Herbst: Painting back up for now; but all could come down soon

First Selectman Tim Herbst
First Selectman Tim Herbst

First Selectman Tim Herbst has ordered the painting he had taken down last week to go back up on Friday. For at least a little while.

The first selectman has sent a letter to the attorney of the painting's owner to say that his copyright concerns about the painting were met, which would allow the painting to be be rehung at the Trumbull Library. But Herbst wrote that if Dr. Richard Resnick does "not agree to sign a comprehensive indemnification agreement covering the entire 33 piece collection, per your earlier legal opinion, then we will have to make arrangements for Dr. Resnick, at his expense, to remove the entire collection from the library."

Resnick's attorney Bruce Elstein has responded, saying his client will not honor Herbst's demand and the first selectman would be acting without authority if he removed the paintings. Elstein also alleges that Herbst intimidated Library Director Susan Horton into taking the painting down in the first place. Elstein said Horton was "summoned to the First Selectman's office together with Trumbull's Chief of Police to witness his directive to Ms. Horton."

Herbst said Saturday on social media that Chief Lombardo was never at any meeting on this matter. Herbst said Attorney Elstein owes the Chief of Police an apology.

Herbst sent his Friday letter, via email, at 3:20 p.m. Friday, with a 5 p.m. deadline for the indemnification agreement.

"Why there existed no formal process, agreement and proof of insurance between Dr. Resnick and the Library Board is beyond me," Herbst wrote.

Herbst wrote:

Attorney Nicola:

In light of the fact that Dr. Resnick has only signed a limited indemnification agreement regarding the one piece of art in question solely on the issue of copyright, I have asked the Public Works Department to go to the library as we speak to re-hang the one painting in question.

Also, per earlier communications, despite the fact that Dr. Resnick did not have insurance coverage for this valuable artwork, the Town’s Insurance Carrier has advised me that we will add a rider to our coverage to cover the artwork.

What I find troubling is that in speaking to Fairfield University officials (where this artwork was previously exhibited), there were insurance requirements and agreements that needed to be executed by and between the University and Dr. Resnick before this artwork was hung.  Therefore, he was familiar with this process.  Why there existed no formal process, agreement and proof of insurance between Dr. Resnick and the Library Board is beyond me.

Notwithstanding these actions, please advise Dr. Resnick and Attorney Elstein that if they do not agree to sign a comprehensive indemnification agreement covering the entire 33 piece collection, per your earlier legal opinion, then we will have to make arrangements for Dr. Resnick, at his expense, to remove the entire collection from the library.  I cannot allow the Town to be exposed to potential financial loss absent an indemnification agreement and proof of insurance.

Hopefully, we receive a response from Attorney Elstein within the next 1 hour and 40 minutes, in accordance with the 5:00 PM deadline.

Thank you,

Tim Herbst

Attorney Bruce Elstein sent the following response to the town attorney, and shared the message on the Keep Trumbull Real Facebook page:

Dear Attorney Nicola:

In response to your email informing us that the Town refused the indemnity agreement provided which fully protected the Town from any and all copyright related claims and Mr. Hertbst’s subsequently email mis-stating that only one (1) painting was included with the indemnity (when the entire collection was clearly included) and your final email threatening that the entire collection would be taken down unless the Town’s proposed agreement was signed and returned by 5:00 P.M. today, please be advised that my client declines to honor that demand.

Please also be advised that Mr. Herbst acts without authority in this matter. The Charter of the Town states:

c. Powers and duties: The Board shall be vested with the power to manage the public library system of the Town. Such board shall have such additional powers and duties as are granted to library boards pursuant to the Statutes of the State of Connecticut.

General Statutes §11-33, the statute governing municipal library boards, provides in relevant part as follows:
[The Board of Trustees] shall make and adopt bylaws, rules and regulations for the government of the library and reading room and shall have exclusive control of the expenditure of all moneys collected to the credit of the library fund, and of the construction of any library building, and of the supervision, care and custody of the grounds, rooms or buildings constructed, leased, given or set apart for that purpose;
provided all moneys collected and received for such purpose shall be placed in the treasury of such municipality, to the credit of its library fund, and shall be kept separate from other moneys of the municipality and shall be drawn upon by the proper officers of the municipality, upon duly authenticated vouchers of the trustees. Such board may purchase, lease or accept grounds, and erect, lease or occupy an appropriate building or buildings, for the use of such library, appoint a library director and all necessary assistants and fix their compensation.

If First Selectman Herbst acts contrary to the wishes of the Board of Trustees, he does so in violation of law and subjecting himself personally and the Town to liability. Further, his actions are in breach of the agreement my client has with the Board of Trustees to display the art through and including May 31, 2015. Accordingly, the actions of the First Selectman were and continue to be without authority or any force of law. Further action , as threatened, expose Mr. Herbst and the Town to significant liability for civil rights violation, breach of contract and tortious infererence with contractual relations.

A little history puts this dispute in proper context. On February 14, 2015, a patron to the library raised objection to the painting at issue. Later that day, Fr. Gannon sent an email to Sue Horton with a copy to First Selectman Herbst.

On February 14, 2015, Joe Pifco, a member of the Trumbull Town Council, reported that he had contacted Mr. Herbst and that Mr. Herbst was “outraged at this display.”

On February 19, 2015, the Town received an email in which certain folks made claim that the image of Mother Teresa was copyrighted.

On February 25, 2015, Town Attorney Dennis Kokenos wrote a letter in which he recommended to the Town the following “prudent course of action”:

• Because of the “plausible” claim of IP infringement, an interim “stop-gap measure be instituted (presumably the removal of the painting). His reasoning states that the course is “particularly prudent” because no formal agreement existed concerning use of the Collection, no warranties and/or representations were made that Dr. Resnick was the sole owner of the collection and holder of the IP rights and no hold harmless and indemnity agreement was in place. Finally, he added that no warranties were made about commercial use;

• Retain IP Counsel to analyze, at a minimum, ownership of the entity claiming the potential infringement and whether the painting “squarely falls within the Fair Use Doctrine.”

Since the Town attorney wrote that letter, Dr. Resnick at least twice offered to indemnify the Town before the painting was ordered removed from the library wall. Aware of that offer, Mr Herbst nonetheless ordered Ms. Horton, library director, to take the painting down. Ms. Horton was summoned to the First Selectman’s office together with Trumbull’s Chief of Police to witness his directive to Ms. Horton. Thus, in fear, Ms. Horton removed the painting on February 27, 2015.
It is my understanding that Ms. Horton serves the Library Board (a board composed solely of members Mr. Herbst has appointed to that position). Importantly, Ms. Horton does not report to Mr. Herbst but only to the board.

At no time did the Library Board agree with Mr. Herbst’s order and in fact have complained loudly that he was and remains without jurisdiction to make any such order or to enact his directive.

On March 2, 2015, First Selectman Herbst, having raised such concern over the copyright “claim”, issued a press release to the public and ordered that it be posted on Trumbull’s website. Many things are interesting about that action.

First, he included a picture of the painting he had ordered removed from the wall. I understand that he personally went to the library and photographed it on his cell phone for publication. Why a person who states he is the protector of the Town from copyright infringement posts the very image on its most public site is demonstrative of the fallacy of his feigned concern.

Second, he stated in his press release as follows:

“Absent a written agreement indemnifying the Town from potential litigation, First Selectman Timothy M. Herbst announced on Monday that on the advice of legal counsel, the Town must remove the display to protect Trumbull from any potential liability, not only with respect to the copyright infringement claim but also from any potential liability should the paintings be damaged, stolen or destroyed”

On Wednesday, your office provided an agreement claiming it was the new agreement to be used for the display of any artwork in Town. That agreement was also made publicly available for review. Any person reading the agreement can find that it seeks to impose new and different requirements on Dr. Resnick than ever done in the history of the Town.

It seeks to impose upon Dr. Resnick the obligation to restore the library walls upon the removal of the art. This requirement misunderstands the nature of the loan made by Dr. Resnick and the agreement reached with the Library Board. He did not cause the Collection to be installed, the library did. Dr. Resnick agreed to loan his art for public display. If the Town damaged the walls to hang or remove the art, that was and remains a cost to the Town for permitting this Collection to be displayed.
Further, the proposed agreement seeks to impose insurance requirements upon Dr. Resnick that he did not see important to obtain beyond his normal homeowner’s insurance policy. Again, this was not discussed or agreed to by Dr. Resnick when the agreement was reached with the Board to loan the Collection.

Continuing, the indemnity in no way related to simply the copyright claim. Rather, it was an attempt to cause a blanket indemnity causing Dr. Resnick to take on potential liability on behalf of the Town “from and against all liabilities, actions, damages, claims, demands, judgments, losses, costs, expenses, suits or actions and reasonable attorneys’ and consultants’ fees, arising out of or in any way relating to (i) the installation, display and/or removal of the Art Work …”

The Town demanded that Dr. Resnick agreed to indemnify the Town for any and all copyright concerns. He remains willing to do so. This new agreement proposed is yet another obstacle raised under the specter of concern to mask the true motive to keep the art from public display.

The agreement prepared by Attorney Kokenos exposes Dr. Resnick to liability in the event, for instance, a piece were to fall and hurt a patron (even when Dr. Resnick played no part in its hanging) or if an employee falls and gets hurt while hanging or removing the pieces.

Finally, the agreement prepared by your office seeks to cause Dr. Resnick to waive any and all claims he has or ever had for the display of the art. Was the Town seeking to obtain a release of a violation of civil rights? If so, how was that ever part of the agreement by Dr. Resnick to permit the Town to display the Collection? While Dr. Resnick has no present plan to take any action against the Town, the demand that such rights be waived before the art is restored to the Collection is overreaching and inappropriate in an indemnity agreement related to copyright claims.

Today, an agreement was sent to the Town that fully indemnified the Town for exactly the liability the Town expressed were the reasons it was removed. It represented Dr. Resnick was the owner and indemnified the Town “from and against, and reimburse Trumbull for, any and all claims, demands, liabilities, losses, damages, judgments, penalties, costs and expenses of every kind and nature (including, without limitation, court costs and attorneys’ fees) to which Trumbull may become subject, whether directly or indirectly, by reason of, arising out of or attributable or relating to copyright claims raised by parties claiming copyright infringement on account of the display of the Collection at the library.”

Dr. Resnick is also willing to represent that he does not intend the display to be used for any commercial purpose. To now increase the scope beyond that already stated in writing lacks credibility.

Please explain how the indemnity signed by my client fails to address the issue(s) raised by the Town when it ordered the removal of the painting.

As you admitted in our conversation yesterday, the insurance issue does not affect the Town in any way. It is for the protection of Dr. Resnick. He is free to obtain any insurance he sees fit. Even if he chose to specifically schedule the paintings on a policy, you agreed that the insurer would subrogate against the Town in the event of a loss.

The new claim for insurance is yet another pretextual reason asserted by the Town to bow to the special interest group at the expense of the First Amendment.

Finally, please advise on the status of the legal opinion from IP Counsel as suggested by Attorney Kokenos in his letter of February 25, 2015. As you know, every legal mind that has considered the “claim” of potential copyright infringement has dismissed it as “specious”. Most recently, Attorney’s McGuire and Margolis provided you with significant case law and analysis demonstrating that the copyright claim lacks any merit.

Based upon the foregoing, it has become apparent that the actions of Mr. Herbst, while cloaked in the protection of the Town, is nothing more than a continuing violation of the public’s civil rights.
Mr. Herbst and the Town should govern themselves accordingly.

Bruce L. Elstein