Opinion
C.A. No. 00A-05-002-JTV (Consolidated).
Submitted: September 8, 2000.
Decided: December 29, 2000.
Upon Appeal from a Decision of the Delaware State Harness Racing Commission AFFIRMED.
Rebecca B. Kidner, Esq., Dover, Delaware. Attorney for Appellant Givens.
Constantine F. Malmberg, III, Esq., Dover Delaware. Attorney for Appellant Crissman.
John A. Eberly, Esq., Wilmington, Delaware. Attorney for Appellee.
MEMORANDUM OPINION
The Appellants, Charles F. Crissman, Jr. and Melvin Wayne Givens, appeal from a decision of the Delaware State Harness Racing Commission (the "Commission") finding that they each violated two Commission rules, one rule prohibiting conduct which "may adversely reflect on the honesty and integrity of horse racing" (the "integrity rule"), and another prohibiting "improper conduct toward [a race official] having reference to the administration of the course" (the "improper conduct toward a race official rule"). Each received a $500 fine and a 90 day suspension from racing. For the reasons which follow, the Commission's decision is affirmed.
Delaware Harness Racing Commission Rule V.I.P.1(j) provides as follows: "The Commission or its designee may refuse to issue or may deny a license to an applicant, or may suspend or revoke a license issued, or may order disciplinary measures, if the applicant: is a person whose conduct or reputation may adversely reflect on the honesty and integrity of horse racing or interfere with the orderly conduct of a race meeting"
Rule V.I.A.A.1 provides as follows: "No licensee shall use improper language to any race official, or be guilty of any improper conduct toward such officials or persons serving under their orders, such improper language or conduct having reference to the administration of the course, or of any race." Rule V.I.A.A.10 provides that the Commission may suspend the license of any person who has violated any rule of the Commission.
FACTS
The material facts are undisputed, although the parties differ as to the inferences and conclusions to be drawn from those facts. They begin in the Fall of 1997. At that time an investigator for the Commission, Robert Collison, was looking into Crissman's activities as a licensed horseman. The investigation expanded to include Crissman's wife. On October 23, 1997, the State Steward, Harold Frazier, conducted a hearing concerning Crissman's activities. Crissman's wife was summoned to the hearing. The record does not reflect what race activities led to Crissman and his wife being the subjects of an investigation, or what result, if any, came from the October 23rd hearing. However, about a week later, on October 29th, Crissman learned that he and his entire family were excluded from the upcoming Dover Downs meet. Crissman discussed his problems with many horsemen, track managers and others, including Harold Frazier. While Crissman initially thought that Collison was the moving force behind the investigation, he came to believe, based upon statements made to him by Melvin Wayne Givens, a horseman and Director of the Delaware Standardbred Owners Association (the "Association"), and Salvatore DiMario, Executive Director of the Association, that Harold Frazier was the cause of his difficulties and that it was Frazier who persuaded track management to exclude him from Dover Downs. Givens and DiMario also expressed complaints against Frazier and indicated to Crissman that they would like to see him replaced. On November 4, 1997, Crissman met with Harold Frazier at the Harrington race track to discuss his exclusion from the Dover Downs meet. During the course of that conversation Frazier indicated that Collison, not he, was responsible for Crissman's difficulties. He elaborated that he was also having problems with the Collison. Frazier also made some sort of comment about wanting to kill Collison. As soon as the conversation was concluded, Crissman saw Givens and DiMario together at the paddock and related the conversation to them, including Frazier's comment about killing Collison. Givens or DiMario, or both, suggested to Crissman that he try to tape record Frazier making such statements, and that such a recording might be successfully used in discrediting Frazier or causing him to lose his employment as State Steward altogether. Givens then provided Crissman with a small tape recorder and cassette which he happened to have in his truck. Crissman returned to Frazier and engaged him in another conversation hoping to record a further comment from Frazier about killing Collison. It appears that this second conversation was solely for the purpose of attempting to capture Frazier on tape repeating comments about wanting to kill Collison. He secretly tape recorded the conversation by means of the small tape recorder hidden on his person. After he left Frazier's presence, Crissman gave the tape to Givens, who in turn gave it to his brother, Mark Givens, a retired state trooper who happened to be working in the Commission's Licensing Office. Mark Givens then gave the tape to Collison who in turn gave it to the State Police. The police investigated the matter but concluded that no charges were warranted. Collison then filed a complaint against Frazier with the Commission. The Commission reprimanded Frazier for his comments, but he remains in his position as State Steward. That was the end of the matter until July 1998, when Crissinan wrote a letter to the Commission apologizing for his involvement in the November 4, 1997 incident. In his letter he stated that he was led "to believe (by several people in place that are supposed to help horsemen) that Mr. Frazier was responsible for my family not being allowed to race last year at Dover Downs. In addition, that if "we could get him fired' my problems would go away. They played me right to the tee. Suggesting that I wear a tape recorder and even having one available as soon as I agreed to wear it." He concluded by hoping that "you will accept my apology for the grief I caused the Race Commission members and especially to Mr. Frazier." At an August meeting the Commission considered Crissinan's letter and decided that it should be referred to Presiding Judge John Frazier III (no relation to Harold Frazier) for investigation to determine whether any rules violations had occurred. Presiding Judge Frazier subpoenaed Crissman and questioned him under oath. Presiding Judge Frazier also subpoenaed Givens and DiMario. They, however, through counsel, filed a "motion to dismiss" asserting a number of procedural objections to what Frazier was doing. After consulting with the Commission's counsel, Frazier decided to abandon any further investigation. Instead, he filed a complaint with the Commission alleging that Crissman, Givens and DiMario had violated Commission rules by engaging in conduct that "may adversely reflect on the honesty and integrity of horse racing" and "improper conduct toward [a race official] having reference to the administration of the course." After receiving the complaint from Presiding Judge Frazier, the Commission appointed its chairman to act as a hearing officer. He conducted a hearing and generated a report and recommendations. Based upon the report and recommendations, the Commission, after a further hearing, concluded that Crissman and Givens had violated the two rules mentioned. Specifically, the Commission concluded, with respect to Crissman, that his actions of secretly tape recording the conversation with the State Steward, for the purpose of discrediting him and causing his removal from office, and then passing the tape on to Givens, violated the two rules. With respect to Givens, the violations consisted of his action in encouraging and aiding Crissman in doing the tape recording, for the same purpose, and passing the tape on to Mark Givens.
The State Steward's authority includes "supervision of all racing officials, licensed personnel, other persons responsible for the conduct of racing and patrons, as necessary to ensure compliance with" the Commission's rules. He is the Commission's representative at race meetings and serves as the senior official at such meetings. Commission Rule III. II. A. 3, 6.
The Commission concluded that the evidence did not support a finding that DiMario had violated either of the two rules.
The Commission's findings stop short of making any specific finding as to whether, or to what extent, Crissman or Givens may have actually believed Frazier's comment about killing Collison. The Commission did conclude, however, that they made the recording and passed it on for the purpose of placing his job in jeopardy.
PARTIES' CONTENTIONS
The Appellants contend that the "integrity" rule and the "improper conduct toward a race official" rule are unconstitutionally overbroad and vague; that they have been punished for expressing an opinion that the State Steward should be removed from his office; that the actions for which they were disciplined constitute protected, free speech; that they could not reasonably be expected to know that their actions might be deemed a violation of either of the two rules; that their actions were legal and they had a duty to report the State Steward's threats against the life of the Commission's investigator; and that the two rules involved vest the Commission with unbridled discretion to act arbitrarily and censor free speech. The Commission denies these contentions.Appellant Givens further contends that the procedure followed by the Commission in this case violated its own rules. Specifically, he contends that under the Commission's rules a licensee charged with an offense is first entitled to a hearing before the State Steward or the judges; that at the State Steward/judges hearing level he has certain rights including the right to confront and cross-examine witnesses and the right to call witnesses; that he is then entitled to appeal any adverse decision to the Commission for a review de novo, and that the Commission's rules provide that any complaint must be initiated within 30 days of the act which forms the basis of the complaint. He contends that the procedure employed by the Commission in this case deprived him of his right to an initial hearing before the State Steward or judges, deprived him of the right to confront and discover all of the evidence against them at that hearing level, thus depriving him of the opportunity to review all of the evidence against him prior to the review de novo by the Commission, and denied his right that any complaint against him be filed within 30 days of the alleged offense. He contends that these failures by the Commission to honor its own rules deprived him of due process of law. The Commission contends that the procedure which it employed in this case was consistent with its rules and did not deprive the Appellants of due process.
STANDARD OF REVIEW
The function of this Court in reviewing an appeal from the Delaware State Harness Racing Commission is to determine whether the Commission's decision is supported by substantial evidence and is free from legal error. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The appellate court does not weigh the evidence, determine questions of credibility, or make its own factual findings. It merely determines if the evidence is legally adequate to support the agency's factual findings. Therefore, if there is substantial evidence for the Commission's decision and there is no mistake of law, the decision will be affirmed.
Delaware Harness Racing Commission v. Mitchell, Del. Supr., 442 A.2d 77, 79 (1982); Olney v. Cooch, Del. Supr., 425 A.2d 610, 6 12-13 (1981).
Oceanport Ind. V. Wilmington Stevedoes, Del. Supr., 636 A.2d 892, 899 (1994); Battista v. Chrysler Corp., Del. Super., 517 A.2d 295, 297 (1986), app. dism., Del. Supr., 515 A.2d 397 (1986).
Johnson v. Chrysler Corp., Del. Supr., 213 A.2d 64, (1965).
DISCUSSION
Crissman contends that he was exercising his first amendment right of free speech when he secretly tape recorded his conversation with the State Steward and then passed the tape on to Givens. Givens likewise contends that he was exercising his free speech rights when he in turn passed the taped conversation on to his brother, Mark Givens. They contend that they were punished for the content of their opinions, those opinions being that the State Steward should be removed from his office, and for passing on a taped conversation supportive of their opinions. The Commission disagreed with their opinion that the State Steward should be removed from office, they argue, and disciplined them to squelch and suppress the view they advocated. They also contend that the rules are overbroad in that they sweep within their reach the Appellants' constitutionally protected speech and that the rules are vague, in that they fail to give fair notice as to what conduct is prohibited. They also contend that their actions did not violate the rules.
A statute or regulation is overbroad if on its face it "does not aim specifically at evils within the allowable area of governmental control, but . . . sweeps within its ambit other activities that constitute an exercise of protected expressive or associational rights." The rules involved here are directed at "improper language . . . or . . . conduct toward [a race official] having reference to the administration of the course, and "a person whose conduct . . . may adversely reflect on the honesty and integrity of horse racing." The obvious purposes of the rules are to deter improper conduct toward race officials and promote the integrity of racing, both clearly appropnate objectives. Neither rule appears to reach any substantial amount of constitutionally protected activity. As to the particular facts of this case, the record does not support the contention that the Appellants were disciplined because of any opinion they expressed or any expressive conduct. The Commission's conclusions were based upon the Appellants' involvement in secretly recording a conversation with the State Steward as part of an attempt to cause him professional trouble which they hoped would lead to his dismissal. The Commissions s decision to discipline the Appellants was based upon this course of conduct toward the State Steward, not any expressive speech. The activities involved here — the secret recording of a conversation with a racing official and the use of that recording for the purpose of interfering or attempting to interfere with that official's employment or professional standing, — do not constitute protected expression. Based upon the record of this case, there is no basis for concluding that the rules involved here are overbroad, either on their face or as applied to the Appellants' conduct.
United Video Concepts, Inc. v. Dover, Del. Super., C.A. 93A-10-004, Order at 6, Ridgely, P.J., (October 31, 1992).
A statute or regulation is unconstitutionally vague if it fails to "give the person of ordinary intelligence a reasonable opportunity to know what is prohibited so that he may act accordingly" and "must provide explicit standards so as to avoid its arbitrary and discriminatory enforcement." This standard must be applied with some flexibility; and provisions which impose civil rather than criminal penalties or which do not affect constitutionally protected rights are rather leniently scrutinized under a relaxed standard. Generally worded rules such as the ones involved here are common in regulated trades and professions. As to the "integrity of racing" rule, it is sufficient for purposes of this case to note that the offense involved here relates to conduct toward a race official in his official capacity by a horseman who had been excluded from a Delaware track and by another horseman assisting him, not conduct unrelated to racing. As to the "improper conduct toward a race official" rule, the hearing officer's report acknowledges that the rule applies to conduct toward a race official in his official capacity, having reference to the administration of the course, not purely personal conflicts unrelated to racing. No case has been brought to the Court's attention involving conduct which is in some fashion related to racing, which has sustained a vagueness challenge to rules similar to those involved here; and such challenges to similarly worded rules have been rejected in cases involving harness racing. Therefore, I conclude that the rules involved here are not unconstitutionally vague.
Hopkins v. Mayor and Council of Wilmington, D. Del., 600 F. Supp. 542, 553 (1984) (quoting Grayned v. City of Rockford, 408 U.S. 104, 108 (1972)).
Id. at 553.
As to horse racing alone, examples include Ogden-Fairmount, Inc. v. Illinois Racing Board, III. Supr., 518 N.E.2d 120 (1987) (approving race commission finding that conduct violated rule"call[ing] into question the honesty and integrity of horse racing); Boyce v. State Horse Racing Commission, Pa. Cmwlth., 651 A.2d 656 (1994) (conduct found to be "detrimental to the best interests of horse racing); Leroy v. Illinois Racing Board, 39 F.3d 711 (7th Cir. 1994) (rejecting an over breadth challenge to an "improper conduct toward race officials" rule).
Hearing Officer's Report and Recommendations, page 77. See also State Racing Commission v. Robertson, Ohio Ct. App., 172 N.E.2d 628 (1960) (limiting a rule against "improper practice on the part of the holder" or "conduct detrimental to the best interests of racing" to conduct or activities relating to racing).
See, for example, Leroy v. Illinois Racing Board at 715 (rejecting vagueness challenge to rule against "improper conduct" toward race officials); In re Cline, Ohio Ct. App., 210 N.E.2d 737 (1964) (rejecting vagueness challenge to rule against "conduct detrimental to the best interests of racing); Powers v. Ohio State Racing Commission, Ohio Ct. Cm. P., 572 N.E.2d 262 (1989) (rejecting vagueness challenge to rule against "conduct detrimental to the best interests of racing);
I further conclude that the Commission's conclusion that the Appellants' conduct violated the two rules involved is supported by substantial evidence. Crissman had been excluded from one meet and was under scrutiny, with his wife, by the Commission's investigator. He had been led to believe that the State Stewart was the cause of his difficulties. He secretly tape recorded a conversation with the hope that it would be instrumental in causing the State Steward professional trouble himself, perhaps cause his removal from office, or otherwise derail any further scrutiny of his activities. Givens aided and abetted Crissman toward the same purpose. There was substantial evidence to support the Commissions s conclusion that the Appellants were motivated by their own self-interest at the expense of the State Stewart. Although the Appellants claim that they did not act for the purpose of removing the State Steward from office, there is substantial evidence to support the Commission's conclusion that they did. The fact that secret recording by one of a two party conversation is not illegal does not preclude it from being judged improper. Such secret recording by one party to a two-party conversation, although not a crime, still involves an element of deceit or trickery which can reasonably be considered improper. It is within the Commission's discretion to conclude that where a horseman under investigation secretly tape records conversations with a race official, the horseman acts improperly toward that race official, and that any horseman assisting him in that act also acts improperly. It is also within the Commission's discretion to conclude that, where a horseman is under investigation by an authorized race official, an attempt by that horseman to undermine the investigation by embarrassing or discrediting the official, and the conduct of another horseman in assisting him, may adversely reflect on the integrity of racing. An administrative agency's interpretation of its rules should be given some deference unless the Court finds that such construction is clearly erroneous. There is no legal error in the Commission's conclusion that the conduct involved here constitutes "improper conduct toward [a race official] having reference to the administration of the course" and conduct which "may adversely reflect upon the . . . integrity of horse racing."
Brahmbhatt v. Board of Pension Trustees, Del. Super., C.A. No. 91A-08-003, Order at 2, Ridgely, P.J. (June 19, 1992) (citing Vasallo v. Haber Electric Co., Del. Super., 435 A.2d 1046 (1981).
I also conclude that there is no error in the Commission's rejection of the Appellants' justification argument. That argument is based upon Commission rule V.I.AA.6, which requires any licensee to report any improper activity relating to racing to the State Steward or Presiding Judge. The Appellants did not report Steward Frazier's conduct to the Presiding Judge as contemplated by the rule. There is substantial evidence to support the Commission's conclusion that the Appellants' conduct was not a bona fide attempt to act pursuant to that rule.
Finally, the Appellants contend that the procedure followed by the Commission was a violation of its own rules. The Commission's rules of procedure are found in its rules and regulations at Chapter X, which is entitled "Due Process and Disciplinary Action." Chapter X contains two relevant, separate, numbered subchapters. They are subchapter II entitled "Proceedings by Steward/Judges" and subchapter III entitled "Proceedings by the Commission." The first governs disciplinary proceedings conducted by the State Steward or judges and concludes with a right of appeal de novo to the Commission. The second governs proceedings before the Commission. Based upon my review of the procedures set forth in Chapter X of the Commission's rules and regulations, I conclude that the premise upon which Crissman's contention is based — that he had a right to a hearing before the State Steward or judges, with the rights attendant to such a hearing, before the case could go on to the Commission for de novo review — is incorrect and must be rejected.
The Commission is granted broad authority to regulate and oversee the sport of harness racing in the public interest. While the Commission has seen fit to adopt a procedure where disciplinary complaints can be heard and decided by the State Steward or judges, with right of appeal to the Commission, there is nothing in the Commission's rules which precludes the Commission from initiating, hearing and deciding a disciplinary matter without any complaint being filed and without any initial hearing before the State Steward or judges. Subchapters II and III are completely separate subchapters. There is nothing in the text of Chapter X which indicates or suggests that a disciplinary proceeding before the Commission is dependent upon an initial proceeding before the State Steward or judges. The rules do not contain any provision which limits the Commissions s authority to conduct a disciplinary proceeding only to those cases which originate with a State Steward or judges proceeding. I find that nothing in the Commission's rules preclude it from initiating a disciplinary proceeding before it on its own motion.
Subchapter III pertaining to "Proceedings by the Commission" contains a section regarding the order of opening and closing statements "if the proceeding was initiated by the Commission, " suggesting that the drafter of Chapter X contemplated that there may be, on occasion, proceedings which were initiated by the Commission.
Here, the Commission referred Crissman's July 1998 letter to the presiding judge with instructions to investigate the matter, and if he thought disciplinary action was appropriate, to submit a report to the Commission. While it appears that the presiding judge began to investigate the incident in the same manner as he would hear a complaint initially filed with him, he discontinued that effort after Givens and DiMario filed objections and he consulted with counsel, deciding instead to report back to the Commission by filing a complaint based upon the information he did obtain. Despite what may have been some understandable confusion on the part of the presiding judge, I am satisfied that the matter remained throughout a proceeding before the Commission and that the procedural rules in subchapter II for disciplinary proceedings held and ruled upon by the State Steward or judges never became applicable.
With regard to the Appellant's contention that the Commissions s rules require that any disciplinary complaint against them be filed within 30 days of the alleged offense, I conclude that that rule, which appears in subchapter II, by its own terms applies to complaints filed with the State Steward or judges, and that it does not apply to proceedings initiated at the Commission level itself under subchapter III.
Due process requires that a party be provided with the "opportunity to be heard, and the right of controverting, by proof, every material fact which bears on the question of right in the matter involved in an orderly proceeding . . ." This requirement is satisfied if the party was provided an opportunity to be heard before an impartial administrative board in an attempt to rebut the evidence against him. Here, the rules pertaining to proceedings before the Commission contain extensive provisions to safeguard a licensee's right to a fair hearing. Among them are provisions for pre-hearing conferences at which a hearing officer can enter appropriate orders concerning discovery, stipulations and the presentation of evidence and scope of the hearing. Parties may file motions. There are provisions for opening and closing statements, examination and cross-examination of witnesses. In this case all parties were represented by counsel. The rules provide that the Commission may appoint a hearing officer, as was done here. As car as appears from this record, the Appellants were given a full and fair opportunity to present evidence and to rebut the evidence against them. Accordingly, their due process rights were not violated and the decision will not be overturned on that basis.
Bell Atlantic-Delaware, Inc. v. Public Service comm'n, Del. Super., 705 A.2d 601, 605 (1997).
Dugan v. Delaware Harness Racing Comm'n, Del. Super., C.A. No. 98A-06-001, Order at 7-8, Ridgely, P.J. (Dec. 21, 1998), rev'd on other grounds, 752 A.2d 529 (2000).
While it is to be expected that the vast majority of disciplinary cases in harness racing will follow the familiar procedure which begins with a hearing before the State Steward or judges, there may be circumstances where the Commission's obligation to regulate and oversee the sport of harness racing in the public interest may move it to initiate a proceeding where no complaint has been filed with or by the State Steward or judges. Here, a licensee who had been excluded from one track and whose activities were being scrutinized by the Commission's investigator was involved in an unusual incident with the State Steward, a racing official whose duties include enforcement of the rules and regulations governing harness racing. I conclude that the Commission's decision to refer this matter to the presiding judge for investigation and to initiate a proceeding to hear the complaint which he in turn submitted was not an abuse of its authority, that the Commission's conduct was consistent with its rules, and that the Appellants were not denied due process.
The decision of the Commission is affirmed. IT IS SO ORDERED.