Terry Finley

All posts tagged Terry Finley

NYTHA election again – The Blood-Horse spits the bit

Posted by noonante on February 22, 2015
Posted in: Horse Racing, Political/Social commentary. Tagged: , , , . 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.

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: , , , , . 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.

 

 

New York racing’s election dispute – update

Posted by noonante on December 19, 2014
Posted in: Horse Racing, Political/Social commentary. Tagged: , , , , , . 1 Comment

 

Now that we have gotten beyond the ceaseless advertising and robo-calling of the election season for political offices, a dispute over another election is roiling the waters of the New York racing community.  Earlier this month, Rick Violette was re-elected President of the New York Thoroughbred Horsemen’s Association, reportedly by a razor-thin margin of 14 votes from over 1,200 cast.  His opponent, Terry Finley, is challenging the outcome claiming, among other things, that over 1,000 eligible voters did not receive ballots.

NYTHA is an organization that represents owners and trainers in New York and also administers programs to assist workers on the back stretch.  In addition, NYTHA has a non-voting seat on the Board of Directors for the New York Racing Association.  Violette is a long-time trainer on the New York circuit.  Finley is the founder and president of West Point Thoroughbreds that markets and manages racing partnerships.

The election was important, particularly in light of the fact that NYRA must come up with a reorganization plan by April to return the organization to private control from its current structure as one controlled by New York’s state government.  While there are several owners on the NYRA Board, Violette is the only trainer and the sole member with a designated constituency to represent.

What first caught my attention about this election, however, was a level of personal invective coming from the Finley camp.  This is from his campaign position statement:

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. We must develop collaborative solutions to issues like race day medication and out of competition testing. It is also important to have an open-minded, rational leader with the right temperament – not one who antagonizes those with opposing views – as Violette does on a regular basis.

Now, Violette unapologetically believes that race-day Lasix should continue to be permitted.  (Incidentally, West Point’s thoroughbreds regularly race with the medication.)  But Violette is more than a one-trick pony.  I have heard him advocate passionately for the interest of New York owners and trainers on a variety of subjects, such as the importance of continuing a program of winter racing in the state.

It is also surprising to see him criticized as not being “rational” with the “right temperament.”  I have seen every meeting of the NYRA Board since it started conducting public meetings two years ago.  He is one of the few Board members with an historical perspective, and forcefully articulates his views, but always in a respectful and diplomatic manner.

So there must be something else going on here.  The essence of Finley’s arguments challenging the election results is a not-so-thinly veiled claim that NYTHA conducted the election in either an incompetent or fraudulent manner  –  and perhaps both.  According to Finley’s appeal, over 1,000 eligible voters were not mailed ballots, and NYTHA’s staff deliberately skewed the mailings to benefit Violette.

The racing media has been reporting Finley’s claims, but the NYTHA leadership has not been commenting.  I think the reason for that silence is pretty obvious  –  NYTHA is holding a hearing on Finley’s claims and any comments by Violette or NYTHA executives would be perceived as prejudicing that process.  (I did not attempt to contact NYTHA because they have not been responding to other media sources seeking comments.)

But what is known about the election process indicates that Finley’s assertions should be viewed with a considerable level of skepticism.

Eligibility for NYTHA membership is rather simple  –  if you owned or trained a horse that raced in New York in the preceding two years, you are “automatically” a member.  The NYTHA web site has a brief registration form that provides NYTHA with the information needed to contact you.

So if an owner or trainer does not fill out that form, how does NYTHA mail you a ballot?  That’s when it gets complicated.  Owners and trainers must be licensed by the state’s Gaming Commission in order to participate in racing.  But, according to published reports, the Gaming Commission says it is precluded by law from releasing addresses.

Owners and trainers are, of course, listed in each day’s racing program, but their addresses are not.  And many owners  –  for example, “West Point Thoroughbreds”  –  do not list the actual names of the individuals making up the partnership.

It is, therefore, difficult to ascertain what Finley thinks NYTHA should have done differently to ensure a fair process.  Given what we just described, how can anyone make a good-faith claim that over 1,000 eligible voters were not mailed ballots?  Knowing the number of licensed owners and trainers does not get you there because one must also have raced in New York.

One must also wonder what responsibility owners and trainers have for ensuring they are listed as an eligible voter.  It is clear that state records cannot be relied on, so an interested voter must take that extra step of registering to vote  –  an on-line process that takes less than a minute.

NYTHA has announced the process it will follow to adjudicate Finley’s claim, including evidence presented by actual people under oath.  Finley will get his chance to make his case.  The constant drumbeat criticizing the fairness of the election should wait until he puts real facts  –  not speculation and rumor  –  on the table.

UPDATE:  Terry Finley has emailed  me regarding this post.  He stated that he has “received an avalanche of notes from people not getting ballots or were so late they could not submit.”  He included two such notes from individuals saying that even after requesting a ballot from NYTHA, it required follow-up before they actually obtained one.  In one case, the writer had to Fed Ex the ballot in order to get it in on time.