PUBLIC AFFAIRS - Ineptocracy squared

Gordon Robinson

People ask me why I no longer write for The Gleaner.

Well, alright, it was only The Old Ball and Chain whose HGTV watching time has been severely curtailed by my frequent raids on the remote and The Dunce who wanted to know why people no longer sang along with his mantra "If a macca, mek it jook yu ... ." I don't care what media surveys find. This proves I have at least two readers. So there!

Here's how it happened. In a column headlined 'Ineptocracy at the Racetrack' published May 14, 2013, I took Andrew Azar to task for his silly and baseless comments made before a meeting intended, in my opinion, for Caymanas Track Limited's (CTL) CEO and "stakeholders" to discuss and explain the board's previously announced intention to cut purses.

I held (and still hold) that opinion because, on April 30, when CVM TV carried clips of Andrew's remarks, the clip was followed by: "That was Andrew Azar, CTL board member speaking ahead of what turned out to be a very heated meeting between trainers, breeders and CTL CEO Cedric Stewart." I believed CVM, especially as the CTL board's press conference (Andrew Azar was absent) to announce its policy was already held.

My opinion was also based on a report in The Star of April 30, written by veteran racing writer Orville Clarke, which spoke to threats of industrial action by "stakeholders" following the board's announcement and read in part, "When contacted yesterday, Stewart, CEO of CTL, said he ... will be doing everything in his power to avert a shutdown.

"The dialogue will continue and in this respect, a meeting has been scheduled with the stakeholders for this morning at Caymanas Park."

The board fully stated its position. "Stakeholders" rebelled. It seemed to me the CEO was deployed to put out the fire. How would the board's purpose be served by the presence, at that meeting, of a director?

To my surprise, Andrew, absent when the board's decision was announced, attended that meeting with "stakeholders" and made inflammatory statements, which could only have the effect of undermining the very board of which he was a member. In that context, as a result of that unexpected input, the meeting (and its purpose) was "crashed". I pointed out why his public utterances were, in my opinion, inappropriate, inaccurate, reckless and improper. I tried to educate Andrew Azar on how to "separate his personal role from his role as CTL director". I reminded that no company director is appointed to "serve" any interest but that of the company, and cited Section 174 of the Companies Act as authority for that trite law.

Well, to paraphrase the great Paul Keens-Douglas, who tell me say so? The Gleaner (not me) got a letter from a lawyer. Instead of finding the nearest trash receptacle, most serious newspapers' preferred place to file lawyers' letters, it took the letter seriously.

It's reproduced here.

The poorly crafted letter itself admitted my critique of Azar's statements was fair comment. It admitted Azar publicly criticised his own board. It refers to "personal insults" without any specificity, but the only personal comment made was that Andrew "has horse racing's best interests at heart. He's a 'people person' who often spends his own money to ensure significantly improved working conditions for racing's 'most vulnerable'. He's absolutely good for racing."

What a horrible thing to say!

So, the claim, boiled down to gravy, was that to say Azar "crashed" the meeting was defamatory. According to Mr Franz C. Jobson, who signed the letter on behalf of the law firm, "Mr Azar was invited to the meeting..."

The essence of defamation

So what? What if the words are read and understood to mean that Andrew was uninvited when he was in fact invited? The essence of defamation is that the words complained of must have a defamatory meaning. It's not about hurt feelings. It's not enough for them to be false. It's about as defamatory to allege (falsely, if that be the case) that a director showed up uninvited to a meeting involving his company's business as it would be to allege (falsely) that Rev Ronnie had been awarded the O.J. It's actually complimentary of the director as it shows he's on the ball and taking a healthy interest in the company's business.

My opinion, to which I hold stubbornly, regardless of what unsupported allegation came from Mr Jobson, is that this was a meeting intended to be between CTL's CEO and "stakeholders" and that the CTL board didn't intend any director to be present.

Accordingly, I firmly believe Azar's attendance was widely unexpected (whether or not he was "invited" by the CEO). I believe the meeting was for the purpose of effecting a smooth implementation of the board's policy by convincing "stakeholders" to jump on board (no pun intended). Azar's public disagreement with his own board crashed that purpose; embarrassed, the board, and especially the chairman; and bore all the appearances of a politician making a stump speech to obtain the support of "stakeholders" whose votes and vote-getting ability far exceed those of the board. All government-owned company directors are politically appointed. Some believe they have a political mandate. Former CTL Board Chairman Joseph A. Matalon, took a different view of his purpose and went about addressing the company's alarming financial deficits with a pragmatism derived from his decades of corporate experience. For that, he attracted Azar's public rebuke.

In the end, Azar's public undermining of his own board resulted in his personal receipt of overwhelming "stakeholders" support to the extent that, when the chairman, whose position became untenable, resigned, "stakeholders" publicly nominated Andrew Azar as the next chairman.

Instead of apologising publicly to his own board, Azar makes a laughable claim of defamation against The Gleaner. He demands an apology!

Defamatory, 'shamefamatory'

Nobody asked Mr Jobson to specify which of my words were defamatory and what defamatory meanings were alleged. Nobody asked to see the alleged invitation. Nobody reminded Mr Franz Jobson that an opinion (that Azar, a public official politically appointed to a government-owned company, "crashed the meeting") honestly held, based on uncontested published material wasn't actionable no matter how stubbornly the columnist stuck to the opinion in the face of competing assertions. It never occurred to The Gleaner that it wasn't in any way demeaning to Azar to allege that he "crashed" a meeting that, as board member, he was absolutely entitled to "crash".

In a rush, like Beenie Man, The Gleaner's editor offered Azar an "apology". For what? For quoting him accurately? For making a fair and unassailable critique of the nonsense he spouted? The Gleaner's editor published an "apology" that asserted the newspaper was "satisfied" Azar was invited to the meeting. Well, whoop-de-doo! Again, so what?

My free advice to Andrew Azar is to grow thicker skin; spend less time on demanding apologies for imagined slights; and pay more attention to ways of stemming the frightening, continuous losses at CTL.

While Andrew wastes time with frivolous defamation claims, CTL, having made an audited loss of $146.5 million (2011-12), has added another $68 million loss in 2012-13 (according to Minister 'Dilly' Dalley whose Sectoral Debate presentation corrected CTL's original estimate of $129 million loss without disclosing his source).

CTL has BUDGETED to make a further $98 million loss in 2013-14. Balance sheet deficits were $383.86 million (audited; 2011-12); $513.26 million (estimated 2012-13); and $611.48 million (BUDGETED 2013-14). How can a director of a company with this history, whose board makes a decision to cut expenses to staunch the bleeding of red ink, carelessly criticise his own company for so doing, propose an insolvent CTL continue paying purses it can't afford, and plan to add $98 million more loss in the next fiscal year? Have we fallen down a rabbit hole? Or is it all about politics?

the bad news

So, Andrew, here's the bad news. Your heart is in the right place but, on occasion, like this one, your mouth is bad for racing. Better you try more listening and less talking from now on.

Guess what Andrew? I still hold to the opinion that your comments at the meeting were out of order. The fire the CEO was sent to put out had its flames fanned by your remarks. You gave "stakeholders" courage to mount a spirited rebellion against your own board. CVM TV reported that, after your remarks, the meeting became "very heated", to the point where "... the chairman lost control of the meeting and it took a passionate plea from breeder/owner Lawrence Heffes to ease the tension ... . With Vin Edwards by his side, Azar apologised on behalf of the board..."

That meeting's purpose wasn't for any apology to be issued on behalf of the board. Too much damage has been done by unnecessary apologies. Azar's unnecessary apology damaged the CTL board and especially the chairman. The Gleaner's unnecessary apology damaged my own reputation as a senior counsel and one of Jamaica's foremost horse-racing experts.

Andrew, I believe, whether invited or not, you should've stayed quiet and listened if all you could find to say was to the detriment of CTL and its board's declared policy. CTL's policy regarding purse cuts was irreparably undermined. That's a "crash". Andrew, please don't write The Gleaner again. Pick on somebody your own size. Get Mr Jobson to write to me this time.

You know what, don't bother, here's my reply in advance. Pray proceed.

Peace and Love.

Dear ________,

Re: Article published by
the Jamaica Gleaner on Tuesday May 14th 2013 with "Now there's open
rebellion within the Caymanas Track Limited Board"

We act for Mr Andrew Azar.

We refer to the captioned article, published by the Jamaica Gleaner on Tuesday May 14th 2013. The said article in its entirely is grossly inaccurate and libellous.

The
fact is that Mr Azar was invited to the meeting at issue and was there
in support of the CEO and the measures the Board seeks to implement.
Where objection was raised or criticism opined on our client's part were
directed at the way the imposition of the purse cuts was made without
consultation.

The personal insults and the proposition that out
clients is in breach of Section 174 of the Companies act, thereby
imputing criminal conduct on the part of our client.

The purpose of this letter is to invite you to immediately agree tot he following:

1. Published a prominent, full and unqualified apology in a manner and on terms to be agreed.

2. Published in a suitable manner a reasonable letter or statement by way of explanation or contradiction.

3. Undertake not to repeat the libel complained of regarding our client.

4.
Pay to our client a substantial sum of money to be agreed as for
damages for libel in an attempt to adequately compensate him for the
grave damage suffered by him as a result of the libellous statements
contained in your newspaper.

We would be obliged, if you would
advise us as to the name and address of your Attorney-At-Law who will
accept service proceedings herein on your behalf including Court
proceedings which may be instituted against you.

Yours faithfully,

Clough, Long & CO