New CHRB Transparency Issues Arise in McAnally CBD Investigation

Oscar Gonzales, the vice chair of the California Horse Racing Board (CHRB), wants to know why commissioners weren't informed earlier this year about a pending cannabidiol (CBD) positive complaint against Hall of Fame trainer Ron McAnally, a case that was in the midst of a six-month investigation by CHRB staff even as commissioners were being asked to approve a seemingly routine annual reclassification of drugs that included CBD.

“On that list of drugs that were to be reclassified was CBD, the drug that was detected in [the McAnally-trained Roses and Candy],” Gonzales said during Wednesday's CHRB meeting. “Why did it take so long to come up with the complaint that the stewards are going to be hearing? I'm pretty confident that when that list was compiled that both [CHRB executive director Scott Chaney] and [CHRB equine medical director Rick Arthur, DVM] knew that there was a positive test…

“Given what we know, I believe the board would have handled this if we had the power to do [so],” Gonzales continued. “But what does not sit right with me is that the board was not given a proper heads up that as we went about approving a list of medications… that there very well could be some pending cases. And after that [Jan. 21 meeting] we gave it a full month, and not once did anybody say, 'This list that you're voting on, be aware that there are some cases pending.'”

The May 19 assertions by Gonzales represent the latest salvo in a barrage of disclosure woes and internal conflicts that have encumbered the CHRB over the last three years and resulted in a significant turnover of commissioners and staff that at times has left the new version of the agency polarized.

At the root of the thorny nest of transparency barbs is the way the former makeup of the CHRB handled scopolamine findings in 2018. After 2 1/2 years of closed-session decision-making and a complicated court battle to publicly reopen the case over whether to disqualify Triple Crown winner Justify from the 2018 GI Santa Anita Derby, the case later hinged on whether scopolamine was a Class 3 or Class 4 substance at the time of Justify's positive post-race test.

The CHRB generally follows the Association of Racing Commissioners International (ARCI) Uniform Classification Guidelines for Foreign Substances and Recommended Penalties when establishing rules for drugs. But since California's Office of Administrative Law (OAL) doesn't allow the CHRB to change rules by automatically referencing another authority's code, the racing agency has to go through a drawn-out, sometimes years-long process to make even minute changes to drug classifications

This was the case for scopolamine in 2018 (which was in the process of being downgraded from Class 3 to the less-severe Class 4 but was not yet officially the rule when it was found in Justify) and for CBD last November (which was unclassified at the time of the Roses and Candy positive but was voted to be switched to Class 3 by the CHRB in February).

Complicating matters further with CBD is the fact that any unclassified positives in California by default are treated as Class 1, Penalty Category A violations, the most severe level of infraction that triggers the toughest penalties.

This means that the allegedly in-limbo nature of CBD's 1A or 3B distinction (as the CHRB awaits OAL approval of its latest list of classifications) makes the issue ripe for future litigation if McAnally's case ever gets pushed to court.

On May 18, CHRB spokesperson Mike Marten told TDN that the agency's staff will recommend to the stewards that they treat the positive as a lower 3B violation. One day later, at Wednesday's meeting, Gonzales told fellow commissioners he has concerns about CHRB staff making a recommendation like that to stewards prior to the hearing of a case–both in terms of the content and delivery of the recommendation.

“Part of what's gotten this board in some real challenging circumstances is when we arbitrarily try to move or shift a drug [classification] before a rule is completed,” Gonzales said. “I also want to make sure that the stewards know, as I read in the reports, that the CHRB staff is going to be making a recommendation. Well let me be just very clear, and I hope all stewards who are listening to this know that you do a good job. And we expect for you to act fairly and independently. I was not aware that CHRB staff weighs in on stewards' decisions. That was actually a surprise to me.”

When asked directly by Gonzales to explain why McAnally's CBD investigation wasn't disclosed to commissioners as they prepared to vote on the new schedule of drug classifications, Chaney answered by speaking to the time frame while Arthur chose to address the classification part of it.

Chaney–who preceded his remarks by saying that he couldn't talk about specifics on McAnally's case because the hearing is pending–explained that, “I know in this particular case a split sample was requested, and obviously that takes a few weeks. And then the investigative team does their investigation, and once that's complete we, you know, we file the complaint. That's typically the time between race day and filing the complaint…

“When the sample came back, as is always the case in my duty under [state] code, I informed the entire board, the commission, of the positive test. That is still true even today, although…the law has [recently] changed, in terms of confidentiality. So with respect to any test that occurred before Jan. 1, those are confidential unless and until we file a complaint… We now report positive tests either after 72 hours has elapsed from informing the trainer, or after the split sample comes back.”

Arthur kept his remarks brief. “Let me just get right to the heart of the issue,” he said. “Cannabidiol, which was not classified under the current standard of regulation, was proposed to be a 3B in August of 2020, three or four months before this violation.”

Arthur also said that a 3B classification is what the Racing Medication and Testing Consortium recommends, but he noted that the ARCI eventually settled on a different 2B recommendation as it retooled its recommendations. He added that with specific respect to California, the distinction between a Class 2 or 3 is not a hugely significant because any Class 3 or more severe positive results in a disqualification; the trainer's penalty is what gets derived based on the Category B designation.

But here's where another confusing twist in the case comes into play, and it involves what appears to be personal sniping among board members and CHRB staffers: When CBD's 3B classification–and an entire slate of other seemingly non-controversial reclassifications–finally came up for a vote at the Jan. 21, 2021, CHRB meeting, it was Gonzales himself who orchestrated a delay on that vote by one month.

Gonzales, at that Jan. 21 meeting, said the CHRB should not try to “ramrod” new rules through at a time when the Horseracing Integrity and Safety Authority is being formed to set its own regulatory framework. Gonzales's against-the-grain stance–some would call it petty–went against the recommendations of Arthur, Chaney, and CHRB chair Gregory Ferraro, DVM. To underscore the personal rifts, during that sometimes abrasive tele-meeting, Arthur could be heard muttering in the background that that Gonzales's point of view was “crap.”

The next month, when the CHRB did end up passing the drug classifications by a 6-0 vote, Gonzales was absent from the meeting.

On Wednesday, Gonzales asked chairman Ferraro to weigh in on his concerns about how the staff has handled the CBD classification and McAnally's positive for it.

“Regarding whether we as a commission were informed of pending positives prior to the change in regulations, I don't know if that's because we weren't informed, to be honest with you, or whether I wasn't paying enough attention to remember it,” Ferraro said. “So I hate to accuse or comment on that because it very well could have been presented to us and I simply don't have a recollection. But I do support your concerns regarding our transparency, and the fact that we need to strictly follow procedures.”

Gonzales summed up: “I also just want to make sure that under no circumstances are the stewards or staff to arbitrarily reclassify a drug of any kind unless it has gone through the full rulemaking process.

“More importantly, I want to say one thing,” Gonzales added. “Trainer Ron McAnally is one of the upmost citizens and outstanding horsemen that we will ever see. [In] my time as a backstretch worker, people lined up to work for his barn because he treated backstretch workers incredibly well. So I want to just make that known that this is not about Mr. McAnally. This is more about how CHRB management handled the situation.”