Tom Holmes, creator of the Arc of History sculpture, is investigating the possibility of taking legal action against the city of Durango.
Holmes, who lives in Pennsylvania, has been in contact with Jan Lokuta, an attorney in his state, and Kenneth Golden, a Durango-based lawyer, regarding the city’s decision last week to remove his sculpture on the pretense of a failure to respond to a contract the Public Arts Commission claims it sent to him on May 4.
These attorneys are “gathering documents, including the document that says I was offered $28,000 to repair that was never received,” Holmes said. “After that point, my attorneys will advise me on what’s the best course of action.”
Minutes from the June 28 meeting for the Public Arts Commission state that a letter was sent on May 4 “offering $28,000 for the restoration of the artwork.”
But Holmes maintains that he did not receive the offer.
“Maybe it’s purposely, maybe it’s not, but it didn’t show up here, and if it did this thing would already be rebuilt,” he said.
Holmes said Tuesday that he has had no response from the city regarding his request for a copy of the May 4 letter despite multiple emails and phone calls over the weekend.
“It’s rude, it’s disrespectful, it’s unprofessional and it really reflects on your town poorly,” he said.
The basis for the artist’s potential legal action is the Visual Artist Rights Act, which states that while Holmes might lack ownership of the sculpture, he has a right to “prevent any intentional distortion, mutilation or other modification” of his artwork.
City officials said last week they don’t intend to destroy the sculpture, but according to the Public Art Master Plan, the city can relocate or store it or return it to the artist. If that fails, the city can sell it in a public auction or trade it for other works of art.
While Holmes is open to all possible solutions to the issue with the Arc, he believes that it should fall to the city to repair and safely store his artwork, he said. “It’s their responsibility under VARA to care for that sculpture.”
Cristie Scott, chairwoman of the Public Art Commission, had a different opinion.
“My understanding is his right would be to disassociate from the piece,” Scott said.
But this is dependent on the wording of the contract between the city and Holmes, which states that the city may “use, display, lend and transfer the sculpture as the city deems appropriate.”
The contract goes on to say that the artist waves the right “to place restrictions on the placement or display of the sculpture by the city.”
“We can do with it as we see fit based on the policies created by the commission,” Scott said.
The larger issue, though, is the lack of response from city officials and the decision-making process behind removing the piece, Holmes said. Also questionable is officials’ failure to confirm that the letter to Holmes was received through follow-up correspondence.
“It’s nothing but a little political ploy to take the thing out, that’s all it is,” Holmes said.
Scott disagreed with Holmes’ assumptions.
“It wasn’t until recently when it became clear we would not be able to replace that piece with the budget that we had from the insurance claim that we ever considered deaccessioning it,” she said.
Golden, Holmes’ Durango lawyer, said the city was proposing to have the sculpture fixed.
He wants to find out why that didn’t happen and if that option remains a possibility.
On Aug. 25, 2015, the Public Art Commission decided to restore the vandalized Arc of History, but it also had a conversation about “replacing the artwork with a different piece because of the controversy,” according to the minutes from the meeting.
The idea of replacing the artwork was raised by a member of the public attending the meeting, Scott said.
Documents shows that the commission discussed the laws concerning public art and the precedent replacing a vandalized piece of artwork would set.
Sherri Dugdale, assistant to the city manager, said Tuesday her office had been contacted by Holmes, but due to possible legal action, she declined to comment further.
Luke Perkins is a full-time student at Fort Lewis College and an intern at The Durango Herald. He can be reached at [email protected]