Reid-Smith pushes back again mural lawsuit claims
CHARLESTON -- Randall Reid-Smith, the cabinet secretary for the West Virginia Department of Arts, Culture and History, defended the process behind the mural project in the upper rotunda of the State Capitol Building in a statement following a lawsuit filed last week to halt the project.
According to the statement, released Wednesday on the website of the Department of Arts, Culture and History, the murals are 100 years overdue and despite a paused effort that began in 2010 to fulfill State Capitol Building architect Cass Gilbert's dreams of murals under the golden Capitol dome, the restart of the project more than nine years later was legal.
"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.
"The plaintiffs' claims in the recently filed suit regarding the installation of the rotunda murals are meritless and seem 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," Reid-Smith continued.
Harvey Peyton, an attorney representing West Virginia residents Gregory Morris and Tom Acosta, filed a lawsuit last week in Kanawha County Circuit Court against Reid-Smith, who also chairs the Capitol Building Commission, which approves major changes to the grounds and building that make up the State Capitol Complex.
The lawsuit also includes members of an informal committee that signed off on the final renditions of the murals, contractor John Canning and Co., Department of Administration Acting Cabinet Secretary Jon McHugh and State Treasurer Riley Moore.
Peyton, who filed a 30-day notice of intent to sue the state in July, is asking the court to declare a contract for the murals between Reid-Smith and John Canning and Co. null and void, an order directing the Department of Administration's General Services Division to remove the murals and prohibit any further work, prohibit any further payments to Canning, require Reid-Smith and Canning to repay the state, as well as any attorney fees.
The first four murals in the half-moon lunettes in the upper rotunda, unveiled in June in conjunction with West Virginia Day, depict historic Harper's Ferry and the John Brown fort; the battle of Philippi during the Civil War; an allegorical scene based on the State Seal; and artists, musicians, and wildlife at the base of Seneca Rocks.
The murals are supposed to be based on ideas and concepts that famed Capitol architect Cass Gilbert had wanted to include in the building but was unable to due to costs during the start of the Great Depression.
The final four murals in the curved trapezoidal areas of the upper rotunda are being installed currently at the State Capitol Building by workers with John Canning and Co.
The artist selection process for the murals was first approved on April 14, 2010, by the Capitol Building Commission. Multiple companies participated in the pre-bid process at the time, including John Canning and Co., but the project was scrapped due to lack of funding.
Reid-Smith, who was first appointed as commissioner of the Division of Culture and History by former Gov. Joe Manchin, has served as chairman of the Capitol Building Commission since his appointment in 2005. He has held that chairmanship since the former Department of Education and the Arts became the Department of Arts, Culture and History and he was elevated to curator. Last year, the Legislature changed his title to cabinet secretary.
In his statement, Reid-Smith argues that since he has remained chairman of the Capitol Building Commission since 2005, that he had the authority to resume the 2010 mural project nine years later without a new vote by the Capitol Building Commission. Reid-Smith claims there was already a contract with Canning, though that contract was not finalized after the project was halted due to cost issues.
"The plaintiffs seem to believe that the cancellation of a particular transaction through the Purchasing Division canceled the project approved by the CBC in its entirety. Plaintiffs are confusing the two," Reid-Smith said. "The 2010 request for expressions of interest generated responses that informed decision makers about what artistic concepts and general market rates were at the time, and Canning was selected through that process prior to the transaction being canceled due to a lack of funding."
Reid-Smith began reviving the project as early as 2019, using the 2010 vote by the Capitol Building Commission to move forward. At no time did the Capitol Building Commission vote between 2021 and 2024 to re-start the project, and the commission was not consulted on the look of the murals. According to the state Purchasing Division, the project was not put out for competitive bid, citing Section 9 of the Purchasing Division Procedures Handbook's "impossible-to-bid list," which includes artwork and historical items.
According to Reid-Smith, he re-started the mural project due to the state's tax collections improving, allowing for funding for the project. He re-approached Canning as the contractor, which agreed to a price for the project similar to what the company offered in 2010. The project is slated to cost more than $509,000 according to the purchase order agreement.
"...The Chairman sought Canning's interest in performing the work at substantially the same rates the company had submitted a decade prior," Reid-Smith said. "Canning expressed that they would perform the work under the decade-old rate structure, despite significant inflation over that time period... 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."
Peyton alleges that when the project was revived in 2019, Reid-Smith and Canning engaged in a "civil conspiracy" to avoid doing a new bid process.
"No later than April 2019, Randall 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 other prospective vendors," Peyton wrote in his lawsuit.
"The Governor's Office released the artist renderings of the first four murals in April, but an ad hoc committee made up of Reid-Smith, former Department of Administration Secretary Mark Scott, two officials in the Governor's Office, and the director of the State Museum recommended changes to the murals by Canning. Those changes involved adding a dog similar to Gov. Justice's English bulldog Babydog to the Seneca Rocks mural."
In his filing, Peyton argued that the ad hoc committee constituted a public body and was subject to the state Open Governmental Proceedings Act. But Reid-Smith disagreed.
"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," Reid-Smith said. "...This informal group was requested by the Chairman 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."
In a statement Thursday, Peyton said the issue with the mural is not the inclusion of a dog resembling the governor's pet. The issue is processes not followed to allow for public comment and involvement, or the soliciting of other vendors and artists for the job.
"This is not about Babydog," Peyton said. "The 2010 Capitol Building Commission resolution had nothing to do with Randall Reid-Smith or the Division of Culture and History as it was then known. To call this 'final approval' of the project is just not true.
"The project in the works was never put on the agenda, the amount and content was never approved, and no contract was ever approved," Peyton continued. "This all has nothing to do with Babydog, although admittedly the arrogance and self-aggrandizement represented by the little canine is the straw that broke the camel's back."
As for Reid-Smith, he remains pleased with the project and the process, believing that any naysayers are simply trying to seek publicity.
"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," Reid-Smith said.