A possible lawsuit against the State of West Virginia could seek to hold Randall Reid-Smith, secretary for arts, culture and history, personally responsible for the cost of a mural that includes an image of the governor’s dog.
The state has been provided with notices of potential lawsuits on behalf of two separate citizens — notice that is a requirement and standard procedure for court actions against state government. One of the potential plaintiffs is Tom Acosta, an artist and town councilman in Kimball, McDowell County. Acosta is identified in the filing as a prospective vendor with an expression of interest in the mural project.
“Mr. Acosta will seek all the relief to which he is entitled. This will include holding Secretary Reid-Smith personally liable for the cost, to date, of the John Canning contract which resulted from the willful and intentional violation of purchasing procedures of West Virginia,” according to the notice of civil action filed by attorney Harvey Peyton, an art enthusiast, on behalf of Acosta.
Another notice filed on behalf of potential plaintiff Gregory Scott Morris asks to compel removal from the Capitol Building “the substantial physical changes” to the Capitol that include “a domestic pet of the governor in one of the murals.”
That notice indicates Morris “hopes the planned litigation can be avoided” and “is willing and open to reach a pre-suit resolution.”
An image of the governor’s beloved pet, Babydog, was unveiled last month as part of a mural of West Virginia history and culture at the state Capitol Rotunda. The bulldog can be seen on a knoll with Seneca Rocks in the background and near images of an artist, a couple dancing and some musicians.
The murals were characterized months ago as a project to “depict iconic state scenes and landmarks” in line with the vision of famed Capitol architect Cass Gilbert. An initial image of the Seneca Rocks scene did not include a dog of any kind.
Several times over the past few months, Reid-Smith has described context of Gilbert’s unfinished vision for the Capitol, suggesting features like murals could not be completed originally because of their cost.
Reid-Smith, in public remarks, has said the Capitol Building Commission — the appointed board that reviews and approves or rejects all plans for substantial physical changes to the grounds and buildings of the State Capitol complex — engaged in consideration beginning in 2009 and approval of starting the process on April 14, 2010.
Reid-Smith did not describe further involvement of the Capitol Building Commission, which now has different members. The dog whose likeness is portrayed was born in 2019, a decade after the Capitol Building Commission provided initial approval of the mural project.
The secretary said a different group of executive branch representatives reviewed the specific mural scenes: himself, state museums director Charles Morris, administration secretary Mark Scott, senior adviser Ann Urling and Rebecca Blaine, director of intergovernmental affairs.
That group, Reid-Smith has said, unanimously concluded the mural should include a dog — and further concluded that dog should look just like the current governor’s. There is no indication that group had meetings open to the public.
West Virginia contracted with John Canning Co. to perform the mural work. Four more murals are still to be completed by November. State records show payments last fiscal year to John Canning Co. amounting to $348,098 through the state Division of Culture and History for building improvements. Another $53,968 has been paid this fiscal year.
The notice of civil action indicates the state auditor and treasurer will be asked to halt the processing or paying additional state funds from the state of West Virginia to Canning company.
“Mr. Acosta alleges, but not by limitation, that the actions of Secretary Reid-Smith in support of his request to exempt the mural project from bidding and his intentional misrepresentation that the contract for the services of the Canning interests had been approved by the Capitol Building Commission are intentional and willful violations of the West Virginia purchasing statues, rules and regulations,” states the notice of civil action.
MetroNews invited response by the Department of Administration, the Department of Arts, Culture and History, the Auditor’s Office and the Treasurer’s Office.
The Treasurer’s Office responded by saying it “has no involvement in the facts underlying this potential claim; however, the State Treasurer’s Office complies with all duly issued court orders and writs. If this matter should lead to a court order or writ directing or prohibiting any action by the State Treasurer’s Office, our Office will, of course, fully comply.”
Last week, the Capitol Building Commission met without discussion of the mural. Reid-Smith, who was there, was asked by reporters about the mural but declined to respond and quickly left the meeting upon adjournment.
A day later, WOWK political reporter Mark Curtis asked Gov. Jim Justice about the possibility of a lawsuit.
Describing the decision-making process for the dog on the wall, Justice replied, “Nobody consulted me about it in the beginning or at all along the way. You know, I’m sure not going to talk about potential litigation. Do we not have a little bit more to do in life?
“From what I understand, the artist said that he felt like a dog ought to be in the thing and then folks said ‘Well, look, I don’t know how in the world we could have anything better than one of Babydog’s descendants’ and everything. So that’s how it came into being. I mean, give me a break. For God’s sakes a living, if all we’re going to do here is try to throw rocks at one another, so be it. But I’m not going to comment on that. It’s a waste of time.”
