Four and a half years after a reorganization at the top of the Western Regional Off-Track Betting Corporation – action that advanced the careers of Michael Nolan of Elma and Henry Wojtaszek of North Tonawanda – things have turned ugly for the public benefit company that operates Batavia Downs Gaming, Batavia Downs harness racetrack and OTB parlors across 15 counties plus the cities of Rochester and Buffalo.
As reported by the Buffalo-based Investigative Post earlier this week, Nolan, WROTB’s chief operating officer until his dismissal last Friday, has enlisted the services of Steven Cohen of the HoganWillig law firm with the intent to file a civil lawsuit for at least $5 million in damages.
Nolan, in a Notice of Claim submitted on his behalf in September, alleges that he has been the target of a “deliberate, relentless and malicious campaign of harassment and hostility” by his superiors, President/Chief Executive Officer Wojtaszek and Board Chairman Richard Bianchi.
Both Cohen (this morning) and Daniel Oliverio of Hodgson Russ, the attorney representing WROTB (on Tuesday), spoke to The Batavian about the situation.
“Michael Nolan promoted transparency and believes in the organization, and his superiors wanted him to sweep things under the rug, which he refused to do,” Cohen said. “And now he’s being punished for it.”
Cohen said that Nolan has been ostracized and shut out of OTB developments since April of 2019 for sharing information with federal and state authorities as part of an inquiry into practices such as health insurance plans for board members, use of sports tickets and luxury boxes, and awarding of contracts.
“After speaking with other members of the board, the federal and state authorities were referred to Michael for specific answers to specific questions. Michael gave honest answers, and Michael’s superiors have maintained a policy of obfuscation and opacity, and are punishing Michael for being honest with the authorities,” Cohen added.
Oliverio said evidence gained through months of examination and interviewing of more than 30 witnesses does not substantiate Nolan’s claims, and that his termination was carefully considered and appropriate as it pertains to job performance.
“We are so sick of Steve Cohen and Mr. Nolan offering up absolutely false, unsupportable allegations about OTB and its officers and directors, none of which have been supported by any witnesses whatsoever,” Oliverio said. “We have done a thorough investigation over months – interviewed witnesses that Mr. Nolan told us to talk to and nobody supports his stories.”
Oliverio said that he has tried to sit down with Nolan to “find out what is on his mind, but his story shifts like grains of sand in the wind.”
Cohen: Problems Needed to be Addressed
Cohen said that Nolan “wanted to make OTB all that it could” by trying to rectify some problems, “but the greed of his superiors prevented him from doing so.”
“They didn’t want to put an end to board members receiving a lifetime health insurance (plan) that was valued at approximately $33,000 per year per board member,” he said, offering that opinions of the state attorney general and comptroller indicate that board members’ compensation should be limited to $4,000 per year.
Cohen said Nolan wanted to end that policy and his action caused Wojtaszek and Bianchi to retaliate against him. He also said Nolan shined a light on the improper use of luxury boxes and tickets to Sabres and Bills games and the “improper use of the VLT fund, or purse fund.”
“That purse fund is only supposed to be used to remunerate racehorse owners, but instead it was used as a general revenue source by OTB and Michael tried to put a stop to that,” he said.
Cohen said OTB officials have tried to stop the civil suit from being filed.
“They have invoked sections of the law, and they’re trying to delay us from filing this lawsuit,” he said.
Oliverio: Motivation is in Question
Oliverio said Nolan is not a whistleblower and is out to “impugn the integrity of the OTB board, Wojtaszek and others who operate the business from day to day.”
“He will tell you that the FBI called him as they were hearing some things that were going on at OTB that they wanted to look into. Now, Mr. Nolan’s a whistleblower,” he said. “Mr. Nolan has admitted to our investigators there’s nothing there regarding any of the allegations that have been made – regarding tickets and contracts, what have you.”
Oliverio said he can’t wrap his head around Nolan’s motivation.
“We don’t know if this is some type of political attempt to undermine the leadership of OTB; we can’t quite figure it out. But we don’t do press conferences like Mr. Cohen and Mr. Nolan. We do courtrooms, evidence, witnesses under oath and facts. If he’s going to make allegations, let’s prove them in a courtroom,” he said.
He said it could be “an attempted coup” by Nolan to replace Wojtaszek as president.
“Really, we have no idea. But, I’ll tell you what, we have spent a lot of money investigating these allegations and all these allegations about workplace harassment, and we can’t come up with one fact,” he said.
Health Insurance Ruling to Come
Oliverio acknowledged that directors receive a quality health insurance plan.
“They’ve never hid that, but it’s up to the comptroller of the State of New York to decide whether it’s appropriate or not and the comptroller is looking at it,” he said. “The comptroller has been asked to render an opinion and if the comptroller says you shouldn’t get it, then they’ll just discontinue it. If the comptroller says it is fine, then it is fine.”
Regarding tickets and corporate suites at sporting events, Oliverio said it is a nonissue.
“What a laugh. Nolan admits himself in an interview with our investigator, which was witnessed by two other people, there are no problems with the tickets. The tickets were used properly,” he said.
Oliverio pointed out that Nolan thought some contracts should have been put out to bid, but agreed that no laws were broken by not bidding them.
“His (Nolan) objections, as far as we can see, were with policies and process – not with any violations of the law. But there have been no allegations of violations of the law,” he said. “Certainly, Mr. Nolan has no right to offer that up because he’s not a federal prosecutor or state prosecutor, and we have not been told by any state or federal prosecutor or law enforcement officer that we violated any law whatsoever regarding tickets, contracts, promotions, anything else.”
The attorney said the matter is “frustrating” for WROTB and its board.
“That’s why we can’t wait to get into court,” he offered. “We hope that it will all come out why Mr. Nolan, if he continues his lawsuit, … was dismissed from OTB. We will do that in a courtroom, under oath, and not in a press conference. We look forward to it and we look forward to clearing some people’s reputations and names.”
Cohen Calls it ‘Pure Vindictiveness’
Cohen said Nolan found out that he was fired when he reported to work last Friday.
“When he went to show up for work, he was told he had been previously terminated,” he said. “Also, on Dec. 3 when his daughter broke her arm, that is when he learned that they had simply stopped his health insurance without prior notice. And that is pure vindictiveness – pure spitefulness – and that’s quintessential Wojtaszek and Bianchi.”
Cohen said the timing of Nolan’s termination speaks volumes.
“Had Michael’s termination not occurred over a year after he shared with his superiors that, at the request of other members of the board, he honestly answered questions of the FBI, U.S. Attorney and various New York State agencies, one might be inclined to entertain the possibility that Michael’s termination was performance based,” he said.
“But for over a year, after eight years of sterling performance evaluations, Michael was stripped of his duties as FOIL (Freedom of Information Law) officer and other key roles; he was ostracized by the president and chairman, and isolated and not permitted access to the data he needed to do his job.”
Oliverio disputes the contention that Nolan was wrongfully terminated.
“He was constructively discharged from OTB, and he makes a host of allegations about that, again, none of which we can find to be true by any witness or by any facts,” he said.
Nolan was set to receive a salary of $119,704 in 2021. In 2016, as the corporation’s executive vice president and chief operating officer, his annual pay was $102,096.