'It Happened Again' (Which Should Never Happen) and Other Random Thoughts

There's definitely a lack of respect for horse owners at the Indiana Horse Racing Commission (IHRC). Here's a few examples:

It Happened Again (Which Should Never Happen)

For additional background on this subject, please see the following Blood-Horse article from July 31st: http://www.bloodhorse.com/horse-racing/articles/86487/horse-returned-but-entry-clerk-out-of-a-job

A horse owner who plays the claiming game as well as owner Maggi Moss knows that her horses entered in claiming races get some extra attention from other owners and trainers. This season at Indiana Grand, she has had nine horses claimed from her barn all of which were with trainer Tom Amoss. However, if you check the claim register through October 14th, you'll only see eight horses being claimed. The ninth horse was eight-year old gelding It Happened Again, a graded stakes winner of almost $700,000, who was claimed for a $25,000 tag in an allowance optional claiming race on July 15th. For reasons we'll explain, this claim has been completely removed from the Indiana Grand claim register.

According to Ms. Moss, this race was supposed to be It Happened Again's last race before retirement. She said she just knew it "was time" and figured that a $25,000 tag in Indiana would discourage anyone from making a claim. However, It Happened Again was claimed by trainer Alex Clarkson for owner Larry Carter who won a two way shake. While most owners would be satisfied with a $25,000 exit strategy on an eight-year old gelding, Maggi Moss's goal was to retrain It Happened Again for her own personal riding horse. She loved this horse and made several calls that night to the Indiana Grand racing office to verify the legitimacy of the claim. She also contacted It Happened Again's new owner attempting to buy him back, but to no avail. Mr. Carter's plan was to continue to race It Happened Again in the barn of Tom Albertrani during the Saratoga (NY) meet.

If you check the Equibase race chart, there is no mention of a claim in race 9 on July 15th: http://www.equibase.com/premium/eqbPDFChartPlus.cfm?BORP=P&STYLE=EQB&DAY=D&tid=IND&dt=07/15/2014&ctry=USA&race=9. The original chart, however, did indicate a claim of It Happened Again. Our original version of this chart was a Brisnet chart: http://freepdfhosting.com/6138cfc914.pdf.

During the following week, we received information that the claim of It Happened Again should have been invalidated yet was not. So, we reached out to Ms. Moss who asked us to continue to look into the matter. Generally, IBOP uses public records requests submitted to the IHRC to either confirm or deny the information that we receive. The two claim tickets that we received as a result of our public records request proves that claim never should have happened! Follow this link to view the claim tickets http://freepdfhosting.com/9967a23465.pdf. What should jump out at anyone, even racing officials, is that Alex Clarkson submitted two claims for It Happened Again. This is a clear violation of 71 IAC 6.5-1-4(f) which only allows for owners using the same trainer to claim different horses from a race. What we later found out was that Larry Carter and Susan Hebenton, the two owners attempting to claim It Happened Again, are also husband and wife.

According to two sources within the Indiana Grand racing office, one who had been fired and another who was still employed in a position of authority, the stewards knew that the claim was invalid and told those in the racing office to do nothing about. Given that what we were hearing seemed to be credible, we also started to inform the thoroughbred racing press of the Indiana stewards inaction with this claim. On the morning of July 25th, the stewards were informed (we can't say how) that the thoroughbred media was asking questions about this claim.

On July 25th, at 9:52 AM, shortly after Senior State Steward Stan Bowker was notified that the industry press was interested in the story of the invalid claim of It Happened Again, he emailed IHRC Executive Director Joe Gorajec the following, "Joe-- We have a problem we need to discuss. Stan" with a subject line of "Please Call." A copy of this email was provided to us as part of our public records request. This email can be seen at the following link: http://freepdfhosting.com/6d4bdd2c22.pdf. So, only after the potential of this story going public did the stewards take any action which is an unbelievably cowardly way to go about their responsibilities. Within an hour of this email, 10 days after the claim of It Happened Again, trainer Tom Amoss received the news that there was a problem with the claim and that the stewards would be ordering that the horse be returned.

The stewards, per their own ruling, supposedly had a hearing about the claim on July 25th, informed Joe Gorajec of their proposed ruling on July 26th, and issued their ruling on July 29th which can be seen at: http://freepdfhosting.com/3fd2230258.pdf. Their ruling indicates that in addition to filing multiple claims, Mr. Clarkson also did not complete a license application or pay for an Authorized Agent license. So, there were two issues that should have prevented the claim of It Happened Again, yet nothing was done until pressure of exposure was applied. Of course, the ruling on this matter indicates no fine or suspension to Mr. Clarkson. Any fine and/or suspension should have been issued to the stewards for their inept handling of what should have been an easy call.

While we hope that a situation like this doesn't ever happen again, until stewards are held accountable for their actions, or in this case their inaction, covering up mistakes will continue to be the norm. If you read the Blood-Horse article about this claim, IHRC Executive Director Joe Gorajec was characterized as considering what happened as a "routine matter." That gives plenty of insight into just how little respect he has for horse owners, and that lack of respect filters down to our stewards as well. Luckily, a few people with a conscience were willing to speak out.

On July 26th, It Happened Again was returned to the barn of Tom Amoss at Churchill Downs. His Jockey Club papers were returned to Ms. Moss which were signed by Tom Albertrani as a $25,000 private sale taking place on July 29th:http://freepdfhosting.com/825431953d.pdf.

According to Maggi Moss, It Happened Again is happy, healthy and taking to his new career training as a hunter jumper.

Cobalt Testing Communication Another Lack of Respect

Earlier in the 2014 race meets, the IHRC conducted a study over 23 race days of cobalt levels in 354 horse across the three racing breeds in Indiana. The samples were considered to be "dead samples" which means samples that had already been cleared by the primary lab. IHRC staff's report on cobalt can be found at: http://www.in.gov/hrc/files/Cobalt_Staff_Report_-_final_final_W_Attachments.pdf. Cobalt is a naturally occurring mineral in all animals. The concern with elevated levels of cobalt is performance enhancement with an EPO-like effect by producing more red blood cells. High levels of cobalt can also be toxic to a horse.

Immediately upon the IHRC staff report being issued, IBOP emailed both then-Chairman Bill Diener and Executive Director Joe Gorajec. One of our questions was whether the owners of the horses testing very high will be notified. We never received a response, and neither was our question considered when the IHRC discussed the establishment of a 25 parts per billion threshold for cobalt. You would think that a discussion of potentially toxic levels would have triggered such a though with one the commissioners.

If you look at the definition of 'foreign substance' in the IHRC's authorizing statute and in their rulebook, that term "means all substances except those that exist naturally in an untreated horse at normal physiological concentration." With cobalt existing naturally in a horse, any horse deemed to have a cobalt level above a "normal physiological concentration" is actually violating Indiana's foreign substance rule. If you read the staff report, you'll find that there were 16 horses that tested more than two times the threshold the IHRC established. Six horses tested for levels exceeding six time the threshold of 25 part per billion with one thoroughbred testing at 45 times.

The staff report actually indicates that many race horses competing in Indiana did so with cobalt levels well beyond a "normal physiological concentration" which constituted an "unfair competitive advantage" per the commission staff. Some did so at potentially toxic levels which one commissioner believed was purposefully done to enhance performance. Given this backdrop, IBOP filed a public records requests for the names of those horses testing beyond 25 parts per billion and the dates on which the samples were taken. We also asked for:

"3) Copies of the correspondence notifying the owners of their horse(s) included in the staff report testing beyond 25 parts per billion for cobalt.

4) Copies of the correspondence notifying the trainers of their trainee(s) included in the staff report testing beyond 25 parts per billion for cobalt."

The response we received from IHRC General Counsel Lea Ellingwood was as follows, "The Commission has no documents responsive to Items 3 or 4 of your request below." So, on one hand, the IHRC is concerned with cobalt being performance enhancing and potentially toxic to a horse; however, they are not concerned enough to notify the owners of those horses. In our view, an owner should always be kept apprised of the condition of their horse(s), especially when the IHRC has information that indicates that potentially dangerous levels of cobalt are being administered to their horse.

IHRC Rules for Notification of a Positive Test

The IHRC's lack of respect to a horse's owner is actually written directly into their administrative rules. Using the flat racing rulebook, '71 IAC 8.5-3-3(a)' governs communications of a positive test of a primary sample. While an owner CAN be notified, and should be notified in writing of a positive primary test, what you'll see is that the IHRC has such no requirement.

71 IAC 8.5-3-3 Administrative procedures prior to split sample testing
Authority: IC 4-31-3-9
Affected: IC 4-31-12
Sec. 3. (a) The results of all tests performed by the primary laboratory or laboratories are confidential and shall only be
communicated to the commission, commission staff, stewards, owner, and trainer. Notice of a positive test result may be
communicated verbally to the trainer. The trainer shall be responsible for promptly notifying the owner of a horse of a positive test as reported by the primary laboratory.

The IHRC delegates that responsibility to the trainer and the notification to the trainer doesn't even have to be in writing. In today's racing world, where ARCI penalties apply to both trainers and owners (and the horse) for multiple violations, the IHRC assumes that the trainer's and owner's interests are always the same. In some cases, that is not true. The IHRC also doesn't have an established time frame in which a primary positive test has to be communicated to anyone. Without a specific notification requirement, Indiana has an Executive Director that can, and will, accumulate positive tests purposefully not providing notification which can endanger the horse, their riders, anyone else coming in contact with the horse at the track, and the owner's ability to run their horse. The IHRC's notification rule for a split sample is quite different.

71 IAC 8.5-3-4 Administrative procedures subsequent to split sample testing
Authority: IC 4-31-3-9
Affected: IC 4-31-12
Sec. 4. (a) The split sample laboratory shall send a confidential written report on the result of its tests to the commission staff
which in turn shall send a confidential report to the trainer and owner forthwith.

With a split sample result, the IHRC requires itself to send a written report "to the trainer and owner forthwith." Definitions for 'forthwith' are "immediately" and "without delay." The Indiana HBPA and the Indiana Thoroughbred Owners and Breeders Association should push to have the split sample notification language incorporated into the notification requirements of a positive primary test. No one (Gorajec) should be able to sit back and create a serial medication offender on purpose and endanger horses and people in the process.

IHRC Complaint Policy - A Lack of Respect For the Law

While this may not be common knowledge, the IHRC has a complaint policy which was forced upon them by the Indiana legislature in 2013. Having a complaint policy was a recommendation of the Indiana Inspector General's report from two years earlier that the IHRC failed to act upon. So, the legislature took action with the IC 4-31-3-8(6) and (7) which went into effect on July 1, 2013:

"(6) develop internal procedures for accepting, recording, investigating, and resolving complaints from licensees and the
general public; and
(7) annually post the following information on the commission's Internet web site:
(A) A summary of the disciplinary actions taken by the commission in the preceding calendar year.
(B) A summary of the complaints received and resolved in the preceding calendar year."

You would think that if the law went into effect on July 1, 2013, the IHRC would have established their complaint procedures by that date. Of course, they didn't. So, on October 27, 2013, IBOP sent the following email to IHRC General Counsel Lea Ellingwood with a copy to then-Chairman Bill Diener who, earlier in 2013, had outlined a procedure to us for the purposes of filing a complaint regarding the IHRC's use of Administrative Law Judge who had been arrested multiple times for DUI:

"Lea, from reading the transcript of the September 17th commission meeting, I get the impression that IHRC staff has concluded that all necessary administrative rules changes or promulgation of new administrative rules as required by SB 609 have been completed. If I'm making an assumption, I'll apologize in advance. I do have a question regarding IC 4-31-3-8(6) which states that the IHRC shall "develop internal procedures for accepting, recording, investigating, and resolving complaints from licensees and the general public." While I recognize that "internal procedures" differ from administrative rules, the complaint procedures Chairman Diener outlined in his February 21st email were described as "informal" and more of a suggested course of action at the time.

Obviously, the email below was written prior to SB 609 becoming law which appears to require a more formalized approach. Chairman Diener correctly points out that there are administrative rules that cover certain types of specific complaints, yet perhaps not a broader spectrum of possible complaints, especially from the general public. My question is, has there been a more formal complaint procedure established as required by law? And if so, would you please forward me a copy? The general public should be informed as to how to file a complaint, should that become necessary, and understand the procedure involved once a complaint has been filed."

The IHRC had so much respect for their requirements under Indiana law, they waited until December 10, 2013 to established their complaint procedures. What the IHRC calls it's "Complaint Policy" can be http://www.in.gov/hrc/files/IHRC_Complaint_Policy_-_Approved_12-10-13.pdf. In addition, their "Complaint Form" can be found at the following link: http://www.in.gov/hrc/files/Complaint_Form.pdf. The form actually says to "Use this form to submit a written complaint about any alleged violations of the Commission's enabling statute or administrative rules." The problem with that statement, and the IHRC's complaint policy, is that the IHRC put limits on what someone can consider a complaint with "enabling statute or administrative." There are many other aspects of Indiana law that the IHRC is required to follow. Maybe a complaint should be filed about the IHRC's complaint policy.

Deceiving IHRC's Commissioners

While we've provided a few examples of how little respect the IHRC has for owners and for their responsibilities under the law, here's an example of how little respect the IHRC staff has for the commissioners themselves. With a commission consisting of five individuals with no racing or breeding experience, their lack of knowledge on racing issues is always very evident. Where they should be able to actually supervise is with administrative issues. Assuming they care enough to do so.

Over the years, IBOP has pointed out a number of rulemaking violations and rulemaking malfunctions perpetrated by the IHRC staff. What we're about to describe is plain illegal, but demonstrates just how easily a commissioner who is not in tune with their responsibilities can be fooled.

In early 2010, the IHRC established a trainer continuing education requirement for flat racing trainers that would go into effect beginning. (71 IAC 5.5-3-1 Eligibility, Subsection h) Due to the lack of trainers actually completing the requirement, the requirement was waived for 2012, then changed again for 2013, then waived again in 2013. In mid-2013, the IHRC got serious about making sure that flat racing trainers had their continuing education completed for 2014. So, at their June 11, 2014 meeting, the IHRC approved a new version of the trainer continuing education requirement. The IHRC was so serious, the new requirement dropped the number of hours required to three from four and created a number of categories of trainers who would be exempt from the requirement.

Since this was an emergency rule (sarcasm included), the IHRC staff filed this emergency with Legislative Services Agency (LSA) over two months later on August 20, 2013. You can see this filing as LSA Document 13-404(E): http://www.in.gov/legislative/iac/irdin.pdf?din=20130821-IR-071130404ERA. Using the emergency rulemaking process, administrative rules are effective upon being filed with LSA.

The next month, the IHRC was considering a revision of '71 IAC 5.5-3-1 Eligibility,' but not the trainer continuing education portion of the rule. The change added a new subsection which was inserted as subsection (g). This now made the trainer continuing education requirement subsection (i). The handout from the meeting package that the commissioners used for this change can be found here: http://freepdfhosting.com/2d1bf08991.pdf. What you'll see is that there is no reference in (i) to 'Beginning in 2014' or the categories of trainer exempt from the requirement from the rule filed on August 20th. The commissioners unanimously approved this change which actually reversed the trainer continuation portion of the rule to what was in effect as of March 8, 2012! Sharp eyes would have caught this error, but no one on the IHRC staff or commissioner did. Under Indiana law, a majority vote by the commissioner at a publicly held meeting is considered to be an approval of the content of the rule as presented to them.

Since this was another emergency rule (sarcasm included again), the IHRC staff filed this version of the trainer continuing education rule over three months later on December 23, 2013. If you want to see how the trainer continuing education rule was submitted to LSA, with line strikes through the exempt trainer categories, you can view 71 IAC 5.5-3-1(i) at this link to LSA's site: http://www.in.gov/legislative/iac/irdin.pdf?din=20140108-IR-071130567ERA.

On December 10, 2013, the IHRC had their last meeting of the year and, thankfully, didn't attempt to change the flat racing trainer continuing education rule. With their first meeting of 2014 scheduled for March 5, 2014, we were a bit surprised to see the IHRC staff file an emergency rule with LSA on February 25, 2014. On the agenda for the March 5th IHRC meeting was once again a waiver of the trainer continuing education requirement. We figured in preparation for that meeting someone noticed that the commissioners approved an incorrect version of the rule back in September, 2013 and tried to cover-up their error. Irrespective of the rationale, administrative rules carry the rule of law in Indiana, and there's no authority to arbitrarily change that "law" without any action by the commission at a publicly held meeting. Here's exactly what the IHRC staff submitted to LSA on February 25, 2014:
http://freepdfhosting.com/1f6133b74a.pdf.

Over the last few years, the abuses and the mistakes within the rulemaking process at the Indiana Horse Racing Commission have been well documented by our organization, but this example is the most egregious to date. Given the number of eyes preparing what you see at a meeting, and taking into consideration that there is an inherent responsibility with each commissioner to understand what is actually being approved, errors like this should never happen. And, when they do happen, correcting them within the boundaries of Indiana law is a must. But, the IHRC staff would rather hide their mistakes hoping no one would notice. We did. The IHRC is one of two agencies in the state that have the ability to create emergency administrative rules that never have to then go through the regular rulemaking process. This instance is another example of the abuse of that power.

The lack of meaningful oversight of the IHRC staff is evident in this scenario. No commissioner that we've seen ever 'inspects what they expect' to happen. All activities of the submission of administrative rules submitted to LSA are public record and easily accessed through the LSA website.

Or Simply Lie To Them

When discussing the timing of an administrative rule by using the emergency rulemaking process at the April 30, 2014 IHRC meeting, Executive Director Joe Gorajec had this to say:

JOE GORAJEC: The rules the Commission adopts are effective when our office files them with the Secretary of State. When we file them with the Secretary of State varies. It's usually within a couple, three days. Sometimes it's the next day. Sometimes it might be a week later, but we get to it pretty quickly. (Official Transcript: Page 32, Line 21 through Page 33, Line 2)

His statement regarding the timing of the submission of rules is laughable. (They also go to the Legislative Services Agency and not the Secretary of State, Mr. Gorajec.) Getting "to it pretty quickly" is hardly ever the norm and easy to prove by going to the LSA site. We've illustrated the trainer continuing education 'changes' being filed over two months and three months after approval by the commission. The longest we've found between an approval of an emergency rule by the IHRC and its filing with LSA to become effective is over 15 months! That rule just happened to regarding protecting the flat racing breed's purse account which was only filed after it was discovered that $800,000 was missing from the purse accounts at Indiana Downs.

The shortest timeframe we know of was hours between administrative rules being approved on the morning of April 5, 2013 then filed later that afternoon to be effective. In that case, IBOP had pointed out that the IHRC had allowed the standardbred anti-ulcer medication rules to expire at the end of 2012 without reestablishing a new rule. This became our Administrative Rule of the Month for April, 2013: http://ibopindy.blogspot.com/2013/04/administrative-rule-of-month-71-iac-8-1.html. At that same meeting, IBOP petitioned for a new business item to modify the thoroughbred out-of-state breeder award that was not updated to reflect the one-track, one-breed changes in 2013: http://ibopindy.blogspot.com/2013/04/thoroughbred-out-of-state-breeders.html.

The only other set of approved administrative rules that were filed within a week was for the new threshold medication rules. The IHRC approval these rules on April 30, 2014 and they were filed on May 7, 2014. http://www.in.gov/legislative/iac/20140514-IR-071140143ERA.xml.html

All other approved administrative rules we took a look at were filed with LSA weeks after there approval. Left to their own devices, the IHRC staff gets to filing rules whenever they "get to it." Any engaged commissioner would have easily seen through Mr. Gorajec's comments on the timely filing of approved rules, but too bad we don't have any that are engaged in their responsibilities.