On July 13, 2009, the Portsmouth City Council gave a first reading to an ordinance that should be of concern to the citizens of Portsmouth. The language reads: “Ordinance authorizing the Mayor of the City of Portsmouth to enter into a lease agreement with the Portsmouth Murals, Inc. for the purpose of assisting Portsmouth Murals, Inc. (PMI) in securing a grant from the Ohio Cultural Facilities Commission for additional floodwall murals. The deadline for submission of the necessary documents for this grant is July 30, 2009.”
This ordinance should be of concern to the citizens of Portsmouth for a number of reasons, including the point that Mayor Kalb and First Ward Councilman Mike Mearan are virtual lame ducks who are in what are probably their last months in office. Lame ducks, about to lose their control of the goose that lays the golden eggs, are known to resort to monkey business.
But there are other even more compelling reason for citizens to view the ordinance with suspicion. To begin with, the ordinance was added to the agenda at the last minute and is tied to a fast approaching deadline: the last line of the ordinance says, “The deadline for submission of the necessary documents for this grant is July 30, 2009.” Beware of ordinances that are added to the agenda at the last minute, are tied to fast approaching deadlines, and are passed on a single reading rather than the customary three. One of the lessons we learned from the Marting scam is that every ordinance that is vaguely worded and must be passed in one reading on the grounds that time is of the essence should be not only viewed suspiciously but scrutinized very carefully. Fortunately, after some reservations were raised, the ordinance was not passed in one reading. It is scheduled for a second reading at the July 27 council meeting. But since the ordinance is tied to a July 30 deadline, we can expect the backers of the ordinance to argue that it must be passed at the July 27 meeting on a second reading or PMI will lose the $250,000.
Another reason for citizens to be concerned about the mural ordinance is the vagueness of the language and the possibility that the vagueness of the language alone makes the ordinance, on the face of it, legally questionable. How can the city government lease property vital to the safety of the city to a private corporation that is in the mural business? That makes no more sense than leasing it to somebody in the donut business. Doesn’t the Army Corps of Engineers have something to say about it? Nor is it made clear in the ordinance whether the city is proposing to lease the flood wall itself, the physical concrete structure, or only the murals on the wall, and if it is the murals on the wall, is it all of them or just the ones the $250,000 will pay for? But does the city own the murals? Portsmouth Murals Inc. owns the murals, doesn’t it? And if PMI owns the murals, how could it lease them from the city? This could be worse than a mishmash. This could be meshugas.
Experts say there are three kinds of property: real, private, and intellectual. The physical concrete wall would be real property, like land or a house is. Private property is something that is transportable, like the drapes or paintings hanging on the wall of a house. Are the murals, by this definition, private property? I don’t think so, since they are permanently attached to the flood wall. The murals are apparently neither real or private property. Are they intellectual property? Quite possibly. The Encarta definition of intellectual property is “property from original thought protected by law: original creative work manifested in a tangible form that can be legally protected, e.g. by a patent, trademark, or copyright.” The flood wall murals would seem to be covered by that definition.
Does anyone have a patent, trademark, or copyright on the murals? The artist Robert Dafford claims to have a copyright on the murals. Does PMI also have a copyright? What is the contractual relationship between Dafford and PMI? Is Dafford a party to this proposal of the city to lease the murals to the PMI? If Dafford alone has the copyright to the murals, isn’t he the one who should be leasing them to the PMI? These are questions that need be asked, if they haven’t already, and if they have been asked and answered, shouldn’t the answers be made public?
