OTB questioning state opinions barring health coverage for board members [Lockport Union-Sun & Journal, N.Y.]

Aug. 25—BATAVIA — A private attorney hired by Western Regional Off-Tracking Betting Corp. isn't convinced members of the public entity's board of directors aren't entitled to receive fully funded health benefits as compensation for their service.

Following a series of board committee meetings on Wednesday, OTB President and CEO Henry Wojtaszek said OTB's outside legal counsel, noted Buffalo defense attorney Terry Connors, has reached a different conclusion on the health insurance question than opinions previously rendered by the offices of the state comptroller and state attorney general.

While those two state agencies, in separate opinions, have determined that OTB board directors are not legally permitted to receive full health, vision and dental coverage courtesy of the public benefit corporation, Wojtaszek said Connors has researched the matter and now considers those opinions to be "non-binding" where OTB is concerned.

In essence, Wojtaszek said, Connors does not believe either of the opinions from the state agencies directly address OTB but rather relate to other public entities in New York where questions were raised about health coverage as compensation for board representatives in the past.

While describing both of the state opinions as "good faith opinions," Wojtaszek said he does not view them as "the final word" on the matter.

Wojtaszek declined to honor a request for a copy of Connors' written comments on the health insurance question. He said doing so would not be appropriate at this time because OTB's attorney is still engaged in health insurance discussions with representatives from state Attorney General Letitia James' office.

"The opinion from (Connors) is that this is an open question," Wojtaszek said.

In September, an attorney from DiNapoli's office made a referral to the state attorney general's Taxpayer Protection Bureau, asking representatives there to take "appropriate action" where OTB's health insurance was concerned.

To date, the attorney general's office has not responded to questions about whether it is currently investigating the matter.

OTB manages Batavia Downs and Off-Track Betting locations across Western New York, including those in Niagara County. A portion of the revenue generated by the public benefit corporation are returned to host communities, including Niagara County, other counties in the region and the cities of Buffalo and Rochester.

For decades now, the agency has used public funds to cover the cost of health, dental and vision insurance for the 17 directors of its board. Board members, who are considered part-time and whose primary duties involve attending committee meetings and full board meetings on two days per month, are eligible for lifetime health care benefits through OTB, as are their spouses.

In an opinion issued last fall, an attorney for New York State Comptroller Thomas DiNapoli characterized the practice as "impermissible." That opinion followed an earlier one from the state attorney general's office which "unambiguously" reached the same conclusion.

In 2019, OTB hired the law firm of Barclay Damon to examine the issue. In an opinion issued after its review, the law firm recommended OTB directors stop accepting the benefits.

Wojtaszek has previously suggested that while OTB's private attorneys did recommend discontinuing health benefits for board directors, an "older comptroller's opinion," dating back to 1978, deemed the practice permissible.

In May, in response to questions from the Buffalo-based news outlet Investigative Post, a spokesperson for DiNapoli's office said the comptroller has "repeatedly and unambiguously" told OTB officials that the older opinion on health insurance was "directly repudiated" years ago as part of 2007 audit reports, and again in a 2008 opinion issued by the state attorney general.

Wojtaszek held a brief executive session with board members on Wednesday, which he acknowledged had to do with the health insurance situation. Following the closed-door portion of the meeting, Wojtaszek said OTB board members asked him to "prepare a plan" for handling health insurance in the future. Wojtaszek said they are expecting him to present the plan during OTB's next scheduled public meeting in September.

In preparing the plan, Wojtaszek said he intends to discuss the issue with Connors and a representative from OTB's insurance company.

The goal, he said, is to ensure that all employees, including board members, are able to obtain a fair level of coverage.

"They are treated as employees," he said. "We're all entitled to a family plan."

Wojtaszek insists the health benefits are necessary to help OTB retain and attract qualified board members which he said is vital to allowing the public benefit corporation to remain competitive in an area where there are 10 casinos operating within 100 miles of OTB's main gaming site, Batavia Downs horse racing track and casino.

"We're in a very competitive market," he said.

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