The Pennsylvania State Horse Racing Commission has responded to a June 27 article, written by attorney Alan Pincus and published in the Paulick Report, entitled “Pennsylvania Harness Regulators: Questions Of Cover-Ups And Conflicts of Interest.” The article raised questions about why the commission failed to pursue disciplinary action after two positive drug tests were reported to the regulatory board by the Pennsylvania Equine Toxicology and Research Laboratory (PETRL), the state's official test lab.
The following letter was submitted by Stephanie Pavlik of Pennsylvania's Department of Agriculture on behalf of the Pennsylvania State Horse Racing Commission, whose members are Agriculture Secretary Russell C. Redding, Darryl Breniser, Salvatore M. De Bunda, Dr. John Egloff, Thomas Jay Ellis, Russell B. Jones, Jr., Robert F. Lark, C. Edward Rogers, Jr., Michele C. Ruddy and Dr. Corinne Sweeney.
Following the racing commission's letter is a response from Alan Pincus.
PENNSYLVANIA STATE HORSE RACING COMMISSION: The article Alan Pincus published June 27 online in the Paulick Report is appalling not only for the misunderstanding he demonstrates about Pennsylvania's equine testing protocols, but also for the inflammatory accusations he levies on good, hard-working public servants based solely on unnamed sources, which should cause any reasonable person to question seriously the credibility of those charges and the true agendas of the accuser.
First, Mr. Pincus suggests erroneously that the Pennsylvania State Horse Racing Commission, in particular Harness Racing Director Brett Revington, knowingly gave preferential treatment to two horses that ran on separate dates at Harrah's Chester Downs in September 2016. Aside from the fact that Mr. Revington did not hold his position with the commission at the time of the races — a point Mr. Pincus conveniently and briefly mentions as an aside buried within his article — all drug test samples are provided to the lab without information identifying the horse or its owner. Subsequently, results are also provided to the commission without any way to identify the horse from which the sample was drawn. Only after making a disciplinary decision is the identity of the horse and its owner and trainer revealed.
So to be clear, there was no way for Mr. Revington to know when lab results were reported to him that the owner of Woman's Will was from Ontario. The allegation Mr. Revington was somehow showing favoritism for a horse owned by one of his fellow countrymen is simply conjecture for the sake of stoking conspiracy theories. For Mr. Pincus to suggest anyone may have turned a blind eye to lab test results is not only a mischaracterization and misunderstanding of the process, it is grossly irresponsible and pure fiction for the sake of sensationalism.
Second, Mr. Pincus impugns the character of Commissioner Darryl Breniser. Yes, Mr. Breniser serves on the Pennsylvania Harness Horsemen's Association board and on the State Horse Racing Commission, but the commonwealth's law intentionally allows leaders of the state's equine racing industry to serve on the commission out of a desire to have informed industry experts engaged in the governance process. Prior to 2016's reforms to Pennsylvania's racing industry, it was increasingly difficult to find qualified candidates willing to serve on what was then the State Harness Racing Commission. As such, the Pennsylvania General Assembly saw wisdom in allowing representatives of the state's horsemen and breeders organization to serve — people who care deeply about the future and continued viability of this sport. Further, recognizing there would be those like Mr. Pincus who may try to spin tales of improprieties and conflicts of interest, the General Assembly explicitly banned commissioners from engaging in any ex parte communications about matters that may come before the governing body for consideration. Additionally, commissioners appointed by the Governor — of which Mr. Breniser is one — are subject to strict rules of conduct, the State Ethics Act, as well as financial disclosures designed to bring transparency and accountability to the process.
Again, here we question Mr. Pincus' motives. His article in the Paulick Report fails to mention that he previously and unsuccessfully shopped another conspiracy theory regarding a horse named Alexis May Hanover, which ran in the first race at Harrah's on July 28, 2017. That horse is also co-owned by Commissioner Breniser. Mr. Pincus concocted an elaborate claim that concluded a lab result showed the presence of procaine and was also “covered-up.” However, the facts are that all lab test results for that race and day were devoid of any presence of procaine. When this baseless allegation was discredited, Mr. Pincus apparently abandoned it.
The third matter that bears correction regards Mr. Harmon's employment status with the Horse Racing Commission as a judge at Harrah's Chester Downs. While commonwealth policy prohibits a public airing of Mr. Harmon's employment record, what can be said is that he was not fired. At the end of any track's racing season, commission employees are placed on leave without pay. Mr. Harmon was simply informed that he would not be retained for the 2018 racing season.
Another allegation that bears correcting is the extent to which Mr. Harmon would have been involved in the cases Mr. Pincus cites — namely Moonshine Hanover and Woman's Will. Mr. Harmon had no role in, nor was he involved in the process of interpreting lab results or determining whether discipline would be imposed in any medication case that arose while he worked for the commission. This is as it should be because a judge is required to hear appeals from discipline assessed. A judge must not be exposed to any of the evidence before an appeal hearing is convened so as not to prejudice the licensee.
Finally, the statement that Mr. Pincus was denied an audience with the Horse Racing Commission regarding these matters is disingenuous at best and, at worst, a blatant misrepresentation of reality. As he notes in his article, Mr. Pincus requested to discuss these matters with the commission in executive session, which is closed to the public. Under Pennsylvania's Sunshine Act, such matters are not appropriate for a closed-door executive session. Mr. Pincus was offered an opportunity to voice his concerns during the public session later the same day, but he declined, thus, his decision to air these matters in a public forum such as an online industry trade publication raises questions as to his true intent.
Pennsylvania is fortunate to have one of the nation's most advanced and robust drug testing programs for equine racing. The quality of our results is unparalleled, as is the integrity of the men and women who work in the program and for the State Horse Racing Commission. For purported “evidence” from unnamed sources regarding only one track to be raised in such a sensational way raises serious questions about the true intent of the accusers, as well as the legitimacy of those claims. These accusations merit further inspection, and we at the commission welcome a full and public airing of the facts on these matters, rather than a one-sided characterization by one individual, in this case, Mr. Alan Pincus.
RESPONSE BY ALAN PINCUS: I wish to respond to the scurrilous letter written about me to the Paulick Report under the heading of the Pennsylvania State Horse Racing Commission but unsigned by any individual. The letter attacks both my character and the motives for my previous piece which exposed certain positive tests reported by the Commission's lab but not acted upon by the Commission. In fact, my singular motive was simply to expose these improprieties and hopefully usher in a new era of transparency and fairness, qualities which have been lacking within the Commission for many years.
I am doing this on my own time, without compensation, and with no direct benefit to myself. I realize it is a risky endeavor to speak truth to power, the Commission's response exemplifying the reality of that risk. Thankfully I have been buttressed by the support of Joe Gorajec, former executive director of the Indiana Racing Commission who also served as president of the Association of Racing Commissioners International (ARCI), and Don Harmon, former Chief Judge at Harrah's Race Track in Chester. They are men of great character and working with such men has brought to the surface my dormant sense of civic responsibility.
But this isn't about me, in spite of the Commission's desire to deflect attention from itself, so let's address the Commission's letter which ultimately amounts to nothing more than semantic gibberish used to paper over their silence on the important issues.
Firstly, the Commission states that my article was based solely on information attained from unnamed sources. This is hogwash. My article is based on their own documents, and the revelations contained within those documents speak for themselves.
The letter additionally states that Brett Revington was not Bureau Director of the Pennsylvania Harness Racing Commission at the time of the two races in question. Are they trying to place the blame on Mr. Revington's predecessor? Whether there were additional improprieties committed by Mr. Revington's predecessor, an issue that the Commission should be committed to investigating, it is clear that the report of the Womans Will positive was sent directly to Mr. Revington himself in February of 2017, three months after he took office.
The letter further accuses me of stating that Mr. Revington knowingly gave preferential treatment to the owners of two of the horses for which no action was taken on their positives. I never stated such a thing. I just laid out the facts of the unacted upon positive tests. Frankly, I don't know if the preferences granted were intentional or accidental, and the Commission's refusal to explain the matter means that nobody knows those facts except those within the Commission who refused to even sign their own response letter. You will note that in the Commission's lengthy narrative, conspicuously absent was any explanation whatsoever for the publicly revealed unacted upon positive tests.
Regardless of whether the Commission failed to act on these tests through an innocent mistake or culpably, that failure to act violates the directive by Pennsylvania's Commonwealth Court to treat all owners and trainers equally. It undermines public confidence in racing to know that some horses are disqualified for test results that other horses inexplicably are not.
The Commission's defense of Mr. Revington moved into the realm of the laughable when the letter stated that Mr. Revington had no way of knowing who the owners of the horses were when the lab report was sent to him. The lab report states the race date and the test sample number. It wouldn't take Sherlock Holmes to figure out who the owner and trainer of the horse was.
The Commission then states that I impugned the character of Darryl Breniser, who serves on the Board of the Pennsylvania Harness Horsemen's Association (PHHA) while concurrently serving as a Commissioner. I have never met Mr. Breniser who I assume is a fine gentlemen loved by his family and dog. However, this obvious conflict of interest – allowed in Pennsylvania and virtually nowhere else – at a minimum leads to the appearance of impropriety, which is prohibited by the Racing Act. When the horsemen's group refuses to act on behalf of its members and doesn't demand an explanation from the Commission in this or any other matter, it is only natural to question how Mr. Breniser's motives may be impacted by his dual and sometimes conflicting roles.
Next comes a real doozy. The author of the letter states that I shopped around a “conspiracy theory” regarding a race that was run in July 2017. I have no idea what the author meant by “shopped around,” because I never wrote anything about this incident in my article nor sought to have it published. It is astonishing that the Commission would wish to bring this additional impropriety to light, but since they have, let me explain to you what I have learned.
One day Sam Beegle, President of the PHHA and trainer for Mr. Breniser, came to Don Harmon, Chief Judge at Chester at the time. Mr. Beegle was worried. He had treated a horse with procaine penicillin and forgot to file the proper forms with the Commission. The horse was tested post-race and Mr. Beegle knew the horse was almost assured to test positive. Because he had failed to file the proper forms, Mr. Beegle was subject to a fine, suspension and loss of purse for a procaine positive. Procaine is a Class 3 drug with a Class B penalty. As the President of the horseman's group and trainer to a member of the Commission, that would be a humiliating outcome.
Mr. Beegle had every reason to be worried as Dr. Mary Robinson, director of PETRL, the Commission's lab, has bragged that she can find a grain of salt in an Olympic-sized pool. She was highly unlikely to miss procaine in the horse's sample, an easily detectable drug. But lo and behold no positive test is known to have been found in the matter. Perhaps Mr. Breniser and his trainer are just very lucky people. That the Commission would choose to bring this matter up when I had written nothing about it is astounding. Crisis management at its worst.
The Commission shows just how weak their position is with their response to my assertion that Don Harmon's employment was terminated based upon his refusal to engage in any unethical conduct. Mr. Harmon had repeatedly complained to Mr. Revington that he did not want to be part of any coverup concerning the unacted upon positives. His employment was terminated shortly thereafter. The Commission denies that Mr. Harmon was fired and states that they merely decided not to retain his services anymore. This is an obvious distinction without a difference.
Moreover, the anonymous author of the letter goes on to state that Don Harmon, as presiding judge would have had no role in determining whether discipline would be imposed in a medication case while he worked for the Commission. But that was precisely his job. Just like stewards in thoroughbred racing, the presiding judge conducts the initial hearing in all medication cases and hands down the initial punishment rulings. To state otherwise shows a lack of knowledge of the Commission's own system, which is troubling given that this letter is purportedly from the Commission itself.
Finally, the letter states that I was given an opportunity to speak to the Commissioners about the matters in question. I had requested to speak to them privately as it is a long, complicated, and potentially embarrassing story for the Commissioners. They denied my request, but granted me three minutes to speak during a public session during which a person would hold a stopwatch counting down the time. I didn't feel this would be productive, and it showed their obvious lack of interest in the matter.
Keep in mind, nowhere in their letter did they even attempt to explain why certain positive tests were unacted upon. That's all I, or any member of the public, wishes to know. This type of stonewalling and attacking the messenger will do nothing to restore confidence in the Commission's decision-making. I once again implore the Commission to embrace an ethic of transparency and explain why the two publicly-reported positive tests were unacted upon, and additionally to publicly reveal all other unacted upon positive tests. To a Commission used to keeping its indiscretions in the dark, I know this request might sound startling. But frankly, administering testing procedures fairly and being open and honest with the public is simply a request for the Commission to do its job.
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