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West Virginia settles lawsuit over State Capitol Building rotunda mural

A proposed lawsuit settlement will leave the State Capitol Building murals in place and require a new retroactive vote by the Capitol Building Commission to approve the murals, as well as award attorneys for the plaintiffs more than $18,000. (Photo Courtesy/WV Legislative Photography)

CHARLESTON — A proposed settlement order is pending before a Kanawha County judge that could bring to an end a lawsuit challenging the legality of a series of murals installed in the rotunda of the State Capitol Building last year.

According to the agreed settlement order submitted by the parties to 8th Judicial Circuit Judge Dave Hardy, the West Virginia Capitol Building Commission is required to hold a special public meeting to fully discuss and review the eight murals painted and installed in the upper rotunda, and the commission’s contract with Connecticut-based John Canning and Co.

The Capitol Building Commission, through the Board of Risk and Insurance Management, will pay $18,500 in attorney fees to the Peyton Law Firm and Harvey Peyton, the attorney who represented West Virginia residents Gregory Morris and Tom Acosta.

“A reasonable compromise resolution of this litigation, including any alleged Open Governmental Procedures Act or Freedom of Information Act (violations), is in the best interest of all of the parties involved and in the public interest,” the order stated.

Morris and Acosta filed a lawsuit on Aug. 30, 2024, in Kanawha County Circuit Court against Randall Reid-Smith, the former chairman of the Capitol Building Commission and former cabinet secretary of the West Virginia Department of Arts, Culture and History, which has since been absorbed by the Department of Tourism. Also named in the lawsuit was an ad hoc committee appointed by Reid-Smith involved in the mural project.

The original lawsuit asked the court to declare the contract for the murals between Reid-Smith and John Canning and Co. null and void and issue an order directing the Department of Administration’s General Services Division to remove the murals, prohibit any further work, prohibit any further payments to Canning, and require Reid-Smith and Canning to repay the state for the cost of the murals.

The first four murals – unveiled in conjunction with West Virginia Day on June 20, 2024 – were painted and installed in the half-moon lunettes surrounding the upper rotunda. Those murals 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 final four murals were painted and installed in the pendentives, the curved triangular sections between each lunette. These murals depict the incarnations of commerce, education, liberty and justice. 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 artist selection process for the murals was first approved on April 14, 2010, by the Capitol Building Commission. 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, who was first appointed as commissioner of the Division of Culture and History by former Gov. Joe Manchin, has served as chairman of the Capitol Building Commission since his appointment in 2005. He has held that chairmanship since the former Department of Education and the Arts became the Department of Arts, Culture and History and he was elevated to curator by then-Gov. Jim Justice. The Legislature changed his title to cabinet secretary in 2024.

In previous statements, Reid-Smith argued that since he had been chairman of the Capitol Building Commission since 2005, he had authority to resume the 2010 mural project nine years later without a new vote. Reid-Smith also claimed there was already a contract with Canning, though that contract was not finalized after the project was halted due to cost issues.

Reid-Smith began reviving the project as early as 2019, using the 2010 vote by the Capitol Building Commission to move forward. The commission was not consulted on the look of the murals and no votes were held by the commission to approve the murals prior to the murals being installed. The commission held a retroactive 4-1 vote to approve the murals in October 2024.

“The proceedings of the Capitol Building Commission to approve, reject or ratify the mural lunettes and pendentives placed in the central rotunda of the Capitol in 2024, including deciding on the substantive content of the mural panels, are subject to the provisions of the West Virginia Open Governmental Proceedings Act,” Thursday’s settlement order stated.

“Any failures of the Capitol Building Commission to comply with the Open Governmental Procedures Act during its October 16, 2024, regular quarterly meeting were the result of inadvertence or excusable inattention and not willful, intentional or unlawful misconduct,” the two parties agreed.

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. Reid-Smith reapproached Canning as the contractor, which agreed to a price for the project similar to what the company offered in 2010.

The project is slated to cost more than $509,000 according to the purchase order agreement. According to the State Auditor’s Office, Canning was paid $509,200.

The Governor’s Office released the artist renderings of the murals in April 2024, but an ad hoc committee made up of Reid-Smith, former Department of Administration Secretary Mark Scott, two officials representing former Justice, and the director of the State Museum recommended changes to the murals, including adding a dog similar to Justice’s popular English bulldog Babydog to the Seneca Rocks mural.

“Further litigation of this issue will result in uncertainty regarding the mural lunettes and pendentives placed in the central rotunda of the Capitol in 2024 and subject the parties to the expenditure of substantial amounts of taxpayer money for litigation,” the order stated.

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

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