Mountaineer: New Election, Old Issues
by Tom LaMarra
Date Posted: 7/11/2008 6:17:37 PM
Last Updated: 7/13/2008 12:57:17 PM

Mountaineer
Photo: Charles Saus

It began in 2006 with an anonymous flyer questioning the effectiveness of the Mountaineer Horsemen’s Benevolent and Protective Association, and snowballed into allegations, a protest, litigation, and paper trail that led some to question the validity of the association’s most recent election.

The results of the Mountaineer HBPA election, made public in January 2007, showed incumbent Chuck Bailey winning the three-year president’s position by eight votes over Jami Poole. In the past year and a half, however, legal wrangling has produced documents that at the very least raised red flags.

There are signed affidavits from individuals who said they didn’t vote in the election that began in November 2006, yet there are ballots indicating they did vote. One late ballot received but not counted was signed by a man who has no record as a horse owner. Another was signed by Dan Mallory, who had died more than four months prior in the Comair plane crash in Lexington in August 2006.

The documentation was to be presented during a hearing on the protest, which was filed in early 2007 by Poole and Patricia Baird, wife of trainer John Baird, who is based at Mountaineer Casino, Racetrack & Resort in West Virginia. The hearing was delayed on multiple occasions and never held, mainly because Bailey has been ill and undergoing treatment, according to documents obtained by The Blood-Horse.

Bailey stepped down as president in early June but continues to train horses at Mountaineer.

According to a March 7 letter from Wheeling, W.V.-based attorney Elba Gillenwater Jr. to his clients, Poole and Pat Baird, a hearing officer said any hearing would involve “any evidence relevant to the validity of the entire election and election process,” not just the protest letters filed in early 2007. The hearing officer also ruled the hearing would be open to the Mountaineer HBPA membership.

On June 4, the Mountaineer HBPA board of directors moved to abandon the results of the 2006 election, reconvene the previous board of directors, and schedule a new election for president and all seats on the 10-member board. A general nominating meeting is set for Sept. 14, with tabulation of ballots scheduled for Dec. 14.

In a statement to the membership, the Mountaineer HBPA board acknowledged issues were raised related to organization bylaws and “the validity of last year’s election and how it (was) handled.” In question was use of an auditor and the National HBPA to count votes.

“It was felt that the integrity of the election was still protected even with the failure to comply with the bylaws,” the statement said. “However, upon investigation, discrepancies were found relative to a number of ballots, and a number of ballots were mailed for purported members residing in other states, postmarked from Cleveland (in Ohio) and Wheeling (in West Virginia). This then raised substantial question as to the election’s integrity.

“After having considered all of the above, it became apparent that the likelihood of a new election being ordered would occur.”

A new election was the goal of the protesters. When asked why they decided to go public with information gleaned from the litigation given the fact there will be a new vote, they said the membership of the horsemen’s group has a right to know. Without a hearing, they said that wouldn’t occur.

Transparency said to be needed

Pat Baird and Poole, through their attorneys, then requested a half-hour meeting with the Mountaineer HBPA board to inform its members of the information their litigation has produced; there is a belief some board members have had very little knowledge of details in the case. The request was denied by the Mountaineer HBPA through its attorneys in late June.

“We want to be transparent,” Pat Baird, who works as the track nurse at Mountaineer and served as chair of the Mountaineer HBPA election committee, said during an interview in late June. “All the material we’ve got is from the National HBPA and the election itself. We decided to go ahead with this because we’re comfortable with what we have.

“The members need to be aware of what happened in this election and pick people that hopefully will work for the whole membership. This group doesn’t even know what the bylaws say.”

“We’re doing this so horsemen can make an informed and educated decision on who to vote for,” said John Baird, brother of longtime Mountaineer-based trainer Dale Baird, who died in a motor-vehicle accident in December 2007. “I’m not against having an open and fair election. (Board members) shouldn’t be able to get re-elected without knowledge of their past actions.”

The conflict, which has lasted for more than a year, is outlined in documents obtained by The Blood-Horse.

Martin Wright Jr., an attorney for the Mountaineer HBPA, said in a June 20 letter to Gillenwater that the protesters, by meeting with the Mountaineer HBPA board, were seeking to “perpetuate their personal vendettas.” In the letter, John Baird is said to have made derogatory comments about Chuck Bailey and his wife, Lora.

“Overall, the time has come for this matter to come to a necessary conclusion,” Wright said in the letter. “Indeed, the HBPA board of directors’ decision for a new election brings resolution to the challenges that were asserted, and restores integrity back into the election process. It is my hope that your clients will similarly recognize that this matter is now concluded, and leave the issues that brought us to this point behind them.”

The election was overseen by former Mountaineer HBPA executive director Lora Bailey. She retired late last year, but continues to advise the new executive director, and still handles a benevolent trust and West Virginia Racing Commission-authorized retirement program for Mountaineer horsemen.

Poole, in his protest letter, said the wife of a candidate for president shouldn’t be involved in the election. “Myself and others feel this was a conflict of interest in the worst way,” he said.

The protesters want the Mountaineer HBPA to pay its attorneys' fees, but the horsemen's group noted its bylaws put the financial onus on the protesters.

On July 8, Lora Bailey spoke with The Blood-Horse but referred questions about the election to Wright, the attorney based at a Wheeling law firm. He didn’t return a telephone call seeking further comment on the situation.

Pat Baird contends she was shut out of the process despite her position as election committee chair. The Mountaineer HBPA bylaws state the election committee should be involved in checking eligible voters and counting ballots.

National HBPA counted ballots

The bylaws also state: “All voting and election procedures shall be supervised by the secretary/treasurer.” Cheryl Walker, who was secretary/treasurer during the election process, was relieved of her duties early last year. Poole previously alleged Walker was let go because she is his friend and had been accused of passing on information to him.

Walker, in a June 27 notarized statement, said she at no time had direct access to any ballots, all of which were kept in Lora Bailey’s office. Walker said she came in contact with one ballot, via Bailey, to give to an eligible member.

Walker’s husband, Charles, who trains at Mountaineer, ran for the Mountaineer HBPA board in the 2006 election and fell 10 votes short of making it onto the board as one of five trainer representatives. He served as an alternate on the board until the election results were vacated in early June.

The role of the National HBPA was to serve as an independent processor of the ballots. The National HBPA otherwise doesn’t involve itself in affiliate business and, in a Jan. 5, 2007, letter, said “any appeals of this election or any other such proceeding is strictly the purview of the Mountaineer HBPA and should be done in accordance with the Mountaineer HBPA bylaws.”

The protesters have questioned the National HBPA’s involvement. The Jan. 5 letter notes the election ballots “were secured until ready for counting,” but Pat Baird produced documents that indicate a running tally was kept as votes were received.

A written notation on a voting list dated Dec. 14, 2006, said Check (sic) Bailey was trailing Poole by 38 votes. In the next week or so, Bailey received twice as many votes as Poole. The final count on Jan. 5, 2007, was 313 votes for Bailey, 305 votes for Poole, and 112 for Walter Bish, a third candidate for president.

The protesters didn’t get access to the actual ballots that were counted. But they claim they did obtain, through attorneys, copies of unopened envelopes containing about 45 ballots received past the voting deadline.

One envelope was signed by John Schweigardt, another by Andy Schweigardt. There is no record of a John Schweigardt. However, Andy Schweigardt owns a horse in partnership with Dr. Scot Waterman and Waterman’s father, John. Andy Schweigardt told The Blood-Horse he didn’t vote in the Mountaineer HBPA election.

A list of names produced by the protesters shows individuals as having sent in ballots even though many had no available addresses or couldn’t be found in online horse-owner records. One of those marked as having voted was Dan Mallory, who died Aug. 27, 2006, and therefore couldn’t have voted in the election.

The National HBPA, in a Jan. 18, 2007, letter to Mountaineer HBPA board members, answered allegations by Poole that Lora Bailey was in contact with Laura Plato, the National HBPA director of operations, during the election process. National HBPA chief executive officer Remi Bellocq said the ballot-processing was done in accordance with previous elections, including the last Mountaineer HBPA election.

“Absent specific guidance from an affiliate board, National HBPA by default is required to interact with an affiliate’s office management and staff,” Bellocq said in the letter. “At the outset, had the Mountaineer HBPA and all parties involved indicated to us that we should only communicate with the election committee, we would most certainly have done so.”

Bellocq also said in the letter that Poole called the National HBPA office “several times a day” to discuss the election.

“I would respectfully suggest that any communication between National HBPA and Mountaineer HBPA regarding the checking of ballot legibility or member eligibility would have little or no effect on the outcome of an election,” Bellocq said.

The protesters also have a letter dated March 25, 2003, from the National HBPA stating the vote count for the 2003 Mountaineer HBPA election had just been completed that day and carried out as had been done in past years. (The letter was submitted as part of the discovery process in the current litigation.) However, the counting of ballots for the 2003 election was held Jan. 6, 2004, according to documents.

Reward was offered for flyer

The anonymous flyer bashing the Mountaineer HBPA, circulated in late 2006, had “Mountaineer HBPA” written at the top of the page and included the National HBPA logo. Use of both without permission is a violation of local and national bylaws.

The flyer indicated the Mountaineer HBPA board was responsible for a reduction in the percentage of video lottery terminal revenue that goes to purses, as well as the state’s move to use horsemen’s revenue to pay for a statewide workers’ compensation program. It also said it was in favor of not racing live in January and February, and wasn’t willing to have meetings to discuss matters such as horsemen’s contracts, among other things.

The flyer, from “a horseman that cares about all of us,” said the Mountaineer HBPA needs “a strong team” and “not just one person”—believed to be a reference to Lora Bailey.

The flyer led the Mountaineer HBPA board of directors to circulate letters noting the bylaws violations and offering a reward for the name of the person or persons who made the flyer. The reward, which went from $1,000 to $2,000 to $5,000, never was paid, nor was the perpetrator identified.

Controversial horsemen’s elections aren’t new to the National HBPA. They often present a no-win situation for the organization. In the past, dues-paying affiliates have told the National HBPA to stay out of their business; other times, they’ve asked why the national body isn’t doing more.

“It’s a little difficult,” Bellocq said July 9. “You get into situations where one group isn’t happy with the other. We went back and forth (in the Mountaineer election), but the bottom line is we answer to the majority horsemen’s group in that state. If horsemen want to kick out people on their board, that’s their vote.

“We’ve gone as far as we can go to mitigate it, but now it looks like it’s going to court.”

Bellocq said the National HBPA board of directors could develop a bylaw related to election procedures and recommend it to affiliates for adoption.

“Probably at some point we’ll come up with best practices for elections,” he said.

The National HBPA continues to be involved with an Alabama HBPA election, the results of which were challenged. That case ended up in the Alabama Supreme Court. It also recently was involved in an Indiana HBPA election.

Rules vary from state to state. Bellocq noted that in Oklahoma, for instance, the state racing commission oversees the Oklahoma HBPA elections.

Board members honor Bailey

The next Mountaineer HBPA election will be held under new bylaws “in an effort to avoid further litigation,” the organization said. A hearing officer will serve as election chair, an auditor will mail the ballots, and the election chair will assume the duties previously afforded the secretary/treasurer of the horsemen’s group.

Such matters have taken on added significance at racetracks such as Mountaineer, where gaming revenue has changed the dynamics of racing. According to The Jockey Club Information Systems, Mountaineer paid $31.56 million in purses over 223 days of racing in 2007, while about $410 million was wagered from all sources on Mountaineer races.

In its most successful year before video lottery terminals began operating, Mountaineer, then called Waterford Park, in 1975 handled $104.2 million--all on track in the pre-simulcast days--and paid $5.44 million in purses for the entire year.

At the end of 2007, the horsemen’s pension fund stood at $2.24 million, while the Mountaineer HBPA had about $721,000 in the bank at the end of last year.

The Mountaineer HBPA, whose activities previously have not been publicly called into question, believes much has been accomplished since Chuck Bailey was elected president in 1997. The board of directors at its June 4 meeting adopted a resolution honoring Bailey.

The resolution said Bailey established the Mountaineer HBPA Trust Fund, which has paid more than $4.7 million to horsemen and their families; was instrumental in developing the pension fund; and took part in negotiations for a simulcast contract with the track that allowed for facility upgrades.

The resolution said Bailey’s tenure “will be long remembered as one of steadfast leadership, fidelity to principle, and overriding sense of purpose and direction. His presence on this board will be missed.”



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