AGO 1987 No. 13 - Apr 24 1987
LEGISLATURE ‑- DEPARTMENT OF GENERAL ADMINISTRATION ‑- ART ‑- ABILITY AND AUTHORITY FOR REMOVAL OF ART IN THE WASHINGTON STATE SENATE CHAMBER
(1) While the Washington State Senate may request removal of artwork in the Senate Chamber, the actual removal is subject to the approval and cooperation of the Department of General Administration.
(2) Minimal risk of financial exposure would exist if the artwork in the Senate Chamber is removed in accordance with the applicable statutory provision.
(3) It is the responsibility of the Department of General Administration to determine whether and where the artwork can be hung following removal from the Senate Chamber.
(4) We find no basis to support the granting of injunctive relief to prevent removal of the artwork in the Senate Chamber under the contract between the Department of General Administration and the artist.
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April 24, 1987
Honorable Jim McDermott
State Senator, 43rd District
105 John A. Cherberg Building
Olympia, Washington 98504
Honorable Phil Talmadge
State Senator, 34th District
432 John A. Cherberg Building
Olympia, Washington 98504
Cite as: AGO 1987 No. 13
Dear Senator McDermott and Senator Talmadge:
By letter previously acknowledged, you requested our opinion on the following questions:
1. Does the September 23, 1980 contract for commissioning art work for the Washington State Senate allow the State Senate to remove the art work?
[[Orig. Op. Page 2]]
2. What, if any, financial exposure does Washington State risk by removing the murals in the State Senate?
3. If removed, where, if at all, can these pieces be hung and under what conditions?
4. Can the artist apply for injunctive relief regarding any modifications to the art work, including removal by the Senate?
We answer the questions in the manner set forth in our analysis.
Your questions concern artwork presently displayed in the Senate Chamber of the Washington State Legislative Building. The contract for the commissioning of this artwork is dated September 23, 1980. It was entered into between the Department of General Administration and Alden C. Mason. On April 3, 1987, the Senate adopted a resolution to remove this artwork from its chamber and to authorize the Department of General Administration to find a new home for display of the artwork.
Before answering your questions, it is necessary to set forth the various statutes that govern the purchasing of art for public buildings. First, chapter 173, Laws of 1980,1/ created the Joint Legislative Arts Committee. The Legislature vested this committee with the overall authority and responsibility to establish and implement an arts acquisition plan for the Legislative Building. RCW 44.42.010, 44.42.050. A special fund, the capitol arts fund, was established to help finance the creation, acquisition, and installation of artwork for the Legislative Building. RCW 44.42.040.
Another group, the Washington State Arts Commission, is responsible for the acquisition of works of art for public buildings or lands. The Legislature created this commission in 1961. Laws of 1961, ch. 301.2/ Its purpose is to advise the Governor, the various departments of state government, and the Legislature and to make recommendations for the cultural [[Orig. Op. Page 3]] development of the State of Washington. RCW 43.46.050. In 1983, the Legislature added a provision creating a state art collection to be administered by the Arts Commission. Laws of 1983, ch. 204, sec. 2, p. 1109 (codified as RCW 43.46.095).
There are two additional statutes which govern the State's purchase of art. RCW 43.17.210 and 43.19.455 set forth the procedure for the purchase of art by state agencies.
With these statutory provisions in mind, we now turn to your questions.
Does the September 23, 1980 contract for commissioning art work for the Washington State Senate allow the State Senate to remove the art work?
The responsibility for the selection and acquisition of artwork for the Legislative Building is vested in the Joint Legislative Arts Committee. RCW 44.42.010, 44.42.050. RCW 44.42.050 provides:
(1) The joint legislative arts committee shall have the following powers and duties:
(a) To do all things necessary to acquire works of art for the legislative building;
(b) To prepare a comprehensive plan for the acquisition of works of art for the legislative building, and submit the plan for review by the legislature on or before the commencement of the 1981 regular session;
(c) To contract for the services of a jury of professionals in the arts to be selected by the committee. The jury of professionals shall consist of persons of impeccable stature and qualifications and represent the various appropriate art media. The jury of professionals shall make recommendations to the committee regarding matters relating to the selection of works of art.
[[Orig. Op. Page 4]]
(2) At the request of the joint legislative arts committee, the Washington state arts commission, the department of general administration, the state capitol historical museum, and other agencies of the state shall provide support and assistance to the committee necessary to carry out the provisions of this chapter.
We have previously addressed the scope of the Joint Legislative Arts Committee's authority. In AGO 1982 No. 3 (copy enclosed), it was our opinion that the authority of this committee only extends to the acquisition of the artwork. We stated that "once [the] function of selection and acquisition has been completed, we find nothing in [chapter 44.42 RCW] which purports to vest the [committee] with any sort of continuing authority over what has been acquired." AGO 1982 No. 3, at 3.
We stated that this committee's authority ends once the selection and acquisition of the artwork has been completed. "Thereafter, the provisions of RCW 43.19.125 . . . continue to govern‑-meaning that insofar as any major works of art are concerned, it is still the Department of General Administration which has control and responsibility."3/Id. at 5.
The committee has only those powers expressly given to it by statute or necessarily implied therefrom. See,e.g.,State ex rel. Eastvold v. Maybury, 49 Wn.2d 533, 304 P.2d 663 (1956). The court inMaybury stated:
But where a person or board is charged by law with a specific duty,and the means for its performance are appointed by law, there is no room for implied powers, and the means appointed must be followed, however inadequate may be the result.
49 Wn.2d at 539 (quoting State ex rel. State Bd. of Med. Examiners v. Clausen, 84 Wash. 279, 282, 146 P. 630 (1915)).
Further, the power of the State with respect to its property rights is vested in the Legislature. The State is under no [[Orig. Op. Page 5]] disability regarding its right or capacity to own property, but its disposal must comply with statutory procedures.4/Fiorito v. M.A. Segale, Inc., 18 Wn. App. 158, 566 P.2d 1268 (1977). Although there is some recognition that the Senate has authority over its own chamber, the Legislature delegated the actual control and responsibility over the Legislative Building to the Department of General Administration. RCW 43.19.125.
However, we must also consider the other statutes governing the purchase of artwork to determine whether this responsibility remains with the Department of General Administration because these statutes have been amended since our previous opinion. RCW 43.19.455 was amended in 1983 to include the maintenance, sale, exchange or disposition of works of art. Laws of 1983, ch. 204, sec. 6, p. 1110. It now provides in part:
The designation of projects and sites, selection, contracting, purchase, commissioning, reviewing of design, execution and placement, acceptance, maintenance, and sale, exchange, or disposition of works of art shall be the responsibility of the Washington state arts commission in consultation with the director of general administration. . . .
At first glance, portions of this statute seem to conflict with chapter 44.42 RCW in that it vests the authority to purchase works of art in the Washington State Arts Commission. However, it does not apply to legislative artwork. RCW 43.19.455 specifically refers to purchases of art under RCW 43.17.200. RCW 43.17.200 governs purchases of art by state agencies. The Legislature is not a state agency for purposes of RCW 43.17.200.
Further, legislative artwork is not part of the state art collection. The state art collection includes all works of art previously purchased or commissioned under RCW 43.46.090, 43.17.200, 43.19.455, 28B.10.025, or 28A.58.055. RCW 43.46.095. [[Orig. Op. Page 6]] Work commissioned under RCW 44.42.050 is excluded.5/ This omission is significant in our view. It must be presumed that the Legislature was aware of art purchased by the Joint Legislative Arts Committee, created in 1980, when the state art collection was created in 1983.
Despite all the statutory amendments in 1983, our opinion in AGO 1982 No. 3 stands. RCW 43.19.125 vests control of the capitol buildings in the Department of General Administration. This Department still has control and responsibility over major legislative works of art6/ once they have been acquired. Our conclusion that neither House, without the approval and cooperation of the Department of General Administration, may thereafter remove from its chamber a "major work of art", thus is unchanged.
The issue presented now is whether the contract dated September 23, 1980 prohibits anyone from removing the artwork. The pertinent article of the contract7/ states:
[[Orig. Op. Page 7]]
If any material change occurs to the ARTWORK after it has been finally completed, applied and/or installed by the ARTIST (whether such change is intentional or accidental, and whether it is done by the AGENCY or others), including any change in the interrelationship or relative locations of the parts of the ARTWORK, the ARTWORK will no longer be represented to be the work of the ARTIST without the ARTIST'S consent. The AGENCY agrees that it will not intentionally destroy, damage, alter, modify, or change the ARTWORK in any way whatsoever.
Words in a contract are to be given their ordinary meaning unless the context dictates otherwise. General Tel. Co. v. C-3 Assocs., 32 Wn. App. 550, 554, 648 P.2d 491 (1982). The words of this provision refer to the change, alteration, or modification of the artwork. Change means "to cause to be different or to give a completely different form or appearance to; transfer." The American Heritage Dictionary 258 (2d ed. 1982). Alter means "to change or make different." Id. at p. 99. Modify means "to change in form or character; alter." Id. at p. 806.
Thus, the ordinary meaning of these words prohibits the Department of General Administration from intentionally causing the artwork to look different as it is displayed. For example, the contract specifically mentions moving the relative locations of the parts of the artwork. Such an act would alter the appearance of the artwork. The contract also prohibits damaging or destroying the artwork. The concern therefore is with respect to the visual effect of the murals and this effect may not be intentionally changed.8/
Article XI does not mention the complete removal of the artwork. The intention of the parties to a written contract normally is ascertained from the language of the contract. In re [[Orig. Op. Page 8]] Estates of Wahl, 99 Wn.2d 828, 831, 664 P.2d 1250 (1983). Here, the word "removal" is conspicuouly [conspicuously] absent. If the parties intended to prohibit the removal of the murals, the work "remove" could easily have been added. When the intention of the parties is clear, the courts have nothing to construe and must be governed by the intention of the parties as expressed in their written instrument. Jones v. Hollingsworth, 88 Wn.2d 322, 326, 560 P.2d 348 (1977). The contract therefore does not prohibit the removal of the artwork from the Senate Chamber.9/ It is not a contract for the permanent display of the mural in its present location.
Therefore, although the contract dated September 23, 1980 does not prohibit the removal of the artwork, the Senate, acting alone, does not have the authority to remove it. The approval and cooperation of the Department of General Administration must be obtained.
What, if any, financial exposure does Washington State risk by removing the murals in the State Senate?
If the murals are disposed of in accordance with the statutory provisions stated in question 1, we are of the opinion that minimal, if any, risk of financial exposure to the state would exist.10/
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If removed, where, if at all, can these pieces be hung and under what conditions?
In light of the answer to question 1, this determination is the responsibility of the Department of General Administration. However, if the artwork has been damaged or changed in the removal process, it may not be displayed as the work of the artist without the artist's consent.
Can the artist apply for injunctive relief regarding any modifications to the art work, including removal by the Senate?
While the artist could seek injunctive relief, we see no basis for the granting of such relief except as subsequently noted.
A party to a contract may bring an action for a breach of contract to seek an award of damages. Houser v. Redmond, 91 Wn.2d 36, 586 P.2d 482 (1978). Injunctive relief is equitable in nature. Rupert v. Gunter, 31 Wn. App. 27, 640 P.2d 36 (1982). The party seeking an injunction must establish that he has a clear legal or equitable right, that he has a well grounded fear of immediate invasion of that right by the one against whom the injunction is sought, and that the acts complained of are either resulting or will result in actual and substantial injury to him. National Grange of the Order of Patrons of Husbandry v. O'Sullivan Grange 1136, 35 Wn. App. 444, 667 P.2d 1105 (1983).
In accordance with our analysis of question 1, removal of the artwork is not a modification. Since the removal of the artwork is not prohibited by the contract, the artist must establish some other legal basis to enjoin the removal of the artwork. Further, once the artwork has been installed, it becomes the property of the State and controlled by the Department of General Administration. It is difficult to conclude that the artist has a perpetual right to dictate where the owner may display the artwork, so long as the artwork is not altered. Thus, it is our opinion that the artist cannot meet the criteria for injunctive relief to prevent the removal of the artwork. See, e.g.,Brown v. Voss, 105 Wn.2d 366, 715 P.2d 514 (1986).
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However, if the artwork is damaged or altered in the removal process and the State seeks to redisplay it as the artist's work, he may be entitled to injunctive relief. As stated above, the purpose of article XI of the contract is to protect the integrity of the artwork and the reputation of the artist. The display of altered artwork may be harmful to his reputation and prohibited by the contract.
We trust that the foregoing will be of assistance to you.
Very truly yours,
KENNETH O. EIKENBERRY
[Assistant] Attorney General
Assistant Attorney General
*** FOOTNOTES ***
1/Now codified as chapter 44.42 RCW.
2/Now codified as chapter 43.46 RCW.
3/We distinguished between the initial acquisition and the subsequent control over the artwork, including the ability to remove.
4/The Senate's resolution to remove the artwork does not amend laws. It is instead a legislative directive to state administrative officers and agencies‑-in this case, the Department of General Administration.
5/The funds for this artwork in question were appropriated from the capitol buildings construction account and not commissioned or purchased pursuant to RCW 43.46.090, 43.17.200, 43.19.455, 28B.10.025 and 28A.58.055. Under RCW 43.19.010 and 43.19.125, the Department of General Administration is responsible for capitol buildings. Thus, it is even clearer that the authority to dispose of the artwork is in the Department of General Administration.
6/A major work of art is "of such magnitude that, once installed, it in effect becomes part of the building." AGO 1982 No. 3, at 5, n. 4. The murals in question are each approximately 550 square feet. They are in effect part of the building.
7/We note that although the contract for legislative artwork now displayed in the Senate Chamber was executed after the passage of chapter 173, Laws of 1980, it was actually entered into between the Department of General Administration and the artist. Under RCW 44.42.050(2), the role of the Department is to provide support and assistance to the Joint Legislative Arts Committee.
8/The purpose of this type of contract provision is to protect the integrity of the artwork and the reputation of the artist. It serves to assure that the work will be maintained and displayed as intended. See Rodgers,After Sale Rights for Visual Artists, 39 Wash. State Bar News No. 11, at 29 (Nov. 1985).
9/We are assuming for purposes of this opinion that the appearance of the artwork will not be changed by its removal. If the removal of the artwork will cause its appearance to change, then the contract may be interpreted to prohibit its reexhibition. Also, if the artwork is damaged during the removal, it may not be displayed as the work of Alden C. Mason.
10/The issue as to whether the removal of the artwork will result in a change to its appearance is crucial to a determination whether there is risk of financial exposure to the State. If the artwork is intentionally or accidentally damaged, there may be financial exposure if it is redisplayed as the work of Alden C. Mason.