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Paint By Numbers: Lawsuit filed to stop West Virginia Capitol mural project

An artist with John Canning and Co. does touchup in June on one of the four Capitol murals depicting Seneca Rocks. (Photo courtesy of WV Legislative Photography)

CHARLESTON — Just as scaffolding is going up in the upper rotunda to begin work on the final four of eight murals in the State Capitol Building, a lawsuit was filed to halt the project, accusing state officials of not following state law.

West Virginia residents Gregory Morris and Tom Acosta filed a lawsuit Friday afternoon in Kanawha County Circuit Court against Capitol Building Commission Chairman and West Virginia Department of Arts, Culture and History Cabinet Secretary Randall Reid-Smith, members of an informal committee that signed off on the final renditions of the murals, and John Canning and Co.

The lawsuit also names Department of Administration Acting Cabinet Secretary Jon McHugh and State Treasurer Riley Moore.

Harvey Peyton, an attorney representing Morris and Acosta, 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 entire project for placement of the subject murals in the Capitol is the result of a void contract entered into by Randall Reid-Smith and Canning in violation of the statutes, rules and regulations governing government purchases in West Virginia and without the mandatory approval of the CBC,” Peyton wrote.

“As a direct and proximate result of the unlawful conduct of Randall Reid-Smith and Canning, the people of West Virginia have been deprived of the opportunity to have the very best vendors involved in the selection process seeking an entity to complete the mural project in the main rotunda of the Capitol,” Peyton continued.

Peyton had filed a 30-day notice in July as required by state law notifying the state of his intentions to file suit on behalf of his clients. A request for comment from Reid-Smith – the primary focus of the lawsuit, was not returned.

The first four murals, 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 Governor’s Office released the artist renderings of the 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 Connecticut-based John Canning and Co. 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.

“The ad hoc committee held a meeting or meetings to make a decision or deliberate toward a decision regarding the final inclusion of cartoonish figures of a bird, an elk and a pet English bulldog in the Capitol, which meetings were not open to the public in violation of the express terms and the purpose of the Act and with the intention of transacting public business, thwarting public scrutiny and making decisions that eventually become official action,” Peyton wrote.

According to statements by Reid-Smith, the artist selection process for the murals was first approved on April 14, 2010, by the Capitol Building Commission, which is required by State Code to review, approve, or reject any changes to the State Capitol Building, other buildings on the State Capitol Complex, and the grounds. 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 revived the project in 2021, 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.

“…Randall Reid-Smith, in his capacity as Chairman of the CBC, has deliberately and intentionally omitted any reference to the Capitol mural deal he was making with Canning from the agenda of no less than 16 regular quarterly CBC meetings and deliberately and intentionally did not convene any special meeting of the CBC to review and either approve or reject the proposed Capitol mural project,” Peyton wrote.

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.

The project, which includes four more murals, is slated to cost more than $509,000 according to the purchase order agreement between WVDACH and John Canning and Co. 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, including prospective vendor Tom Acosta,” Peyton wrote.

Work began on the remaining mural last week, with workers building scaffolding. But despite the work that has already been done. Peyton argued that the taxpayers were deprived of involvement in the process.

“Unless the unlawful process is voided by this Court and reopened to competitive selection, the citizens of West Virginia will never know what degree of excellence they might have enjoyed,” Peyton wrote.

Steven Allen Adams can be reached at sadams@newsandsentinel.com

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