On August 23rd, Indiana Breeder and Owner Protection, Inc. (IBOP) requested a meeting with representatives of the Indiana Inspector General's Office to discuss the Indiana Horse Racing Commission (IHRC) Executive Director Joe Gorajec's cancellation of race days at Indiana Downs on June 15th and 16th. In part, IBOP's view is that this action was outside of any delegated authority. The full version of our submission to the Inspector General can be found at: http://ibopindy.blogspot.com/2012/08/ibop-requests-investigation-of.html . In that submission we referenced 71 IAC 2-9-1(c) under 'Allocation of race dates and permits' which is copied below. To expand a little bit on our observations and request to the Inspector General, we've made 'Allocation of Race Dates and Permits' our September 'Administrative Rule of the Month.'
71 IAC 2-9-1 Allocation of race dates and permits
Authority: IC 4-31-3-9
Affected: IC 4-31-5
Sec. 1. (a) The commission shall allocate race dates and permits to each association in accordance with the Act and after consideration of the factors in 71 IAC 11-1-7. An association shall apply to the commission not later than November 1 of each year for race dates to be conducted in the next year. The application must contain the information required by statute and commission licensing procedures. After the request is filed, the commission may require the association to submit additional information.
(b) The burden of proof is on the association to demonstrate that the assignment and allocation of the race dates will be in the public interest and will achieve the purposes of the Act.
(c) The association shall be obligated to conduct pari-mutuel racing, except in the case of emergencies, on each race date allocated. Any change in race dates must be approved by the commission. In the case of emergencies, the judges may authorize cancellation of all or a portion of any race day.
(d) Racing dates shall be issued by the commission no later than December 31 of each year.
71 IAC 2-9-1(c) provides that "In case of emergencies, the judges may authorize cancellation of all or a portion of any race day." Via this administrative rule, which has the rule of law, the IHRC has delegated to the judges the ability to cancel racing. This makes perfect sense since the judges are the racing officials who are the closest to actual racing and training at the tracks. To be clear on any semantics, as seen below in 71 IAC 1.5-1-49, the Indiana Administrative Code defines a 'judge' and 'steward' as being synonymous.
71 IAC 1.5-1-49 "Judge" or "steward" defined
Authority: IC 4-31-3-9
Affected: IC 4-31
Sec. 49. "Judge" or "steward" means a duly appointed racing official or judge with powers and duties specified by these rules. (Indiana Horse Racing Commission; 71 IAC 1.5-1-49; emergency rule filed Jun 15, 1995, 5:00 p.m.: 18 IR 2819, eff Jul 1, 1995; readopted filed Oct 30, 2001, 11:50 a.m.: 25 IR 899; readopted filed Mar 23, 2007, 11:31 a.m.: 20070404-IR-071070030RFA)
What is also clear in 71 IAC 2-9-1(c) is that the IHRC has NOT delegated the authority to cancel race days to the Executive Director. Yet, that is exactly what Mr. Gorajec did, cancel race days. Our opinion is that Mr. Gorajec acted outside of his delegated authority and in doing so violated the Indiana Administrative Code with his actions. Rather than publish IBOP's entire evaluation and findings on this blog or in our newsletter, we feel that the Inspector General should be first provided the opportunity to begin an investigation. At some point, IBOP will share our complete file on the cancellation of race days at Indiana Downs, should the Inspector General decide against an investigation. We will, however, share with you what the IHRC has done since the cancellation.
At the IHRC's meeting on June 25th, the three commissioners in attendance, which included former Chairman Sarah McNaught, approved the Final Report on the cancellations which was prepared by the IHRC's staff. No where in that Final Report was there any mention of 71 IAC 2-9-1(c) nor were there any questions about Mr. Gorajec's actual authority to cancel race days. (IBOP will expand upon this Final Report, if needed, at some point in the future.) At the IHRC's August 30th meeting, the commissioners voted unanimously to amend 71 IAC 2-9-1(c) via their emergency rulemaking authority. Once the new rule is filed with the Indiana Register, 71 IAC 2-9-1(c) will now read, "In the case of emergencies, the judges, stewards, or the Executive Director (emphasis added) may authorize cancellation of all or a portion of any race day." One of the questions that needs to be answered is, if Mr. Gorajec actually had the authority to cancel race days, then why was it necessary to modify the Indiana Administrative Code to delegate that authority to him in the future? When the amendment was presented to the commissioners, there was no discussion, no questions and they spent less than two minutes on the subject.
In our July newsletter, IBOP suggested that the IHRC staff's Final Report raised more questions than provided answers. There are many questions regarding the cancellation of the two race days at Indiana Downs that need to be answered. By the IHRC's actions on August 30th, they've added another one, why add the Executive Director to rule now? Given that the IHRC is incapable of investigating their own actions, the Indiana Inspector General needs to step in.
Saturday, September 1, 2012
Thursday, August 23, 2012
IBOP Requests Investigation of the Cancellation of Race Days at Indiana Downs
Earlier today, Indiana Breeder & Owner Protection, Inc. (IBOP) sent the message below to the Indiana Inspector General's Office through their 'Request an Investigation' feature (Investigation Hotline) on their website. In our Semi-Annual Report, which can be found in our July newsletter, we suggested that the Final Report approved by the IHRC on the cancellation of race days at Indiana Downs raised more questions than provided answers. What you'll read below is a reference to an IHRC rule that only delegates authority to cancel race days in emergencies to the judges (stewards), not the Executive Director.
If you'd like to help encourage the Inspector General to initiate this investigation, please do so through the Investigation Hotline at the following link: http://www.in.gov/ig/2330.htm
"On June 14, 2012 the Executive Director of the Indiana Horse Racing Commission (IHRC), Joe Gorajec issued a directive canceling live racing at Indiana Downs on June 15th and June 16th. His directive was issued due to a perceived complaint regarding the track surface by a horsemen's group two full days earlier on June 12th.
According to 71 IAC 2-9-1(c), Mr. Gorajec did not have the authority to cancel race days. That authority has been delegated by the IHRC to the judges, also know as stewards in thoroughbred and quarter horse racing. By his own admission, Mr. Gorajec did not engage the stewards at Indiana Downs until June 15th.
Our organization's position (Indiana Breeder & Owner Protection) is that Mr. Gorajec acted inappropriately, rashly and most importantly, outside of his authority. There are many people, not only horsemen, that are reliant upon the race tracks to be open for business. Our files and documentation on this issue are extensive; therefore, we are requesting to meet with an investigator from your office at your earliest possible convenience.
Thank you,
Jim Hartman
IBOP Vice President
317-705-0664"
If you'd like to help encourage the Inspector General to initiate this investigation, please do so through the Investigation Hotline at the following link: http://www.in.gov/ig/2330.htm
"On June 14, 2012 the Executive Director of the Indiana Horse Racing Commission (IHRC), Joe Gorajec issued a directive canceling live racing at Indiana Downs on June 15th and June 16th. His directive was issued due to a perceived complaint regarding the track surface by a horsemen's group two full days earlier on June 12th.
According to 71 IAC 2-9-1(c), Mr. Gorajec did not have the authority to cancel race days. That authority has been delegated by the IHRC to the judges, also know as stewards in thoroughbred and quarter horse racing. By his own admission, Mr. Gorajec did not engage the stewards at Indiana Downs until June 15th.
Our organization's position (Indiana Breeder & Owner Protection) is that Mr. Gorajec acted inappropriately, rashly and most importantly, outside of his authority. There are many people, not only horsemen, that are reliant upon the race tracks to be open for business. Our files and documentation on this issue are extensive; therefore, we are requesting to meet with an investigator from your office at your earliest possible convenience.
Thank you,
Jim Hartman
IBOP Vice President
317-705-0664"
Sunday, August 19, 2012
Request To Modify 'Out-of-Competition Testing' Rules
This request to the Indiana Horse Racing Commission is fairly self-explanatory as far as the inconsistencies in the 'out-of-competition' testing administrative rules when compared to their own definitions.
"Pursuant to ‘71 IAC 2-12-1 Procedures,’ Indiana Breeder & Owner Protection, Inc. (IBOP) is requesting that the Indiana Horse Racing Commission (IHRC) consider the amendment of 71 IAC 8-3-5(e) and 71 IAC 8.5-2-5(e) to conform with their respective definitions in 71 IAC 1-1-67.5 and 71 IAC 1.5-1-67.5. Please consider this correspondence as IBOP’s petition for the IHRC to amend both subsections of the administrative rules cited above, which are part of the ‘Out of competition testing’ rules. Our view is that both of these subsections include language beyond the IHRC’s own definition of its authority and jurisdiction. IBOP would appreciate the changes to these rules be considered as an agenda item at the next regularly scheduled IHRC meeting on August 30, 2012.
At the June 25, 2012, IHRC meeting, 71 IAC 1-1-67.5 was amended, and to correct an oversight in the rule books, 71 IAC 1.5-1-67.5 was added. Both emergency rules, which are copied below, went into effect when submitted to the Indiana Register on July 5, 2012.
71 IAC 1-1-67.5 "Out of competition testing" defined
Authority: IC 4-31-3-9
Affected: IC 4-31
Sec. 67.5. "Out of competition testing" means a test conducted by the commission on a horse located in Indiana as provided in 71 IAC 8-3-5. (Indiana Horse Racing Commission; 71 IAC 1-1-67.5; emergency rule filed Jul 23, 2007, 9:16 a.m.: 20070808-
IR-071070461ERA, eff Jul 18, 2007 [IC 4-22-2-37.1 establishes the effectiveness of an emergency rule upon filing with the Publisher. LSA Document #07-461(E) was filed with the Publisher July 23, 2007.]; emergency rule filed Jul 5, 2012, 2:14 p.m.: 20120718-IR-071120402ERA)
71 IAC 1.5-1-67.5 "Out of competition testing" defined
Authority: IC 4-31-3-9
Affected: IC 4-31
Sec. 67.5. "Out of competition testing" means a test conducted by the commission on a horse located in Indiana as provided in 71 IAC 8.5-2-5. (Indiana Horse Racing Commission; 71 IAC 1.5-1-67.5; emergency rule filed Jul 5, 2012, 2:14 p.m.: 20120718-IR-071120402ERA)
Both of these two “Out of competition testing” definitions contain the phrase “on a horse located in Indiana” then provides a reference to the specific administrative rule based upon the breed of the horse. Both 71 IAC 8-3-5(e) and 71 IAC 8.5-2-5(e) contain the phrase “or its designees, in the case of out-of-state collections” which is an indication of the belief that the IHRC can compel out of competition testing on a horse stabled outside of the State of Indiana. IBOP’s petition is to amend each administrative rule by striking the language “or its designees, in the case of out-of-state collections” from each rule. The language used in 71 IAC 8-3-5(e) and 71 IAC 8.5-2-5(e) is contrary to the IHRC’s own definitions for out of competing testing which limits said authority to within Indiana and not beyond.
In further support of IBOP’s petition, both 71 IAC 1-1-52 and 71 IAC 1.5-1-50 which define the IHRC’s “jurisdiction” limit that jurisdiction to “the state of Indiana.” Both 71 IAC 1-1-52 and 71 IAC 1.5-1-50 are copied below:
71 IAC 1-1-52 "Jurisdiction" defined
Authority: IC 4-31-3-9
Affected: IC 4-31
Sec. 52. "Jurisdiction" of the commission means the state of Indiana. (Indiana Horse Racing Commission; 71 IAC 1-1-52; emergency rule filed Feb 10, 1994, 9:20 a.m.: 17 IR 1118; readopted filed Oct 30, 2001, 11:50 a.m.: 25 IR 899; readopted filed Mar 23, 2007, 11:31 a.m.: 20070404-IR-071070030RFA)
71 IAC 1.5-1-50 "Jurisdiction" defined
Authority: IC 4-31-3-9
Affected: IC 4-31
Sec. 50. "Jurisdiction" of the commission means the state of Indiana. (Indiana Horse Racing Commission; 71 IAC 1.5-1-50; emergency rule filed Jun 15, 1995, 5:00 p.m.: 18 IR 2819, eff Jul 1, 1995; readopted filed Oct 30, 2001, 11:50 a.m.: 25 IR 899; readopted filed Mar 23, 2007, 11:31 a.m.: 20070404-IR-071070030RFA)
In this petition, both 71 IAC 8-3-5(e) and 71 IAC 8.5-2-5(e) were not copied in their entirety for the sake of brevity. Thank you for your consideration of this petition.
Jim Harman
IBOP Vice President
CC: Chairman Diener
Commissioner Lauck
Commissioner Schaefer
Commissioner Grimes
Commissioner Barclay"
"Pursuant to ‘71 IAC 2-12-1 Procedures,’ Indiana Breeder & Owner Protection, Inc. (IBOP) is requesting that the Indiana Horse Racing Commission (IHRC) consider the amendment of 71 IAC 8-3-5(e) and 71 IAC 8.5-2-5(e) to conform with their respective definitions in 71 IAC 1-1-67.5 and 71 IAC 1.5-1-67.5. Please consider this correspondence as IBOP’s petition for the IHRC to amend both subsections of the administrative rules cited above, which are part of the ‘Out of competition testing’ rules. Our view is that both of these subsections include language beyond the IHRC’s own definition of its authority and jurisdiction. IBOP would appreciate the changes to these rules be considered as an agenda item at the next regularly scheduled IHRC meeting on August 30, 2012.
At the June 25, 2012, IHRC meeting, 71 IAC 1-1-67.5 was amended, and to correct an oversight in the rule books, 71 IAC 1.5-1-67.5 was added. Both emergency rules, which are copied below, went into effect when submitted to the Indiana Register on July 5, 2012.
71 IAC 1-1-67.5 "Out of competition testing" defined
Authority: IC 4-31-3-9
Affected: IC 4-31
Sec. 67.5. "Out of competition testing" means a test conducted by the commission on a horse located in Indiana as provided in 71 IAC 8-3-5. (Indiana Horse Racing Commission; 71 IAC 1-1-67.5; emergency rule filed Jul 23, 2007, 9:16 a.m.: 20070808-
IR-071070461ERA, eff Jul 18, 2007 [IC 4-22-2-37.1 establishes the effectiveness of an emergency rule upon filing with the Publisher. LSA Document #07-461(E) was filed with the Publisher July 23, 2007.]; emergency rule filed Jul 5, 2012, 2:14 p.m.: 20120718-IR-071120402ERA)
71 IAC 1.5-1-67.5 "Out of competition testing" defined
Authority: IC 4-31-3-9
Affected: IC 4-31
Sec. 67.5. "Out of competition testing" means a test conducted by the commission on a horse located in Indiana as provided in 71 IAC 8.5-2-5. (Indiana Horse Racing Commission; 71 IAC 1.5-1-67.5; emergency rule filed Jul 5, 2012, 2:14 p.m.: 20120718-IR-071120402ERA)
Both of these two “Out of competition testing” definitions contain the phrase “on a horse located in Indiana” then provides a reference to the specific administrative rule based upon the breed of the horse. Both 71 IAC 8-3-5(e) and 71 IAC 8.5-2-5(e) contain the phrase “or its designees, in the case of out-of-state collections” which is an indication of the belief that the IHRC can compel out of competition testing on a horse stabled outside of the State of Indiana. IBOP’s petition is to amend each administrative rule by striking the language “or its designees, in the case of out-of-state collections” from each rule. The language used in 71 IAC 8-3-5(e) and 71 IAC 8.5-2-5(e) is contrary to the IHRC’s own definitions for out of competing testing which limits said authority to within Indiana and not beyond.
In further support of IBOP’s petition, both 71 IAC 1-1-52 and 71 IAC 1.5-1-50 which define the IHRC’s “jurisdiction” limit that jurisdiction to “the state of Indiana.” Both 71 IAC 1-1-52 and 71 IAC 1.5-1-50 are copied below:
71 IAC 1-1-52 "Jurisdiction" defined
Authority: IC 4-31-3-9
Affected: IC 4-31
Sec. 52. "Jurisdiction" of the commission means the state of Indiana. (Indiana Horse Racing Commission; 71 IAC 1-1-52; emergency rule filed Feb 10, 1994, 9:20 a.m.: 17 IR 1118; readopted filed Oct 30, 2001, 11:50 a.m.: 25 IR 899; readopted filed Mar 23, 2007, 11:31 a.m.: 20070404-IR-071070030RFA)
71 IAC 1.5-1-50 "Jurisdiction" defined
Authority: IC 4-31-3-9
Affected: IC 4-31
Sec. 50. "Jurisdiction" of the commission means the state of Indiana. (Indiana Horse Racing Commission; 71 IAC 1.5-1-50; emergency rule filed Jun 15, 1995, 5:00 p.m.: 18 IR 2819, eff Jul 1, 1995; readopted filed Oct 30, 2001, 11:50 a.m.: 25 IR 899; readopted filed Mar 23, 2007, 11:31 a.m.: 20070404-IR-071070030RFA)
In this petition, both 71 IAC 8-3-5(e) and 71 IAC 8.5-2-5(e) were not copied in their entirety for the sake of brevity. Thank you for your consideration of this petition.
Jim Harman
IBOP Vice President
CC: Chairman Diener
Commissioner Lauck
Commissioner Schaefer
Commissioner Grimes
Commissioner Barclay"
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