Foundation Promotes Art as Well as Sole Trustee
By KEVIN FLYNN and ROBIN POGREBIN
Published: March 17, 2010


Like the abstract painter who created it, the Judith Rothschild Foundation has never had a very high profile in the art world. Ms. Rothschild, who died in 1993, established the foundation in her will and assigned a friend the mission, as trustee, of using her collection of artworks by masters like Matisse and Mondrian to promote underappreciated artists — a category in which she included herself.



A. Ficalora/Judith Rothschild Foundation, via Hudson Hills Press
Judith Rothschild in 1946.



Piotr Redlinski for The New York Times
Above, her former Park Avenue town house, center, where her foundation’s trustee, Harvey S. Shipley Miller, often stayed until the building was sold.



Joe Schildhorn/Patrick McMullan
Harvey S. Shipley Miller



That friend, Harvey S. Shipley Miller, has since donated or sold many of these artworks and used the proceeds to benefit cultural institutions across the country. A major beneficiary of the foundation’s efforts over the years, though, has been Mr. Miller himself. A Harvard-trained lawyer and art aficionado, he set a salary for himself of more than $200,000 in some years for his service as the foundation’s sole trustee and, for years after Ms. Rothschild’s death, had the use of her Park Avenue town house and her upstate country home.



Over several years he directed more than $130,000 in foundation money to the law school at the University of California, Los Angeles, where some was used to create a fellowship named after him, not Ms. Rothschild.

And as the foundation’s trustee, and the gatekeeper of its treasures, he was given coveted seats on important boards and committees at institutions like the Whitney Museum of American Art, the Metropolitan Museum of Art and the Museum of Modern Art, where he has served alongside the likes of Ronald S. Lauder and David Rockefeller Jr.



In a city where money alone is no guarantee of social standing, Mr. Miller provides a striking example of how control over important works of art can be a ticket to the upper tier of the philanthropic world, with all its attendant prestige and social cachet.

To be sure, foundation trustees often enjoy wide latitude on how they operate, and Ms. Rothschild’s will gave Mr. Miller broad authority to interpret the foundation’s mission and to donate to a range of charitable and educational causes. No one has alleged financial misconduct by Mr. Miller, whose civic-mindedness has impressed many, and who says he has labored faithfully to serve Ms. Rothschild’s interests.



“I loved Judith,” said Mr. Miller, who declined to take questions. “This was a labor of love.”

The foundation, however, failed to make promised grant payments to arts groups last year. And now the New York State attorney general’s office is undertaking a broader review of the foundation and Mr. Miller’s stewardship even though the grants have since been paid.



Some art-world experts say Mr. Miller has used Ms. Rothschild’s assets in ways that honor his friend, whose death he used to acknowledge every year with small notices in The New York Times.

“My impression was, he’s done an extremely good job of enhancing and sustaining Rothschild’s position,” said Karen Wilkin, the curator of an exhibition of Ms. Rothschild’s paintings that traveled to Russia in 2002.



Mr. Miller “is smart, articulate and very charming,” said Gail Harrity, president and chief operating officer of the Philadelphia Museum of Art, where Mr. Miller has been a board member since 1985. Without question, that appointment, eight years before Ms. Rothschild’s death, was buoyed by Mr. Miller’s own social contacts, passion for the arts and refined curatorial eye.

But his stature in New York has been boosted by his control over Ms. Rothschild’s assets and her art collection, which was valued at $34 million when she died.



For example, Mr. Miller was appointed to the board of the Museum of Modern Art in 2003, the same year he embarked with the museum’s guidance on a plan to put together a collection of 2,600 drawings, subsequently valued at $60 million.

The collection, named after Ms. Rothschild and underwritten by her assets, was presented to the museum in 2005. But when the Modern created a curator’s position tied to the collection, it was named, like the U.C.L.A. fellowship, after Mr. Miller, though the museum said that it too was endowed by Ms. Rothschild’s assets.



“It seems as if Harvey may have advanced his own agenda rather than fulfilling Judith’s,” said Caroline Mortimer, a longtime friend of Ms. Rothschild’s.

Many artists create foundations to shepherd their legacies, but most foundations do not give control to a single trustee because they seek additional oversight. “This kind of governance fails to protect against possible conflicts of interest,” said Nancy E. Kelly, an accountant at Metis Group who serves on the advisory panel of Charity Navigator, a watchdog agency over charities.

Before becoming a full-time trustee for the foundation, Mr. Miller, now 62, had worked as a lawyer, a business executive and a curator. As part of running the foundation, he determines its travel budget, which has been about $100,000 in recent years, though one year the foundation spent $300,000.



Until Ms. Rothschild’s Park Avenue town house was sold by the foundation in 2007, for $15 million, the foundation’s tax returns typically said Mr. Miller was required “as a condition of his employment” to live in the building, which was its headquarters.

There is no reference to who set the condition. It is not mentioned in Ms. Rothschild’s will. The returns do say that, without Mr. Miller’s tenancy, the foundation would have had to employ a security firm to guard its valuable artwork.

The returns said he was similarly required to stay periodically on weekends at the country home in Kinderhook, N.Y., which sold for $4.1 million in 2008. Several years before the sale Mr. Miller used foundation funds to expand the property by several hundred acres.



In a brief interview several weeks ago Mr. Miller defended his oversight, noting that the grant checks were delayed because he had broken his neck in an accident. At this point, he said, he is the foundation’s only employee and, he noted, he has never had a secretary. One year he did not even take a salary, he said.

“Do you know,” he said, “the whole time I collected drawings I was offered things for free, or offered things at low cost? It never dawned on me to enrich myself.”



Ms. Rothschild’s wealth primarily stemmed from artworks collected over the years by her family, successful furniture merchants. In her will she directed that her foundation’s assets be disbursed by 2018, and she appointed Mr. Miller, her friend of about 20 years, to use the money to rescue other talents of her generation from obscurity.

“The trust purposes and the encouragement of art are not served,” the will states, “by helping museums acquire more work by artists already well known.”



Mr. Miller’s history as a supporter of the arts is lengthy and includes his work to help the Philadelphia Museum of Art celebrate its 125th anniversary in 2001 as the chairman of its collection committee. Collecting, colleagues say, has long been in his blood.

“He assembled a print collection beginning when he was just 11 years old,” Gary Garrels, a curator, wrote in the catalog for the Rothschild drawing collection at the Modern, which he helped Mr. Miller shape.



For Ms. Rothschild’s foundation, Mr. Miller, described by many as tireless, has helped arrange shows of her collection, safeguarded the artwork and reviewed grant applications, among other things. In 1998 he helped coordinate a retrospective of Ms. Rothschild’s works at the Metropolitan, a rare honor for a lesser-known artist. Critics at the time suggested it was an act of courtship by an institution with its hand out for works from her collection.



Ms. Rothschild’s art holdings (she owned 10 Mondrians and Brancusi’s “Muse”) would have made any trustee popular in the museum world, and Mr. Miller built on that popularity with a taste for the grand gesture.

Seven years ago, for example, when he decided to donate a drawing collection, the foundation’s generosity would have been evident in a gift of dozens, even hundreds, of works. But Mr. Miller donated thousands to the Modern after a two-year, international buying spree that led to his being named to Art Review magazine’s “Power 100” in 2004 and 2005.



Critics gave mixed reviews to the collection, which the museum described in 2005 as the largest gift ever to its drawing department. A party to celebrate was held in Italy at the Hotel Cipriani during the Venice Biennale.

Many of the 650 artists represented in the Rothschild gift were not particularly well known. Half had never been in the Modern’s collection and thus resembled the sort of overlooked talents that Ms. Rothschild had hoped to promote. But many of them were well established, like Robert Rauschenberg and Jasper Johns.



Ms. Rothschild’s will directed that her foundation primarily promote contemporary American artists who had recently died, and it specified her objection to conceptual art. But many of the works Mr. Miller bought were conceptual in nature, by artists like Lawrence Weiner and Robert Barry. Other artists were based in Europe. Most were alive.

On its 2005 tax return the foundation reported paying $18 million for the drawings between 2003 and that year. But it reported that the fair market value of the works had been calculated at $60 million, more than triple the price paid.



Mr. Miller has said that many of the purchases were discounted. The increased value does not appear to have created any tax advantage — the foundation was already tax-exempt — but several appraisers said it struck them as odd.

“Certainly from 2003 to 2005 we saw a climb in the marketplace,” said Jane C. H. Jacob, the president of Jacob Fine Art in Chicago and an appraiser. “But that’s an exponential climb.”



The tax return does not list who made the appraisal for the foundation. A lawyer who has represented the foundation since its inception, Erik J. Stapper, declined comment on several questions and said he was no longer representing the foundation.

A collection of this size, which had been assembled so quickly, was not the type of gift the Modern typically received.

Mr. Miller said the speed of the acquisitions was overstated, partly because many works had already been identified as worthy by the Modern’s curator, Mr. Garrels.



Mr. Garrels, who is now a senior curator at the San Francisco Museum of Modern Art, has acknowledged that the museum’s drawings committee debated whether to accept a gift of such size, partly because of the traditional view of MoMA as a repository of only “singular masterpieces.” But he said everyone came to see the gift’s importance after reviewing a sample of the works at a Queens art warehouse.



“Everybody will look back on this historically and say, ‘This was one of the best purchases of the time,’ ” Mr. Garrels said. “It is transformative to the Museum of Modern Art.”

None of the 2,600 drawings were by Ms. Rothschild.

“It would not have been appropriate,” Mr. Garrels said, “to have acquired her works using her foundation’s funds.”




Karen Zraick contributed reporting.