A Political Decision, Not a Legal One

            On December 13, 2004, after a week of trial testimony that proved the Barnes Foundation had sufficient resources to remain in the Merion Pennsylvania gallery that the founder insisted would be house the Foundation’s art collection after his death, the court ignored critical facts and allowed the trustees to move the collection to what will surely be a tourist facility in Philadelphia as opposed to the school intended by founder Dr. Albert C. Barnes.

            The short summary is as follows:  testimony by the Foundation’s trustee and an accounting expert confirmed that the current annual deficit is $1.2 million – not the $2.5 million claimed in court a year before this trial.  The court found that the Foundation had sufficient assets unencumbered from sale by the trust indenture to raise a $20 million endowment capable of producing $1 million in annual revenue.  This was an ultra-conservative figure based solely on the Foundation’s estimates, which were demonstrated, in some instances, to be grossly undervalued.

            But the court stopped there.  It never considered that raising the current admission fee of $5 to the $12 that the Foundation’s witness admitted would be likely in Philadelphia would create an additional $420,000 at current visitor levels in Merion.  Case closed (or it should have been).   There was a demonstrated $1.4 million available to more than make up for the current $1.2 million annual deficit, but the court ignored that and instead allowed the trustees to embark on an admittedly risky venture that will raise annual expenses to $11 million, require some $4 million in annual donations and the raising of an additional $50 million endowment that was not proven in court to exist.

            Those who observed that the court simply gave up or gave in to political pressure were reassured in this analysis when it became clear that the court’s initial ruling ignored critical aspects of the Barnes indenture that ensured the collection’s use exclusively on certain weekdays for educational purposes.  Only after this was reported in the news did the court correct its oversight by completely gutting the remaining indenture clauses that kept the Foundation as Dr. Barnes directed it should be.

          See the attached link for the brief of the friends of the court, which outlines the trial evidence and the reasons why the move to Philadelphia should have been denied.  Compare the facts in that document with those cited by the court in its ruling and decide for yourself if this was a legal decision or a political one.

Amicus Brief. December 13, 2004 court ruling.

Correcting the Record:

Lower Merion Township's Relationship with The Barnes Foundation

            While there are many aspects to the present "crisis" facing the Barnes Foundation, the claim that has received the least critical scrutiny has been the ruse that the institution is being forced from its present location by hostile residents. The following two letters expose this fallacy for what it really is: a feeble attempt to cover the fact that the Barnes trustees and their financial backers want to move the collection for reasons that have nothing to do with preserving Dr. Barnes' legacy, the aesthetic statement he made or the educational work he pioneered.

Dear Editor:

            I read with great surprise and even greater disappointment a statement made by Dr. Bernard Watson, president of the Board of Trustees of the Barnes Foundation, in a press release recently issued regarding the consideration of an alternative access to the Foundation from City Avenue . Dr. Watson stated, in part, “Such a road which leads to our back gate – already exists . In fact, we have attempted to utilize that road in the past to minimize traffic impacts on our neighbors. When we did so, we received a violation notice for Lower Merion Township”.

            As the Commissioner from Merion, PA the home of the Barnes Foundation, I am writing this letter in an attempt to set the record straight with respect to that statement and address the commonly held misconception that the Township of Lower Merion and, more specifically my neighbors, want the Barnes to move.

            It is, in fact, just the opposite.

            Statements such as this merely fuel the fires of misunderstanding which lead to erroneous conclusions. The record is clear that at no time was the Barnes ever cited by the Township for it’s use of Lapsley Lane as an alternative access from City Avenue. The fact is that Lapsley Lane is a private road jointly owned by the Barnes and St. Josephs University. It’s use is governed by the rights of the parties that own it.

            Yes, there have been difficulties. Yes, the Barnes apparently has financial difficulties. And yes, there is a need for greater access to the gallery. There aren’t many who would dispute those facts although there may be differences of opinion regarding the degree and alternatives to resolve them.

            It’s not too late.

            Before taking steps that are unalterable, alternatives must be carefully examined. There’s no doubt that a move to a more visible sight would have certain advantages and, if the primary purpose of Albert Barnes’ indenture was to create a tourist attraction, then this would be one way to do it. However, educational institutions exist and, more importantly, co-exist in residential areas throughout Lower Merion and have done so throughout its history. Certainly not without challenges. But, for the most part, these challenges have been met through compromise and collective thought.

            This is the home of the Barnes and as the signs on a growing number of residents’ lawns read, “THE BARNES BELONGS IN MERION.”

            James S, Ettelson, Esquire

Commissioner, Township of Lower Merion

Ward 12, Merion


            The media has frequently portrayed the Merion neighbors of the Barnes as being at best, indifferent to, or at worst, overtly hostile to the presence of the Foundation in this community. This communication will attempt to correct this impression. For over eighty years the Barnes Foundation has existed harmoniously with both the residential and institutional members of the Merion community. We believe the relationship can and should be continued, with the school, the galleries and the arboretum remaining in their present location.

            The Barnes is renowned for its outstanding art and sculpture collections; but it also represents the thought and aesthetic of a particular individual at a particular time and in a particular location. Dr. Barnes situated the foundation in Merion, engaged the services of an outstanding architect to construct the building and brought in the famed Henri Matisse to paint the murals which adorn the spacious entry hall. He placed great emphasis upon the gallery's relationship to the arboretum and to the surrounding community. Several years prior to the construction of the galleries, Dr. Barnes purchased land in the area and arranged for construction of a group of fine houses which were sold at fairly modest prices in an effort to protect the integrity and appearance of the neighborhood. It was not mere happenstance which located the Barnes Foundation in a largely residential setting. Were the Barnes to move, we think it unlikely that this building and its particular harmony with its surroundings could be preserved. Not only would an essential part of Dr. Barnes' vision be lost, but a valuable piece of social history as well.

            It has been argued that moving the Barnes to the Parkway, placing it in closer proximity to the other art institutions in the city would be more attractive to tourists. No other city concentrates all of its treasures in one location. London has its Soane¹s, Paris its d'Orsay and Pompidou, Rio its Castro Mayo, each located at a distance from the respective city¹s major art institutions. There are decided advantages to both the tourist and city having its resources in a number of locations.

            On May 25, 2004, the Merion Civic Association¹s Board of Directors adopted the following resolutions:

            Whereas the Barnes Foundation was established in 1922 by Dr. Albert C. Barnes, to promote the advancement of education and the appreciation of the fine arts;

            Whereas the mission of the Barnes Foundation is "to promote the advancement of education and the appreciation of education and the appreciation of fine arts and horticulture;"

            Whereas the Barnes Foundation carries out its mission through teaching, research, and publications related to its Art Department and Arboretum, as well as through public access to the Gallery which houses its main collection of paintings, sculpture, and other works of art;

            Whereas the Barnes Foundation is internationally recognized for possessing one of the world's greatest collections of Impressionist and Post-impressionist art; Whereas the Barnes Foundation is located at 300 North Latch's Lane in Merion, Pennsylvania;

            Whereas before his death in 1951 Dr. Albert Barnes left strict instructions that the Foundation and its collection not be moved; Whereas the Barnes Foundation has petitioned Montgomery County Orphan's Court for permission to relocate to a new facility on the Benjamin Franklin Parkway in downtown Philadelphia;

            Whereas three Philadelphia area foundations have pledged up to $150 million to underwrite the relocation of the Barnes Foundation to downtown Philadelphia;

            Whereas the Montgomery County Orphan¹s Court has asked the Barnes Foundation to devise a plan for the "least drastic deviation" from Dr. Barnes wishes;

            Whereas the Merion Civic Association is organized to advance and protect the interests and concerns of residents and institutions located in Merion, Lower Merion Township, Montgomery County, Pennsylvania;


            (1) Acknowledges the extraordinary contributions to the education and appreciation of fine arts and horticulture that have been made possible by the Barnes Foundation;

            (2) Believes that the gallery's relocation from its present site would not only change the aesthetic nature of its collection, but also severely compromise its founder's stated mission;

            (3) Welcomes a process by which all parties of interest work toward a goal of maintaining The Barnes Foundation in its present location.

The Barnes Foundation's "Dilemma":  A Self-made Crisis?

            In 1922, Dr. Albert C. Barnes founded the Barnes Foundation as a school for the advancement of education in the appreciation of the fine arts. He endowed the Foundation with an exceptional collection of post-impressionist and early modern paintings as well as works from many significant periods in the development of the visual arts. Since Barnes' death in 1951 and through 1990, the primary focus of the Barnes Foundation remained the original art education program, as it was conducted during his lifetime. The program emphasized first hand observation of the artwork in the Foundation's collection and was based on the educational work of John Dewey and celebrated by Matisse as unique in America.

            In 1990, new trustees, with no ties to Dr. Barnes or the educational program, gained control of the Foundation. Since then, the emphasis has shifted from promoting and enhancing the original art education program to exploiting the Foundation's art collection for its commercial potential. In September, 2002, the trustees (backed by the Pew Charitable Trusts, the Lenfest Foundation and the Annenberg Foundation) sought court permission to eliminate virtually every term of the Foundation's original bylaws (essentially Dr. Barnes' will), in order to move the art collection from the Paul Cret-designed gallery in Merion, Pennsylvania to a full-time museum in near-by Philadelphia.

            In December 2003, the Montgomery County Orphans Court heard the trustees' case to allow the collection to be moved to "larger more user-friendly galleries" and to eliminate all guaranteed time for classroom study of the collection. Like their 90s predecessors, these trustees claimed financial hardship justifies breaking the Foundation's bylaws, but publicly available records show how the alleged hardship is largely of the management's own doing.

            For example, as demonstrated in the chart above, personnel-related costs have skyrocketed in the last 12 years. Much of this is in violation of the Foundation's bylaws, in which Dr. Barnes deliberately set hiring limits in order to keep the Foundation a small, highly-focused institution. In 1998, the trustees hired a "CEO," now drawing $170,000 a year plus benefits, yet the number of teachers in the core education program remains unchanged from what it was in the decades following Barnes' death.

            The trustees argue that zoning regulations that limit auto traffic on the residential front road to the Foundation are "choking" visitor and fundraising income. However there is no evidence that they tried to renegotiate a 1996 agreement with St. Joseph's University that prevents access from a major highway to the rear of the property via Lapsley Lane. Similarly, the Foundation's president summarilly dismissed suggestions that the sale of neighboring Episcopal Academy created an opportunity for highway access. The first time the trustees formally requested township permission to hold an outdoor fundraising event in October 2003, the request was granted. Testimony suggested that if the paintings moved to Philadelphia, students would be shuttled back to Merion to view the arboretum, yet no evidence addressed simply shuttling tourists from Philadelphia to the Merion gallery and leaving the artwork where it is.

            The Orphans Court's ruling in January 2004 temporarilly denied the trustees'request to move, citing inadequate evidence on alternatives and virtually no evidence of the economic feasibilty or details of the Philadelphia venture. The Court ordered the trustees to appraise artwork not on public view in the gallery (this would include the well-known portrait of Dr. Barnes by Giorgio de Chirico) and a 137 acre farm in Chester County that has never been significantly used in the Foundation's education program. However, unless the Court requires a truly independent review of these appraisals, the results will likely be skewed in favor of the move. As the Enron scandal has shown, experts tend to give the advice their clients pay to hear.

            While appearing to scrutinize the trustees' case, the Court's ruling likely set the stage for the move by ignoring the overspending that put the Foundation in alleged financial peril (the 2002 expenses were nearly five times the 1990 expenses) and by crediting testimony that there is no solution to increasing public visitation (and related revenue) in the original location. Both premeses should have been examined more carefully, especially in light of the Court's recognition that the statutory watchdog of public charities, the state attorney general, has served as little more than a "cheerleader" for the trustees' plan. Indeed the present claims of financial hardship recall the 1990s plea to break Barnes' will to raise funds to repair the gallery (while the trustees secretly discussed the sale of $200 million worth of artwork). Those claims were later exposed to have been grossly inflated with the necessary repairs estimated at a fraction of the numbers presented in court.

            In 1990, the Barnes Foundation was still conducting classes as it had when Dr. Barnes died. It was also solvent on a $1 million annual budget, and a $10 million endowment. By 2002, the Foundation had a $4.5 million annual budget, yet it's original education program was smaller than in 1990; now dwarfed by a plethora of costly museum-type programs, from "collections assessments" to Cezanne coffee mugs, from museum docents to wine and cheese receptions. Barnes Watch believes that there is no need to move the Barnes Foundation art collection, but that all that is required is sound fiscal management and a return to the Foundation's original emphasis on its program of art education. The Court has suggested that if a $50 million endowment from sale of unused assets can be created, it will deny the move. But, historical budget data shows that figure could be far lower and the Foundation would still be solvent if operated properly.

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