In its continued effort of transparency and to keep the industry informed of communication between SHOW and the USDA, SHOW CEO Dr. Doyle Meadows released the following letter he sent to Dr. Chester Gipson, Deputy Administrator, Animal Care, USDA.
July 23, 2009
Dr. Chester Gipson
Deputy Administrator, Animal Care
United States Department of Agriculture
4700 River Road, Unit 97
Riverdale, MD 20737
RE: Inappropriate conduct of VMO Dr. Ernest Johnson
Dear Dr. Gipson:
The purpose of this correspondence is to make you aware of events which occurred at last weekend’s horse shows which require your immediate attention.
Two USDA VMO’s, Drs. Johnson and Kingston, were present at the PC Splash Show on Friday, July 17, 2009, and the Lynchburg Show on Saturday, July 18, 2009. While Dr. Kingston performed her duties in a very competent, professional manner, the same cannot be said for Dr. Johnson. SHOW HIO very much appreciates Dr. Kingston’s willingness to work with us to enforce the HPA and its regulations as written. Her willingness and ability to communicate with SHOW officials concerning enforcement issues is commendable. However, as set out hereinafter, we believe that the actions of Dr. Johnson at these and previous shows require immediate action by the Department to ensure that the Horse Protection Act (“HPA”) and its regulations are enforced in a fair, unbiased and consistent manner.
I. PREVIOUS ACTIONS OF DR. JOHNSON DURING 2009 SHOW SEASON
Prior to the events of last weekend, which will be discussed in detail below, Dr. Johnson’s conduct at shows throughout the 2009 show season has been unprofessional at a level which should not be tolerated by the Department and cannot be overlooked by interested parties impacted by his actions.
Moreover, his inappropriate actions were also well documented at the 2008 Tennessee Walking Horse National Celebration®, as Dr. Johnson was relieved of his inspecting duties (sat down) and taken out of the VMO rotation. This was observed by the participating DQP’s at the inspection area during that timeline. As usual, the action directed at Dr. Johnson was a result of overzealous application of the HPA that went well beyond the regulations.
As the Department is aware, at the Mississippi Charity Horse Show held on April 9-11, 2009, in Jackson, Mississippi, Dr. Johnson made the outrageous statement that individuals participating in the Tennessee Walking Horse industry where “barely above chicken and dog fighters.” This was not only offensive and unprofessional but demonstrates a negative bias and discrimination by a USDA professional charged with compliance with the HPA. As you are surely aware, Mr. Shea of your Department contacted the individual to whom this statement was made, confirmed Dr. Johnson’s actions and reassured him that Dr. Johnson would be disciplined accordingly.
While we are unaware what, if any, disciplinary action was taken by the Department in response to this inappropriate, inflammatory, slanderous comment by Dr. Johnson, we do know that just two (2) weeks later on April 30-May 3, 2009, Dr. Johnson was assigned by the USDA to inspect horses at the Big D Charity Horse Show in Dallas, Texas. Whether Dr. Johnson was disciplined or not for his actions at the Jackson, Mississippi, show, which would be stunning in light of his comments, his conduct did not improve. In fact, Dr. Johnson’s conduct while inspecting horses at the Big D show resulted in the filing of an Office of Inspector General (“OIG”) complaint which sets out specific instances of Dr. Johnson’s failure to inspect in accordance with USDA protocol and targeting of certain owners and trainers. Even more outrageous than his conduct was Dr. Johnson’s explanation for his conduct when he stated to one owner “you know it’s just a numbers game.” While we understand the need to substantiate APHIS’s HPA budget and justify its existence, the arbitrary and capricious enforcement of the HPA to meet a real, or perceived, quota which negatively impacts the livelihood of thousands is unconscionable.
Subsequently, on May 15 and 16 in Harriman, Tennessee, Dr. Johnson told the SHOW DQP Coordinator, Mr. Andy Messick, that the interpretation of the scar rule no longer involved the flattening of the epithelium (skin). Dr. Johnson told Mr. Messick that he was no longer allowed to flatten the skin. On the following Monday, Andy reported this verbally to Dr. Rachel Cezar and she said that Dr. Johnson’s statement was not correct and she did not know where he came up with that information. Yet, you continue to use Dr. Johnson to this day.
Despite the evidence of Dr. Johnson’s predisposition against the Tennessee Walking Horse industry, you and the Department chose to send him to last weekend’s horse shows unsupervised – a supervisory management decision which had a disasterous result as discussed below.
II. DR. JOHNSON’S MISCONDUCT AT THE JULY 17, 18, 2009, SHOWS
Upon arriving at the PC Splash Horse Show in Columbia, Tennessee, those individuals purporting to be affiliated with the USDA were asked by show manager, Todd Fisher, to present their official USDA credentials. Dr. Kingston promptly produced her credentials. However, Dr. Johnson did not. The only identification Dr. Johnson would, or could, produce to the show manager was a State of Texas drivers’ license.
The Horse Protection Act, 15 U.S.C. § 1823 states
For purposes of enforcement of this chapter (including any regulation promulgated under this chapter) the Secretary, or any representative of the Secretary duly designated by the Secretary, may inspect any horse show, horse exhibition, or horse sale or auction or any horse at any such show, exhibition, sale, or auction. Such an inspection may only be made upon presenting appropriate credentials.
Clearly, Dr. Johnson could not, or refused to, comply with the requirement that he present “appropriate credentials” as properly requested by show manager Todd Fisher, and therefore, his inspection of horses was improper pursuant to the requirements of 15 U.S.C. § 1823(e) of the Horse Protection Act. Dr. Johnson also refused to comply with the request of the show manager that he not begin to inspect horses until he presented appropriate credentials.
On another issue, upon arrival at the PC Splash event, SHOW inspectors were advised by Dr. Kingston that she had been instructed by her superiors that official Letters of Warnings (LOWs) would be issued if a DQP declined to re-inspect a horse referred back for inspection by a VMO. While Dr. Kingston was very professional and was in no way confrontational in her deliverance of this information to SHOW officials, the content of the information she was directed by her superiors to deliver was baseless. As was addressed in our correspondence to you of June 29, 2009, we believe that such intimidation techniques by USDA personnel, including supervisors who may or may not be present at an event, is inappropriate, unacceptable and a violation of 15 U.S.C. § 1825(a)(2)(C) which prohibits interference with the inspection process. While we have not received any response to our correspondence from your Department to date, we stand by our previously outlined position. Any such unsubstantiated threat of a LOW should be considered a violation of 15 U.S.C. § 1825(a)(2)(C) and the person responsible for the having that threat conveyed should be proceeded against accordingly. You, yourself made unsubstantiated allegations of threatening behavior in your letter dated May 29, 2009 following the Fun Show and yet you instructed your own VMO’s to clearly make illegal statements to our HIO DQP’s. This is an untenable double standard and should not be tolerated by a regulatory arm of the government charged with ensuring compliance with a federal law.
When Dr. Johnson began to inspect horses, his inspection techniques and methods did not comply with the inspection procedures set out in the USDA Horse Protection Training Manual – 2004. All licensed DQP’s and VMO’s are educated concerning and are required to follow the procedures set out in the 2004 Manual. However, Dr. Johnson’s inspection techniques did not comply with these procedures.
At page 32 of the USDA Horse Protection Training Manual – 2004, under the section entitled “Physical Examination”, the methods to be used for inspection of all horses is set out in detail. This section states the following:
The horse should be approached calmly and confidently from the left side. This is an important part of establishing and maintaining a routine and consistent examination procedure.
The inspector should always establish contact with the horse in a non-threatening way by gently touching the horse on the neck, chest or shoulder. The hand should then be run down the limb, starting at the shoulder and proceeding down the fetlock, while feeling for any abnormalities such as excessive heat, lumps, or swellings.
The inspector can then lift the leg by gently squeezing the tendons along the posterior of the cannon bone just above the fetlock. Care should be taken to not allow the horse to lose its balance. As the leg is lifted, it should be supported by cradling it in one hand placed on or just above the fetlock joint. . . .
The inspector should palpate the pastern in a systematic manner, starting at one location and proceeding in a pattern across the entire area so that all of the posterior pastern in palpated. Particular attention should be given to the bulbs of the heel and sulcus, or pocket. Thumb pressure used during palpation should be just enough to flatten the flesh of the thumb or just blanch the thumbnail. The ball of the thumb should be used for palpation. The thumbnail should never be used to gouge the pastern.
USDA Horse Protection Training Manual – 2004 at pg. 33.
A DVD taken of the inspection conducted at the July 17, 2009, PC Splash show has been enclosed herewith for your review. The DVD is comprised of video taken of Dr. Johnson’s inspection techniques and methods which very clearly do not comply with the inspection procedures outlined by the USDA Horse Protection Training Manual – 2004 as set out herein above. As you will see from a review of the enclosed DVD, Dr. Johnson approaches the horses in an aggressive, intimidating manner from the front of the horse, not the left side, and lifts the leg in an awkward manner. Dr. Johnson then proceeds to “palpate” the horse by jabbing his thumbs into the horses’ feet. As reflected on the DVD, Dr. Johnson does not utilize the proper technique of applying pressure with his thumb “just enough to flatten the flesh of thumb or blanch the thumbnail”, but instead, chooses to punch at the horses’ feet with his thumb.
As reflected on the DVD there are three (3) basic illustrations. They are as follows:
(1) The proper inspection process and protocol obtained from the USDA website
(2) Dr. Ernest Johnson’s inspection process which includes:
• Approaching the horse and picking up feet not typical of accepted protocol
• Facing wrong direction while “palpitating” pastern area
• Extreme thumb pressure and unacceptable gripping of hand as well as points of the thumb to maximize pressure
• Constant probing with thumb without moving to another area on the foot prior to returning to area of potential indication
• Incomplete inspection of one horse due to targeting of another trainer entering the inspection area
• Does everything he can to precipitate a movement in every horse he checks foregoing proper inspection technique
• Inconsistent inspections – taking information on some horses and not on others that showed a response
• Improper support of the foot that accentuated any movement from the horse
(3) Textbook inspection process and protocol by a professional VMO, Dr. Susan Kingston. Additionally, Dr. Kingston has a great attitude while giving a thorough inspection.
When SHOW Co-compliance Coordinators, Drs. Bennett and Mullins, observed Dr. Johnson’s improper inspection techniques, they attempted to discuss same with him, to no avail. Dr. Johnson refused to discuss his deviation from the USDA written procedure and protocol for appropriate inspections with any SHOW official.
Not surprisingly, Dr. Johnson’s improper inspection techniques resulted in inaccurate findings concerning whether the horses he inspected were in compliance with the HPA and its regulations. Through the first twelve (12) classes of the show Friday night, Dr. Johnson inspected twelve (12) horses previously inspected and passed by SHOW DQPs and allegedly found some seven (7) violations, or 58% more violations. Dr. Johnson re-inspected nine (9) horses previously inspected and passed by DQP Tony Edwards and allegedly found six (6) to be in violation, or 67%. Conversely, the four (4) horses re-inspected by Dr. Kingston behind DQP Edwards yielded exactly zero (0) additional violations or findings. Mr. Edwards has, in fact, received commendations from the USDA for his inspection protocol in the last several years.
In the USDA’s reported data for bilateral and unilateral violations for the previous two (2) show seasons were 6.44% of those horses inspected. Dr. Johnson at the PC Splash Show found 58% violations behind all DQP’s and 67% violations behind one DQP or more than 9-10 times the norm. This deviation between Dr. Johnson versus all other VMO’s is clear and convincing evidence that his inspection techniques have resulted in improper findings. Any argument that Dr. Johnson is applying the same inspection techniques as other DQP’s and VMO’s is quickly disproven by the USDA’s own statistical data. Based upon the USDA data, it is simply a statistical improbability, if not impossibility, that Dr. Johnson was conducting proper inspections.
As a result of Dr. Johnson’s actions of last weekend and the video and documentary evidence, one can only conclude that Dr. Johnson’s failure to follow proper procedure and protocol was nothing more than attempt to shut down the show consistent with his history of bias against the TWH industry. Dr. Johnson’s conduct was, without question, arbitrary and capricious, clearly outside his authority and in violation of the Act which he is charged with enforcing. As we are all aware, the implications for owners and trainers of a federal HPA ticket would
make it ill-advised for any person to present a horse for inspection in front of Dr. Johnson under these circumstances.
Based upon Dr. Johnson’s clear bias against the TWH industry, history, pattern and practice of improper enforcement of the HPA and its regulations, the USDA has failed to properly supervise his activities. Because Dr. Johnson’s supervisors were, or should have been, on notice of his previous conduct, those supervisors share in his culpability. Dr. Johnson’s actions as well as the failure of the USDA to properly discipline and/or supervise him will certainly not go unaddressed by the affected parties including, but not limited to, owners, trainers and horse show officials.
Let there be no misunderstanding, SHOW HIO welcomes the involvement and input of professional VMO’s such as Drs. Kingston and Hammel who are intent on the fair and consistent enforcement of the HPA. However, the days of unprofessional, unlicensed, unaccountable, non-equine VMO’s requesting to work the TWH show circuit to afford an opportunity to exercise their biases and agendas in disregard of their charged duties must end. SHOW HIO has, and continues, to take dramatic strides to involve more AAEP specialists, improve training and inspection, enhance penalties, implement the AAEP White Paper and vigilantly enforce the HPA. We would submit to you that it is time for the USDA to put its own house in order and join SHOW HIO in that mission.
In light of the foregoing, SHOW HIO hereby formally requests that Dr. Johnson not be allowed to inspect horses for compliance with the HPA and its regulations at SHOW affiliated events. Anything less in light of the evidence outlined above is clearly negligence at best, and intentional misconduct at worst, and will be viewed as an approval of his inappropriate, offensive, discriminatory, biased actions by his supervisors. Because of the seriousness of these matters we would appreciate and expect an immediate response from the Department to this request.
Sincerely,
Dr. Doyle G. Meadows
xc: Kevin Shea
Dr. Rachel Cezar
Dr. Andrea Morgan
Mike Tuck
Enclosure
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