Ott Blot: Flawed "Art of the Steal" Misses the Fatal Moment

Montgomery County Courthouse, Norristown, PA

In Part I of my review of "The Art of the Steal," the new anti-move movie about the Barnes Foundation, I detailed some of the unfortunate gaffes and omissions that compromised the film's credibility.

But I left out the most important thing that Don Argott's film left out.

The documentary placed undue emphasis on a late and relatively minor legal byway in the saga---the failed attempt by Montgomery County and the Friends of the Barnes (a save-the-Merion Barnes advocacy group) to reopen the County Orphans' Court proceedings that had green-lighted the move. I rightly believed that this last-ditch effort, while laudable in intent, was doomed to fail.

But "The Art of the Steal" paid scant attention to the pivotal decision itself---the December 2004 ruling by Judge Stanley Ott of Montgomery County Orphans' Court that deemed the complicated, expensive task of moving the Barnes to Philadelphia to be the least drastic deviation from the trust indenture of Dr. Albert Barnes that could solve the foundation's serious financial problems. The institution's nearly empty coffers were endangering the very survival of the masterpiece-rich galleries that Dr. Barnes had devoted his life to creating and maintaining. In his trust indenture, he had stipulated that his collection always remain exactly where he had left it.

Any argument that the Barnes shouldn't move needs to explain how and why Judge Ott arrived at his fateful, wrongful decision. It's a task that Argott has unaccountably side-stepped.

In agreeing that the Barnes could move in order to survive, Judge Ott said (in his decision) that he:

...credited the opinions of the Foundation's witnesses that maintaining the status quo will neither generate excitement among potential benefactors nor attract the all-crucial 'alpha donors' to the cause. In the earlier hearings, it was made clear that [the] Pew, Lenfest and Annenberg [Foundations] (all three unquestionably alpha donors) have deemed the current situation to be unsalvageable; and Dr. [Bernard] Watson [the Barnes' chairman] has testified that the [Barnes] Foundation's Board has approached all other potential saviors and been rebuffed.

But the "alpha donors" from the Philadelphia area could undoubtedly have "salvaged" the "current situation" had they given to the Barnes in Merion even a fraction of what the were willing to give to the Philly Barnes. Their opinions on the salvageability of the Merion Barnes were colored by their patent desire to remove the Barnes to Philly. In crediting Watson's testimony that no other potential saviors could be found, Judge Ott was relying on a biased witness---someone clearly determined to cooperate with the high-powered forces who were pushing for the move.

But the most egregious miscarriage of justice in this case occurred because the only person in the courtroom charged with defending the interests of the public and of the deceased benefactor was in league with the proponents of the move. You don't have to take my word for this. Listen to Judge Ott, who wrote the following in his Jan. 2004 interim ruling on the Barnes case:

We find nothing...to commend the Office of Attorney General's actions in this regard. The Attorney General...had an absolute duty to probe, challenge and question every aspect of the monumental changes now under consideration....

The Attorney General was the only party with the authority to demand, via discovery or otherwise, information about other options. However, the Attorney General did not proceed on its authority and even indicated its full support for the petition before the hearings took place.

In court in December, the Attorney General's Office merely sat as second chair to counsel for the Foundation, cheering on its witnesses and undermining the [Barnes] students' attempts to establish their issues. The course of action chosen by the Office of the Attorney General prevented the court from seeing a balanced, objective presentation of the situation, and constituted an abdication of that office's responsibility.

I was in that courtroom during one of the days of the Barnes hearings and watched in amazement as Lawrence Barth, the senior deputy attorney general handling the case, fraternized with and kowtowed to the high-powered lawyers representing the the Barnes Foundation in its attempt to relocate. Notwithstanding his strong admonition of Barth for mishandling the case, Judge Ott went ahead and granted permission for the move.

I have always believed that the strongest argument for overturning Judge Ott's decision resided in this demonstrably deficient representation of the public's and the deceased's interests in those court proceedings. Nevertheless, Montgomery County did not seek to discredit the performance of the Attorney General's office when the county belatedly tried to reopen the case, because it did not feel it could properly attack another government entity.

What's more, in denying standing to the County and to the Friends of the Barnes when they requested reconsideration, Judge Ott ruled that only the Attorney General was empowered to "protect the general public, and there is no authority for a second sovereign [i.e., Montgomery County] to participate on behalf of a subset of the general public."

In other words, the only party with legal standing to represent the public in the Barnes proceedings was the same party whom Judge Ott had scathingly criticized for doing an inadequate job. The proponents of the Merion Barnes were mired in a courtroom Catch 22.

A documentary purporting to chronicle how the Merion Barnes was sabotaged ought to have focused significant attention on this miscarriage of justice.

Still, we do owe Argott and his crew a debt of gratitude for one important reportorial coup that exposed with shocking clarity another way in which public officials sabotaged the Merion Barnes: While most of the proponents of the move refused to talk to the documentary makers, they did get the former State Attorney General and the current Governor to provide direct testimony, on camera, on exactly how they had strong-armed Lincoln University, a historically black institution, into relinquishing the control of the Barnes board that had been bestowed upon the school by Dr. Barnes.

In a classic "did-they-really-say-that" moment, former Attorney General D. Michael Fisher and current Governor Edward Rendell brazenly admitted, on camera, to behavior that, if not impermissible, was surely unethical. Using rhetoric more appropriate to thugs than public officials, they discussed how they made Lincoln an offer it couldn't refuse.

Here's what former Attorney General Fisher told Argott's interviewer:

I don't know that we were directly saying [to Lincoln University], "We can take this away from you," because it would take a court to do that. But I had to explain to them that maybe the Attorney General's office would have to take some action involving them that might have to change the complexion [!?!] of the [Barnes] board. And whether I said that directly or I implied it, I think they finally got the message.

It was portrayed that I was the bad cop and the Governor was the good cop. The Governor had the money he was willing to add onto it, so that automatically made him good cop.

And here's what Governor Rendell said:

There was money proposed for Lincoln to offset some of the perceived losses that they might have. As I recall, it was about $40 million and I said, "You tell us what you want to spend the $40 million on." They weren't blackmailed into agreeing with this at all. I made it abundantly clear...that they were getting this money regardless.

That doen't jibe with how the "bad cop" described the deal. If this wasn't quite blackmail, it smacked of bribery.

It also doesn't completely jibe with the May 22, 2005 report by Patricia Horn of the Philadelphia Inquirer (reproduced here by the Friends of the Barnes), which indicates (on P. 7) that the amount proffered by the Governor may have been much higher---"$50 million for two new academic buildings at Lincoln, $30 million for 10 other Lincoln projects." Horn goes into great detail about the pressure put on Lincoln to cut a deal.

Lincoln University may not have been the ideal steward for the Barnes. The mismanagement that allowed the foundation's endowment to dwindle to next-to-nothing occurred on its watch. Still, it stood in the way of those who wanted to move the Barnes to Philadelphia and wanted to take control of its governance to make that happen. The movie makes it clear that Lincoln was bought off.

I'm not a lawyer and I don't know how, or in what court, you could bring this case. But it seems to me that the best last-minute, desperate gambit to stop the in-progress construction of the Philly Barnes would be to attack the validity of a court decision that was was tainted by what even the judge himself acknowledged was inadequate representation of the public's and the deceased's interests. A legal challenge should also attack the legitimacy of the new regime at the Barnes that (as we now know, thanks to direct evidence in Argott's movie) resulted from inappropriate actions by public officials.

Meanwhile, what does the new kid on the Benjamin Franklin Parkway, Timothy Rub, who recently became director of the Philadelphia Museum of Art, think about the Barnes' plans to move into his neighborhood?

Here's the last part of my Q&A with Rub from last October, which I have waited until now to publish:

Rosenbaum: What do you think of the Barnes move?

Rub: I think it's a settled matter.

Rosenbaum: That's not what I was asking.

Rub: I think it will be good for Philadelphia and good for the Barnes.

Rosenbaum: And good for the Philadelphia Museum?

Rub: Yes, it's nice to have neighbors like the Barnes, to bring people to the Benjamin Franklin Parkway. It's the cultural core of the city.

What this "settled matter" is not "good for" is art lovers from around the world for whom visiting the Merion Barnes is a pilgrimage to a unique, tranquil refuge sheltering a world-class art trove, assembled by a passionate, informed collector in the mansion that he had personally conceived for his treasures. It's a special, unconventional place for encountering great art in serene surroundings, where Dr. Barnes had expected his life's work always to remain. And so it should.