The Orchestra, the Barnes and the courts

As my estimable editor pointed out in a recent column, the Philadelphia region has four major cultural institutions: The Philadelphia Orchestra, the Curtis Institute, the Philadelphia Museum of Art and the Barnes Foundation. Yet at least two of them are in serious trouble.

The travails of the Barnes are well known. The Orchestra is in bankruptcy court, and if it doesn't rethink this folly quickly (or have the court do its thinking for it), it risks jeopardizing a reputation built up over a century, and quite possibly its future.

A great orchestra is a sensitive instrument, easily damaged and perilous to repair. If its players lose the pride and esprit that takes them beyond mere talent and professionalism, great becomes merely good, and good soon dwindles to mediocre. If the city can't support a great orchestra, it won't support a mediocre one either.

Why the Orchestra board is playing Russian roulette with the city's cultural future is a mystery. And it isn't only the Orchestra that's affected. Curtis Institute, which is joined at the hip to the Orchestra, figures to suffer no less.

Make no mistake about it: Philadelphia's musical life could suffer a king-size collapse if the Orchestra goes under, or is significantly degraded.

A case for bankruptcy?

I've looked at the numbers trotted out by the Orchestra board, and there is no case for bankruptcy there. More adequate subsidization is all that's required, and that's what a board is for. A board also needs to show clear and affirmative commitment to its mission, which is to maintain a great orchestra and build a constituency for the music it plays.

I don't suggest that's an easy job. But no one at the moment is performing it as poorly as this board and its current leadership.

There's an interesting parallel between what's happening to the Orchestra and what happened to the Barnes. In both cases, there was a rush to the courts with a plea of insolvency.

Pleading poverty

The Barnes board trashed the Barnes Foundation, spending down its endowment on reckless lawsuits and misrepresenting the state of its finances in court. The Orchestra Board, in pleading poverty despite a $140 million endowment, has gone to war with the Kimmel Center, the Philly Pops and its own musicians. Who wins that battle?

The Orchestra board's bankruptcy filing is a labor relations ploy. Having wrested as many concessions from the musicians as it reasonably can, the board wants the help of a court to impose further reductions in pay and pension benefits. The court shouldn't allow itself, or the law, to be used for this purpose.

We've seen one corporate regime after another wriggle out of the consequences of its own mismanagement with a Chapter XI filing. But this isn't another widget factory, or, for that matter, another auto company. This is the Philadelphia Orchestra. It's Stokowski, Ormandy and Muti. It's Bach, Mozart and Beethoven. It's an entirely different product. And the only thing that's genuinely bankrupt here is the board itself.

Another Barnes petition

The current petition to reconsider the relocation of the Barnes Foundation is another matter. Construction on the new Barnes has been slowed, and there is— as I hope to point out in a separate article—serious reason to question whether a downtown Barnes will be financially viable.

The merits of the move aside, the last thing Philadelphia needs is another high-profile cultural debacle. On that, at least, all Philadelphians should agree.

The gravamen of the recent petition, put forward by students and former teachers at the Barnes as well as by members of the Friends of the Barnes, is that the Montgomery County Orphans Court was misled at the original hearing to move the Barnes by the board's failure to disclose the coercive manipulation of Lincoln University's trustees both by former Governor Ed Rendell and former Attorney General Mike Fisher.

Lincoln, the legatee of the Barnes, had been prepared to block a move in court when, as Fisher amiably put it in his now-celebrated film interview in The Art of the Steal, "I had to explain to them [Lincoln] that, you know, maybe the Attorney General's Office would have to take some action involving them that would change the complexion of the [Barnes] board [emphasis added] . . . the governor had some money he was willing to add onto it . . . to offset some of the perhaps perceived losses they might have."

That racial "'complexion'

As my friend the retired Montgomert County attorney Aram Jerrehian has pointed out, the language here, applied to the trustees of the nation's oldest African-American university, is identical to that of the erstwhile president of the Huntington Valley Swim Club, who said that admitting black children to his pool would change the "complexion" of the club. The swim club's president was forced to resign over that remark, and the club itself was disbanded. Attorney General Fisher, however, is now a federal appellate judge.

It must be remembered that the attorney general's statutory role is to protect the interest of trusts, to play the adversarial role in any attempt to alter their terms, to explore every alternate possibility where a cause for deviation can be shown, and to accept only such deviation as may be strictly necessary to their function.

This was certainly not the case in the hearing to move the Barnes, in which the presiding judge himself noted that the attorney general had "abdicated" his responsibility to represent the trust and, as it seemed, uncritically embraced the case for moving the Barnes collection to Center City. Fisher's position, then and subsequently, was that he had determined the move to be in the best interests of the trust, so that the proper discharge of his responsibility was to facilitate the move rather than question it. This position, disingenuous at best, was rejected by the judge.

Less than neutral

What we now know is that Fisher did more than conclude as a neutral arbiter that a move to Philadelphia was in the best interests of the Barnes. We know that he forcibly wrested control of it from Lincoln on behalf of outside interests, and patched this maneuver over with what amounted to a bribe in collusion with Governor Rendell. We know he also withheld information from the court concerning a further $107 million state allocation for the move— a sum that both the petitioners and he as an officer of the court were bound to disclose.

This latter point, also raised in the new petition, is significant, because if the judge had been aware of this allocation— as he has publicly stated he was not— he could have reasonably asked why such a sum could not be used to keep the Barnes in Merion, particularly as it had been inserted into the state's capital budget at a time when the Barnes had announced itself committed to remaining there.

That in turn would have raised the interesting question of why state legislators were seeking to undermine the terms of a trust against the express intentions of its fiduciaries and administrators.

Too late in the game?

So here is a case that really does belong in court. The Barnes attorneys' response is that the petitioners lack standing, that Fisher's meddling was public knowledge at the time (which suggests the judge turned a blind eye to fraudulent conduct), and that the $107 million wasn't really a grant for the Barnes but for a construction project that would just coincidentally house it.

If the court's original consent to move the Barnes was procured by a fraud that deceived the court, then it ought to be reversed.

The point will be made that it's too late in the game— that the new Barnes is already halfway built. But the downtown Barnes is a financial disaster in the making, and the Barnes can only hope to survive in Merion— where, of course, it always has and always will belong.

Philadelphia doesn't build ships, make widgets or even bake Tastykakes any more. If it plays fast and loose with its core cultural institutions, then it is begging trouble indeed.

Cities can die, or go on terminal life support— witness Detroit and New Orleans— and this one is already held up only by a complex web of state and federal subsidies. Much more is at stake here than where some pictures hang or where some fiddlers play. Courts can't save a city, but they may have to be where the process begins.♦


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