term jolt that an ill-conceived press release provides.

The most important thing NYRA and the Gaming Commission can do is a serious audit of which Task Force recommendations have been implemented fully, and which have been altered – with an explanation for any changes. If they are fully compliant – which obviously appears to not be the case – then there is a problem of a different magnitude. Needless to say, this report should be made public, as was the Task Force Report itself.

One area in particular deserves serious scrutiny. The Task Force Report detailed practices by the NYRA vets when conducting their pre-race exams that were disturbing, if not shocking. What has NYRA done to implement the Task Force recommendations in this one area? Since this is the most proximate exam by a vet before a race, it is of special importance. If the Task Force Report recommendations are not being followed in this instance, it could provide an answer to the current crisis.

Interestingly, this is not the first time the Cuomo-controlled Board of Directors has faced what seemed to be a troubling increase in inner track fatalities. That time, back in 2013, Board Chairman David Skorton seemed to panic, coming up with a series of possible steps, including stopping winter racing. When the situation calmed down, so did Skorton.

But if NYRA and the Gaming Commission do not get on top of this issue, the next crisis will arrive and they will have nothing but PR stunts to address it. It would be far better if they took the basic management step of measuring what they are doing against the thoughtful recommendations by the 2012 Task Force.

Aqueduct racing deaths are not the whole story

Posted by noonante on January 21, 2015

Posted in: Horse Racing, Political/Social commentary, Politics. Tagged: Andrew Cuomo, Aqueduct fatalities, corticsteroids, equine deaths, NY Gaming Commission, NYRA, Scott Palmer, Task Force on Racehorse Health and Safety, Teresa Genaro. 1 Comment