Response from the Barnes Foundation
The Barnes Collection's move is not a 'theft' in any sense of the word
By Brett I. Miller, Esq. Web only
Published online: 08 January 2010
As the readers of Mr Feigen’s article are no doubt aware, considerable ink has been spilled on the subject of the upcoming move of the Barnes Foundation’s collection to the Benjamin Franklin Parkway in Philadelphia. My purpose in writing this response is not to add to that pool and merely retrace well-trodden ground. As the recently appointed General Counsel of the Barnes Foundation, however, as well as a long-time student and observer of the legal history of the institution, a response to some of the principal mischaracterizations and inaccuracies perpetuated by Mr. Feigen’s article is called for.
First and foremost, Dr Barnes’s will has not been “violated” or “broken.” This sweeping and oft-repeated accusation is inaccurate in both its oversimplification of the applicable legal doctrine and its implicit characterization of the effect of the Montgomery County Orphans’ Court decision to permit the reinstallation of the collection in a new building in Philadelphia. The doctrine of deviation applied by the court was developed to deal precisely with the situation where compliance with the literal terms of a trust indenture (the operative document at issue here) are either impossible or, due to circumstances not anticipated by the settler, would defeat or substantially impair the accomplishment of the purposes of such trust. The court’s charge was to divine, as best as possible, the intent of Dr Barnes and assess whether the Board of Trustees’ plan represented the least drastic modification necessary to preserve the institution and further the purposes of the Foundation established by Dr Barnes. Following years of litigation, including weeks of hearings, review of voluminous archival materials, and consideration of the numerous alternatives that had been put forth, Judge Ott came to the reasoned conclusion that the move was consistent with and furthered the primary mission of the institution established by Dr Barnes. Accordingly, and quite simply, the ultimate arbiter unequivocally determined that the move did not violate Dr Barnes’s trust.
Second, Mr. Feigen goes on to state that “[t]he public is the victim” of the move. In fact, the public will benefit from the move and many more will have access to the Barnes Foundation’s collection in the Philadelphia location. Indeed, Judge Ott observed that, based on the record, “Dr. Barnes expected the collection to have much greater public exposure after his death.” Although appealing in its capacity to fan the flames of opposition, Mr Feigen’s characterization ignores the complex reality that the Board of Trustees faced in discharging its fiduciary obligations to save the Barnes Foundation from bankruptcy in its Merion location given the institution’s long history of protracted and expensive litigation, and the impact of this legacy of discord on the ability of the institution to garner the significant philanthropic and/or governmental support needed for viability in its original location. In addition, contrary to Mr Feigen’s suggestion that the project is an untimely and inappropriate drain on public resources, the new facility on the Parkway will bring significant economic benefit to the community. The construction phase alone is projected by an independent consultant to have a direct benefit to Philadelphia and the region of approximately $150 million.
Third, Mr Feigen summarily observes that “[t]he residents of Merion want the Barnes to stay.” Although this sentiment may reflect the views of a group of vocal opponents, there is hardly unanimity on this point. Any attempt to characterize the opinion of the residents of Merion with such a broad brush glaringly ignores the long-standing campaign waged by certain factions of the local community committed to hamstringing the Foundation’s operations, which contributed, in large part, to the conditions that led to the outcome Mr Feigen and others have attempted to oppose.
Fourth, Mr Feigen opines that Lincoln University has abdicated its “inherited responsibility” with respect to the Barnes Foundation. This similarly ignores that fact that Lincoln University continues to have a significant role in the governance of the Barnes Foundation through the nomination of members of the Board of Trustees. Moreover, Mr Feigen’s comments entirely discount the fact that the Barnes Foundation and the university are working together more closely now than ever before, including collaborating on joint educational programs in the visual arts.
Lastly, Mr Feigen attempts to indict the Barnes Foundation for insufficient efforts to find an alternative to the move. The considerable efforts by the Board of Trustees to find alternative approaches, and why those efforts were not fruitful, have been detailed elsewhere, so I do not reiterate them here. What is worth reiterating, however, is that the move is not a “theft” in any sense of the word but, instead, the legitimate result of a legal process involving complex issues, the practical outcome of which is no longer in question, despite efforts of some to re-litigate the matter in the court of public opinion.
The writer is General Counsel for The Barnes Foundation
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