Art Law Report

Corcoran Cy Prés Trial Wraps Up, Whether Judge Thinks Deaccessioning is Worse than the Alternatives Will Influence Final Result

Posted by Nicholas O'Donnell on August 13, 2014 at 7:45 AM

The two-week trial over the possible reformation of the Corcoran Gallery and the Corcoran College of Art + Design ended last week, with Judge Robert Okun expected to rule by the end of the month.

The trustees, as proponents of cy prés reformation, put of a case of dire financial straits. Without reformation and merger with the National Gallery of Art and George Washington University, they argued, it is only a matter of time before the institution is insolvent and must close or take other paths. Interestingly, the trustees used the specter of deaccession as a basis for reformation, effectively, that continuing to pay its debts by selling artwork is worse than not continuing at all. As attorney Charles Patrizia put it in his closing, "Now there will be stronger support, stronger exhibits. . . . The college will continue with a stronger base educationally, financially and structurally." The very accreditation of the institution is at stake, he argued.

The interveners, represented by Andrew Tulumello, painted a very different picture. Citing the Corcoran’s most recent audited financial statements, they argued that the gallery’s debts were $17.9 million against assets of $91 million. "For generations, the institution endowed by Mr. Corcoran thrived," he said. "This board seeks its dissolution."

The first week provided a number of interesting side-plots, and the second was no different. As the trial drew to a close, news came that founder of Save the Corcoran—the group that was denied intervention in its own right, but which spearheaded the successful effort of several current students and faculty to intervene—claimed to have been fired from the faculty of the College of Art + Design. Jayme McLellan was scheduled to teach a course this fall in which sutdents had already enrolled. But during the first week of the trial, Lynn Sures, chair of the college’s fine art department, informed McLellan that her class had been cancelled on the instruction of Corcoran Director and President Peggy Loar. McLellan was quoted as attributing the decision as "Because of my activism," she said. "Why else? I'm perfectly qualified. I teach the class at MICA; I've taught it at AU and St. Mary’s. I’ve taught lectures and seminars and workshops for 18 years, and only ever had stellar evaluations from students. They have no reason [to terminate me]."

If the decision were attributed to McLellan’s criticism of management, even if retaliatory in the colloquial sense, the Corcoran is probably free to do so. But given her leadership of Save the Corcoran, it is theoretically possible that her activism could be viewed as workplace organization, which could afford her labor law protection that might make the decision more complicated.

Based on the public reports, the financial condition of the Corcoran certainly seems dire. The assets cited above no doubt include substantial illiquid property like the building. Short of sale or substantial mortgaging, it is not going to alleviate the going pressure.

Is the proposal as near as possible to the wishes of William Corcoran? In a mid-trial editorial for the Wall Street Journal, Lee Rosenbaum argued strongly that the answer is no. She saw potential in the potential board members identified by Wayne Reynolds, and the need for strong leadership. Kriston Capps at the Atlantic disagreed.

UPDATE: in response to this post, I received an e-mail from the Corcoran disputing McLellan's claims of retaliation, and even that she had been fired. The e-mail read: "Jayme McLellan was not fired from the Corcoran. She resigned in 2012, as mentioned on the first day of court hearings, citing differences with leadership. While there was a miscommunication with Ms. McLellan because of a lack of internal systems, due to a diminished staff and finances, she was not offered a contract to teach this coming Fall. Statements of retaliation are simply false."

From here, it seems that that ship has sailed. If willing deep pockets were available to step forward, it seems more likely that they would have already.

A more interesting question is the deaccessioning point. Assuming for the moment that the present finances really are untenable, is the National Gallery merger nearer to the wishes of Corcoran than a smaller museum? It is considered heretical by many even to pose the query, but is it worse for “the Corcoran” to continue with less to look at, than to allow the merger to go forward? This is a question that Judge Okun will have to answer to his satisfaction. If the answer is “no,” then no cy prés is necessary.

Topics: Deaccession, National Gallery of Art, Jayme McLellan, Andrew Tulumello, Save the Corcoran, George Washington University, Charles Patrizia, Deaccessioning, Cy Pres, Judge Robert Okun, Corcoran College of Art + Design, William Corcoran¸ Kriston Capps, Trusts, Corcoran Gallery, Museums, Lynn Sures, Peggy Loar, The Atlantic, Corcoran

Sullivan logo

About the Blog

The Art Law Report provides timely updates and commentary on legal issues in the museum and visual arts communities. It is authored by Nicholas M. O'Donnell, partner in our Art & Museum Law Practice.

The material on this site is for general information only and is not legal advice. No liability is accepted for any loss or damage which may result from reliance on it. Always consult a qualified lawyer about a specific legal problem.

Meet the Editor

Subscribe to Blog

Recent Posts

Posts by Topic

see all