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Toby Scarbrough Complete Case Coverage



By Melissa R. Stevens

The full National Horse Show Commission Board of Directors voted Jan. 5, 2004, to uphold the penalty levied against Toby Scarbrough last year.

Charges were brought against Scarbrough in January of 2003 after Lonnie Messick, current executive vice president of the NHSC, received a sworn complaint from Craig Evans, a former NHSC chairman. The complaint alleged that Scarbrough violated Rule IX, Article B, Section 3b and Section 3i of the NHSC Rule Book, which lists the following as violations, “Acting or inciting or permitting any other to act in a manner contrary to the Rules of the NHSC, or in a manner deemed improper, unethical, dishonest, unsportsmanlike or intemperate, or prejudicial to the best interest of the NHSC. Influencing or attempting to influence by any means or manner any Judge in determining which horse shall win in any class at any affiliated show.”

Evans filed the complaint after hearing of an audio tape of Toby Scarbrough 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 indicating that he had already made a deal with two of the other judges.

Evans learned of the tape after receiving a telephone call from Jeff Hatcher in December 2002 asking him what he thought of the tape. Evans testified in front of an independent hearing committee that he asked Mr. Hatcher, “What tape are you suggesting that I have?” Mr. Hatcher reportedly replied that the investigators had it and then went on to tell Evans what was on the tape.

Evans then called Toby Scarbrough about the alleged tape and told him that if it were true there would be consequences. Evans testified that Scarbrough denied any involvement in the situation.

Evans then contacted Frank Neal, who was to become the next NHSC chairman, to make him aware of the situation. Neal had, however, already heard the tape.

Neal received a copy of the tape from Ron Thomas, CEO of the Tennessee Walking Horse National Celebration, in early January 2003. The Celebration had been conducting an investigation into their 2002 horse show when Celebration board member David Howard was contacted by Jeff Hatcher on Dec. 20, 2002.

"He called me early in the morning and asked about an investigation the Celebration was conducting," Howard said.

During that phone conversation Hatcher told Howard about the tape and asked if he wanted a copy of it. Howard testified that he told Hatcher he would take a copy of the tape under certain conditions. One of those was that once Howard had the tape he could do with it what he chose, including turn it over to the Celebration or the NHSC. The other condition was that Hatcher stand behind it.

"He was concerned about being sanctioned for not having come forward earlier," Howard said. "I admired him for coming forward with the tape. I received the tape on Dec. 30 and it was turned over to the Commission in early January."

Howard called Ron Thomas and they listened to the tape together. Thomas kept the tape and gave it to Frank Neal upon his request. Neal in turn had a copy of the tape sent to Craig Evans.

Evans told the committee that after listening to the tape he was “angered and frustrated.” He then telephoned Scarbrough to inform him that he had the tape and was filing an official complaint with the NHSC.

That official complaint spurred an investigation conducted by the NHSC’s Lonnie Messick. Messick contacted the Celebration to request a copy of the judge’s cards and a class sheet from the 1997 Celebration. During the investigation Messick interviewed several individuals including Scarbrough, Hatcher, Howard and Carol Wakefield, who was on the judging panel during the 1997 Celebration. According to Messick, Wakefield denied being contacted by anyone about fixing any classes during the 1997 Celebration.

As part of his investigation, Messick went so far as to contact the company that manufactured the audio tape in an attempt to determine its age. He also brought the tape to two experts in audio recording, Doug Mitchell, who has his masters degree in mass communication with an emphasis in recording arts and sciences from the University of Wisconsin, and Carlos Greer, who owns a recording studio in Nashville, Tenn. Both Mitchell and Greer signed affidavits of their belief that the tape had not been tampered with in any way.

After completing his investigation, Messick determined that Scarbrough was in violation of the rules listed in the complaint and issued the following penalty: his privilege of obtaining or holding a NHSC judge’s license was revoked for life; his privilege to serve at the NHSC or hold or exercise an office at the NHSC was revoked for life; he was ordered to pay a $5,000 fine; and for a period of 10 years he was suspended from participating either directly or indirectly in any NHSC affiliated or sanctioned event which includes but is not limited to the showing, exhibiting or selling of a horse owned in whole or in part by him or in which he has financial interest or owned in whole or in part by any entity in which he has ownership or financial interest.

Six of the 10 years of suspension would be suspended on the following conditions: the fine imposed must be paid during the calendar year of 2003; during the first four years of the suspension he must not participate either directly or indirectly at any NHSC or other HIO affiliated or sanctioned event or any other unaffiliated walking or racking horse event to include but is not limited to the showing, exhibiting or selling of a horse owned in whole or in part by him or in which he has financial interest or owned in whole or in part by any entity in which he has ownership or financial interest; and he must not violate any NHSC rule or regulation during the entire 10 year period. Any failure to abide by the terms of the suspension will result in the imposition of the balance of the 10 year suspension.

Scarbrough was notified of this penalty on March 14, 2003. He retained attorneys Brenda Bramlett and Chuck Cheek and immediately filed an appeal which allowed him to continue showing until the appeal was heard.

The first appeal hearing was scheduled for June 18, 2003. Attorneys representing Scarbrough filed for a Temporary Restraining Order that day in an attempt to postpone the hearing. Attorney Brenda Bramlett served papers on the NHSC’s Lonnie Messick at approximately 9:30 a.m., June 18, informing Messick that Judge Lee Russell has agreed to hear the petition sometime that day in court in Fayetteville, Tenn. The hearing officer then informed the members of the Independent Hearing Committee that due to a procedural disagreement between the two sides they were excused

NHSC counsel Jimmy Bradshaw and other NHSC officials left for Fayetteville to appear before Judge Russell. Brenda Bramlett and Chuck Cheek, representing Scarbrough, also went to Fayetteville for the hearing.

Judge Russell denied the order and instructed the attorneys to reach an agreement so that the hearing could be held as soon as possible. The attorneys met several times in the following days to set the parameters for the hearing. They eventually agreed to reschedule the date for Sept. 17-19, 2003, but it was once again postponed.

Finally, Nov. 4, 2003, the NHSC’s Independent Hearing Committee heard the appeal. According to Jimmy Bradshaw, attorney for the NHSC, Scarbrough and his attorney petitioned for a continuance, but the Independent Hearing Officer denied it. Both Scarbrough and his attorney were apprised of the date, time and location of the hearing, but they did not attend. The hearing went on without them.

Jeff Hatcher, Craig Evans, David Howard, Frank Neal, Ron Thomas and Lonnie Messick were all called to testify. Doug Mitchell, one of the experts in audio recording Messick contacted during his investigation, was also called in to verify that the tape of Scarbrough offering Hatcher $500 to tie his horse in the class had not been altered.

After hearing the testimony and listening to the tape, the Committee ruled five to zero that the charges against Scarbrough were founded and that the penalty assessed by Lonnie Messick would stand. Messick declined to comment when contacted by The Report about the outcome of the hearing.

On Nov. 7, 2003, Scarbrough filed his final appeal, which allowed him to continue showing until the full Commission ruled on the matter. Scarbrough had until Nov. 24 to get copies of the transcripts of the Nov. hearing to the Commission. The Commission would then meet to review the transcripts. No new testimony or witnesses were to be presented. In order for Independent Hearing Committee’s ruling to be overturned Scarbrough would need eight out of nine votes in his favor.

The NHSC Board of Directors met 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 required 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 objected to the meeting for many reasons, one of which was that it was 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 that day rescheduling the matter to be heard on Jan. 5, 2004, at 1:00 p.m. as part of their regular monthly meeting.

The full Commission met Jan. 5, 2004, to discuss a full agenda of monthly items. An executive session was called once again to hear the appeals. After the meeting, Lonnie Messick of the NHSC reported that the full Commission voted to uphold Toby Scarbrough’s penalty, which went into effect immediately.

(Editor’s Note: The following letter from Craig Evans was read by board member Rhonda Martocci at the Dec. 15, 2003, NHSC meeting.)

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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