CHARLESTON – A state official being sued over the Capitol mural project that includes a likeness of Gov. Jim Justice’s beloved Babydog calls the lawsuit “meritless.”
In a statement released September 4, West Virginia Department of Arts, Culture and History Secretary Randall Reid-Smith said the lawsuit filed last week seems “to be based on their misunderstanding of the history and facts of the murals project, as well their misunderstanding or misrepresentation of West Virginia procurement and open governmental proceedings laws.”
Gregory Morris filed his complaint August 30 in Kanawha Circuit Court against the Reid-Smith, the Ad Hoc Committee for Final Approval of Capitol Murals, 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.
Reid-Smith
| File photo
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.
In the 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.
In his statement, Reid-Smith says famed architect Cass Gilbert designed the West Virginia State Capitol in the midst of the Great Depression in the 1920s and, because of limited resources, murals were not commissioned. But he says Gilbert called for murals to be painted in the rotunda when funds became available.
He says the project began in 2010 with CBC approval. He says John Canning & Co. Ltd. was selected then after proposals from a number of artists were obtained. A contract was prepared but not executed because of a lack of funds at that time, so Reid-Smith says that is when the transaction began through the state Purchasing Department.
“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,” Reid-Smith said in his statement. “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.
“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.”
He says the actual procurement of Canning years later when funding was available was done through an exemption to more general procurement processes approved by the Purchasing Division following West Virginia law.
By 2019, Reid-Smith said he believed funding of the murals project would be forthcoming. So, he says he sought to pursue the murals project previously approved by the CBC.
“As a preliminary matter in restarting the project, the chairman (Reid-Smith) reached out to the firm that had previously submitted an expression of interest in 2010 and was selected at that time, Canning, to determine if they would still be interested in performing the work,” Reid-Smith said in his statement. “Canning has an international reputation as the preeminent art firm in the field of painting historical murals in government buildings, both state and federal.
“Additionally, the chairman sought Canning’s interest in performing the work at substantially the same rates the company had submitted a decade prior. Canning expressed that they would perform the work under the decade-old rate structure, despite significant inflation over that time period.”
Reid-Smith says the Purchasing Division approved the exemption request on April 21, 2022, “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.”
“In short, the procurement of the internationally-respected firm of John Canning & Co. Ltd. was done explicitly in accordance with West Virginia procurement laws, approved by the director of the Purchasing Division,” Reid-Smith says in his statement. “Additionally, Canning was the firm that had been selected during the bid process conducted in 2010, and Canning agreed to maintain the prices they had submitted a decade prior, despite significant inflation and rising costs in the intervening decade-plus.
“The value to West Virginia in procuring this preeminent firm at 2010 prices for the painting of the murals called for by Cass Gilbert cannot be overstated.”
Reid-Smith also takes issue with the term ad hoc committee.
“What has been labeled as an ‘ad hoc committee’ was not a committee in any sense that would subject it to the West Virginia Open Governmental Proceedings Act,” he said. “This ‘committee’ was not a public agency, was not the governing body of any public agency, and in fact had no authority at all; rather, this informal group was requested by the chairman (Reid-Smith) to give input and feedback on the designs submitted by Canning.
“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. The chairman also sought similar input and feedback from other parties, including the West Virginia Arts Office and the West Virginia State Historical Preservation Office.
“The chairman then shared with Canning the input and feedback he had obtained through this very informal process, and Canning produced their final designs, which the Chairman approved as final.”
Reid-Smith said the murals simply are fulfilling the wishes of Gilbert.
“The fact is that Cass Gilbert called for murals to be installed when the state could afford it,” Reid-Smith said. “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.
“West Virginia has for the last few years grown surplus after surplus to inject hundreds of millions of dollars into our roads, our water and sewer infrastructure, and economic development projects across the state that will continue to grow our economy and our workforce for decades to come.
“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.”
Kanawha Circuit Court case number 24-C-929