The administrative rule we are going to review is '71 IAC 5.5-3-3(a)(4) Other responsibilities,' which is a list of 30 'other responsibilities' of trainers while racing in Indiana. This is just one of the trainer responsibility rules on the books. Needless to say, trainers, and rightly so, have quite a few responsibilities. Below is a copy of the rule, and to keep things brief, we've removed all but the specific subsection we'd like to focus on. If you'd like to see this administrative rule in its entirety, simply follow this link: http://www.in.gov/legislative/iac/T00710/A00055.PDF?. 71 IAC 5.5-3-3(a)(4) describes a trainer's requirement to maintain what is routinely called a 'badge list' or 'stable roster' as used by the IHRC. We're going to use the term badge list through this article as that seems to be the term of choice with horsemen.
71 IAC 5.5-3-3 Other responsibilities
Authority: IC 4-31-3-9
Affected: IC 4-31
Sec. 3. (a) A trainer is responsible for the following:
(1)-(3) REMOVED
(4) Providing a list to the commission of the trainer's employees on association grounds and any other area under the jurisdiction of the commission. The list shall include each employee's:
(A) name;
(B) occupation;
(C) occupational license number.
The commission shall be notified by the trainer, in writing, within twenty-four (24) hours of any change.
(5)-(30) REMOVED
(Indiana Horse Racing Commission; 71 IAC 5.5-3-3; emergency rule filed Jun 15, 1995, 5:00 p.m.: 18 IR 2856, eff Jul 1, 1995; emergency rule filed June 8, 1999, 9:30 a.m.: 22 IR 3121, eff May 26, 1999 [NOTE: IC 4-22-2-37.1 establishes the effectiveness of an emergency rule upon filing with the secretary of state. LSA Document #99-107(E) was filed with the secretary of state June 8, 1999.]; emergency rule filed Jun 22, 2000, 3:05 p.m.: 23 IR 2778; readopted filed Oct 30, 2001, 11:50 a.m.: 25 IR 899; emergency rule filed Jan 21, 2004, 2:30 p.m.: 27 IR 1914; emergency rule filed Mar 10, 2006, 11:00 a.m.: 29 IR 2214; errata filed Apr 10, 2006, 2:00 p.m.: 29 IR 2546; emergency rule filed Mar 20, 2007, 1:43 p.m.: 20070404-IR-071070198ERA, eff Mar 16, 2007 [IC 4-22-2-37.1 establishes the effectiveness of an emergency rule upon filing with the Publisher. LSA Document #07-198(E) was filed with the Publisher March 20, 2007.]; readopted filed Mar 23, 2007, 11:31 a.m.: 20070404-IR-071070030RFA; emergency rule filed Mar 19, 2009, 11:07 a.m.: 20090401-IR-071090195ERA, eff Mar 12, 2009 [IC 4-22-2-37.1 establishes the effectiveness of an emergency rule upon filing with the Publisher. LSA Document #09-195(E) was filed with the Publisher March 19, 2009.]; emergency rule filed Mar 23, 2010, 1:27 p.m.: 20100331-IR-071100170ERA; emergency rule filed Mar 3, 2011, 11:50 a.m.: 20110309-IR-071110100ERA)
What's very easy to see is that its the trainer's responsibility to provide information to the IHRC regarding their employees and to notify the IHRC of any changes which would mean existing employees leaving the trainer's employment and new employees added through the racing season. It's our belief that since the IHRC is the regulatory body that issues every license, and since an employing trainer is required to sign the license applications for his or her employees, that the IHRC can maintain their own 'badge list' as licenses are issued. That is a pretty simple thought, yet still, the IHRC requires a trainer to notify the IHRC WHAT THEY ALREADY SHOULD KNOW! Keeping track of a trainer's badge list for his or her employees would be a very simple process.
Here's an example of how the system currently works. Through a public records request to the IHRC, IBOP was able to acquire the IHRC's Trainer Stable Roster for 2012 for the then Indiana Horsemen's Benevolent and Protective Association President Randy Klopp. The form (2 pages) can be found at the following link: http://freepdfhosting.com/ca5c10c473.pdf. What you'll see is that this badge list/stable roster was created on April 3, 2012 with the three grooms in Mr. Klopp's employment listed accordingly, along with five owners and a listing of four horses. Given that this badge list was completed in early April, there is a possibility that the license office wasn't open, so having a trainer supply an initial list of employees makes for good sense, especially if they were going to be working on the backside of a track. As licenses are issued early in the racing season, the IHRC could easily refer to the initial list for verification purposes and then add to the badge list as new employees are hired. But, of course, the IHRC does not and place the responsibility on the employing trainer.
However, above the signature line you'll see the IHRC's statement spelling out Mr. Klopp's, and all other trainers, responsibilities to maintain such a badge list with a very specific reference to the sentiment of 71 IAC 5.5-3-3(a)(4), "It shall be the trainer's responsibility to maintain with the commission an up-to-date roster of owners, current employees, and others having access to the trainer's assigned premises. This roster shall contain all information considered pertinent by the commission. Changes in ownership of horses, new or discharged grooms, and additional and/or deletion of horses on this roster must be reported." We do recognize that a trainer should report to the IHRC those licensees leaving his or her employ. That's a must for the IHRC to maintain control over a recognized race meeting. But, doesn't the fact that the IHRC issues a license mean that they are granting a licensee access, not only "to the trainer's assigned premises," but to the entire backside of a track? The trainer is required to sign the license application for his or her employees, so shouldn't that be notice enough to the IHRC?
So, let's see how this requirement to maintain an up-to-date badge list works in practice. Through a public records request to the IHRC, IBOP was able to acquire the 2012 license application for a groom named Mimi Gilbert. (The IHRC, as they should have, removed non-public information, namely a social security number.) The application can be found at: http://freepdfhosting.com/f0b55c36cc.pdf. The license application is signed by Ms. Gilbert on August 25, 2012, so there was about two months of racing left in Indiana when she was licensed. Per 71 IAC 5.5-3-3(a)(4), the responsibility of the employing trainer, Randy Klopp, was then required to notify the IHRC to add Ms. Gilbert to his badge list. Again, given the fact that the IHRC approved Ms. Gilbert's application, they could have updated Mr. Klopp's badge list very easily. But, of course, they didn't. According to the IHRC's documents, Mr. Klopp didn't update his badge list either to include Ms. Gilbert's employment as required by 71 IAC 5.5.-3-3(a)(4). So, obviously, there is a break down of a system that is necessary to maintain proper control over a recognized race meeting. Based upon our public records request, the IHRC could not produce any documents that Mr. Klopp updated his badge list beyond the initial April 3, 2012 submission.
When we requested Mr. Klopp's badge list, we also requested any changes as required by 71 IAC 5.5-3-3(a)(4). Here's exactly how the request was worded, "Copies of the submission(s) to the commission of the name, occupation, and license number as required by 71 IAC 5.5-3-3(a)(4), including any changes, submitted by Randy Klopp during and/or for calendar years 2012, 2011, and 2010." The only documentation of Mr. Klopp's employees that the IHRC could provide was the two pages signed on April 3, 2012 in the link above. In other words, the IHRC had no record of any changes to Mr. Klopp's badge list, meaning no employee changes on record, beyond April 3, 2012. Upon receipt of those two stable roster pages, we questioned the IHRC's records pointing out that they had already provided us a signed license application for Ms. Gilbert under Mr. Klopp's signature as part of a prior public records request. Yet, the IHRC had no records as required by 71 IAC 5.5-3-3(a)(4). We expressed our concern to the IHRC that either they were not enforcing or selectively enforcing what is designed to, as we said, "maintain proper control over a race meet." The IHRC's General Counsel Lea Ellingwood responded with the following email:
-----Original Message-----
From: Ellingwood, Lea
To: Jim Hartman
Sent: Fri, Feb 15, 2013 4:04 pm
Subject: Open Records Request; Commission meeting
Jim,
I have been assured by staff that the documents I forwarded to you are the only documents maintained by the commission which might be responsive to your request for information submitted to the commission under 71 IAC 5.5-3-3(a)(4). For that reason, we consider this particular request completed; however, if there’s another document which might have licensee’s occupational license number on it that you’d like to request, we would be happy to process that upon receipt.
On another note, I wanted to remind you that your item regarding the cost of split sample testing is still scheduled to be on the agenda for the next Commission meeting, which is scheduled for February 22nd. I’ve attached the link to the notice: http://www.in.gov/hrc/files/February_22_2013_Commission_Meeting_Notice.pdf for your reference. Just so you’re aware, we have not sent any information to the Commissioners regarding this issue other than that already provided to them for the December 14, 2012 meeting.
Best regards,
Lea
Lea Ellingwood | General Counsel | ph: 317-233-3119
Indiana Horse Racing Commission | 1302 N. Meridian Street, Suite 175 | Indianapolis, IN | 46202
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Obviously, if Mr. Klopp did comply with 71 IAC 5.5-3-3(a)(4) and reported Ms. Gilbert's employment to the IHRC, there was no record available. Our basic premise with this rule is that the IHRC clearly knew Ms. Gilbert became licensed as a groom under Mr. Klopp's signature, so it would have been easy to add Ms. Gilbert as an employee of Mr. Klopp. Further review of Ms. Gilbert's application raises some interesting questions, however.
In reviewing the application, Mr. Klopp signed Ms. Gilbert's groom license application as employer; however, under item #12, Mr. Klopp is not listed AS Ms. Gilbert's employer. According to IHRC General Counsel Lea Ellingwood, this information was not redacted. According to the license application, no one was employing Ms. Gilbert and there is no date of employment indicated. The employer information being blank raises a number of questions. Why in the world would the IHRC issue a license to a groom with an incomplete application with no apparent employer other than Mr. Klopp's signing as employer? We've asked the IHRC, with no response as of yet, if the IHRC regularly approves licenses in this manner with no employer information stated?
Given that the IHRC is now investigating the Indiana HBPA for alleged misuse of benevolence funds, we are wondering if Ms. Gilbert did, in fact, work for Mr. Klopp. Given no direct employer information, could Ms. Gilbert's application have been solely for the purpose of gaining a license to apply for benevolence funds from the IHBPA Benefit Trust? We raise this question very cautiously as last month, IBOP received an audio file which is purported to be Ms. Gilbert explaining such a scenario to another horseman. Since IBOP has no investigative authority, and we are in no position to substantiate the validity of this audio file, we have notified the IHRC we are in possession of this audio file and offered to provide it to them upon their request.
What we can do to delve into this subject a bit further is to file additional public records request to the IHRC for more license applications. As a start, this past week, we filed a request for all license applications signed by Mr. Klopp in 2012 and in 2013. We'd like to know just how many employees should have been reported under 71 IAC 5.5-3-3(a)(4), which of course, is a number the IHRC already should know from their license application process. The net result of our public records request should be a complete badge list as required by 71 IAC 5.5-3-3(a)(4). Somebody ought to know.
