Cabinet Secretary Randall Reid-Smith released the following statement today after a recent civil lawsuit filing in Kanawha County Circuit Court regarding the Capitol Murals project.
“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.
Cass Gilbert designed the West Virginia State Capitol in the midst of the Great Depression in the 1920s. Due to the understandably limited resources of that time, murals were not commissioned at the outset but Gilbert called for murals to be painted in the rotunda when funds became available.
In 2010, the project was initially started and approval of the Capitol Building Commission (“CBC”) was sought and granted to undertake and complete the project. When this project was approved by the CBC and continuing through today, Secretary (formerly titled Curator) Randall Reid-Smith has served as the Chairman of the CBC.
The process to select an artist was started at that time and proposals from a number of artists were obtained. John Canning & Co., Ltd. (“Canning”) was the firm selected at that time and a contract was in fact prepared but not executed, as there were not sufficient funds for the project at that time. Because of the processes of government procurement, a transaction had been started through the Purchasing Division and that particular transaction necessarily had to be cancelled when funding was not available.
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. 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. 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 cancelled due to a lack of funding. The actual procurement of Canning years later when funding was available, however, was done through an exemption to more general procurement processes, which was approved by the Director of the Purchasing Division, pursuant to West Virginia law.
By 2019, the Secretary believed that funding of the murals project would be forthcoming, due to the turnaround of the West Virginia economy and substantial surplus monies becoming available for the first time in a number of years. At that time, then, the Secretary sought to pursue the murals project previously approved by the CBC, including the Secretary as Chairman.
As a preliminary matter in restarting the project, the Chairman 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. 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.
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.
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. 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.
Turning to another matter plaintiffs misrepresent: 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. 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 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.
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. 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.”
