Council reviews proposed public art policies, focuses on commission authority, appeals process

By SARA HALL

City Council this week reviewed the proposed updated public art policy program and most of the discussion focused on the Arts Commission’s authority and the appeals process.

Councilmembers voted 5-0 on Tuesday (Feb. 27) to receive a presentation on the proposed updated public art program policy and provided direction to help develop a proposed ordinance that would revise pertinent sections on the city’s municipal code to align with the changes outlined in the new policy.

They understand there is a desire to streamline and improve city government processes, align Arts Commission authority with other city commissions, and provide transparent and consolidated policies for stakeholders, said David Plettner-Saunders with Cultural Planning Group, the consulting firm tasked with developing the update.

On Oct. 5, 2021, council approved retaining CPG to draft an updated public art program policy.

Members of the Arts Commission unanimously agreed on May 10, 2021, to kick off the effort to provide more guidance and combine all public art elements into one ordinance, which would cover more than what’s currently described in city code. The process includes updates and revisions, and aims to establish specific standards for public art.

Plettner-Saunders and Linda Flynn with CPG gave a presentation and asked for direction during a public art policy update workshop on December 7. On Jan. 24, 2022, commissioners received a brief presentation about the progress on updating the policy.

In preparing the draft policy, CPG engaged stakeholders and interviewed artists, developers, architects, business owners, donors, and community and non-profit organizations to streamline processes and provide transparent and consolidated policies.

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Photo by Mary Hurlbut

The city is working on an update to the public art policies, “Wave Dance” by Marsh Scott is part of the Art in Public Places program

The policy recommendations are to:

Organize all programs (art in public places, murals, etc.) to be referred to as “public art program.”

Provide explicit and greater authority to the Arts Commission to fulfill its role as decision maker in relation to the public art program and asks the council to only substitute its judgment in cases where there is a departure from Oregon following the policy guidelines.

Aim for comprehensive and transparent policies by consolidating policies and making them available online as a resource for all.

Acknowledge and respect the role and importance of artists in the program.

Provide clear criteria for the selection of artists, artworks and sites.

Provide all new artwork a specific exhibition time frame as opposed to permanently accessioning them into the collection (private development projects have a 20-year minimum).

Set stronger criteria and authority to deaccess works.

Set clear criteria for donations and responsibilities for the cost of maintenance.

Allow artwork memorials honoring organizations or events and eliminates individual memorials.

Encourage financial contributions of any amount to a public art fund.

Provide that maintenance costs for donated artworks and memorials become the responsibility of the donor.

Create a policy for responsibilities on each partner to assure mutuality and workload and costs as it relates to the production of public art projects.

Limit artist to four pieces in the city collection at any one time.

Provide a well-defined appeals process.

Plettner-Saunders also highlighted some additional recommendations: Record and broadcast Arts Commission meetings; conduct a formal conservation survey of the collection and develop a full maintenance and conservation plan; establish an open pre-qualification process for artists to register their general interest in participating in the public art program; expand the practice of temporary installations; build a regular program of community education and promotion, and establish an online inventory in database for the collection.

He expanded on a few of the additional comments, noting that they would support the broader proposed policy program.

Broadcasting the meetings would make the Arts Commission’s decision-making more transparent and accessible to the public, Plettner-Saunders noted. The pre-qualification process can generate great goodwill among artists and demonstrate respect. Changing out temporary pieces is generally popular with the public. Also, promotion and education about the program can create broader benefits.

“The city has a wonderful resource in its collection and it could become better recognized and understood in the community,” he said.

The most discussed recommendation was related to the proposed appeals process.

The process allows applicants an opportunity to challenge an Arts Commission decision through a specific process and criteria, Plettner-Saunders said. Providing a well-defined appeals process can mitigate disagreements, he added.

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The proposed appeal procedure states that:

–Appeals must be sent in writing to the cultural arts director within 14 days of notification of the pertinent recommendation. The letter must cite evidence to support one or more of the grounds for appeal.

–The cultural arts director shall consult the appropriate Arts Commission chairperson in accepting or rejecting the appeal.

–The cultural arts director will make an initial determination regarding the appeal.

–The cultural arts director’s determination will be reviewed by the public art subcommittee and, if upheld, is final and ends the appeal request.

–The public art subcommittee may refer the appeal to the Arts Commission, which will recommend acceptance or rejection of the appeal and recommend modifications to awards as required.

–The cultural arts director will notify the applicant in writing of the commission recommendation and the date and time at which the Arts Commission will consider the appeal.

But he also emphasized the need for the right to appeal.

There should be a clear and detailed appeals process, emphasized Councilmember Bob Whalen. It needs to specify the timeframe for appeal, reasoning and triggering mechanisms. How they handle the appeal process is his biggest issue with the current draft document, he said.

It shouldn’t necessarily be raised due to an error or abuse of discretion because the criteria aren’t objective enough to apply that standard, he explained. But they do have language (like in the council de novo hearings, for example) about the presumption in favor of the commission or the body below. It’s presumed to be a valid action within the confines of their regulatory scheme, he said.

Whalen suggested a similar appeals process to how councilmembers place items on the agenda to be heard. If a councilmember wants to review an Arts Commission decision, they can bring the item up within a certain amount of time. That’s just one possible approach, he noted.

The city attorney could fine-tune the language to something similar to what he suggested, he added.

It’s difficult to demonstrate an abuse of discretion without clear and objective findings to make, like other city boards have, added Mayor Pro Tem Alex Rounaghi, and agreed with Whalen’s suggestion.

“We don’t want to be micromanaging the public art program,” Rounaghi said. “Art is controversial by nature so that’s something that we should embrace, we shouldn’t let bureaucracy undermine that.”

Mayor Sue Kempf agreed that there needs to be a clear justification for an appeal.

“You can’t just say you don’t like it,” she noted, there needs to be strong reasoning. “Just because one person doesn’t like it doesn’t mean it’s not good art.”

Laguna Beach is a creative community with a lot of public art and people have different tastes in what they like, she added.

She also suggested an appeal fee so it discourages frivolous appeals and sets consequences.

The appeals process is often a “hot button topic,” Plettner-Saunders said, particularly since they are dealing with aesthetic issues which are a matter of personal taste.

The process proposed is very specific, Plettner-Saunders noted, and the term “abuse of discretion” is not actually what they are recommending.

“We’re saying that the appeal would be based on the Arts Commission not applying the specific criteria and guidelines that are proposed in these policies, and the artist and art selection criteria are really quite detailed and specific,” he said. “There are nine different criteria and so if someone wants to make an appeal to the Arts Commission, they can look to see the basis on which that decision was made and compare it, not just as a matter of process, but as a matter of these criteria.”

Criteria includes whether the artist was qualified or not well, he noted as an example.

Regarding an appeal to a higher level, they used the existing policy for appeals to council, he added.

Answering a council question, City Attorney Megan Garibaldi confirmed that if the Arts Commission decision was appealed to another commission or board, it could still be appealable to council under the current city code. They have to evaluate it closer to determine if the language needs to be tweaked, she added.

Whalen also wanted some better clarification and more flexibility on the policy proposed for memorials.

Current practice is to treat proposed memorials like other artworks. The recommended policy sets criteria for the Arts Commission to review and refuse memorials, and it also eliminates individual memorials from the program. It would also allow the commission to set a moratorium on memorials and places responsibility for the cost of maintenance on the donor.

The ban on memorials honoring individual persons is “too hard,” Whalen commented.

“There ought to be an ability for either the Arts Commission or the council, if it’s somebody that they think has made a significant contribution to the city or recognition,” to be honored with a memorial, he said.

For example, if Rounaghi becomes president someday they can erect a statue on the Promenade, he joked, but under this proposed policy that wouldn’t be allowed.

There should be some criteria around it that would allow for some individual memorials, but with a high enough standard that “not just anybody” could get their name slapped on a memorial in Heisler Park, Whalen said.

Another notable recommendation is to acknowledge and strengthen the Arts Commission’s authority to make aesthetic and artistic decisions, Plettner-Saunders said.

“This is their mission. It’s their charge from City Council,” he noted.

Currently, council reviews all decisions from the commission. The recommended policy places explicit and greater authority with the Arts Commission to fulfill its role and asks the council to only substitute its judgement narrowly in cases where there is evidence of a departure from or error in following the appropriate policies and guidelines, Plettner-Saunders explained.

This will assure that community dialog about a proposed artwork takes place at the Arts Commission, he emphasized.

In general, Whalen supported the suggestion that the council not consider every single Arts Commission action. That’s a good move and they should cut back on that happening, he added. But he reiterated the need for an appeals process to the council.

Regarding the authority issue and concerns raised during public comment, Plettner-Saunders argued that the proposed update is consistent with the Planning Commission and Design Review Board.

“This is a major change,” he said. “Authority is always an important, and sometimes controversial, topic in any public process.”

A policy about authority and decision-making is “a meeting point of competing interests,” he added. This set of proposed policies does several things in addition to or related to clarifying the role and authority of the Arts Commission in aesthetic and artistic decision-making.

It sets criteria that the public, artists, developers and other stakeholders in the community can understand, Plettner-Saunders said. That has not been the case up until now, he added.

Plettner-Saunders also responded to the comment that the standards are too vague and subjective.

“Artistic and aesthetic criteria are always – to some extent – subjective, but these criteria go a long way towards establishing an objective basis for decision-making and for justifying how and why decisions are made and recommendations are adopted,” he explained.

During public comment, Arts Commission Chair Donna Ballard said the city does not have a definitive public art policy and the proposed update will help the panel in their decision-making and reduce confusion and delay for applicants. It will also be helpful to consolidate and clarify the public art ordinance, she added.

Several other speakers were concerned about the authority the policy proposes to give to the Arts Commission. It’s an overreach of power, some commented.

There should be broader community participation, which is better achieved at the council meetings. Councilmembers shouldn’t give up their function as elected officials to be in charge of how the city spends its money on art, said local resident Ann Christoph.

“Their goal seems to be that they want to be completely independent and completely in control of everything to do with art, when really art is part of our community and our community wants to participate in that,” she said.

There was also some concern about the appeals process. The standards are vague and subjective, noted one speaker.

Both issues should be consistent with other city commissions and process, a few speakers agreed, with one urging the council to send the document back to the drawing board.

In an effort to promote diversity of the art, Plettner-Saunders also noted that one of the proposed policies would limit artists to four pieces in the city collection at any one time, but emphasized that works commissioned by developers would not be included in that count.

Councilmembers also asked and/or discussed the available space for public art, ensuring that the artist is included in donor agreements (particularly if they’re deceased), and the donation timeframe and process.

Whalen also asked how the document will ultimately be recorded. If it’s simply as an attachment to the current ordinance it still needs a fair amount of work, he commented.

That depends on council direction, Garibaldi answered.

They do plan on returning with a full ordinance, Plettner-Saunders noted, they’ve drafted it but they aren’t ready to present it.

“It will come to you in due course once we’ve gotten some direction on the policies,” he said.

This document makes it easier for people to understand how to get involved in the city’s public art program and what is or isn’t required, added Cultural Arts Manager Siân Poeschl.

“The goal is to make a very streamlined process that is easier for people to participate in, that has greater participation, that we all benefit from,” she said.

This does a lot of that, Whalen replied.

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Sara Hall covers City Hall and is a regular contributor to Stu News Laguna.


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