Pennsylvania Harness Regulators: Questions Of Cover-Ups And Conflicts Of Interest

by | 06.27.2018 | 11:54am

I first went to work at a racetrack in 1965 as a teenager. I've always loved the game because it truly is the greatest game. People either understand this or they don't. You meet some of the most interesting people at the racetrack and the horses are magnificent animals. But as colorful as racing is, it also has its dark side. For the past 25 years, I have been battling with the Pennsylvania Racing Commission as an attorney. Every day I try to fight the good fight in a system that is fundamentally stacked against the horsemen. In hearings against horsemen, the Commission is the investigator, the prosecutor and the judge. To have any chance at a fair shot, you depend on the integrity of every person working for the Commission.

People come to me all the time with grievances against the Commission. They say they know this or that about the unfairness and corruption of the Commission, but my answer is always the same: “Bring me some documentary proof of your claims and I will look into it. I can't go on what you think you know; I can only proceed based on facts.” But without fail, no one can ever produce any documentary proof. Then, in March of this year, a fellow came to me and said the Commission is finding positive tests and throwing them in the garbage, letting horses with illegal drugs in their systems get away scot-free. I gave him my standard response.

A couple weeks later he brought me a stack of papers that actually verified his claims. When I saw these papers, which included lab reports and emails from Brett Revington, Standardbred bureau director for the Pennsylvania Horse Racing Commission, I actually got physically ill. They show that, indeed, horses had tested positive for even Class 1 drugs and those positive tests were basically thrown into the garbage can. Most of these races were at Harrah's Chester. The papers only showed this activity in harness racing. There is no evidence that it exists in Thoroughbred racing in Pennsylvania. In my opinion, this was a scandal of the highest order and it proves the outright corruption infecting the Commission.

While I realized that this had to be exposed, I also realized that there are people who may use this information to justify taking the slots funding away from the horsemen. I had a moral quandary on my hands. Believe me, I wish I had never seen these papers.

In Pennsylvania, a horse has its sample taken post race and sent to the Pennsylvania Equine Toxicology and Research Laboratory (PETRL), the official lab, for testing. If the sample has a suspicious result, Dr. Mary Robinson, the acting director of the lab, sends what is called a short-term hold report to the bureau director. If Dr. Robinson actually finds an illegal amount of a drug, she later sends a positive test report to the bureau director showing the name of the drug and its quantified level.

In a major flaw in the system, the bureau director then has the discretion to actually call it a positive or not. If he doesn't wish to call it a positive, there is very little chance of anyone finding out. The system relies on the integrity of the bureau director.  I was particularly interested in an email from Mr. Revington that was part of the stack of papers given to me. It read: “Those holds with possible positives. I spoke with legal and they suggested not to pursue due to timing. I'm OK taking that direction as internal thresholds suggest not to call positive anyways.” Note the words “those holds.” That  suggests that there were multiple tests – plural – which were not revealed.

This email raised several red flags to me. For non-therapeutic drugs, the Commission has always maintained that the slightest level of detection is the standard, meaning that any detected amount is called a positive. They consistently raise this argument in court. Had the Commission been untruthful in their court statements? Dr. Robinson is a master at finding insignificant levels of a drug that cannot possibly affect performance, and the Commission constantly punishes people pursuing their level of detection theory.

I thought the best course of action was to confront Revington and ask for an explanation. I didn't want to show him everything I had, as I wanted to see his reaction first. So I brought him the above email and the short-term hold and reported positive forms from Dr. Robinson for the ninth race at Chester on September 11, 2016. In this $252,000 stakes race, a horse named Moonshine Hanover, trained by Christopher Beaver, had finished second and had earned approximately $50,000. There is no evidence Beaver ever knew his horse tested positive for the Class 1 drug oxycodone.

There had been several other positives for oxycodone at Chester both before and after the race in question and all had the purses forfeited. Why hadn't this one been acted upon? When I showed Mr. Revington the documents related to this race, his face became ashen and he called Jorge Augusto, the Commission's attorney, into the meeting. When I asked for an explanation, they both responded in anger telling me it was none of my business and they didn't have to explain anything to anybody. They then forcefully suggested I get out of their office.

Dr. Robinson's positive test report was dated September 21, 2016. Mr. Revington, who was hired in November 2016, later stated he didn't find out about it until May of 2017, claiming that that is why he did not proceed on the positive test. What happened?

The actions by the Commission are especially troubling since the Commission has established a policy in cases where protests over races occur after the proper time. The Commission has ruled that the overriding concern in these cases is that the properly entitled winners receive their just winnings whenever the matter comes to light and that the Commission has the duty and obligation to see to this. So how could they decide to drop the matter in this case? In addition, the Commission has been ordered by Pennsylvania Commonwealth Court not to grant preferences to licensees, whether innocently or culpably, as it undermines public confidence. In other words, the Commission has been ordered by Pennsylvania's second highest court to treat everybody the same.

Another race that I didn't show to Mr. Revington was the fifth race at Chester on September 23, 2016, a $35,000 stakes race where the winner, Womans Will, trained by Julie Miller, had a positive test for Pyrilimine. Dr. Robinson's short-term hold report was dated October 3, 2016, and the positive report was sent to Mr. Revington on February 24, 2017. I have had cases where delays such as this have occurred, and the delay did not prevent prosecution. There is no evidence that Ms. Miller knew her horse tested positive in the race. Mr. Revington never took any action in the matter. As it happens, the owners of Moonshine Hanover and Womans Will are from Ontario, Canada. Mr. Revington has strong connections to Ontario. That might be entirely a coincidence, but with so much being covered up, it's hard not to ask questions.

I wanted to reveal what I'd found to the trainers who finished behind Moonshine Hanover and Womans Will, but I knew what their reaction would be. Horsemen are often afraid that if they complain, the Commission might take vengeful action against them and maybe trump up some charges or give one of their horses a positive test. It wouldn't be worth even the $5,000-$15,000 dollars they might be entitled to under these circumstances. I knew I'd have to go to the horsemen's group directly if there was any hope for this situation to be addressed in a way to protect all horsemen.

I attempted to contact Sam Beegle, president of Pennsylvania Harness Horsemen's Association (PHHA), and Mike Harant, executive director of the same. They wouldn't return my calls. I did speak to several members of the PHHA board who agreed that this was a bad situation and would bring it up at the next board meeting. However, as far as I'm aware, nothing was ultimately done.

It doesn't help that Darryl Breniser sits on the board of the PHHA while concurrently serving as a member of the Pennsylvania Horse Racing Commission. Of course, Mr. Breniser, as a board member of the horsemen's group, isn't going to want to use that position to criticize the workings of the Commission on which he also sits. This obvious conflict of interest is allowed in Pennsylvania and virtually no other state. In addition, Mr. Beegle, the president of the horsemen's group, is the trainer for Mr. Breniser's horses. So again, will the trainer of one of the commissioner's horses want to use his position as president of the PHHA to criticize the Commission? Of course not.

I talked to Don Harmon, the former presiding judge at Chester. Mr. Harmon said that when he found out about unacted upon positives in May 2017, he told Mr. Revington that they must take action and that he was very uncomfortable with Mr. Revington's intention to bury the matter. Mr. Revington told Mr. Harmon that nobody would ever find out about it and told him to let it go. Mr. Harmon made it clear that he didn't want to be part of any cover up. Soon thereafter, the Commission fired Mr. Harmon, giving no cause.

After learning all of this, my head was spinning. The Moonshine Hanover positive was going to hit the papers, so I gave one final call to Mr. Augusto urging him to stop the stonewalling and get out in front of this lest he destroy the Commission's reputation entirely. His response finally convinced me that nothing was going to change until someone stepped in to stop this. Rather than address the obvious impropriety of Mr. Revington's actions, Mr. Augusto stated that those documents were illegally obtained and that if they were published, Mr. Harmon would find himself in big trouble, a not so veiled threat to use the power of the state against a man that had already been fired for being honest.

Thereafter, Joe Gorajec published an article in the Paulick Report exposing the tip of the iceberg of the Commission's improprieties, but there's so much more underneath. Mr. Revington, only knowing that we knew about the Moonshine Hanover positive, responded in writing to the allegations in the Joe Gorajec article about that race only, implying that it was a one-off mistake of human error. Clearly they weren't going to admit to anything for which we didn't have documentary proof. So, like Diogenes in ancient Greece, we hold a lamp as we look for an honest commissioner to rise up and state that this is intolerable. So far, their silence is deafening. Will they clean up their act after this most recent revelation of an unacted upon positive test, or will further improprieties need to be revealed?

I requested to speak directly to the commissioners in closed session at the June 26, 2018, meeting of the commission.  My request was denied.  I feel I have no choice but to speak out. There is an old expression that the only thing necessary for the triumph of evil is for good men to do nothing. Well, maybe these revelations aren't enough to force the Commission to clean itself up, but they're not nothing.

Alan Pincus is an attorney in Pennsylvania.

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