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By Karl Hart (Carlos) ( - 152.163.197.196) on Thursday, December 23, 1999 - 09:50 am:

I would like to clarify some things. I am not usually on this network. I simply don't have the time. I ususally only read it when some one tells me I or my farm is being trashed. I did not reply when the newsletter was published on this channel because I was glad that it was published. My main purpose was to get people to think of the big picture and all o the ramification and dangers of the course that IAHA has embarked upon.

First, I want to make it clear that I stand behind everything that I said in my newsletter. Some noteable sources have said that it is untrue but they have not pointed to anything that is not absolutely correct and they have not answered the questions raised.

Second, I do not condone or agree with comestic surgery.

Third, I have never said that I do not think that Boggs should not be punished if in fact he violated the rules of a level playing field. For discussion purposes, I assumed that he did but as a lawyer, I strongly believe that those are decisions for the legal course to follow and he has every right to pursue all of his legal rights to have the findings of the EPRB reviewed.

Fourth, one has to understand that I am a major supporter of the Arabian horse and of IAHA first and foremost. I have served on the board off and on for nearly 30 years. I am often critical of what IAHA does. I think that only through constructive disagreement and discussions can progress be made. It does not bother me in the least that people disagree with me as long as they do it in a polite dialogue and offer constructive, positive suggestions for the betterment of the breed and the industry that I love.

Fifth, I am also a major supporter of AHSA and I have served off and on on the board of that association almost as long as I have on IAHA. I believe that the two organizations have very different and related roles and both should be supported by all horsemen and horsewomen and they should work together to carry out their purposes for the betterment of all. AHSA is an umbrella organization where we can learn and benefit from the experiences of those in many breeds and disciplines. Its role is primarily to enforce a level playing field , improve the quality of shows and show facilities and to act as the national governoring body for U. S. participation in international equine competitions. Since it is somewhat independent and is not sponsoring shows directly (unlike IAHA which actually organizes and puts on some of our most important shows) it is much better to act as judge or jury of charges of misconduct than is IAHA. It also is better equipped by experience and resources to carry on the very expensive enforcement actions. At the present time we in the Arabian breed have another major controversey brewing that involves both the Canadian and U. S. Nationals, I personally think that we need someone other that the show management to serve as judge of the actions of IAHA in that regard rather than IAHA acting as judge of their own conduct. As an exhibitor, I would certainly not feel comfortable with the show ruling whether they folllowed our rules.

Lastly, I think that the major purpose and function of IAHA should be to promote the Arabian breed. Unfortunately, for too long we have not done that and our industry is suffering because of that failure. We have done a fairly good job, through such programs as the Regional, National Shows and Sweepstakes to promote the upper end of the market but we have done very little to promote the breed overall. I believe that as a result, the use and market for all of those excellant Arabian horses that are not quite National Champion quality has dried up. Most of this is the result of the fact as an organization IAHA has provided very little incentives or programs for the person who does not have the time or the money or the desire to campaign a horse for national championships. I think that this is a void that must be corrected if the Arabian breed is to prosper. Since, lAHA has only limited resources, I think that our primary focus should be on programs that support this goal. There are simply too many great Arabian horses being produced for which we as an industry are not developing a use and market.

The main purpose of my newsletter was to try to say (1) we have to be fair to everyone (2) everyone has a right to their full legal remedies provided by the law and (3) lets get on to the most important role that IAHA has, write our rules clearly and precisely and let AHSA handle the enforcement function.

I don't know but I've probably offended more than I have clarified. If so, please accept my apologies---that was not my intention.

HAPPY HOLIDAY SEASON TO ALL!!!!

FROM THE REGION 12 DIRECTOR: Karl Hart

REGION 12 NEWSLETTER

With the Boggs case the hottest talk in the industry at the present time, I suppose that it is not surprising that several people have called and stated "I hear that Karl Hart is helping Boggs." I have a very good idea as to where these false rumors are emanating. I do think that the people of Region 12 have a right to know where I stand on the issue and why. The answer is simple, Karl Hart stands solidly behind IAHA and what is best for the Arabian horse industry. It is only when we proceed to the "why" and "what is best for IAHA" that differing opinions may arise that give way to the perception in some quarters that what I am saying and doing may be helpful to Boggs. These people think that anything that does not comport with their view of the facts, law and what should be done is "assisting" the other side.

HISTORICAL BACKGROUND

To understand where I stand, I would like to give some of our newer members a brief history. First, at the 1989 IAHA convention, when I was your director before, a resolution was presented to create a position of "czar" for the enforcement of ethics in the Arabian horse industry. I am as much in favor of high ethical standards in the industry as anyone but I was one of the outspoken opponents of the resolution for several reasons. First, the resolution contained no method of funding. Second, I have grave concerns about placing too much power in the hands of one person. I have always been a firm believer in the saying "Power corrupts and absolute power corrupts absolutely!" Third, I have grave concerns that inadequate provisions were included to guarantee accused persons the right to due process to which all Americans are entitled. Fourth, I was concerned that a single "czar" even if an outsider from the industry when he began, would probably develop close ties to various groups of individuals in the industry which would make it very difficult for him not to show favoritism. Fifth, I was concerned that the actions of the "czar" would lead to so much litigation that IAHA simply could not survive. We are not a rich corporation that has a product to sell. Therefore, we cannot raise our price of our "product" to cover litigation costs. Sixth, I felt that if we would write our rules with sufficient precision, we should leave it to AHSA to enforce them because they were better equipped by experience, legal representation and financial resources to do the job. In 1989 the resolution for a "czar" was referred to a committee for further study. In 1990, this issue came back to the convention as resolution 5-90 which was much more limited in its scope, set a number of rules designed to protect the rights of the accused to due process, the "czar" became a Judges and Stewards Commissioner, other committees were set up to assist in the process and supervise the Commissioner, and the proposal established a charge of five dollars per horse entered in any IAHA sanctioned show to fund the program., Although I still had some misgivings about the program and some of the provisions in resolution 5-90, I somewhat reluctantly supported the resolution which was passed  by the 1990 IAHA convention. It was my clear understanding that the intent of the Resolution was to give a Commissioner broad powers to investigate Judge’s and Steward’s conduct when they were acting in the capacity as Judges and Stewards, not in their private lives.

Certainly, it seems to make no sense to have an employee of IAHA to investigate the private lives of the Judges and Stewards and to have no one investigate the private lives of all of our other members. Yet, I am sure that our members do not want someone from IAHA investigating their private lives. I am quite surprised that all of our Judges and Stewards have not turned in their cards to avoid this scrutiny.

As a member of the IAHA Legal Review Committee, I interviewed the present Commissioner when he was hired in 1990. I thought Michael Brown would be good for the job. As an attorney, I hoped he would be particularly sensitive to protecting the due process rights of those persons accused of misconduct. As an outsider, to the Arabian industry, I hoped that he would remain aloof from the divergent groups and individuals in the industry, remain impartial and not show favoritism. For several years I tried to support him in any way that I could in carrying out his duties and defended him when many people began to criticize his actions or lack of actions. However, two or three years ago I became disillusioned with his performance for most of the same reasons that I had originally opposed the creation of a position of a "czar." I was hearing widespread complaints that he had become very close to certain people in the industry and was showing considerable favoritism and was not sensitive to the due process rights of the accused. I was disturbed when almost every Arabian judge with whom I came into contact complained to me of the manner in which there were being treated by the Commissioner, that he was attempting to involve himself in the exercise of their judgement in the judging process and was trying to intimidate many of our outstanding Arabian judges.

A couple of years ago, I met with the present president of IAHA at an AHSA meeting that we were both attending and discussed with him my concerns about the manner in which the Commissioner was performing his job. I relayed to him some of the complaints that I was hearing from some members of our Region, especially judges, as to the manner in which they were being treated by the Commissioner. I expressed particular concern about his handling of the drawn out Boggs investigation both because some of the conduct that members of our Region had indicated to me raised concerns as to whether Boggs and certain witnesses were being given due process and whether IAHA was following its own rules. I had considerable discussion regarding whether IAHA was getting in so deep on a course of action that they would not be able to continue financially. I told him that assuming that Boggs was guilty of the matters charged, I was concerned about the Commissioner’s attitude that had been reported to me by one of our members as "I’m going to put the son of a bitch out of business." I expressed concern whether it was wise to push any defendant into such a corner where he had no choice but to fight all the way. I also think that we are not so blessed with members that we should be obsessed with driving any Arabian trainer or owner out of the business.  There were plenty of sanctions short of expulsion that would force compliance with our rules.

In 1998, shortly after I was elected to serve as your director, I became very disturbed about another very specific matter involving the Commissioner. As I stated above, when the Commissioner was hired, I served on the Legal Review Committee.  When we interviewed the Commissioner, one of the things that we inquired about was whether he would sever his ties completely with the law firm in Oklahoma City with which he was then affiliated. We were concerned for two reasons primarily. One, he was being hired at a rather high salary as a full time employee and we did not think that he should be engaged in the private practice of law on the side. More important, we feared that any affiliation with any law firm could create at least appearances of a conflict of interest if not actual conflicts of interest. We were assured that he would sever all ties with his present or any other law firm.

After I was elected as your director last year, my predecessor informed me that during her term in office, the board had been made aware that Mr. Brown was still listed in Martindale-Hubbell (the leading listing of attorneys throughout the U. S. and which is published annually) as being "of counsel" with his old law firm in Oklahoma City. Several IAHA board members called the Oklahoma firm and asked for Mr. Brown. Each caller was told "Mr. Brown is in our Denver office" and was given Commissioner Brown’s IAHA phone number. The concern that Mr. Brown had remained affiliated with his Oklahoma firm prompted the Executive Committee to confront Mr. Brown. Mr. Brown assured IAHA that he was no longer affiliated with the firm and that his listing in Martindale-Hubbell was simply a mistake. Last fall, some eight years after I had been assured that he would sever all ties with the law firm, I personally checked the 1998 edition of Martindale-Hubbell and Michael Brown was still listed as "of counsel" with the firm. I also called the number listed for the firm in Oklahoma City and ask for Mr. Brown. I was still told "Mr. Brown is in their Denver office" and given the number of the direct line to the Commissioner’s office. I checked the yellow pages for attorneys in Denver and Michael Brown was listed as a private attorney and the Oklahoma City firm did not have a listing for any office in Denver. This was even more disturbing to me considering that Michael Brown had hired his old firm to represent IAHA in the Boggs litigation and in fact his former partner was the attorney prosecuting the case before the EPRB. This seemed to me to at least have the appearance of a conflict. I certainly did not think that it was in the best interest of IAHA to hire an attorney from Oklahoma City (when out of town attorneys normally cost more because you have to pay for their travel and accommodations, phone calls, etc,. and you have to associate with an in-state attorney costing more in legal fees) who did not have any apparent expertise in equine law or rule enforcement by private associations to represent IAHA in a matter in Denver, Colorado, where IAHA was located.

This summer I was attending a meeting of the Region 12 Show Commission and, in discussions prior to the start of the meeting, one of the IAHA judges from our Region, who is a member of the Commission, was complaining to me regarding the conduct of Michael Brown as Commissioner. I related the above concerns that I had regarding the continued affiliation of the Commissioner with the Oklahoma City law firm and the hiring of that firm to represent IAHA. I indicated that I intended to bring the matter up at the next meeting of the IAHA Board of Directors. One of our members who was present during the conversation related the conversation to Michael Brown who misconstrued the statements to be an accusation that he was taking "kickbacks". At the August IAHA Board meeting, Michael Brown publicly scolded me for accusing him of taking "kickbacks" from his attorneys. I assured him that I had not and told him what had been said which was the information set forth above regarding his continued affiliation with his old law firm. I thought the matter was settled but two weeks later, I received a letter from the Oklahoma City law firm stating that I had slandered them and Mr. Brown by accusing him of taking "kickbacks" and threatening litigation against me. I immediately wrote to them, denying the accusation and telling them exactly what had occurred at the Region 12 meeting. I also suggested that since Mr. Brown and his law firm had now made a big public issue of this matter that I thought answers to a few simple questions should be furnished to all members of the IAHA Board of Directors in order to remove any cloud of suspicion over the office of the Judges and Stewards Commissioner.

These questions were:

1. What was the relationship of Michael Brown with your firm from 1991 when he became a full time employee of IAHA to date?

2. What was the purpose of his being listed as "Of Counsel" with your firm while he was a full time employee of IAHA?

3. Doesn’t it violate the rules of the Oklahoma Bar and the Canons of the American Bar Association for a law firm to have an attorney listed as "Of Counsel" with the law firm, if, in fact, the attorney is not affiliated with the law firm?

4. Has your firm ever had a Denver office? If so, during what period of time? Where was it located and who staffed it? If not, who instructed your receptionist to indicate in response to phone calls to your firm that Mr. Brown was in "our Denver office" and then direct calls to him on the IAHA Commissioner’s direct line?

5. Did Mr. Brown receive any funds or other benefits from your firm from 1991 when he became a full time employee of IAHA to date? If so:

a. What was the amount of each payment?

b. When was each payment made?

c. What was the purpose of each payment (i.e., Deferred compensation? Retirement pay?

Repayment of capital? Referral fee? Etc.)?

d. how was the payment treated for IRS purposes by your firm?

I have not received any response from this letter of early August, 1999.

BOGGS CASE SPECIFICALLY

I have told David Boggs and all others with whom I have discussed the question, for purposes of my discussion, I assume he is guilty of the matters charged. The task of determining the truth or falsity of the evidence is for the EPRB and the courts that review those findings. The EPRB has made its findings in which they found him guilty as to some horses and not guilty as to others. Boggs has now filed a lawsuit to have those decisions reviewed. That is his right, as it is every other American, and we will leave it to the court to decide if there are sufficient facts to support the EPRB decision and if IAHA followed its own rules in the proceedings and the making the determination. As a director, I was furnished with the initial pleadings and briefs filed in this case and the primary point raised is that the EPRB did not follow IAHA’s own rules and that they misinterpreted the applicable rules.

The court will have to decide this issue. It is encouraging to IAHA that the Temporary Restraining Order ("TRO") Boggs sought to delay the enforcement of his suspension so that he could show at the U. S. Nationals was denied by the court on October 19, 1999. There are several tests that the court has to apply in making this decision. One, "will there be irreparable harm to the person moving for the TRO if the TRO is not granted." The usual consideration here is whether the party can be adequately compensated by money damages if the decision of the EPRB is later determined to be improper. It is my understanding that the court found that Boggs could be adequately compensated by money damages if he subsequently prevailed in his suit. Second, the court has to weigh whether it feels there is a likelihood that Boggs will prevail. Certainly, this is the most significant test and I understand that the judge made a preliminary ruling that there is a likelihood that IAHA will prevail. If so, this is significant even though it is not binding on the court when it considers the merits after final hearing. In   addition, the judge has to weigh the public policy considerations. In this case I do not think this was a determinative factor.  This does not mean that the litigation is over. This was just an abbreviated preliminary hearing and there was a heavy burden on Boggs if he was to prevail. Next, Boggs has sought an injunction to stay the enforcement of the EPRB decision until the court rules on the merits. The court could have considered this at the hearing when he considered the TRO but normally this is a more extensive evidentiary hearing which would occur in the future. Finally, even if the judge considered and denied the motion for an injunction, Boggs has the right to take discovery and have a trial on the contentions raised by his complaint, which as I have said, centers primarily on his allegation that the EPRB, in reaching its decision, did not follow the IAHA rules or that they misinterpreted the applicable rules. We will have to wait for the trial on the merits which will probably be sometime next year to know how all of this will play out but IAHA must be encouraged at this point.

POLICY CONSIDERATIONS

My concern has been certain policy considerations. First, is the question of the penalty. On what was essentially a first offense, Boggs was given a five-year suspension from all IAHA activities. He can not even go on a show grounds of an IAHA show, meeting or other activity. This will be followed by a five-year probation period. For a professional trainer this is the equivalent of a death sentence. I question if this is in the best interest of the Arabian industry. I have served on the hearing  committee of AHSA for nearly twenty years. To the best of my recollection, AHSA has only handed out such severe penalties in two occasions. First, was a series of cases in which the charged parties had already been convicted in federal court of killing show horses (often brutality such as the breaking horse’s legs with a baseball bat) in order to collect insurance proceeds. The other was where a trainer was found guilty on three separate occasion in a short period of time of knowingly administering  performance enhancing drugs to horses in competition. These penalties, based upon the specific facts of each case, I think were appropriate. I have criticized the EPRB in the past because they have a rather routinely imposed very long suspensions.

Let’s look at the purpose of the EPRB hearings. In my opinion, they are to enforce our rules and I do not think the purpose is or should be to severely punish persons for breaking those rules other than to get their attention and make sure that they adhere to the rules in the future. Our industry is not so blessed with members, owners or trainers that we should be trying to drive anyone out of the industry except in the most extreme circumstances. Next, we must keep in mind that all rule infractions are not the same. A violation of the AHSA drug rules, for example, can be as simple as turning in a veterinarian report in three hours after treatment rather than within the two hours allowed under the rules or it can be the knowing administration of a performance enhancing drug during competition. These drug violations should not receive the same penalty. We need to look at the purpose of the rule and the effect of the rule in the facts presented. There are many who would argue that the elective surgery which Boggs was charged with doing was abusive to the horses and that is the reason for the cosmetic rule and the reason that he should be severely punished. I do not agree with this. The cosmetic surgery involved in these cases was no more abusive than castration surgery and almost everyone in the industry advocates much more of that elective surgery. I think that the purpose of the cosmetic surgery rule is to ensure fair play and a level playing ground in the show ring and the prevention of fraudulent representation. If this is the case, I think that a far less severe penalty would have been in the best interest of everyone. I personally think that if the EPRB had suspended Boggs for six months or even a year, followed by an extended period of probation, and fined him $5,000 or $10,000 per horse on which he was convicted, justice would have been served, we would not be faced with the enormous legal fees and Boggs and his customers would not be driven from the industry.

My greatest concern, however, is the effect that all of this will have on IAHA financially. My strong wish is that IAHA remain a financially solvent, viable force in the Arabian industry. These large penalties, I think, jeopardize the very existence of IAHA. We are not a wealthy association. We depend on dues and the profits from the national show for everything we do. We only have 28,000 members and the numbers are declining. Our dues are modest but even a $5 increase would cause monumental outcries and would not raise but $125,000 (I am assuming that the increase would cause some to drop their membership.)

Yet, IAHA has already spent over one-and-a-half-million dollars ($1,500,000.00) in attorney’s fees on the Boggs case alone and they are just beginning. We still have three suits pending that directly evolve out of the Boggs case and several more are threatened. If we were to lose the case on appeal, very large damages could be assessed against IAHA as a result to having suspended Boggs during his appeal. Even more frightening. There are probably hundreds of other horses out there that have had the same surgeries with other trainers or owners. Is IAHA going to prosecute these also? Some of these are known to IAHA. In all fairness, can they do anything but prosecute? Where are the funds coming from to support this? The Commissioner and the executive vice president are already on the Internet and in the publications soliciting donations for the legal defense fund. Many will donate but I fear that the total raised will be only a fraction of the amount necessary.

This could be only the tip of the iceberg, however, the insurance companies are defending IAHA in some of the suits under a reservation of rights, which means that they will pay our legal fees but they will not necessarily pay any judgement entered against IAHA. In addition, we have to have a great concern that after these insurance companies have paid out so much for litigation this year, will they continue to renew the insurance if we continue to have this history of litigation. If they do, will we be able to afford the premiums they will demand. One has to remember, insurance companies are in business to make money and if they have large losses, they either get out of the market or they raise the premiums to recoup the losses.

Even if we are able to raise the funds and stay afloat and in existence, one must ask: Is spending millions and millions of dollars in attorney’s fees to expel a few people from the industry, the best utilization of our limited resources? We have already spent over five million dollars ($5,000,000.00) on the Commissioner’s office and activities over the last eight years. I have not seen an appreciable improvement in either the quality of the judging at our shows or diminution in the politics in the judging. Our industry has shrunk dramatically, we have less horses, less members and less participation at our shows and other activities. I can’t help but wonder if would not have been in much better shape if we had spent that five million dollars ($5,000,000.00) on a good marketing and promotional program for our breed which I think is the first and foremost responsibility of IAHA. Would it have cost any more to have set up a program of full time judges which is the only way that we can ever hope to have completely unbiased judges free of political influences?

I hope that I have not stepped on too many toes and offended too many people but I think that it is a time when we must at least think of some of the ramifications of the course that we have set upon.

Karl Hart


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