The city owns over 500 works of art, but some of its most expensive pieces are hidden in places most people will never see.

A new opinion by the city attorney says there are ways the city could get around the policy that makes that the case, but it could open itself up to a lawsuit if it isn’t careful.

Right now, the city requires 2 percent of the cost of city construction projects to pay for public art. So when pricey new water treatment plants are built, they include pricey new public art, too. But since water facilities are mostly closed to the general public, not many people end up getting to appreciate that art.

After Voice of San Diego wrote about the issue, Councilman David Alvarez asked City Attorney Mara Elliott to find out whether the city could move those artworks to more public places. Two water facility projects are currently in the city’s pipeline, accounting for about $1.3 million in funds available for new public art.

In a response, the city attorney said the public art component of those projects should be located at the water facilities most of the time. Putting the art in a more publicly accessible place, the opinion said, could risk violating Prop. 218, a state law saying the city can’t profit from selling water and ensuring all water-related taxes and most fees are subject to voter approval.

But the opinion includes a caveat. Public art could be moved offsite if there’s a legal connection between the artwork and providing water service – such as educating the public about water conservation. The exception, though, has its own exception: The city can’t just use water conservation as a pretext to install artworks that would just benefit the general public.

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In other words, it’s possible to put art in more publicly accessible places, but the city needs to be careful not to open itself to lawsuits for violating Prop. 218.

Public art experts and administrators elsewhere in California have figured out how to put art paid for by water facility funds in more publicly accessible places.

Barbara Goldstein, a public art expert who works with municipalities across the country, said having the artists make work that educates the public about water is a method that works in other cities and counties in California, but it comes down to how each jurisdiction sees Prop. 218.

“It really is a matter of how any particular city attorney wants to interpret it,” she said.

Tim Bittle, director of legal affairs for the Howard Jarvis Taxpayer’s Association, the tax group that sponsored Prop. 218, said he didn’t disagree with Elliott’s opinion.

“I think it’s wrong to blame Prop. 218 for the public not having better access to art,” he said. “If Prop. 218 applies at all, it probably says you can’t have water customers paying for public art at all.”

Last year, when I asked then-City Attorney Jan Goldsmith’s office if Prop. 218 meant public art had to be located at water facilities, the unofficial response was different than Elliott’s formal one.

“Proposition 218 is silent on the subject of art,” wrote Gerry Braun, the city attorney’s communications director, who is now Elliott’s chief of staff.

Goldstein said the city’s arts commission needs to work with its Public Utilities Department to solve the problem. Simply putting public art on the perimeter of a water facility isn’t enough, she said.

“The public art program manager could sit down with the water department,” she said. “It really is important to build a strong relationship and partnership and come up with creative solutions.”

Last year, I asked Brent Eidson, a staffer at the city’s Public Utilities Department, if the department would put up a fight about losing the art from its construction projects.

“Do I think this is beautiful?” he asked, motioning toward an art installation by Robin Brailsford at the Miramar Water Treatment Plant. “Absolutely. Is it necessary for this plant to perform its function? No.”

He said Prop. 218 would make it difficult to relocate the art, but the inaccessibility of art at public utilities was a big enough concern that there’s a proposal to build a wing of the new Pure Water North facility that would be more open and accessible to the public. He said putting public art in that part of the project would make sense.

“We’re really interested in public art that has that educational component about water in it, and we’re specifically [hoping to] design the next facility to incorporate that,” he said.

The city’s public art committee has selected artist Christian Moeller to come up with art for the Pure Water North water recycling facility and given him a budget of about $975,000. Artist Rob Ley has a budget of roughly $340,000 for a public art at project at the new Chollas Water Operations Facility in Oak Park, a neighborhood that’s home to just one piece of public art.

One option that could bypass Prop. 218 concerns, at least for the Pure Water project, is if the public art is placed at the new Morena Boulevard pump station, which will be located near the Humane Society and is being built as part of the new Pure Water system.

Alvarez chairs the Environment Committee, which oversees water projects. At a meeting Thursday, he said he would bring up the city attorney’s new opinion and ask the city’s Public Utilities Department to work with the Commission for Arts and Culture to make sure as many people as possible see the new artworks.

“I think there’s a huge benefit to public art in our community, but only if it’s public,” he said. “So we’ve got to find a way to make public art more accessible.”

    This article relates to: Arts/Culture, Public Art, Water

    Written by Kinsee Morlan

    Kinsee Morlan is the Engagement Editor at Voice of San Diego and author of the Culture Report. She works to expand our reach and helps community members write op-eds. She also manages VOSD’s podcasts and covers the arts, culture, land use and entrepreneurs. Contact her directly at Follow her on Facebook or Twitter. Subscribe to her podcast.

    GK subscriber

    This is thoroughly confusing to me, after having read through what I think are the relevant parts of Prop 218 and the City Policy 900-11.  

    I can maybe understand why those two may be fundamentally inconsistent with each other, and that the 2% should have been voter-approved rather than just adopted by the City Council.  

    I can't understand why making the art public (vs. hidden) would suddenly make it less "legal."  The relevant parts of Prop 218 seem to have the intent of preventing public institutions from "hoarding" (profiting) or benefiting from non-voter-approved public money in ways not directly related to their public charter.  It seems to me that having largely hidden works of art, only viewable by employees, is just that.   It seems to violate both the policy and the law at the same time.  The art isn't benefiting the public *and* it's tax-funded benefit just for employees.

    However, I'm not a lawyer, and maybe I'm missing some other relevant part of 218 that Mara focused on.   Whatever that might be, though, doesn't seem to have been well communicated.  She seems to have picked a path that would upset the most people possible - the public, the City Council, and taxpayer advocates.

    Bill Bradshaw
    Bill Bradshaw subscribermember

    @GK I'm not a lawyer either, and have seldom regretted that oversight.  This situation is a classic case of unnecessary government "regulation" run amok.  It seems the law is designed to make it less easy for the public to enjoy the art is is mandated to pay for.  Is this an "only in California" matter, or "only in San Diego" (or both).

    Perhaps one or more to the lawyers, barracks, sea or regular, who regularly opine on matters civic could explain this situation to us, including how and why the requirement benefits the public.