CHARLESTON – One lawsuit has been filed seeking to have recently installed murals at the state Capitol – including one that features a likeness of Gov. Jim Justice’s beloved Babydog – to be removed and to have one state official cover the costs of the litigation.
Gregory Morris filed an amended complaint August 30 in Kanawha Circuit Court against the Ad Hoc Committee for Final Approval of Capitol Murals; Department of Arts, Culture and History Secretary Randall Reid-Smith; State Treasurer Riley Moore, Acting Administration Secretary John McHugh; and John Canning & Company Ltd. Reid-Smith is named as chairman of both the West Virginia Capitol Building Commission and the Ad Hoc Committee.
Morris seeks declaratory and injunctive relief for willful violations of state purchasing laws, rules and regulations, for acts of civil conspiracy committed by Reid-Smith and John Canning & Company and for willful violations of the state Open Governmental Proceedings Act.
Reid-Smith
| File photo
In the amended complaint, Morris says Reid-Smith made a “unilateral decision, without the approval of the CBC” sometime before April 2019 to implement a portion of a Capitol rotunda mural project that had been canceled in June 2011.
“Randall Reid-Smith embarked upon a plan to implement a portion of the previously canceled Capitol rotunda mural project with the use of a vendor that he personally preferred and without the competitive request for expressions of interest that had been employed for the preliminary selection of proposed artists in 2010,” the complaint states, adding Reid-Smith “entered into a civil conspiracy with Canning for the purpose of lessening competition among prospective vendors relative to the previously terminated mural project and to cause one prospective vendor, namely Canning, to be preferred over one or more of the other prospective vendors.”
Morris says Reid-Smith and Canning exchanged emails in April 2019 agreeing upon and outlining the scope of the services Canning would provide for a fixed price of $485,000. That included subject matter, developing compositions, providing sketches for feedback and approval as well as designing preliminary sketches for the murals.
On April 11, 2022, he says Canning and Reid-Smith exchanged contract documents and shipment of boxes containing canvas and poster boards. It also said the price had increased to $487,520.
Ten days later, Reid-Smith sent a letter to West Virginia Purchasing Division Purchasing Director Mike Sheets asking for an exemption to bid and to treat the work by Canning, calling it “impossible to bid” despite it having been bid years earlier.
On February 7, 2024, Canning and Reid-Smith exchanged emails regarding drawings and a construction schedule for installation of the murals.
“Reid-Smith, in his capacity of Chairman of the CBC, has deliberately and intentionally omitted any reference to the Capitol mural deal he was making with Canning from the agenda of no less than 16 regular quarterly CBC meetings and deliberately and intentionally did not convene any special meeting of the CBC to review and either approve or reject the proposed Capitol mural project,” the complaint states, adding that CBC approval is required before any contract may be bid for work requiring a substantial change to the Capitol.
Morris says Reid-Smith caused a five-member ad hoc committee to be appointed to review and finalize the contents of the murals sometime between April 4 and June 20. He says the committee is governed by the state Open Governmental Proceedings Act, which he claims was violated.
On June 20, the state’s birthday, it was disclosed to the public that this committee had met at some point and directed the inclusion of cartoonish depiction of a bird, an elk and a domestic pet bulldog in one of the murals installed in the Capitol main rotunda by Canning.
“The conduct of Randall Reid-Smith in convening this ad hoc committee and presiding over a decision by the committee to include a depiction of a domestic English bulldog clearly identified as that of Reid-Smith’s political boss (Justice) and identified as a mascot associated with a partisan political party in a mural placed in the main rotunda of the Capitol constitutes an act of unjust enrichment and use of Randall Reid-Smith’s various state government positions for purposes of personal gain and self-aggrandizement,” the complaint states.
“The people of West Virginia have been deprived of the opportunity to have the very best vendors involved in the selection process seeking an entity to complete the mural project … unless the unlawful process is voided by this court and reopened in competitive selection, the citizens of West Virginia will never know what degree of excellence they might have enjoyed.”
In addition to the "postcard-like figurative landscape scenes," Morris says the mural project of years ago did not include "cartoonish depictions of wildlife and the as yet unborn domestic pet and political icon of an as yet unelected governor" or "a shamelessly historically inaccurate depiction of United States troops charging into the June 3, 1861, battle of Philippi under a 36-star American flag that did not become the official flag of the United States until July 4, 1865, months after the cessation of hostilities that led to West Virginia's statehood."
Morris seeks a court order voiding any contract between the state and Canning. He also seeks to have Reid-Smith be personally liable for the costs of the purchase. He also wants an order directing McHugh to remove the murals and to prohibit further work from being done until further action by the CBC is taken, namely a competitive selection process for a vendor. He also wants an order prohibiting Moore from paying more money to Canning for the murals.
Morris also seeks attorney fees and court costs directly from Reid-Smith. He is being represented by Harvey D. Peyton and Thomas H. Peyton of The Peyton Law Firm in Nitro. The case has been assigned to Circuit Judge David J. Hardy, who previously was state Revenue Secretary under Justice.
On July 5, Morris filed a presuit notice regarding the murals.
In June, part of the mural showcasing West Virginia’s history and culture was unveiled in the state Capitol’s Rotunda. One panel of the mural shows a couple dancing as musicians play in front of Seneca Rocks as well as an artist painting along with Babydog. The original Seneca Rocks scene did not include the dog.
Reid-Smith previously has said different people from the executive branch looked at the mural scenes and said they all thought the mural should include a dog. Justice has said he knew nothing about the decision to include a likeness of Babydog in the mural.
The state hired John Canning Company to do the murals. So far, the state has paid more than $400,000 for the murals, some of which still aren’t completed.
“Nobody consulted me about it in the beginning or at all along the way,” Justice said during one of his weekly media briefings in July. “You know, I’m sure not going to talk about potential litigation. Do we not have a little bit more to do in life?
“From what I understand, the artist said that he felt like a dog ought to be in the thing and then folks said, ‘Well, look, I don’t know how in the world we could have anything better than one of Babydog’s descendants and everything.’
“So that’s how it came into being. I mean, give me a break. For God’s sakes a living, if all we’re going to do here is try to throw rocks at one another, so be it. But I’m not going to comment on that. It’s a waste of time.”
Tom Acosta also filed a notice of a potential lawsuit related to the mural project, but that complaint has not yet been filed.
Acosta is an artist and member of the Kimball town council in McDowell County. In his notice, he says he was a prospective vendor for the mural project.
“Mr. Acosta will seek all the relief to which he is entitled,” the notice, also filed by the Peyton Law Firm, states. “This will include holding Secretary Reid-Smith personally liable for the cost, to date, of the John Canning contract which resulted from the willful and intentional violation of purchasing procedures of West Virginia.
“Mr. Acosta alleges, but not by limitation, that the actions of Secretary Reid-Smith in support of his request to exempt the mural project from bidding and his intentional ‘misrepresentation that the contract for the services of the Canning interests had been approved by the Capitol Building Commission are intentional and willful violations of the West Virginia purchasing statutes, rules and regulations.”
Kanawha Circuit Court case number 24-C-929