Barnes Foundation Case Back in Court Monday

A class at the Barnes

On Monday morning, Judge Stanley Ott of Montgomery County Orphans' Court will hear arguments from lawyers for two opponents to the Barnes Foundations' planned move to Philadelphia---Montgomery County and the Friends of the Barnes (an ad hoc citizens' group). These two entities want Judge Ott to grant them standing to argue in court for a reconsideration of his decision allowing the move. Their argument for a new round of arguments is based on recent developments that the petitioners say would make it economically feasible for the foundation to remain in Merion, PA, where collector Albert Barnes stipulated it should remain.

I wish them luck. I think they'll need it.

Having read the briefs, including the one filed yesterday by lawyers for the Barnes Foundation, I very reluctantly find the foundation's "too little, too late" argument against reopening the case to be legally (but not ethically) persuasive. As for the dicey ethics---I believe that the trustees of the foundation did not take sufficiently vigorous steps to improve the Barnes' financial viability in Merion, because they were keen to move to Philadelphia. For example, after Judge Ott ruled that they could immediately expand the board to help bring some fresh funding to the table, they inexplicably failed to do so.

I also believe that the trustees, had they wanted to, could have raised the money needed for the foundation to remain viable in situ. I detailed how this might have been done in my Jan. 10, 2004 NY Times Op-Ed piece. I believe that Judge Ott made the wrong decision when he allowed the Barnes to move, and I believe that decision was inconsistent with his own previously stated opinion that to be approved, the move would have to be the least drastic modification to Barnes' trust indenture needed to insure the foundation's survival.

That said, I agree that the county's $50-million offer to the Barnes is (as the foundation's lawyers assert) more akin to a loan than a purchase, because it must eventually be repaid. The Barnes' lawyers, in their just-filed brief, punch holes in the county's argument that paying back the $50 million won't present problems, and they argue that it's too late now to advance proposals to save the Barnes that should have been made during the first rounds of the legal proceeding, not three years after the decision.

For me the strongest argument for throwing out the Philly-friendly decision is that the lawyer who was charged with being the watchdog for donor intent---Lawrence Barth from the Pennsylvania Attorney General's office---was so clearly on the move-to-Philly bandwagon that he was strongly admonished for his mishandling of the case by Judge Ott himself. But despite this, Judge Ott ruled for the move.

We need a do-over. I doubt we'll get one. I hope I'm wrong.