The Albright-Knox Decision
by Bruce Jackson
Last Friday morning New York State Supreme Court Justice Diane Y. Devlin threw out the lawsuit brought by five Buffalonians who wanted to block the auction of slightly over 200 objects the Buffalo Fine Arts Academy (which operates the Albright-Knox Art Gallery) had decided to sell.
The plaintiffs—retired UB English professors Carl Dennis and Martin Pops, retired UB associate professor Max Wickert, retired UB architecture dean Harold Cohen and Katka Hammond, who is married to Wickert and is the widow of late retired UB English professor Mac Hammond—claimed that the gallery’s board had acted improperly regarding the sale of deaccessioned objects at Sotheby’s in New York. (The first of those sales took place Tuesday and raised $16.1 million—more than the minimum estimate for the entire slate of items to be sold.) The board, they said, had been secretive, had violated the academy’s own corporate documents, had violated New York’s Not-for-Profit Corporation Law, had perverted the gallery’s mission, had violated terms under which certain objects had been given and had betrayed the membership. Furthermore, they claimed they suffered personal harm because those objects being sold would no longer be around for them to look at and take pleasure from (if any of them were on display, which most of them never were).
The academy’s attorneys responded that the board had acted responsibly and in accordance with state law and its own charter and by-laws, and that it still owned plenty of old objects of similar kinds for people to look at and has access to lots more. Nobody, they said, had hidden anything from anybody.
The lawsuit included as defendants the Buffalo Fine Arts Academy and its board of directors; the academy’s president, Charles Banta; the gallery’s executive director, Louis Grachos; and Sotheby’s. During oral argument the judge asked the plaintiffs’ lawyer why they had included Banta and Grachos as defendants. Since Banta is the president of the academy he is a member of and therefore included in the board, and since Grachos has no vote in the academy he did not initiate the auction and could not himself stop it. The attorney had no substantive answer for the judge. The obvious answer: “Other than harassment and making them spend extra money on lawyers? No reason whatsoever, your honor.”
There was no place in the courtroom for the innuendo and personal smears on board members and museum staff that had characterized so much of the process thus far. You couldn’t make it up as you went; you couldn’t accuse without basis; you couldn’t demand without cause. In court, everybody was limited to facts and the law itself.
The judge sided with the gallery on every point. Furthermore, she held, anyone seeking a temporary injunction must provide evidence that there is a reasonable expectation of prevailing on these issues at trial. So far as she could tell none of these issues stood a chance of holding up at trial. None of the plaintiffs’ claims had any basis in law or in fact.
The unambiguous court decision followed the solid trouncing the group’s anti-deaccession resolution received after Monday night’s members’ meeting at Kleinhans Hall.
That meeting opened with several of the plaintiffs, who with a few other people call themselves “Buffalo Art Keepers,” talking about what they said was the improper behavior of the board and about how unhappy they would be if the pieces up for sale left Buffalo.
Max Wickert said the board’s behavior was motivated by a desire to keep things secret and the term “merely advisory” is “the language of power.” Carl Dennis said the sale violated gallery policy and was “a severe curtailing of the gallery’s mission.” Martha Dunkleman, who teaches art history at Canisius College, ran a PowerPoint presentation that paired slides of old and new objects: an ancient representation of a face, a modern representation of a face; an ancient representation of a body, a modern representation of a body. I don’t know what conclusion was to be drawn from her PowerPoint other than that artists have long been fascinated by faces and bodies and we should think about that. She ended with a warning: “Things new enough are safe—for a while!” I guess the implication was that once we weren’t paying attention again these villains might auction off the entire warehouse.
Dunkleman was followed by Martin Pops, who warned against taking risks for the “old of tomorrow.” “My bet’s against the casino,” he said, then referred to the auction as a “clearance sale.” Then he went into a long metaphor I couldn’t quite follow about betting part of the “tried and true part of the house” for “niche destination of new.” It was not, he said, a matter of “need, but of want, selling part of the house to satisfy want, a clearance sale for want.”
Their final speaker was Patrick Klinck, a former UB English graduate student, who said, and then went on to prove, that he wasn’t experienced talking to large groups. The gist of his statement seemed to be that his family started a Buffalo meat-packing company in Buffalo five generations ago and we should, therefore, keep the Albright-Knox’s collection whole.
There was something strange and filtered about all their remarks and it wasn’t until the board’s representatives got their turn to speak that I realized what it was: Not one of the Buffalo Art Keepers had made a single reference to the real fiscal situation in which the Albright-Knox functions. It was as if they were talking about an institution that floated in money and in which decisions were made capriciously or because people were just mean and nasty.
I thought everything the Buffalo Art Keepers said was put to rest pretty quickly once the gallery side started talking. Board members corrected the distorted vision of the gallery and its mission, they explained how and why the decisions were made and voted on, and how the process was neither secret nor corrupt. It was as if someone had said, “Can we stop the name-calling long enough to look at some facts?” (I spoke very briefly for the gallery, saying I’d found no evidence at all of villainy or secrecy, that all I’d seen was a dedicated board doing the best it could in a difficult financial situation. I didn’t say, “The community has suffered enough of these self-inflicted wounds by self-appointed experts.” But I guess that’s the import of what Judge Devlin said four days later.)
The most moving and clarifying speaker was Grachos, who responded to Max Wickert’s charges about arbitrary and capricious pillaging of the city’s treasure. It is totally untrue that this sale will hamper education activities, Grachos said; plenty of ancient objects remain, and the new collaborative agreement with the Buffalo Museum of Science puts 60,000 pieces of African art, many of them magnificent, at the gallery’s disposal. He was most passionate in his response to Pops’s accusations: “We don’t gamble, we don’t take chances,” he said. “We are thoughtful and careful and professional.”
When Grachos finished speaking, nearly everybody in the hall applauded. At that moment, I think, a lot of people who had come ready to crucify began asking themselves, “Why are we here?”
Why so much anger?
The Buffalo Art Keepers have insisted that the board should have told us about everything long before the decision to deaccession was made or objects were selected for sale. Since those early details weren’t in the press and in membership newsletters, the process was, they said, done in secrecy and therefore corrupt. But that is making up the rules on the fly. Art institutions don’t work like that, and neither do most public institutions. Not announcing something before it is ready is not “operating in secrecy.” It is acting responsibly.
Might it have been handled differently? Sure. So could nearly everything. Was there venality? An attempt to deceive? A perversion of the gallery’s mission? Buffalo Art Keepers never presented any evidence of any of that. The only “proof” has been hypothesis and innuendo. Hypothesis and innuendo aren’t reason enough to do harm to one of Buffalo’s most valuable institutions and the people who run it.
The series of auctions that began at Sotheby’s on Tuesday is the result of a three-year process. The Buffalo Fine Arts Academy board investigated, they hired consultants, they talked with top people in the field, they considered staff studies and reports and, when they had what they thought sufficient facts to make a responsible decision, they made it, and immediately told everybody about it.
Thirty-four board members voted for this sale—every one of them voted into office by the membership. The job the members gave them was representing the membership in matters having to do with the policies of the Albright-Knox Art Gallery. That’s what trustees and board members do.
So what was all the vituperation and innuendo about? It’s one thing to disagree about a board decision, but what justified all that distortion and smearing?
Once the misinformation about secrecy and villainy was out there, and repeated again and again, then it followed that people should be angry. How could people not be angry? The Albright-Knox is one of the most beloved and best-working institutions in this part of New York State. Many Buffalonians visit it regularly, take their families there, have lunch there, go to concerts and lectures there. We go to exhibits we love there and exhibits we want to yell at there. Of course we all have a proprietary feeling. When we’re told that we’ve been betrayed, of course we’re angry and want redress.
But we hadn’t been betrayed—at least not by anyone on the Albright-Knox board or staff.
A gallery in aspic
When Buffalo Art Keepers met with members of the Albright-Knox board and staff on January 26, Pops said he had no objection to deaccessioning; his argument was with what was being deaccessioned. He suggested selling off several of the gallery’s Clyfford Stills. Dennis said it would be fine with him if the gallery stopped acquiring new art and from now on just recycled what was already in the collection.
What art gallery can they possibly be thinking of? Not the one across the road from Delaware Park Lake, surely. Dump key contemporary masterpieces? Only exhibit past acquisitions? For nearly all of its history, the Albright-Knox Art Gallery has been on the cutting edge of acquiring and displaying new art. That’s what it is about, that’s what it is.
Almost all. There have been beastly dull periods, like the early 1930s after the board not only didn’t elect the great long-time board member A. Conger Goodyear president in 1928, as had been expected, but tossed him off the board entirely because he’d purchased Picasso’s La Toilette, which they thought decadent. Goodyear went to New York and, with a few backers, started the Museum of Modern Art. La Toilette, now worth at least $100,000,000, is one of the Albright-Knox’s treasures, and MoMA is, well, MoMA.
The current board didn’t decide to deaccession because they dislike old things. Or because they are nefarious. They made the decision because, without a significant expansion of the gallery’s acquisitions endowment, there was no other way to keep the gallery alive and vibrant.
Seymour Knox is no longer here to bankroll a wing or write a check for artworks of opportunity. Federal, state and city funds to support the arts have shriveled. No large corporation that buys art for the public has its headquarters in Buffalo. Celeste Lawson, executive director of the Buffalo Arts Council, spoke at the Kleinhans meeting about the agonizing moment two years ago when the gallery knew it could not keep its doors open without a huge staff cut. The arts are hurting, and have been for a long time now, she said. She turned to the Buffalo Art Keepers and said, “Where were you then, when it was people losing their jobs?”
There was a time when a gallery or museum could buy works of midcareer major artists for modest sums. Not now. More people around the world understand and appreciate modern, contemporary and cutting-edge art, so the competition to acquire the work is ever more fierce. There is irony here: One reason prices have risen is because leading galleries like the Albright-Knox have done their work so well.
The Buffalo Art Keepers are trying to recreate an Albright-Knox Art Gallery they remember, or think they remember. They would put the gallery in aspic. Who wants a gallery in aspic?
Speaking from the floor
As in any large meeting with floor mics, the floor comments ranged from the smart, focused and insightful to the self-indulgent and barely coherent. Most speakers tried to engage the issues. A few used the occasion to perform, most notably a man who said that he opposed the sale but he also thought the gallery should continue to acquire new art, and that was why he had in his hand the check he was now waving at the room. He walked down the aisle and with a great flourish handed it to someone on the stage, then turned and beamed at the audience as he returned to his seat. The check was for $200. It would take 74,999 more $200 checks to match the minimum expected from the auction.
The tone of the comments from the floor at Kleinhans were far more conciliatory and regretful than accusatory or defensive. Even Tom Freudenheim backed off. No one would have been there had Freudenheim not published an opinion piece full of misinformation and distortion in the Wall Street Journal several months earlier and had not a small group of local people taken that poison, amplified it in a paranoid fantasy and spread it far and wide. Without Freudenheim’s innuendo, his misdirection and (according to Dennis) his extensive counseling after the article was published, the Monday meeting at Kleinhans wouldn’t have been called. Well-meaning people got caught up in it, and a meeting had to be held to get some truth back into the conversation. The meeting at Kleinhans accomplished little except to attenuate some of the anger Freudenheim and Buffalo Art Keepers had helped foment.
Freudenheim was one of the last to get up to the mic at Kleinhans and he came out with none of the wild innuendo and accusations he’d levied a few months earlier; he saved that for another Journal article this week. At Kleinhans, Freudenheim began by saying he was a former resident of Buffalo and a present member of the gallery—which is true: he lived here 50 years ago and he joined the gallery six hours before the deadline for speaking at the meeting. Then he said this was a model for a new way of running museums, that it was a great collaborative moment when the board and the membership came together in a huge public forum to discuss matters of mutual interest—which is disingenuous or delusional.
What possible model for museum boards could come out of this? Hold large public meetings to respond to wild operational and fiscal plans hatched by small groups of vigilante art critics? Legitimize uninformed resistance to development, movement and growth? Squander everyone’s time and energy, and the institution’s money, so whim can have its moment at the mic?
The only model I envision coming out of this is museum boards contemplating future auctions might suggest to the Wall Street Journal that if someone submits an article attacking the ethics and motives and legal grounding of those holding the auction, the Journal should run the article by someone with some knowledge of the facts before publishing it, and perhaps even call the director or chair of the institution’s board to find out if anything in the article bears any connection to reality. If the Journal were doing that now, it surely wouldn’t have printed Freudenheim’s March 20 article, which was as misleading and distorted as the first, and in which he praised Buffalo Art Keepers but failed to mention that their argument (and his) had been rejected by the gallery’s membership by a margin of three to one.
The by-laws of the Buffalo Fine Arts Academy require it to provide access to the membership list to members wanting to petition for a special meeting. The Academy gave BAK a list of its members’ names, but it couldn’t—for a wide range of practical and legal reasons—give them the addresses and telephone numbers. Instead, the Academy told BAK that it would mail the petitions calling for a special meetings to the membership on BAK’s behalf.
The day after that mailing went out, a neighbor called and asked if I had signed the membership meeting request from the gallery. “That’s not from the gallery,” I said, “it’s from a group attacking the gallery.”
“No,” he said, “it’s from the gallery. Look at the envelope.”
I dug it out of the garbage and indeed my friend was right: The envelope used to mail BAK’s petition bore the gallery’s name and return address.
How many signed the meeting call and returned them thinking they came from a group endorsed by the gallery? Would there have been enough replies to have made the five percent minimum if the return address had been “Buffalo Art Keepers”? We’ll never know for sure, but the proxy vote suggests that the return address played a key role in the response to that first mailing.
Before the Monday night meeting at Kleinhans, the gallery helped BAK with a second mailing, this time of a letter from Carl Dennis and a proxy form that would let Dennis use that proxy against the gallery’s board. That mailing went to all 6,054 paid-up members of the Albright-Knox. The return address on this mailing was “Buffalo Art Keepers.”
When the votes in Kleinhans and the proxies were tallied the next day, the gallery had 1,224 and BAK had 428, of which 222 had been cast at Kleinhans. That means that after sending a mailing to 6,054 Gallery members, BAK was able to get only 206 people to sign on with them.
“We don’t have the phone banks they do,” Dennis complained on WBFO Friday morning, two days after the vote was known and a few hours before Devlin threw out his lawsuit. That is fiction. The Albright-Knox did the same thing BAK did: Individuals called other individuals and urged them to do what they thought was the right thing.
The lopsided vote was not a result of phone banks or superior resources. The vote was lopsided because in the end, after people had time to think about what they’d been told and what they’d read, they decided BAK had it wrong and that it was time for them to give it up and go away, and time for the rest of us to start making our gallery whole again.
A footnote to all that: The by-laws of the Buffalo Fine Arts Academy require that notice of a special meeting of members shall be given no less than 10 days and no more than 50 days after a request from at least five percent of the membership for such a meeting. The academy could easily have held the meeting after the scheduled court hearing and even after the auction was over. Instead, it did everything it could to make sure BAK got a fair, timely hearing.
From BAK to BAS
Before the Monday members’ vote, BAK claimed they were representing the membership, which had been denied a voice by the board. No matter that the board had been elected by the membership to be its voice. Then in the meeting and by proxy, the membership voted and rejected BAK by an unambiguous margin of three to one.
Did Dennis and his friends then say, “The people have spoken and we honor their endorsement of the board?” Did they say, “We all love the gallery, we’re all friends, so let’s put this behind us and start rebuilding?”
Not at all. After the vote was announced, board President Charles W. Banta asked them to drop the suit, saying it was time to put the household back together. Dennis refused. He would drop the lawsuit only if the gallery gave him everything he wanted; without that, he was pressing on, hoping to get a judge to give them what the gallery’s membership had told BAK it didn’t want.
The difference now was that they could no longer pretend they were representing any voiceless mass of gallery members. They were just representing themselves.
At that point they lost any claim to their self-appointed title of “Buffalo Art Keepers.” If anything, they had become “Buffalo’s art spoilers.” BAK had become BAS.
Save the children
One or two of Dennis’s supporters at Kleinhans said it was necessary to block the sale to protect Buffalo’s children. “I’m very disappointed,” Dennis said, according to Buffalo News reporters Mark Sommer and Matt Gryta, “because so many beautiful things are being lost to us and lost to children…”
“We did it for the children” is frequently offered as a cover-your-ass defense for a really stupid blunder that caused real harm. US Attorney General Janet Reno said the reason she let the FBI attack the Branch Davidian compound in Waco, Texas in April 1993, was because the FBI told her bad people were abusing children in there, so she had to save the children. As it turned out, about 80 people died in the assault, 20 of them children, and later interviews with surviving children proved no one was being abused by anybody.
Why you thought or claim you thought you were doing something and what you did are two different things. “The terrible thing,” Jean Renoir’s character Octave says in Rules of the Game, “is everybody has his reasons.” People always have reasons, but what matters to everyone else is, what is done and the consequences of what has been done.
The Albright-Knox Art Gallery, which is financially strapped, had to spend hundreds of thousands of dollars defending itself against Dennis’s motion and lawsuit. An average new exhibit costs the Albright-Knox $50,000, so four, six or eight new exhibits are not coming to Buffalo because Carl Dennis was saving the children. The stripped-down staff of the gallery (because of the cuts Celeste Lawson mentioned at Kleinhans and which not one of the plaintiffs has yet acknowledged) dealt with almost nothing other than this challenge for nearly four months. All the curatorial, development and exhibition work that might have taken place in that time did not take place, to say nothing of time that might have been spent doing other things—working with children, for example.
Whatever justification or rationalization might have existed before the Monday night vote evaporated when that vote was tallied. When Carl Dennis, Marty Pops, Max Wickert, Katka Hammond and Harold Cohen elected to continue the lawsuit in spite of that huge loss, they left the gallery and its membership behind and went off on a jihad entirely their own. As did Tom Freudenheim, when he published his second misleading article in the Wall Street Journal on the morning of the first auction.
Getting past limbo
Given that three of the five plaintiffs are retired English teachers and a fourth is married to one of those three and the widow of another, and that I’m an English teacher myself, it seems only appropriate to end this with something literary.
Two texts come immediately to mind.
First, Dante’s Inferno. Once you get past limbo, Dante’s hell descends through sins of indulgence and violence to sins of fraud and treachery. Cantos XXVII and XXVIII contain Fraudulent Counselors and Sowers of Scandal and Schism. For Dante, misrepresentation, spiritual fraud, is the basest sin, exceeded only by betrayal. Among the Fraudulent Counselors is Ulysses, who’s in a flame with Diomedes because they tricked and defeated the Trojans with the Trojan horse—not really a beautiful gift but full of warriors. Dante, unlike Homer, sees Ulysses as the enemy of his heritage and he punishes him with the fire of his fury: “they, who went as one to rage, now share one punishment.”
In the next Pouch in Dante’s Eighth Circle are the Sowers of Scandal and Schism. Here poet Bertran de Born, a troubador who incited war, walks about carrying his decapitated head, like a lantern. Having severed the body politic, he’s doomed to show it in himself.
But these references to Dante’s Divine Comedy, I decided on reflection, are far tonier than this sorry and unnecessary Buffalo mess deserves.
For this we should go domestic, and what could be better than Edwin Arlington Robinson’s “Miniver Cheevy,” the best poem in American literature about grumpiness? Perhaps you remember it from high school. Maybe if everybody had remembered it, the Albright-Knox wouldn’t have had to waste that huge amount of money and countless hours that would otherwise have gone to the common good. Robinson’s poem goes like this:
Miniver Cheevy, child of scorn,
Grew lean while he assailed the seasons
He wept that he was ever born,
And he had reasons.
Miniver loved the days of old
When swords were bright and steeds were prancing;
The vision of a warrior bold
Would send him dancing.
Miniver sighed for what was not,
And dreamed, and rested from his labors;
He dreamed of Thebes and Camelot,
And Priam’s neighbors.
Miniver mourned the ripe renown
That made so many a name so fragrant;
He mourned Romance, now on the town,
And Art, a vagrant.
Miniver loved the Medici,
Albeit he had never seen one;
He would have sinned incessantly
Could he have been one.
Miniver cursed the commonplace
And eyed a khaki suit with loathing:
He missed the medieval grace
Of iron clothing.
Miniver scorned the gold he sought,
But sore annoyed was he without it;
Miniver thought, and thought, and thought,
And thought about it.
Miniver Cheevy, born too late,
Scratched his head and kept on thinking;
Miniver coughed, and called it fate,
And kept on drinking.
Bruce Jackson’s The Story is True: How Stories Work and the Work Stories Do will be published by Temple University Press in May. He is SUNY Distinguished Professor and Samuel P. Capen Professor of American Culture at UB. In 2002, France appointed him Chevalier in the Ordre des Arts et des Lettres, France’s highest award in the arts and humanities.
Issue Navigation> Issue Index > v6n12: One Piano, Four Hands (3/22/07) > The Albright-Knox Decision
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