Katie and Steve continue discussing the Barnes Foundation with attorney Ralph Wellington, who represented the Barnes Foundation during its successful but extremely controversial multi-year effort to amend its founding documents and create a new arts education center in Philadelphia. They discuss the origins of the Foundation, its governing documents, financial struggles, and evolution over the many decades since Albert Barnes’ death in 1951, as well as the legal doctrines at play in “breaking” the terms Barnes created for the Foundation.
Resources
https://www.dilworthlaw.com/attorneys/ralph-g-wellington/
https://www.barneswatch.org/main_bylaws.html
https://www.nytimes.com/2004/12/14/arts/design/judge-rules-the-barnes-can-move-to-philadelphia.html
http://www.barnesfriends.org/downlload/legal-JUDGE_OTT_OPINION-2004.pdf
https://law.justia.com/cases/pennsylvania/supreme-court/2005/j-75-2005mo.html
https://drive.google.com/file/d/1bzsCblHNlGMJtXKb3QEuoEbsFuadnd_n/view
https://www.barnesfoundation.org/whats-on/collection/library-archives/finding-aids
CORRECTION: The Barnes Foundation’s original Marion location is now home to the Frances M. Maguire Art Museum at Saint Joseph’s University. https://www.sju.edu/maguire-art-museum
Katie and Steve discuss topics based on news and magazine articles and court filings and not based on original research unless specifically noted.
Episode Transcription
Steve Schindler: Hi, I’m Steve Schindler.
Katie Wilson-Milne: I’m Katie Wilson-Milne.
Steve Schindler: Welcome to the Art Law Podcast, a monthly podcast exploring the places where art intersects with and interferes with the law.
Katie Wilson-Milne: The Art Law Podcast is sponsored by the law firm of Schindler Cohen & Hochman LLP, a premier litigation and art law boutique in New York City. Hi, Steve.
Steve Schindler: Hi, Katie. What’s up?
Katie Wilson-Milne: We’re here for Barnes Part II.
Steve Schindler: Part II. Part I was great, I thought.
Katie Wilson-Milne: Part I was great. And I have to say, of all the topics that we’ve covered in this almost decade of doing this podcast, which is crazy to say, Albert Barnes is the densest, most complicated topic, so we’re devoting two episodes. The first one was primarily about his life and his story and project. And today, we’re going to talk about the legal messes that ensued after his death, which are really their own story.
Steve Schindler: Great. Do you want to introduce our guest?
Katie Wilson-Milne: Yes. So we are thrilled to have Ralph Wellington here with us. Ralph is currently of council at Dilworth Paxson in Philadelphia. His practice has included significant matters throughout the US in class actions, aviation and railroad law, business and corporate disputes, art law, trust and estates, and nonprofit foundations in complex matters. He has also argued many appellate matters, including before the United States Supreme Court, several US circuit courts of appeals, and numerous state appellate courts. And one of his most high-profile matters was representing the Barnes Foundation and its multi-year effort seeking court approval to break the original terms of its founding documents and move to a modernized art campus in Philadelphia. So, welcome, Ralph.
Ralph Wellington: Glad to be part of it. And except I want to say, we didn’t file a lawsuit to break the rules. We filed a lawsuit to deviate from whatever was possible in order to continue the mission of the Barnes.
Katie Wilson-Milne: Artfully put, Ralph. All right well, let’s start there. And maybe you can tell us briefly about how you ended up working for the Barnes Foundation and what you were hired to do.
Ralph Wellington: Well, the Barnes, in its struggling issue at the time, had reached out to one of my partner colleagues, former Third Circuit Judge Arlin Adams, for advice. And he brought me in to be the lead lawyer to work with him and had suggested that they should seek court approval for the changes that needed to be made.
Katie Wilson-Milne: Right, not the rule breaking, the deviation.
Ralph Wellington: That’s correct.
Steve Schindler: When was that, Ralph? When did you get involved?
Ralph Wellington: I can’t remember exactly the year, but in ’99 or 2000, something like that. It was short..
Steve Schindler: Okay.
Ralph Wellington: It was a year or two before we filed our petition.
Katie Wilson-Milne: All right, well, let’s start in 1951. Let’s rewind a little bit. Barnes dies unexpectedly in this car crash, and he leaves behind this foundation and this gigantic, increasingly valuable collection of art that was owned by the foundation. And Ralph, what was this, I guess, the legal structure and status of the foundation at that time in the early 50s?
Ralph Wellington: Again, I didn’t work for the Barnes back then, but…
Katie Wilson-Milne: No, you were probably a small child.
Ralph Wellington: I was. I think the foundation itself at the time, I think, was in good shape. And his wife, Laura, and Violette de Mazia were in charge of it at that time. But difficulties had arisen since it was a non-profit with some pretty extreme assets, but limited public access. So that it had expenses, and things were getting more expensive as decades had passed on about the costs of staff and things like that. And there was no income assets. So it was functioning, but not very public at that time. And we can talk more about that, obviously.
Katie Wilson-Milne: Yeah, and not set up to have a long-term financial plan, it sounds like.
Ralph Wellington: No, it did not. No, it had restricted investment plans. And so as costs were rising, just to maintain the Barnes Foundation and the staff and all that, its assets were going down.
Katie Wilson-Milne: Yeah, and sort of to describe how this was set up, nuts and bolts–my understanding is, you know, Barnes had basically drafted a gift instrument, a very complex document called an indenture, which set the terms of his gift to the foundation, which was art and land and these beautiful buildings that the art was displayed in and some money that was invested. And those terms were fairly onerous and complex, right? So there was this document at his death that all of a sudden is frozen in time, because he’s now dead and he can’t agree to its changes. And so all those rules in this indenture, which I guess get incorporated into the bylaws of the foundation, have to be followed. And as you said, some of those are, I mean, I was just rereading this yesterday. Some of them are like salary caps, which are absurd. They don’t account for inflation. So you’ll hire five people, and they can’t be paid more than $3,000 to $5,000 ever annually. I mean, just wild stuff, right?
Ralph Wellington: Yeah, the watchman salaries were $2,000 per year. The clerk was $2,500 a year.
Katie Wilson-Milne: It’s so precise.
Ralph Wellington: Yes, and this is not the only trust document that has been drafted in a way that then over time becomes more difficult because of the changes. And that’s one of the reasons that there are permissions to deviate from aspects. So it would be appropriate even for the board to make changes and increase the salary in this way.
Katie Wilson-Milne: So what were some of the other, there were some other ridiculous restrictions in this document. There were the salaries, there were, as you mentioned, the restrictions on investment. So after Barnes died, you could only invest in government bonds.
Steve Schindler: Of course, the interest rate was relatively low, and as prices went up and inflation hit, you were left with a sort of dwindling endowment.
Katie Wilson-Milne: That couldn’t be invested in the stock market. And they couldn’t really fundraise, right? I mean, there was, you sort of Barnes’ anti-elitist crusade. No fancy events on the campus.
Steve Schindler: Right. You couldn’t lend out the collection in any way.
Katie Wilson-Milne: You can’t sell it for sure.
Steve Schindler: Right.
Katie Wilson-Milne: Can’t reorganize it.
Steve Schindler: Right.
Katie Wilson-Milne: Can’t move it.
Steve Schindler: Right.
Ralph Wellington: One of the things that was the reality of some of these restrictions goes back to when Dr. Barnes began collecting this incredible post-impressionist and impressionist art collection. And in fact, when he was doing that, he initially wanted to make it available to people. He would, he invited people from all over the city, the country, Europe, to come and see this. And he had his own approach to aesthetic, looking at it, and so forth. And he actually had a very big show of his work at the Philadelphia Academy of Fine Arts to show off this incredible collection he had. And the reaction, public reaction to that was horrible.
Steve Schindler: Yeah.
Katie Wilson-Milne: The defining moment of his life in some ways.
Ralph Wellington: It was. And that, I mean, he wanted to have people experience this and make it available. He was showing it. And then there was this reaction of, oh, what is that crap? I’m sorry. But…
Steve Schindler: Yeah.
Katie Wilson-Milne: Way too risky, way too modern.
Ralph Wellington: So then he really got pretty angry about it and got restrictive about it. Now, again, he died unexpectedly. And at a point in another, at that stage and another 10 years or so, the art that he had collected was now beginning to start being incredibly respected.
Katie Wilson-Milne: And expensive.
Ralph Wellington: Yeah. And people might have now started to say, oh my goodness, what he collected is just amazing. But there was a restriction, his restrictions were largely as a result of just being angry about that initial public reaction to his work.
Steve Schindler: Right.
Katie Wilson-Milne: Right. And there was also, there was that whole sort of class aspect too, right? Because it was sort of the mainline Philadelphia and the sort of old guard that were in the camp of ganging up on him and criticizing the collection. And I think he then incorporated his sort of dislike for that whole group of people for which he was not a part into his kind of reclusiveness.
Katie Wilson-Milne: Yeah. And I mean that story, the way that starts with that show where Barnes is so excited and then he gets shut down and he says, I’m making it my life’s work to reject the elite class of Philadelphia, which he does. But part of how he acts out that anger, Ralph, right, is that he amends this indenture, right? He keeps changing the terms of how his gift to the foundation can be used. So at first, right, he envisions a relationship with the University of Pennsylvania, with the maybe with the Philadelphia Museum of Art, with all these.
Ralph Wellington: And he tried with the University of Pennsylvania, which was his school, for years.
Katie Wilson-Milne: Yeah.
Ralph Wellington: And the correspondence from some of the people, like, you know, the head of the Barnes, the head of Sarah Lawrence and other schools he was reaching out to–people were saying, why would I want anything to do with this angry man? With that junk you have.
Katie Wilson-Milne: Right.
Steve Schindler: Right. The letter from Sarah Lawrence was pretty exceptional.
Katie Wilson-Milne: Yeah.
Ralph Wellington: He wanted very much…Penn was very important to him. And then he ran into the Lincoln University at one point and wanted to work out something with them. And he tried to. And right before his death, he had a falling out with them, because he didn’t think they were honoring what he was hoping for in terms of the teaching he was trying to do with them. So he had these difficulties back and forth.
Katie Wilson-Milne: I mean, that is the sort of one of the amazing legal stories, is that he has this document, this gift instrument, the indenture, that he uses as a tool to enact all these, as Steve said, like these class-based sort of revenge-type politics. And I’m recalling, Ralph, that–so he has in the indenture, right, that after he dies, obviously somebody needs to control the board, and it’s not self-perpetuating. So he has, I think he has something originally about, or at some point, he has something about the financial institution that’s the treasurer appointing the first empty director, but then it rotates between the University of Pennsylvania and maybe the Philadelphia Museum of Art. And there were different very old institutions that were going to take over the leadership. And then he has these angry exchanges with people at basically all the colleges around Philadelphia and U Penn, and he just cuts them out. He just changes the indenture shortly before he dies, and he puts instead in control of this incredibly valuable and rare collection of art, this tiny black college called Lincoln University in Pennsylvania, which I think to someone who doesn’t know a lot about Barnes, just seems completely random and bizarre.
Ralph Wellington: Well, except that Barnes had an incredible affection and relationship with the Black community in Philadelphia. I mean, he was very close, and so it was not unusual for him to find an institution like Lincoln when he met the head of it. But then, as I said, he was also pulling back from that right before his death, just because he didn’t feel that Lincoln even was jumping in to appreciate the education he was trying to do.
Katie Wilson-Milne: Which sort of makes sense, right? It’s a small school. It’s, at that time, educating elite African-Americans. Julian Bond’s father was the president. Horace Mann, Thurgood Marshall went there. Langston Hughes went there. I mean, it was an extremely respected school, but it wasn’t an art historical powerhouse, right? They didn’t have an art program. And it’s not shocking to me that Barnes was disappointed that they weren’t taking on his mission as seriously and in such a sophisticated manner. But as you said, one of the most incredible things is Barnes is amping up to do it again, right? He’s amping up to cut them out and change who’s going to control it again. But then he dies before he can do it. And then all of a sudden this massive important collection is frozen and Lincoln University is in charge of its future.
Steve Schindler: Right, which is understaffed and underfunded and all of those things.
Ralph Wellington: And Lincoln didn’t even know it was…
Katie Wilson-Milne: Right. That’s the other thing, right? Lincoln didn’t know that he had done that.
Ralph Wellington: Yeah, and when he does die, Laura Barnes and de Mazia just continue. And de Mazia has a very not open desire to make the Barnes more available to people.
Katie Wilson-Milne: Yeah, yeah, yeah.
Steve Schindler: Who is de Mazia?
Katie Wilson-Milne: Yeah, just to remind our listeners. Well, she was eventually the president, but she was kind of his disciple, right?
Ralph Wellington: She was like the assistant working with him and Laura Barnes. And so he had her in that position to manage things.
Katie Wilson-Milne: Yeah, for decades, right? She was there for a very long time.
Ralph Wellington: Yep.
Katie Wilson-Milne: And she outlived him by almost 40 years. And every day, practically till she died, she kept it going exactly in his image, exactly how he wanted it. Except for maybe one aspect.
Ralph Wellington: Except for maybe, I’m just going to say, except for how he wanted it. Again, I still believe that if he had lived a little longer and the appreciation for what his collection was had started to become real…I go back to when he pulled this together, he was pulling people out and doing the show and all this, because he wanted–he was a true believer.
Katie Wilson-Milne: Yeah. So she’s in charge with Laura Barnes until Laura Barnes dies in the 60s. And while they’re in charge–we’ll call this group of people on the board, the original board, Barnes put together, the old guard.
Ralph Wellington: Yes.
Katie Wilson-Milne: There’s a first wave of conflict in the 50s, right after Barnes dies. That happens when apparently Barnes and Annenberg, who’s one of the old money Philadelphia families, didn’t like each other. Barnes didn’t really like anybody, so that’s not a surprise. But they had never liked each other. And Annenberg, who–the Annenbergs owned, the Philadelphia Inquirer, among many other publications–sort of went on a crusade against the Barnes in the 50s.
Ralph Wellington: Well, when we say crusade, they filed a lawsuit to make it available more open to the public. And they were not then allowed to move forward with that lawsuit, but ultimately the Attorney General of Pennsylvania did. And because de Mazia was not allowing much access to the Barnes at all, so the AG brought the lawsuit that Annenberg had tried to do. And it did result in an order for more public access to the collection that had been, that de Mazia was allowing.
Steve Schindler: Right. And that’s because it was a charitable foundation, and…
Katie Wilson-Milne: They were getting tax exemptions, right?
Steve Schindler: They were getting tax exempt status, and so therefore in exchange for that, you have to make it available. It can’t be somebody’s private little enclave.
Ralph Wellington: Exactly. That’s exactly right.
Katie Wilson-Milne: So then it was open two days a week, though. It wasn’t like it was open to millions of people a year.
Ralph Wellington: No, but I think it was at least two days a week, and on Saturday as well for some people who had to work during the week, there would be some access on Saturday too. So there was some expansion of it.
Katie Wilson-Milne: de Mazia really fights this, right? I mean, this starts in the early 50s, right after Barnes dies, Annenberg sues– which I don’t know why he would have standing to do this. But he raises attention, his case gets kicked out, but then he gets his newspaper to go after the Barnes, and that’s what gets the attorney general’s attention–the attorney general is who regulates charities in every state. So it’s kind of this decade-long saga which really plays out as exactly the sort of the class war, the anti-elite fight that Barnes had always taken part in and been worried about. That’s sort of an interesting first decade after he dies.
Ralph Wellington: Well, even though there was now some additional public access to it and classes and so forth because of the lawsuit, otherwise, de Mazio restricted things as much as she could until her death in 1988.
Katie Wilson-Milne: So decades go by, Laura Barnes dies, de Mazio is really in charge. And is that because, Ralph, for a while, there’s still mostly the original board or the board when Barnes dies and they defer to her, or just she has such a strong personality and she’s the only one doing the work, so the board defers to her until she dies?
Ralph Wellington: I can’t honestly say which of those are–I mean, my guess is it was probably both. It was the original board, and she was the person in charge, though, and people would just sort of let her deal with it.
Katie Wilson-Milne: It doesn’t seem that that board, I mean, obviously, we don’t know the inner workings. They did not seem that engaged, right? If you’re just reading from today.
Ralph Wellington: That is my reaction as well. But I’m just assuming that without being able to swear to it. Yeah.
Steve Schindler: Because they’re not a board that really–often in sort of charitable organizations, boards, people get onto boards because of their track record of interest and support and all that, and these are not people who really fit that mold.
Katie Wilson-Milne: They were loyal to him.
Steve Schindler: They were loyal to him.
Ralph Wellington: Just a few people who were loyal to him, and to Violette de Mazia.
Katie Wilson-Milne: I guess also to be fair, there wasn’t a lot they could do, because of the restrictions he had placed.
Steve Schindler: Right.
Katie Wilson-Milne: So their hands were tied, even if they had wanted to get more involved.
Steve Schindler: Right. They didn’t have the insight that Ralph and his colleagues brought to it later, but at the time, they must have felt that they read the indenture and they said, well, this is the way it’s supposed to be.
Katie Wilson-Milne: How does Lincoln then start to get more involved? Because at some point, that board dies, they leave, and Lincoln, as we just described, has this power to appoint the board once those original directors leave.
Ralph Wellington: Well, when de Mazia died, Lincoln was pretty much advised that no one had informed Lincoln before that, that it should have the majority of the board. And so Lincoln was informed finally after her death of that. And it did then elect the majority of the board. And that started in 1990 or around then or a little before. Yeah.
Katie Wilson-Milne: And maybe also worth noting that at that time, like around 1990, Lincoln University is not the same place as it was in the 1940s, right? It is an underperforming state-subsidized institution. It is not where the Black elite of America are going.
Ralph Wellington: Yeah, it had changed over time too.
Katie Wilson-Milne: And all of a sudden, they are in charge of running what is now probably already worth a billion-plus dollars.
Steve Schindler: In the collection.
Katie Wilson-Milne: Yeah, in the collection.
Steve Schindler: With less and less money to run it with.
Katie Wilson-Milne: With less and less money. So that just seems like a disaster from the start. So they do it though, Ralph. They do start appointing the board.
Ralph Wellington: Yes. And that new board at least does try to make the Barnes a little more available to people. And the new leader, Glanton.
Katie Wilson-Milne: Richard Glanton.
Ralph Wellington: Richard Glanton was appointed. And there was some effort to make the Barnes more available at that point.
Katie Wilson-Milne: Who is Richard Glanton? Because I mean, he’s a pretty significant player after.
Ralph Wellington: He was a lawyer. And he actually did take some effort in a positive way toward the Barnes. I mean, he–given the need even in Marion, at that time, of the facility. It had no air conditioning, for example, and things like that, had real issues. And he did convince the board to go to court and try to get approval to have some paintings sent on a tour–the Barnes shut down for a bit–have some paintings sent on a tour to raise money for that only, not to sell paintings. And that was approved because the Barnes money-wise again was in difficult times at that point, and it had some serious issues on the structure in Marion. But he also was a little bit aggressive, in some ways, toward the neighbors, but then the neighbors were getting aggressive toward the Barnes.
Katie Wilson-Milne: Yeah, we’ll talk about that. So Glanton, my understanding is he had had a relationship with Lincoln. I forget if he worked for Lincoln, but he had a relationship with them, so they asked him to be on the board.
Ralph Wellington: I think that’s correct, yeah.
Katie Wilson-Milne: And then he became president. I read he declined a salary, because the president had been the sort of CEO person. He declined his salary, but he ran it. I don’t think there was an executive director at that time. There was no one…
Ralph Wellington: No, I don’t think so.
Katie Wilson-Milne: …which is also kind of crazy. So he is an interesting guy. He’s a Republican. He apparently has an aggressive personality. He does not feel loyal to Barnes’s original intent in the way the prior board had. So he, in the 90s, takes a look at what’s going on, which as you said, Ralph–no air conditioning. Some of the artwork I think was actually rippling from the humidity, like the paint is falling off the wall. Really weird stuff. And he says, we’ve got to do something. And so he has this idea which a lot of people do have, which is, okay, wait a second, we have a billion dollars worth of art and we have no money. Let’s just sell some art, right? Like this is not rocket science. Let’s sell some art. So he goes to the Orphans Court–still my favorite court name in America–which is the sort of the probate trust and estate, will, non-profit court in Pennsylvania. And he asks if he can sell, I don’t know, a dozen-plus paintings to shore up the financial health of the foundation. And the public outcry is immediate, right? And loud. And he stops pushing for that. He doesn’t get that. There are no works sold. So he has plan B where he goes back to the Orphans Court and he says, look, instead of selling work, let the Barnes Foundation break the indenture so we can send this artwork around on an international tour, make some money doing that, have a glossy catalog, and we’ll make some money to do needed improvements while the art is out on tour, and we’ll have a little bit of an endowment again. And he does get that through, right? The court allows that, and that happens. And I read that it was one of the most successful international art tours of all time.
Ralph Wellington: Yes. And one of the realities of that was that now people are going, oh my gosh, look at the stuff that Albert Barnes brought together 90 years ago. 80 years ago.
Katie Wilson-Milne: That’s a good point.
Steve Schindler: Right. We haven’t been able to make it to Marion.
Ralph Wellington: Right.
Steve Schindler: But here we can see this amazing art in these big museums. And they made a lot of money from it, too. It was millions of dollars, which is kind of…
Ralph Wellington: Which was for the structuring improvement out there in Marion, the building improvement.
Katie Wilson-Milne: But as you said, Ralph–that’s a really great point–that in a way, that tour was the first access the public had to how great the collection was, right? And the people, how could they have been interested, because they couldn’t see it? This is sort of pre-internet, at least the internet in the way we know it. And all of a sudden, they’re like, wait a second, there’s this incredible, the best collection in the world of late impressionist, post-impressionist, early modern work, and people start paying attention.
Steve Schindler: Yeah.
Ralph Wellington: Yeah. And wait a minute, this place is open two days a week for three hours? Right.
Katie Wilson-Milne: I literally can’t go see it in Marion. How crazy. I cannot see this again. So, you mentioned, Ralph, that there was a conflict with the neighbors, and that’s kind of a second wave of litigation, right? That happens with the Barnes.
Ralph Wellington: Yeah. Well, this was one of the things that Glanton wanted to do, was expand the times when the Barnes could be open to people, and well, they needed a larger parking area. And the neighbors had opposed that. Oh, and they also, one of the things they had done was gotten approval…When I say neighbor, people who lived on the street across from the Barnes.
Katie Wilson-Milne: This was a suburb of Philadelphia.
Steve Schindler: A sort of fancy suburb, right?
Ralph Wellington: Fancy residential. And one of the things Albert Barnes did years ago, he would bring students, Black kids from the city out for classes at the Barnes, and one of the things the neighbors did was go to court to get–but it’s not the court. Excuse me, go to the…
Katie Wilson-Milne: Yeah, town planning or something, right?
Ralph Wellington: Yeah, to get buses being barred from being on their street. So kids couldn’t be brought out from the city anymore for classes, which is one of the things Albert Barnes always did, and that was barred. The number of hours it could be available were still, were actually partly limited by the Montgomery County government. I guess the neighbors just didn’t want this thing to be expanded and even more available.
Katie Wilson-Milne: Yeah, and you make a good point about who Barnes was bringing, who he wanted to bring to the foundation. He did not want the typical resident of Marion, right? He wanted poor working class African-American people to come and they didn’t live in Marion.
Ralph Wellington: That’s always the case. I mean, he used to teach classes in his factory where people worked.
Katie Wilson-Milne: It really is a crazy conflict.
Steve Schindler: Right, and I guess if you think about where this building was in this quiet residential affluent suburb, they probably didn’t want just like streams of buses sort of coming in. I mean, maybe they didn’t like the people who were coming, but it’s just–
Katie Wilson-Milne: Yeah, a little racist.
Steve Schindler: Yeah, I’m sure. No, I’m sure it was. I’m sure it was.
Katie Wilson-Milne: And the buses.
Steve Schindler: And the buses and all that, yeah.
Katie Wilson-Milne: But as Ralph was saying, so the collection goes on this international tour. Now everyone wants to go, so the Barnes Foundation says, all right, we need a parking lot so that people aren’t parking on your street. And the neighbors say, oh, this is our chance to shut this down. And it’s not just that they have this conflict. There’s dueling litigation, right? They sue each other. Montgomery County sues the Barnes. Barnes sues–Glanton basically instructs the Barnes to sue back. Then he says, it’s racist somehow against him, which I don’t think that was thought of as credible, but just that it’s this nasty, expensive, again, years and years and years of litigation antagonizing your neighbors. And the Barnes doesn’t win, right? It’s just a resource suck.
Ralph Wellington: Yep. And what Barnes had pulled together is now being incredibly appreciated worldwide after that tour and after people finding it. And, well, no, you can’t come see it. No, you can’t bring kids out to do it. And no, wait a minute.
Katie Wilson-Milne: Yeah. So it’s an inevitable conflict. But so the financial health of the foundation at this time is terrible, right?
Ralph Wellington: It is just, you know, yeah, they had the money from the tour, which was for physical improvement out there, though. But the cost of things, obviously, was we’re now living 80 years after Albert Barnes had created this. And organizations are not donating to this, to the Barnes, because it’s just too restricted. A lot of people are not, because it’s so restricted. So it’s losing money and doesn’t have a way to gain it.
Katie Wilson-Milne: And even by the 70s, right, the board has to dip into the principle of the endowment, because of the inflation at the time, right? So they had been long dipping in to the principle and eroding it. And I think by the time Glanton gets involved in these lawsuits with the neighbors, they’re spending way more money than the budget allows, right? That you spend now, there’s millions of dollars in legal fees, and that’s more than the foundation even has to spend. So this is just like, what on earth was the board thinking would happen at that time? There’s literally not enough money to keep going. They call you, or they call your partner.
Ralph Wellington: Well, again, now that the art of the Barnes collection has been discovered by the world. Now, the board at this point, and by the way, the board brings on a new chairman, Bernard Watson, who is a really sane, calm guy, and the board wanted to make what Albert Barnes had created available to people.
Katie Wilson-Milne: I guess we should say Glanton gets basically fired, right? He becomes way too inflammatory of a figure. I think there were some personal allegations against him, so they let him… He’s voted off, right?
Ralph Wellington: He’s voted off and Bernie Watson is brought on.
Katie Wilson-Milne: And then they hire at that time, they do hire, finally, an executive director, a professional staff person, to run things–with no money–but they hire someone.
Ralph Wellington: Yep, yep.
Steve Schindler: But then eventually all of these Philadelphia foundations come forward, right, and offer to bail them out, offer to come up with the money that they need. How did that happen? I mean, these are all of the kind of families and foundations and organizations…
Katie Wilson-Milne: Barnes hated.
Steve Schindler: …that Barnes despised. And all of a sudden, I guess, maybe because of this tour, maybe because sort of the additional attention to this work, but all of a sudden, you have a group of these sort of major Philadelphia families and foundations willing to come forward and put up a lot of money to bail out the organization with conditions.
Ralph Wellington: Well, I was not personally involved in those connections, so all I can say about that is, my understanding is that there had been some reach out effort by a board to one or two of those organizations for financial support. But again, for those, it had to be available in a way.
Katie Wilson-Milne: The collection had to be available.
Ralph Wellington: The collection had to be available. So yes, when the decision was made to seek those three organizations…
Katie Wilson-Milne: And that’s, sorry, that’s the Annenberg Foundation, Pew Charitable Trust and the Lenfest Foundation. Those are the three, which are like the three major, major players.
Ralph Wellington: And that they would support the creation of the new facility.
Katie Wilson-Milne: But how did that come about? So my understanding is the Getty Trust makes a grant, like a half million dollar grant or something to…I thought it was–read something that the Barnes actually had never even inventoried its assets. Like they didn’t even know, the archive wasn’t inventoried. So maybe the Getty…I think the Getty makes an initial grant to do that, but the Getty is not interested in taking over the Barnes and the Barnes isn’t interested in becoming the Getty, so…And then they get a few other smallish grants, maybe including from those Philadelphia foundations. But it’s obviously not enough. And so that’s when I think Annenberg, Lenfest, Pew say, look, no, we’re not going to bail you out unless you drastically change how things are done here. But did that always mean moving? Because Ralph, it seems like it became the most controversial part of this complete remake of the Barnes, was that they were leaving this building that was built by Barnes to house this collection in an exact, precise way.
Steve Schindler: Right.
Katie Wilson-Milne: Where did the idea come from? That those three foundations would bail the Barnes out, but with the condition that the board would expand and the Barnes would relocate. I mean, why?
Ralph Wellington: Well, that it would be available.
Katie Wilson-Milne: And why couldn’t it be available in Marion?
Ralph Wellington: It had been totally restricted. It couldn’t expand its parking. It couldn’t expand the number of hours. It couldn’t have the buses bring kids in, which those kids are still brought to the new Barnes, you know, and–for classes. And again, the trust document itself, Paragraph 11–should it ever for other, the collection ever become impossible to administer the trust hereby created concerning the collection of pictures and the property and funds contributed by the donor shall be applied to an object as near scope as possible. And such application to be in connection with an existing or organized institution then in being and functioning in Philadelphia, Pennsylvania or its suburbs. So the trust document itself even says, look, fundamentally, figure out how to do it with some place even in Philadelphia. So it’s not that Barnes excluded that even, because instead of having to make a connection with an organization in Philly, it could be itself in Philly and run it.
Steve Schindler: Right. And yet there was strong opposition to this. This is what I always find sort of interesting.
Katie Wilson-Milne: Passionate.
Steve Schindler: And passionate opposition. And I will say the first time when I first got introduced to this sort of post-Barnes sort of legal situation, we started teaching– I watched the movie The Art of the Steal.
Katie Wilson-Milne: You and everyone else.
Steve Schindler: Right. And everyone– That’s how you learned about it. And obviously, I know now that that was a movie that had a very strong bias to it. And it sort of–but it’s kind of infected my thinking about it, you know, from very early on, that if the only thing that you could draw from that was that Albert Barnes would have wished for anything but this, for these influential families to bail them out and to have all of his art moved in its entirety to downtown Philadelphia.
Katie Wilson-Milne: To be controlled by the very people.
Steve Schindler: To be controlled by these very people essentially. And so that’s why, and I think your lawsuit and the actual, the arguments that you made, really sort of turned that on its head in a very, sort of, in some ways very elegant way. And trying to understand why actually, Barnes, if you look at the essence of what he did, that he would have approved of this potentially. I mean, I think that’s…
Ralph Wellington: And in fact, well, and I just read from the trust that even includes Philadelphia in the, you know, potential thing. But The Art of the Steal, which I refer to as a mockumentary, I mean, there are many statements in that. I mean, it is, it was funded by the opponents and made to reflect their views. But I mean, among the things they say is that he chose Lincoln to run things, because he never wanted anything to do with Philadelphia, where in fact, for decades, he tried to get University of Pennsylvania, which is in Philadelphia, to be the successor trustee. I mean, there are many other things, too, but anyway.
Steve Schindler: But who were the people behind that? If you can just even describe the opposition here, the people who opposed your application to the Orphan’s Court and who were behind this mockumentary, as you call it.
Ralph Wellington: I can’t name the individuals.
Katie Wilson-Milne: That’s okay. You can speculate.
Steve Schindler: Generically, like who are they?
Ralph Wellington: Some of the literally opposing neighbors, I know, were involved with it. But there were a couple of former employees at the Barnes who felt that way, too, I think, who were involved in it.
Katie Wilson-Milne: And students, right? Former students?
Ralph Wellington: Some former students. So there were–I don’t know the names of who were behind it. My only role in Art of the Steal is, I appear in the last scene. They didn’t ask me. But the last scene is a shot of the courthouse with the door shutting, and I’m the lawyer standing inside.
Katie Wilson-Milne: So maybe we should say the way this worked was your firm gets hired, because the board has decided they want to deviate from the strict terms of the indenture. And so they have to go to court to be able to execute this plan with these three foundations.
Steve Schindler: And there’s a legal term of art called deviation.
Katie Wilson-Milne: Deviation and cy pres, right?
Steve Schindler: Talk about what they are.
Katie Wilson-Milne: And what are those, Ralph? Like, what is the legal mechanism where you can break a document?
Ralph Wellington: You just have to show that the mission, the main mission, is what you are trying to continue. You’re not going to court and saying, oh, yeah, this is the Barnes Foundation art, but we want to change it into an organization that makes food for something or other, I mean…
Katie Wilson-Milne: Right.
Ralph Wellington: No, we want the Barnes Foundation to be what Albert Barnes wanted it to be, and deviation here is, we’re just going to move the location so it can do that mission. And, you know, the judge ultimately–that yes, the mission can continue here in a way that it should, and that Barnes would appreciate given what he had done, and it’s not being allowed to do that out.
Katie Wilson-Milne: But the legal doctrine, this is actually a legal doctrine called deviation, you had to go to court, right, Ralph, because the terms of the indenture were strict and you weren’t going to be following them, right? So the concept of deviation is that the court gives you permission to sort of break the administrative logistical aspects of the restriction as long as you’re still adhering to the donor intent or the real charitable mission, right?
Ralph Wellington: Yeah, that’s it. You get permission to change some of the restrictions in order to continue the mission. That’s fundamentally it.
Katie Wilson-Milne: Did you anticipate the opposition that Steve asked you about? I mean, was that, did you know that was coming?
Ralph Wellington: We expected there to be some opposition. We didn’t know where it would come from. But the judge, Ott, who was really great on all this, there were a group of opposing people, including the neighbors and others who were doing, he granted them the right to be a party, even though they don’t have technically a standing, in order to that everything at issue could be completely open and discussed and dealt with. So they were there, they had their own witnesses, etc., etc., etc. But that was to make sure that all the issues could be raised and that the judge had to make a decision whether we were breaking the purpose of the trust or only trying to enable it.
Steve Schindler: Right. And I guess to your help by the fact, and I read your closing argument and enjoyed it, but you sort of go through what are the options here, right?
Katie Wilson-Milne: This is reality.
Steve Schindler: The reality is, okay, this art that’s worth maybe billions of dollars, you could sell the art, but then once you sell the art, then you don’t have it anymore, and that surely couldn’t have been Mr. Barnes’s–what he wanted. He took such pains to collect this art, so then selling some portion of it wouldn’t make sense. They were selling other things related to it, furniture and the like, but that wasn’t going to raise enough money to actually do the trick. So in some ways, the path of least resistance, and, as you argued, actually consistent with what he really would have wanted, was moving all of the art to Philadelphia.
Katie Wilson-Milne: To stay together.
Steve Schindler: In a new facility where it could be hung and was hung in the same manner and order in which he wanted it.
Ralph Wellington: And even a couple of the experts hired by the opposing sides who assessed art value that could be sold– I mean, when I cross-examine them–well, no, I wouldn’t sell that.
Katie Wilson-Milne: Yeah. Actually, that’d be a terrible idea.
Ralph Wellington: I wouldn’t sell that, Courbet.
Katie Wilson-Milne: So how are we going to pay for it? I mean, you’re not even insured. How could it be insured if you can’t pay? Insurance for a collection like that is insane, right? It’s just, I think there’s so many things like this, and that–I totally agree with Steve. It’s one of the most powerful arguments is that we live in reality, like, what is your alternative? And as you point out, and Judge Ott makes clear in his decision, there was no good alternative proposed. First, it was, let’s sell some art. And then it was, well, I’m sure we can find the money, right? But the opponents had no concrete proposal for how to save the Barnes. And without an alternative…
Ralph Wellington: Other than selling things.
Katie Wilson-Milne: Other than selling things, which…I also just want to say how ironic I find it that the neighbors who created the…partially created a situation in which the Barnes could not thrive in Marion, then opposed its movement to Philadelphia, right? Like, you can’t have it both ways. You can’t limit the Barnes’s ability to expand and change in your neighborhood and then try to go to court to prevent it from moving anywhere else. Yeah.
Ralph Wellington: You know, we’ve said the neighbors a few times, and I’m not pointing bad fingers. I mean, they had their, what they believe was an appropriate position. But there was also a few other people who supported them too, not just the neighbors.
Katie Wilson-Milne: What’s the sort of best faith statement of the opponents? What’s their best argument? Because I actually don’t understand it that well. You know, what did they think would happen if they prevailed?
Ralph Wellington: What would happen would be that the Barnes would stay there.
Katie Wilson-Milne: But it would have gone bankrupt, right? I mean, I don’t think that would have happened.
Ralph Wellington: If it had to stay there, maybe it would have had to force–to sell that Ker-Feal place and the other things, you know, so that it could raise the money.
Katie Wilson-Milne: So they would have had to go to Orphan’s Court to get–be allowed to do that too. I can’t play it out of my mind in a way.
Steve Schindler: Maybe the only way would be to go back to the mandated salaries from the 1930s and say, okay, we can move forward as long as we can just pay the director, you know, $3,000 a year or something like that.
Katie Wilson-Milne: Audit from the Department of Labor, that’s going to be easy to deal with. Well, and we know that Annenberg, Pew, Lenfest, they said to the court, we will not give any money unless you were allowed to expand the board and move to a new campus. There’s no money coming from us unless this happens.
Steve Schindler: Right. And then expanding the board, too, was obviously necessary for both fundraising and, you know.
Katie Wilson-Milne: Professionalization, really.
Steve Schindler: Yeah, exactly.
Katie Wilson-Milne: So, just because we’re lawyers, I find this, that the opposition was given the right to intervene as a party very interesting, because what we understand is that the two parties that have standing are the foundation itself, which is the petitioner asking to be allowed to change, and the Attorney General of Pennsylvania, which is the regulatory body for charities in that state. And that’s who has standing, right? That’s who can go to court. And what was the AG’s position, Ralph?
Ralph Wellington: The AG’s position was open to hear. It was not opposed. It was not in favor. It was, we need to be here and be present and see what the Barnes is going to attempt to establish.
Steve Schindler: Did they ever come to a conclusion on that?
Ralph Wellington: Yes, they did not oppose what the Barnes sought.
Katie Wilson-Milne: So part of allowing the opponents to have standing as a party, which is again unusual and not legal per se, was maybe to allow the Attorney General also to hear the full spectrum of ideas and arguments.
Ralph Wellington: Oh, I agree. And it was the right thing for the judge to do, because it was a significant effort by the Barnes. And it was appropriate for the judge to make sure everything was possibly raised that should be.
Steve Schindler: Right. And as you said, it was a long proceeding. I mean, there were many days of actual hearings with testimony from witnesses, experts, cross-examination and the like.
Katie Wilson-Milne: Yep.
Ralph Wellington: We had two hearings and they were each several days long.
Katie Wilson-Milne: And the plan itself, Ralph, was, as we said, expand the board and then move the entire collection, which included art, but also furniture and decorative objects arranged precisely by Barnes himself, like they had never been rearranged, to move it in its entirety in the same arrangement, same room sizes to a newly built building to hold it the same way in Center City, Philadelphia near the Philadelphia Museum of Art. That was the main proposal.
Ralph Wellington: Yes, the galleries were recreated in the same size and all the art, everything was put exactly as they were in the galleries in Marion. And then, an additional space was also built.
Katie Wilson-Milne: Right, the building doesn’t look the same, but when you go and see the art, it’s supposed to feel the same. Did you have to ask for permission to fundraise differently, to charge admission at a higher price? That had already been allowed.
Ralph Wellington: Yeah.
Katie Wilson-Milne: Okay.
Ralph Wellington: No, we did not ask for any of that. In addition to the galleries that are all the same size, we asked for permission to put in a meeting area so classes could be held there as well in front of the paintings.
Katie Wilson-Milne: But it really was, sounds pretty restricted to the movement of the art to a new building, not other big institutional changes. Because I guess when Glanton had gone to court, I mean, the Barnes had gone to court, when Glanton was president in the 90s, he had also asked to be able to charge admission then, right? So some of this had already changed, because I think that was not originally allowed.
Steve Schindler: I guess just thinking about a little bit about the history of this and, you know, where Barnes got it right or got it wrong, do you think there was a better way to go about this? I mean, having an indenture that was so specific and so impossible really to live up to, I mean, thinking about it from the point of view of people who are thinking about their legacies and their estates, it seems like he kind of, because he was so strong-willed, maybe doomed himself in a way.
Ralph Wellington: He was a strong-willed person. I think there’s no doubt about that. The difficult restrictions were what Albert Barnes created, and they were pretty much applied until changes needed to–had to be made to keep it going.
Katie Wilson-Milne: What’s amazing, I think we said this with Blake, but you can imagine Barnes angry, having a very precise mission, putting these restrictions in place. What’s harder for me is that a lawyer would agree that this was a great long-term plan. But that is what happened. He had the best legal counsel. He wasn’t just doing this alone. So, if a non-profit client came to us–or collector or an artist–you know, wanted to create a non-profit entity and we were looking at the potential long-term governing terms, we would never advise anything like this, right? Because we would say right now, this is not sustainable in the long-term. Think 50 years ahead.
Steve Schindler: But I guess you’ve never had a client that rejected your advice.
Katie Wilson-Milne: Oh, I have actually. Right.
Steve Schindler: I mean, I have no doubt that you would advise that, but I could also well imagine a very strong-willed client and certainly one like him saying, thank you very much, counsel. Thanks so much.
Katie Wilson-Milne: You’re fired.
Steve Schindler: You’re fired.
Ralph Wellington: Bye.
Katie Wilson-Milne: But I do think, I mean, this would be unusual, very unusual today.
Steve Schindler: Sure.
Katie Wilson-Milne: I think it was unusual at the time, but it, you know, we have norms around non-profit governance and how you think about long-term viability and flexibility. And we also have these examples now, right? We have examples of not just the Barnes, but other non-profit institutions that either received gifts with restrictions or were founded with a number of restrictions that also had to go to court. So we’ve learned this lesson, I think, over the century where, you know, we have the benefit of that wisdom. All right, last question for you, Ralph–that I have–is, so after you win this case, the Barnes wins this case, we break ground in Philadelphia and eventually, obviously, the Barnes moves and it’s absolutely magnificent and one of the gems of American art. Does the opposition die down? I mean, what sort of happens to that fervor and fury about this?
Ralph Wellington: It did seem to just fade away.
Katie Wilson-Milne: People love the Barnes now. I mean, I don’t get a sense it’s mired in controversy today.
Ralph Wellington: If I don’t get any sense of controversy about it, but again, that’s just me, but I don’t get any sense… I’ve not seen any disputes about it or anybody raising issues about it or anything. I mean, the number of classes are substantially more than they used to be. People taking them–the number of people coming to just admire the collection and look at it, try to look at it in a way that he wanted us to do with all the similarities of the line and color, and so forth. And I don’t think I’ve seen any negative reaction to this.
Steve Schindler: And I have to imagine, certainly with the passage of time–we’re talking about some very technical issues within a legal document, but it just has to be the case that not that many people, after a certain amount of time, who are not intimately connected, are going to care very much about what Albert Barnes said about whether to move the collection or not to move the collection.
Katie Wilson-Milne: Yeah, nobody cares.
Steve Schindler: They just care that they’re enjoying it in a place that’s accessible without having to drive to a suburb of Philadelphia.
Katie Wilson-Milne: Where they can’t park.
Steve Schindler: Where they can’t park.
Katie Wilson-Milne: And they also can’t get in, because it’s not open. What happened to the Marion building?
Ralph Wellington: It’s still there and there’s still the arboretum out there. So that’s used, I think, for classes for that and so forth. There’s not a museum there anymore. But I think if you sign up for arboretum class, you can probably…
Steve Schindler: Yeah. There you go.
Katie Wilson-Milne: So that’s interesting that that property was kept. And also his summer house, his summer house, which was like–
Ralph Wellington: The Ker-Feal is still kept. And sometimes classes would be taken out there to look at the collection he had out there of that too, because he had put all this stuff together out there.
Katie Wilson-Milne: Right, in the same way. Yeah. Right.
Ralph Wellington: Yeah. And I don’t know whether they’re still doing any classes out there or not, but that collection is still there too.
Katie Wilson-Milne: Yeah. It’s amazing. It’s actually more than even the current Barnes Foundation can manage, having those three properties, but it would be great someday to go be able to go see it. Well, thank you so much, Ralph. Thank you, Ralph. This was a treat.
Steve Schindler: Yeah. It was a real pleasure. And that’s it for today’s podcast. Please subscribe to us wherever you get your podcasts, and send us feedback at podcast@schlaw.com. And if you like what you hear, give us a five-star rating. We are also featuring the original music of Chris Thompson. And finally, we want to thank our fabulous producer, Jackie Santos, for making us sound so good.
Katie Wilson-Milne: Until next time, I’m Katie Wilson-Milne.
Steve Schindler: And I’m Steve Schindler, bringing you the Art Law Podcast, a podcast exploring the places where art intersects with and interferes with the law.
Katie Wilson-Milne: The information provided in this podcast is not intended to be a source of legal advice. You should not consider the information provided to be an invitation for an attorney-client relationship, should not rely on the information as legal advice for any purpose, and should always seek the legal advice of competent counsel in the relevant jurisdiction.
Music by Chris Thompson. Produced by Jackie Santos.