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Scarbrough Appeal Hearing Rescheduled Again



The National Horse Show Commission Board of Directors met today, Dec. 15, to hear Toby Scarbrough’s final appeal. Immediately after the meeting was called to order Rhonda Martocci called for an executive session, which requires all non Commission members to be excused. During that session, a letter from board member Craig Evans (the complete letter follows this story) was read in which he objects to the meeting for many reasons, one of which is that it is not in compliance with Article V of the NHSC By-Laws.

Article V states: “The Commission Board of Directors shall meet at least quarterly at a time and place approved by a majority of the Directors. Other meetings of the Board shall be held at such other times and places as may be fixed by resolution of the Board or upon the call of three (3) of the Directors in a writing directed to the Secretary-Treasurer. The Directors shall receive a minimum of ten (10) days written notice of all meetings, unless waived in writing by all Directors. The presence of a majority of the total number of Directors qualified to transact business shall be required to establish quorum for the transaction of any business at any Board meeting. The Commission Board of Directors’ Chairperson shall chair the meetings and be allowed to participate in discussions, debate, make motions and vote on all matters considered by the Board.”

After much debate, it was suggested that a waiver be signed so that the hearing could continue. Board members present were agreeable, but Rhonda Martocci refused. All board members present did agree to sign a letter that would be mailed out today rescheduling the meeting until Jan. 5, 2004, at 1:00 p.m.

Scarbrough was found guilty of offering 1997 Celebration judge Jeff Hatcher $500 to tie his horse, Royal’s China Doll, in the Plantation Pleasure Specialty Championship for Amateur Riders during the 1997 Celebration and was notified of his penalty March 14, 2003. He immediately filed an appeal which allowed him to continue showing until the appeal was heard.

The first appeal was scheduled for June 18, 2003, but Scarbrough attempted unsuccessfully to get a restraining order to postpone the hearing. The judge denied the order and instructed the attorneys to reach an agreement so that a hearing could be held as soon as possible. A second hearing was scheduled for Sept. 17, but it was also postponed.

The appeal hearing was finally held Nov. 4, 2003, even after Scarbrough petitioned for a continuance, which was denied by the Independent Hearing Officer. Neither Scarbrough nor his attorney attended the hearing. The Independent Hearing Committee ruled that day that the charges filed against Scarbrough were founded and the penalty levied against him by the NHSC would stand. Scarbrough filed his final appeal Nov. 7.

J. Lonnie Messick

Executive Vice President

National Horse Show Commission

Post Office Box 167

Shelbyville, TN 37160

RE: December 15, 2003, NHSC Board of Directors Meeting

Dear Lonnie:

My current understanding is that the NHSC Board of Directors (“Board”) meeting previously scheduled for December 15, 2003, not in compliance with Article V of NHSC By-Laws, and then canceled, has now been placed back on the docket without the required ten (10) days notice. I strenuously object for a host of reasons, including, but not limited to, the following:

1. When queried more than three weeks ago in regard to possible Board meeting dates in December of 2003, I informed you that I could not attend a meeting on December 15th because of the number and complexity of law cases that I already had docketed for that day. I further informed you that I had no other readily available dates in December, but could clear December 16th if absolutely necessary, as the cases that I had docketed for that day could be continued without prejudicing my clients’ rights. When I visited Tennessee on December 4th to attend annual meetings, I discovered that a meeting had been scheduled for December 15th, of which I did not realize that I had received notice buried in the midst of a memo entitled “Rules Committee Recommendations” and unaccompanied by the usual proposed agenda. The alleged purpose of the meeting was only to hear appeals, including the appeal of Mr. Scarbrough, at a different time than when appeals had been heard in previous years and not in the normal course of events.

2. While attending meetings in Tennessee, I endeavored to ascertain the relative availability of my fellow TWHBEA NHSC Board members. Both Mr. Thomas and Mr. Pedigo informed me of their unavailability for a meeting on December 15, 2003. Additionally, I was informed that WHTA Board members opined that no meeting to consider the appeal of Mr. Scarbrough should take place, unless the Board members who had previously heard the issues involved, to include the conference call regarding a continuance, were present. Thus, I suggested to you that the proposed date be rescheduled. In the interim, I began to solicit attorneys to try my cases for me, and began to attempt to secure my client’s consent for such representation in hopes of being able to attend if a meeting was held on that date. After securing attorneys and some client’s consent, but not all, there were a series of phone calls on Wednesday, December 10th resulting in my being informed that the meeting had been canceled, and that it would be rescheduled in January. Several dates were suggested for the next meeting, to include January 5th and January 12th. I informed you of my unavailability on those dates, but stated that I could make myself available on January 19th and, of course, on January 26th. I contacted attorneys and clients to inform them that I would once again be scheduled to try their cases, and I awaited a notice of the next meeting date.

3. Instead of such notice, sometime in the early afternoon of Thursday, December 11th, I received a voice mail from a Board member inquiring as to my availability for a conference call on December 15th to consider only one appeal, that of Mr. Scarbrough. The balance of the appeals would be left pending until the regular January Board meeting, as others had been heard in previous years and in the normal course of events. Before I could voice my numerous objections to such a plan as would single out one individual for treatment different from all others, i was informed by another Board member that they would not waive the required notice of the conference call, and accordingly one could not be held. Again, i awaited notice of the next meeting date.

4. Instead of such notice, I happened to telephone you early in the evening of Thursday, December 11th to inquire as to the next meeting date, and was informed that the old meeting date that had been canceled was back on the docket, and it would constitute the next meeting date regardless of who appeared, if anyone. I have not received the required ten (10) days notice of this now rescheduled meeting. I can not now find attorneys to try my cases, my clients would not now consent to such, and at this late date I would be embarrassed to contact them with such a proposal. Consequently, I cannot attend the “meeting” on Monday, December 15, 2003.

5. Article V of the NHSC By-Laws requires that the Board meet at least quarterly at a time and place approved by a majority of Directors, and no such approval has been provided for a December 15th meeting. The only other method of setting a meeting date and time is by the call of at least three (3) Board members, in writing, directed to the Secretary-Treasurer, and I am not aware of such call. Therefore, I believe any action taken at such meeting would be void ab initio. The By-Laws require that the approval or call be made prior to any notice, unless the notice is waived in writing by all Board members, thus this fault can not be cured at the “meeting” unless all Board members attend and waive the notice in writing.

6. I can not imagine that it is the NHSC’s intent to treat one individual different from all others, but I would be remiss if I did not point out how this “meeting” has the appearance of that impropriety and it is not at all subtle. It is my belief that the Court will countenance NHSC rules, regulations, and enforcement, as long as they guarantee minimum due process of law, they are indeed followed as written or policy interpretations thereof are uniformly followed, and they are not enforces in an arbitrary and capricious manner. When a meeting is scheduled at an odd time, never previously scheduled, only to hear appeals and not in the normal course of events, one of which is Mr. Scarbrough’s; and when a meeting is called not in compliance with Article V of the NHSC By-Laws (although I am confident it was not knowingly); and when five out of five Board members on the conference call who initially voted not to force a hearing, indicate conflicts with the proposed meeting date and that date continues to be proposed; and when the meeting date appears impossible, a conference call is suggested only to consider one appeal, Mr. Scarbrough’s; and when the conference call is rendered impossible by a notice issue, a canceled meeting date is placed back on the docket, without proper notice, only for the purposes of hearing appeals, one of which is Mr. Scarbrough’s; and when the meeting date is at a time when all of the Board members who have previously heard issues in regard to Mr. Scarbrough’s case can not participate; I believe the “meeting” has the appearance of impropriety. I may be wrong in my perceptions, beliefs, and understandings, but I am convinced of the appearance to an impartial arbiter.

For reasons unknown to me, Mr. Scarbrough’s case haunts the NHSC. From the time that I filed the Complaint as Chairman of the NHSC, the matter has seemed to have had a life of its own. It appears from the outside that it has been handled differently from any other. NHSC rules require that upon a charge, the evidence that relates to that charge will be provided to the respondent, and I fear that was not accomplished. NHSC policy has been to attempt to schedule hearing dates at times convenient to attorneys, and when that is an impossibility then to grant continuances while simultaneously placing the respondents on "suspension." I fear that was not accomplished. NHSC policy has been to allow evidence to be heard by the Hearing Committee regardless of how inconsequential, immaterial, and irrelevant. I fear that was not done as my transcript indicates counsel for Mr. Scarbrough was not allowed to argue his motion to continue to the Hearing Committee, as was suggested by Mr. Thomas on the Board conference call. NHSC policy and rules are that default judgments are entered when a respondent does not appear and the costs of that proceeding are taxed to that respondent. I know that is not what happened as evidence was presented, and I understand the reasons. However, I fear that not all of the evidence in the NHSC's possession was presented, most potently and particularly the potentially exculpatory evidence, i.e. the Harwell Report affidavit, the results of the polygraph exam, and the "Kane" tape.

I understand and realize that the other side, if you will, has issues not to be minimized, but I have no role there and no opportunity to influence. As a Board member, I do have that opportunity, and the obligation, at the NHSC. My greatest fear is that the NHSC, an organization which I am part of as much if not more than anyone, and for which I have such love and passion, has rushed to judgment in its zeal to appease others, and it has trodden none too lightly on its rules and regulations. The result is that a respondent, whether innocent or not, in a host of forums within and without the industry and in federal and state courts, can vociferously claim innocence, vigorously claim denial of rights, and focus all attention on the process, not any on evidence. I cannot imagine a more unsatisfactory result and one for which the NHSC continues to provide fodder, most recently the decision to conduct the December 15, 2003 meeting.

For the past six months I have been contemplating my resignation as a result of this one issue. I may not be right, but I feel so strongly and so deeply about notice, opportunity to be heard, and a fair hearing. Those tenets are at the cornerstone of all of my arguments to the USDA and to the public at large in support of the Tennessee Walking Horse industry. It is what we have all asked for, "just be fair to us." It crushes me to contemplate that the NHSC may have acted without regard to those tenets. It also hurts to find that I am being cast by several as one who wants to exonerate Mr. Scarbrough, and that I am trying to "fix it" for him, solely because I believe in those basic tenets. Some in the USDA and some animal rights groups make that same argument against me as it relates to those basic tenets when I argue for them on behalf of trainers, owners, and exhibitors. If those basic tenets are appropriate for some of us, they are appropriate for all of us. I remain convinced and trust that all Board members and alternates believe in those tenets, and all believe that they are appropriate for all of us, and upon reflection and contemplation will act accordingly.

There remains the chance to right any wrong and to provide a meaningful notice, opportunity to be heard, and a fair hearing to Mr. Scarbrough, and regardless of the party who prevails, the evidence will be fully presented, the truth will out, and the NHSC will be the ultimate winner for having the courage of its convictions. I hope and believe the NHSC will choose to avail itself of that chance.

I respectfully request that you provide a copy of this letter to each Board member and each alternate, and that a copy be entered into the record of the meeting voicing my objections.

If you have any questions or I can be of any further service to you, please do not hesitate to call.

Sincerely,

R. Craig Evans

TWHBEA Representative

NHSC Board of Directors

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