Arts Secretary Randall Reid-Smith contends the state followed the appropriate process over more than two decades as it pursued completion of a mural in the Capitol Rotunda that wound up including an image of the governor’s beloved dog.
A lawsuit filed late last week in Kanawha Circuit Court challenges whether the state circumvented open meetings and purchasing guidelines. The lawsuit asks for the project to be re-bid, for the current mural work to be removed from the Rotunda and for Reid-Smith to pay for what the state has already put toward the mural project.
The clash has occurred after an image of the governor’s beloved pet, Babydog, was unveiled in June as part of a mural of West Virginia history and culture at the state Capitol Rotunda. The bulldog can be seen on a knoll with Seneca Rocks in the background and near images of an artist, a couple dancing and some musicians.
Reid-Smith, in a written statement distributed today, described the filing as “meritless” and based on a misunderstanding of the history of the project.
The murals were characterized months ago as a project to “depict iconic state scenes and landmarks” in line with the vision of famed Capitol architect Cass Gilbert. An initial image of the Seneca Rocks scene did not include a dog of any kind.
Reid-Smith has regularly described context of Gilbert’s unfinished vision for the Capitol, suggesting features like murals could not be completed originally because of their cost.
He has usually said said the Capitol Building Commission — the appointed board that reviews and approves or rejects all plans for substantial physical changes to the grounds and buildings of the State Capitol complex — engaged in consideration beginning in 2009 and approval of starting the process on April 14, 2010.
The lawsuit discusses much of that history while calling the process full of holes.
The lawsuit acknowledges that in 2010 the Capitol Building Commission voted to begin an artist selection and interview process. Among the bidders for the work over those next few months were Tom Acosta, now the plaintiff in this case, and John Canning & Co — which was selected at the time and which completed the work when the project rolled back around this year.
By 2011, though, the lawsuit documents state procurement officials as exchanging memos to cancel the project, a move that included notification to Acosta and Canning.
Smith’s written response says that decision to select Canning still held up this year.
“The plaintiffs seem to believe that the cancellation of a particular transaction through the Purchasing Division cancelled the project approved by the CBC in its entirety. Plaintiffs are confusing the two. From time to time, a transaction is started in one manner and determined to be better processed in a different manner,” Reid-Smith wrote.
“When this happens, the transaction may need to be cancelled and resubmitted in a different form. This may be due to cost constraints, change in scope, or a more efficient and cost-effective manner of procurement having been identified in the interim. This is just the case, here.”
By 2019, with the economy improving, Reid-Smith wrote that he believed resuming the project would be appropriate. He wrote that he reached out to Canning to gauge interest in getting started again.
“On April 21, 2022, the Director of the Purchasing Division approved the request for an exemption to procure the purchase of historical artwork murals, under the Purchasing Division’s statutory authority to exempt the purchase of certain commodities and services — here, artwork — from the competitive bid process, which generally relies on price as a driving factor,” he wrote.
West Virginia contracted with John Canning Company to perform the mural work. Four more murals are still to be completed by November. State records show payments last fiscal year to John Canning Company amounting to $348,098 through the state Division of Culture and History for building improvements. Another $53,968 has been paid this fiscal year.
As final decisions were being made about the details of the murals, Reid-Smith has described a group of executive branch representatives reviewing the specific scenes: himself, state Museums Director Charles Morris, Administration Secretary Mark Scott, senior adviser Ann Urling and Rebecca Blaine, director of intergovernmental affairs.
That group, Reid-Smith has said, unanimously concluded the mural should include a dog — and further concluded that dog should look just like the current governor’s. There is no indication that group had meetings open to the public.
Reid-Smith’s written response to the lawsuit contends that group’s function was purely advisory.
“This group did not take any vote or hold any formal proceedings, merely meeting to provide the Chairman and Canning with their input and feedback. The Chairman sought their input in an effort to obtain the thoughts of a wider audience than solely himself,” Reid-Smith said, referring to his own role as chairman of the Capitol Building Commission.
Reid-Smith again made reference to Cass Gilbert’s vision for the Capitol as he concluded his written response.
“The fact is that Cass Gilbert called for murals to be installed when the State could afford it. For nearly 100 years, it didn’t get done. The State tried to get the project done in the early 2010s, but proper funding remained the impediment.”
He continued, “”We should be celebrating that the murals are finally able to be funded and installed, as Cass Gilbert called for, rather than wasting taxpayer money on frivolous lawsuits meant to generate headlines.”
