Request By:
Henry R. Lynn, D.V.M.
Animal Medical Center
2907 Highway 41 North
Henderson, Kentucky 42420
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: George Geoghegan, III, Assistant Attorney General
This is in answer to your letter dated June 27, 1977 in which you inquire whether the employment of a veterinarian by the Association precludes any associate or employee of the veterinarian so employed from engaging in private practice of veterinarian medicine on all thoroughbred race horses.
In response to such an inquiry it is necessary to direct your attention to KRS Chapter 230. Under KRS 230.220, the Kentucky State Racing Commission is an independent agency of the state government. KRS 230.260 vests the Commission with all powers necessary and proper to effectively perform the duties imposed on it by the statutes. Finally, KRS 230.240 provides in part:
". . . the commission may employ, at reasonable compensation . . . veterinarians . . . and other employees deemed by the commission to be essential at or in connection with any thoroughbred race meeting and to the best interest of racing. The commission for the purpose of maintaining integrity and honesty in racing shall prescribe by rule the powers and duties of the persons employed under this section."
Title 810 of KAR was adopted to implement the above statute. 810 KAR 1:006 Section 31 (5) provides:
"No association veterinarian during his employment by an association shall be permitted to engage in private veterinary practice involving thoroughbreds; nor be employed by or receive any compensation directly or indirectly from any licensed owner or trainer; nor sell or buy for himself or another any thoroughbred; nor place any wager in any manner on any race run at the association; nor sell any drug supplies; nor sell horse insurance; nor be licensed to participate in racing in any other capacity."
In addition, 810 KAR 1:005, Section 1 defines an association veterinarian as a racing official. Section 2 of the same regulation provides that:
"No person while serving as a racing official shall, indirectly or directly, . . . have any monetary interest in any business which seeks the patronage of horsemen or racing associations as such."
Obviously, these two administrative regulations are aimed at preserving and maintaining the honesty and integrity of the thoroughbred racing industry in Kentucky. The sole purpose of 810 KAR 1:006 Section 31 (5) and 810 KAR 1:005 Section 2 is directed towards preventing unethical situations. As such, the regulations attempt to prevent any conflict of interest which might hint of impropriety on the part of an association veterinarian. Under 810 KAR 1:005, Section 2, before a veterinarian could accept a position as an association veterinarian he would be required to relinquish any beneficial or monetary interest he has in a veterinary partnership which treats thoroughbred race horses licensed to race at a track where he would be the association veterinarian.
The language of 810 KAR 1:002 Section 6 relating to commission veterinarians is helpful in revealing the scope of 810 KAR 1:006 Section 31 (5). Both regulations are aimed at preventing conflicts of interest and other unethical situations. Section 6 of 810 KAR 1:002 states in part:
"The commission veterinarian shall not treat or prescribe for any horse registered to race at any race track where he is employed. . ."
According to this language a commission veterinarian would be permitted to treat or prescribe medication for a horse which is not registered to race at a track where he is employed. Keeping in mind the parallel nature of 810 KAR 1:002 Section 6 and 810 KAR 1:006 Section 31 (5), the language of 810 KAR 1:002 Section 6 can be used to restrict the application of 810 KAR 1:006 Section 31 (5). As a result, 810 KAR 1:006 Section 31 (5) can be read to preclude the associations or employees of an association veterinarian from treating only those thoroughbred race horses registered to race at the track where the association veterinarian is employed.
To argue that an associate or employee of an association veterinarian is precluded from treating all thoroughbreds in his/her private practice would be to stretch the regulatory power of the Kentucky State Racing Commission beyond permissible bounds. As the Kentucky Supreme Court held in Bobinchuck v. Levitch, 380 S.W.2d 233 (1964):
"In creating the Kentucky State Racing Commission, the Kentucky Legislature authorized the Commission to make rules and regulations governing horse racing in Kentucky, as well as persons and associations having to do with the conduct of racing meets." Id., at 236.
Assuming the associates or employees of an association veterinarian have nothing to do with the conduct of a racing meet, it would be an unconstitutional assumption of legislative power for the commission to attempt to regulate the private practice of those persons associated with or employed by an association veterinarian except to prevent an obvious conflict of interest on the part of the association veterinarian. See Kentucky State Board of Business Schools v. Electronic Computer Programing Institute, Inc., Ky., 453 S.W.2d 534 (1970); Reeves v. Jefferson County, Ky., 245 S.W.2d 606 (1952). Therefore, the associates and employees of an association veterinarian would be permitted to treat all thoroughbreds except those registered to race at the track where he is the association veterinarian.
In Kentucky State Racing Commission v. Fuller, Ky., 481 S.W.2d 298 (1972), the Kentucky Supreme Court held:
"The Kentucky State Racing Commission is vested with extensive authority over all persons on racing premises for the purpose of maintaining honesty and integrity and orderly conduct of thoroughbred racing. " Id., at 301.
Past experience indicates that the Racing Commission will not initiate litigation concerning the associates and employees of an association veterinarian unless there is an obvious abuse of the authority which accompanies that position. However, an outside charge of unethical solicitation or conflict of interest might arise if an associate or employee of an association veterinarian were to undertake, in his private practice, the care and treatment of a thoroughbred race horse under the supervision of the association veterinarian. In fulfilling its duties as specified in Fuller, supra, the commission would investigate any such charge in order to protect and promote the integriety and honesty of the thoroughbred racing industry. As a result, the charge could prove to be personally, if not professionally, embarrassing to the particular association veterinarian involved.
It is our considered opinion that, in order to avoid a charge of unethical solicitation or conflict of interest, the associates or employees of an association veterinarian should not engage in the private practice of veterinary medicine involving thoroughbred race horses registered to race at any track where the association veterinarian is employed. However, 810 KAR 1:006 Section 31 (5) would not preclude an associate or employee of an association veterinarian from treating or prescribing for any horse not registered to race at any track where the association veterinarian is employed.