Recently we became aware of a posting on "Charity Governance Consulting LLC" (a web site which promotes the advice and services of its author, Jack Siegel) that comments on attempts to keep the Barnes Foundation in Merion.
Mr. Siegel's unfamiliarity with the history of the Barnes case in combination with his legal arguments made us put in a call for assistance to Marie Malaro. Ms. Malaro is a professor emeritus of museum studies at George Washington University and the author of A Legal Primer on Managing Museum Collections and Museum Governance: Mission, Ethics, Policy. With her permission, we publish her reply to Mr. Siegel:
"Someone asked me to read your August 9th opinion piece on the Barnes Foundation’s legal saga. After doing so my comment is 'You may well know your tax law but I think you need to do more work when it comes to the law regarding nonprofit governance.'
Did you ever research the legal documents that created the Barnes Foundation (the Articles of Incorporation and the subsequent contract between Dr Barnes and the Foundation) that set forth the purpose of the organization he was creating? If you had you would know that Dr Barnes did not create a museum, he created an educational organization designed to promulgate a unique way of teaching art appreciation.
Did you ever researched what happened to the Foundation after the original trustees died and were replaced mainly by individuals who did not understand that as trustees of the Foundation they were legally required to exercise 'care, loyalty and obedience' in carrying out the mission of the organization as set forth by Dr. Barnes? These subsequent trustees, whether through ignorance or design, drifted away from promoting the true purpose of the organization and then saw more opportunities in exploiting the Barnes art treasures as tourist attractions. In this transitional stage tremendous amounts of money were squandered by the then trustees on poorly conceived ventures and legal machinations designed to represent the Barnes as a museum rather than as the organization Dr. Barnes described. .
And what kind of scrutiny did you give the last court hearings on the Barnes when a group of powerful individuals, with embarrassingly obvious support from state and local politicians, decided to use the courts as a way to draw the Barnes art into the center of the city of Philadelphia? If you had researched the facts here you would have seen absolutely no basis for court application of “cy pres” or the doctrine of equitable deviation. The court action was a facade for a “done-deal”.
As a lawyer who has spent her career advising museums and similar organizations I view the Barnes saga as a sad example of the misuse of the law by those who should know better. Some of those involved in this story may be like you, they just did not do their research, but others, I fear, knew exactly what they were doing.
I think you owe it to your audience to go back and take another look at the Barnes saga. The men for Merion should be applauded."
Tuesday, September 11, 2007
Wednesday, September 5, 2007
Zaller Strikes at the Heart
FBF member Robert Zaller's current piece in the online arts journal, Broad Street Review, is a must read. The moral corruption of those in charge of the move and those who are enabling it is put on full display.
Wednesday, August 15, 2007
Zaller Responds to Jefferys
Broad Street Review just published this reply to Scott Jefferys' essay of late July (see immediately previous post):
The Barnes, yet again?
As Scott Jefferys points out in his excellent contribution to the Barnes debate, “How to keep the Barnes in Merion,” the alleged "done deal" to move the gallery collection to the Parkway is really a shell game. Going on three years after obtaining legal permission for the move, virtually nothing of substance has been accomplished toward it.
As Jefferys notes, there is no actual money for the move in hand— only pledges—and even these are far short of what a realistic estimate for a Parkway facility would entail. There is no permission to clear the site; no plan for a new building; and not even enough money on hand, apparently, to keep the fences around the Merion facility from rusting. The Barnes Foundation’s new board of directors has yet to be filled out or, as far as one can tell, to do actual work. The plan presented to the court in 2004 for a three-campus structure that would include development of the Ker-Feal estate was dead upon approval, since nothing has been heard about it since, and certainly nothing done.
The only concrete steps to ensure the financial health of the Barnes have been taken by those opposed to moving it. Montgomery County's commissioners have offered it a $50 million bond package that would give it a real (not suppositional) endowment, and Lower Merion Township has approved zoning changes that would increase the attendance ceiling from 62,400 to more than 140,000. Needless to say, the Barnes board and its Pew masters have ignored these initiatives, preferring to sustain the deficit that is the only legal rationale for a move.
The real situation now is that the Barnes is stranded, with neither the resources to sustain itself in Merion nor the funds for a move to the Parkway. This renders it vulnerable to a hostile takeover by the Museum of Art-- in the view of many, including myself, the underlying scheme all along-- or even to dismantlement. Yet the initiatives presented by Montgomery County and Lower Merion Township would, with minimally sound management, both eliminate the Barnes's current deficit and provide it with long-term financial stability.
It is obvious that any responsible and independent board would jump at them. The Barnes board, alas, is neither, but its betrayal of fiduciary responsibility does not bind the court that has ultimate control of the trust.
It is time for Judge Stanley R. Ott to vacate his former judgment and put the Barnes under court control. He will shortly be asked to do so. The Barnes saga is no "done deal." It is a rescue in progress.
Robert Zaller
Bala Cynwyd, Pa.
August 8, 2007
The Barnes, yet again?
As Scott Jefferys points out in his excellent contribution to the Barnes debate, “How to keep the Barnes in Merion,” the alleged "done deal" to move the gallery collection to the Parkway is really a shell game. Going on three years after obtaining legal permission for the move, virtually nothing of substance has been accomplished toward it.
As Jefferys notes, there is no actual money for the move in hand— only pledges—and even these are far short of what a realistic estimate for a Parkway facility would entail. There is no permission to clear the site; no plan for a new building; and not even enough money on hand, apparently, to keep the fences around the Merion facility from rusting. The Barnes Foundation’s new board of directors has yet to be filled out or, as far as one can tell, to do actual work. The plan presented to the court in 2004 for a three-campus structure that would include development of the Ker-Feal estate was dead upon approval, since nothing has been heard about it since, and certainly nothing done.
The only concrete steps to ensure the financial health of the Barnes have been taken by those opposed to moving it. Montgomery County's commissioners have offered it a $50 million bond package that would give it a real (not suppositional) endowment, and Lower Merion Township has approved zoning changes that would increase the attendance ceiling from 62,400 to more than 140,000. Needless to say, the Barnes board and its Pew masters have ignored these initiatives, preferring to sustain the deficit that is the only legal rationale for a move.
The real situation now is that the Barnes is stranded, with neither the resources to sustain itself in Merion nor the funds for a move to the Parkway. This renders it vulnerable to a hostile takeover by the Museum of Art-- in the view of many, including myself, the underlying scheme all along-- or even to dismantlement. Yet the initiatives presented by Montgomery County and Lower Merion Township would, with minimally sound management, both eliminate the Barnes's current deficit and provide it with long-term financial stability.
It is obvious that any responsible and independent board would jump at them. The Barnes board, alas, is neither, but its betrayal of fiduciary responsibility does not bind the court that has ultimate control of the trust.
It is time for Judge Stanley R. Ott to vacate his former judgment and put the Barnes under court control. He will shortly be asked to do so. The Barnes saga is no "done deal." It is a rescue in progress.
Robert Zaller
Bala Cynwyd, Pa.
August 8, 2007
Jefferys: History to Repeat Itself?
BROAD STREET REVIEW
July 2007
A Distant Mirror:
John G. Johnson and the Art Museum
SCOTT JEFFERYS
The other night, while performing Google searches on the Barnes Foundation, I stumbled upon the long-ago saga of the John Johnson art collection. It’s an old story to Philadelphians, but it was news to me. And it’s enough to terrify anyone concerned about the future of Albert Barnes’s unique collection.
John G. Johnson (1841-1917) was probably Philadelphia’s greatest lawyer of his age. At his death, the New York Times pronounced him the greatest lawyer in the English-speaking world. His clients included J.P. Morgan, Andrew Carnegie, Henry Clay Frick and the Pennsylvania Railroad, then the world’s largest corporation two times over.
In his last two decades Johnson also amassed a world-class collection of some 1,300 paintings, all of them hung in his home on South Broad Street. This is where he wanted them to remain, and he said so in his will, which donated the entire collection to the citizens of Philadelphia. Much like Albert Barnes, Johnson directed that the home and the art were to be preserved just as they were. Unfortunately, as a prudent lawyer, Johnson left a small opening that allowed his will to be changed if some extraordinary unforeseen reason arose in the future.
Coming up with an excuse
After the Philadelphia Museum of Art’s present neo-classical building opened in Fairmount in 1928, it found itself with acres of empty, fireproof gallery space on its hands. So its officials and lawyers launched a campaign to acquire Johnson’s collection. By 1933 they came up with the necessary extraordinary reason to move the collection: They convinced Philadelphia’s Orphans Court that the paintings were threatened because Johnson’s home wasn't fireproof. The home was condemned and the Art Museum snatched the 1,300 paintings, in the process becoming a world-class museum without spending a cent on acquisitions. But the court insisted that the museum honor the remaining provisions of Johnson’s will— namely, to keep the collection together, intact, as a tribute to his civic generosity and his astute eye.
Flash forward to 1989. This time the Art Museum convinced the court to allow the Johnson collection to be broken up so that his paintings could be more effectively integrated into the museum’s overall collection, allowing (as the museum’s website puts it, “for a more unified presentation of European art between the 14th and the late-19th centuries.”
Does this story sound familiar?
What Barnes knew about Johnson
Albert Barnes, who died in 1951, knew full well what happened to Johnson's collection in Philadelphia. Presumably, that’s precisely why he went out of his way to protect his collection by creating his own private foundation. He despised the Art Museum and what he saw as its commercialization of art. More than anything, he wanted his collection kept out of the Art Museum’s hands.
So here we are in the 21st Century. Once again an Orphans’ Court (this time in Montgomery County) is being used to break a collector’s will— in this case, Barnes’s. Again a world-class collection is vulnerable and seemingly defenseless, and the Art Museum is the likely savior if the Barnes’s move to downtown Philadelphia fails. Once again, such a rescue would gain billions worth of art for the Art Museum at a cost of pennies— a bargain that most museum trustees would find hard to resist.
What is the lesson here? You may find it in the more recent story of another great Philadelphia collector, Walter Annenberg. Prior to his death in 2002, Annenberg was courted for his collection by several of the world’s great art museums, including Philadelphia’s. He ultimately gave his collection to the Metropolitan Museum of Art in New York because, he said, it offered the best likelihood that his collection— what he considered the greatest tribute to his legacy— would be kept intact.
It’s not too late for Philadelphians to respect Albert Barnes’s will— and, by implication, everyone else’s— and in the process prevent other collectors from being driven away as well.
Scott Jefferys lives in Hillside, N.J.
July 2007
A Distant Mirror:
John G. Johnson and the Art Museum
SCOTT JEFFERYS
The other night, while performing Google searches on the Barnes Foundation, I stumbled upon the long-ago saga of the John Johnson art collection. It’s an old story to Philadelphians, but it was news to me. And it’s enough to terrify anyone concerned about the future of Albert Barnes’s unique collection.
John G. Johnson (1841-1917) was probably Philadelphia’s greatest lawyer of his age. At his death, the New York Times pronounced him the greatest lawyer in the English-speaking world. His clients included J.P. Morgan, Andrew Carnegie, Henry Clay Frick and the Pennsylvania Railroad, then the world’s largest corporation two times over.
In his last two decades Johnson also amassed a world-class collection of some 1,300 paintings, all of them hung in his home on South Broad Street. This is where he wanted them to remain, and he said so in his will, which donated the entire collection to the citizens of Philadelphia. Much like Albert Barnes, Johnson directed that the home and the art were to be preserved just as they were. Unfortunately, as a prudent lawyer, Johnson left a small opening that allowed his will to be changed if some extraordinary unforeseen reason arose in the future.
Coming up with an excuse
After the Philadelphia Museum of Art’s present neo-classical building opened in Fairmount in 1928, it found itself with acres of empty, fireproof gallery space on its hands. So its officials and lawyers launched a campaign to acquire Johnson’s collection. By 1933 they came up with the necessary extraordinary reason to move the collection: They convinced Philadelphia’s Orphans Court that the paintings were threatened because Johnson’s home wasn't fireproof. The home was condemned and the Art Museum snatched the 1,300 paintings, in the process becoming a world-class museum without spending a cent on acquisitions. But the court insisted that the museum honor the remaining provisions of Johnson’s will— namely, to keep the collection together, intact, as a tribute to his civic generosity and his astute eye.
Flash forward to 1989. This time the Art Museum convinced the court to allow the Johnson collection to be broken up so that his paintings could be more effectively integrated into the museum’s overall collection, allowing (as the museum’s website puts it, “for a more unified presentation of European art between the 14th and the late-19th centuries.”
Does this story sound familiar?
What Barnes knew about Johnson
Albert Barnes, who died in 1951, knew full well what happened to Johnson's collection in Philadelphia. Presumably, that’s precisely why he went out of his way to protect his collection by creating his own private foundation. He despised the Art Museum and what he saw as its commercialization of art. More than anything, he wanted his collection kept out of the Art Museum’s hands.
So here we are in the 21st Century. Once again an Orphans’ Court (this time in Montgomery County) is being used to break a collector’s will— in this case, Barnes’s. Again a world-class collection is vulnerable and seemingly defenseless, and the Art Museum is the likely savior if the Barnes’s move to downtown Philadelphia fails. Once again, such a rescue would gain billions worth of art for the Art Museum at a cost of pennies— a bargain that most museum trustees would find hard to resist.
What is the lesson here? You may find it in the more recent story of another great Philadelphia collector, Walter Annenberg. Prior to his death in 2002, Annenberg was courted for his collection by several of the world’s great art museums, including Philadelphia’s. He ultimately gave his collection to the Metropolitan Museum of Art in New York because, he said, it offered the best likelihood that his collection— what he considered the greatest tribute to his legacy— would be kept intact.
It’s not too late for Philadelphians to respect Albert Barnes’s will— and, by implication, everyone else’s— and in the process prevent other collectors from being driven away as well.
Scott Jefferys lives in Hillside, N.J.
Saturday, August 11, 2007
BF's Legal Counsel Rebutted
Philadelphia Daily News
August 9, 2007
SHAKY FOUNDATION(S) FOR NEW BARNES FUNDING
At the core of "The Other Side of the Story," Phyllis Beck's rebuttal of Deborah Leavy's excellent op-ed ("Last Gasp for the Barnes"), is the dismissal of the $50 million offer by Montgomery County as "speculative financing."
That offer is a much, much more-secure assurance of the financial future of the Barnes Foundation than the one presented by the foundations supporting the move. Their proposal states that the Barnes Foundation would have at least a $4.5 million deficit annually in Philadelphia. What institution in Philadelphia is able to cover that kind of a deficit?
These figures are based on the proposed attendance of 250,000 annually. (The Pennsylvania Academy of the Fine Arts gets 60,000.) It's highly unlikely that number could be attained year in and year out, so the deficit would be even higher, in all likelihood. Now that's "speculative financing."
With all the problems Philadelphia has trying to fund the war against crime, education and the cultural institutions that exist, how can this kind of wooly economic planning be seriously entertained?
Nancy Herman
Friends of the Barnes Foundation, Merion
August 9, 2007
SHAKY FOUNDATION(S) FOR NEW BARNES FUNDING
At the core of "The Other Side of the Story," Phyllis Beck's rebuttal of Deborah Leavy's excellent op-ed ("Last Gasp for the Barnes"), is the dismissal of the $50 million offer by Montgomery County as "speculative financing."
That offer is a much, much more-secure assurance of the financial future of the Barnes Foundation than the one presented by the foundations supporting the move. Their proposal states that the Barnes Foundation would have at least a $4.5 million deficit annually in Philadelphia. What institution in Philadelphia is able to cover that kind of a deficit?
These figures are based on the proposed attendance of 250,000 annually. (The Pennsylvania Academy of the Fine Arts gets 60,000.) It's highly unlikely that number could be attained year in and year out, so the deficit would be even higher, in all likelihood. Now that's "speculative financing."
With all the problems Philadelphia has trying to fund the war against crime, education and the cultural institutions that exist, how can this kind of wooly economic planning be seriously entertained?
Nancy Herman
Friends of the Barnes Foundation, Merion
Friday, August 10, 2007
FBF Informs Watson of National Landmark Assessment
On August 8, 2007 this letter was sent to Bernard Watson, Chairman of the Board of the Barnes Foundation.
Dear Dr. Watson:
We are delighted to share some wonderful news with you. Friends of the Barnes Foundation commissioned an overview assessment to evaluate whether the Barnes Foundation is eligible for National Historic Landmark status under the National Register of Historic Places and National Historic Landmarks Program of the National Park Service in the United States Department of the Interior. The assessment recognizes that the art collection, gallery building and arboretum are a unified whole that is integrated with the educational purpose of the Barnes Foundation.
As you probably know, National Historic Landmark status is the highest level of cultural and historical significance conferred by the U.S. government and signifies that the property is important to all Americans. The landmark designation opens up funding opportunities that are otherwise unavailable.
Friends of the Barnes Foundation submitted the assessment to the National Historic Landmarks Program and received an encouraging response which includes the following language:
The property appears to have significance as the physical evocation of an approach to art education put into tangible practice by owner Albert Barnes. We would be pleased to consider the NHL eligibility of this resource under Criterion 1.... An approach for the nomination that remains centered on the educational significance of the Barnes will also provide for a more satisfying and integrated presentation of the intangible ideas, the building and its landscape, and the diverse art collection and its management and display.
We invite your participation to work on this important project. If funding of this is a problem, Friends of the Barnes Foundation is willing to assume all costs and undertakings associated with the nomination process. All that is required from you is simply a letter of support.
We thank you for your attention and look forward to hearing from you.
Sincerely yours,
Sandra Bressler, Ph.D.
for Friends of the Barnes Foundation
Dear Dr. Watson:
We are delighted to share some wonderful news with you. Friends of the Barnes Foundation commissioned an overview assessment to evaluate whether the Barnes Foundation is eligible for National Historic Landmark status under the National Register of Historic Places and National Historic Landmarks Program of the National Park Service in the United States Department of the Interior. The assessment recognizes that the art collection, gallery building and arboretum are a unified whole that is integrated with the educational purpose of the Barnes Foundation.
As you probably know, National Historic Landmark status is the highest level of cultural and historical significance conferred by the U.S. government and signifies that the property is important to all Americans. The landmark designation opens up funding opportunities that are otherwise unavailable.
Friends of the Barnes Foundation submitted the assessment to the National Historic Landmarks Program and received an encouraging response which includes the following language:
The property appears to have significance as the physical evocation of an approach to art education put into tangible practice by owner Albert Barnes. We would be pleased to consider the NHL eligibility of this resource under Criterion 1.... An approach for the nomination that remains centered on the educational significance of the Barnes will also provide for a more satisfying and integrated presentation of the intangible ideas, the building and its landscape, and the diverse art collection and its management and display.
We invite your participation to work on this important project. If funding of this is a problem, Friends of the Barnes Foundation is willing to assume all costs and undertakings associated with the nomination process. All that is required from you is simply a letter of support.
We thank you for your attention and look forward to hearing from you.
Sincerely yours,
Sandra Bressler, Ph.D.
for Friends of the Barnes Foundation
Monday, May 21, 2007
The Voice of the Opposition
Main Line Life
May 17, 2007
To the Editor:
Re: "Committee goes on the road for new Barnes architect," by Cheryl Allison (May 3, 2007)
The six star architects vying for the coveted role of creating a Barnes Museum in Philadelphia should understand the genesis of this commission. On the other hand, the "commissioners" will no doubt keep the murky past as well concealed from the architects as they have from most of us. Unless the architects are especially keen to dig into a big pile of greed and hubris, constructed by monumentally ambitious, formidable (meaning truly dreadful) people, they will proceed in their ignorance. Even architects are human, after all, drawn in by the potential for acclaim matched only by the mountains of money accumulated by the alliance of Pew, Annenberg, Lenfest and others. Nonetheless, it will not change a basic fact: the architects will be working with fruit of a tree poisoned by massive intrigue devised over many years.
The maneuvers that brought things to this place have been hidden from the public and the news about it has been purposely incomplete in the major news channels. A striking example is the virtually unknown fact that Pennsylvania taxpayers are unwittingly contributing to the destruction of the Barnes Foundation in Merion, a national cultural treasure bequeathed to the world in perpetuity. The story about the $100 million in the 2002 state capital budget for construction of a building in Philadelphia to house the Barnes art collection cannot be repeated too often because no major papers other than Main Line Life, Main Line Times, The Los Angeles Times and The Philadelphia Daily News have been willing to print it.
For those who want to know what has gone on, a debate will be held on Monday, May 21 between Professor of History Robert Zaller and Gresham Reilly, former Director of the Pennsylvania Academy of Fine Art at Drexel University, Stein Auditorium, Nesbitt Hall, corner of 33rd and Market Streets. The time of the debate is 6:00 - 7:50 p.m. Lower Merion Township citizens should attend this important event if, for no other reason, than to hear the voice of the opposition and hear about sensible alternatives to the Pew, Annenberg, Lenfest nightmare.
Evelyn Yaari
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