Welcome to the Market 5 Gallery

Interview with Attorney Donald Temple

City's Actions as Landlord Called Into Question

There is an abuse of power of the District of Columbia city government system, which includes the elected officials, and the Mayor in particular, who have allowed a small group of citizens to orchestrate a private personal agenda at the expense of a long-standing community-based arts program, Since 1993, Market 5 Gallery has been self-sufficient and self-financed, and has built a project to the community's distinct advantage.

The council passed a law that incorporated the personal agenda of this citizen group and allowed it literally to dictate the city government's decision-making process in a fashion inconsistent with public accountability.

By that, I'm saying that the entity responsible for advising the Mayor and the Office of Property Management held numerous closed meetings without public notice. No minutes have been distributed to the public. They have met in closed sessions with the city government representative and discussed issues that greatly concern the Eastern Market without any transparency. And as a result of these closed meetings, we believe that decisions have been made against Market 5 Gallery's interest.

It is also clear that they intended to isolate Market 5 Gallery and ultimately to remove it. The Gallery has in this legislation, by design we think, no participation in the EMCAC (Eastern Market Community Advisory Committee) and no voice. Yet the supposed advisory decisions of the EMCAC ultimately affect the lifeline of the Market 5 Gallery.

Eastern Market Building Improvements

The rhetoric that has been espoused is that entities like Market 5 Gallery prevented the expenditure of government moneys to improve Eastern Market. That's not true. Those moneys, we've learned, were appropriated and available as early as 1995 to 1996.

Protection of Tenant Rights?

Market 5 Gallery's strongest grievance is the fact that the legislation, which theoretically was designed to protect the rights of existing tenants at the time of its passage, has been applied without protecting them and rather, used to evict them. Now there are two problems.

Contradictions in Implementation

Since the law has passed, the Office of Property Management (OPM) has become schizophrenic as to the meaning of these provisions and the law.

What do I mean by that?

On one hand, the City Council passed a law with the notion that existing tenants would have a first right of refusal; they wouldn't be kicked out. After the legislation was passed, OPM looked at exception provisions in the law and now say that they don't have to give Market 5 Gallery a first right of refusal based on substantially similar terms.

Second, there are contradictions in the legislation that make it impossible to guarantee the protection that should be afforded to existing tenants. The very basic term "vendor" is not defined in the statute.

The statute defines a term called "market vendor" but as defined, there is no such thing as a "market vendor." Requiring but Acting Without a 'Market Manager' According to the statute, the existing tenants' first right of refusal is to be accorded by the Market Manager. The city attempted to negotiate the first right of refusal in advance of the Market Manager selection. In doing so, they attempted to change Market 5 Gallery's status totally from a tenant to a licensee and to increase their rent substantially. No other occupant of the Eastern Market was treated in this fashion. Instead, what we see is the city, prior to the selection of the new manager, taking both the South Hall and the North Hall to court.

Worse, the city acted in bad faith: at the same time
they were negotiating with Market 5 Gallery, they were considering offers from other vendors, which was not what the law intended.

Is Market 5 Gallery a Tenant?

The city also claims that Market 5 Gallery is not a tenant and yet they attempted to evict them under the landlord-tenant laws. They now say that Market 5 Gallery is not a tenant but a licensee.

The Vilification of Harrod

All of this is part of an ulterior motive to take control of the North Hall space. Harrod is vilified as a criminal, rather than the selfless public servant that he's been since 1973 in terms of carrying out the city's public arts policy.

How is it that since this legislation has passed, all of a sudden, there is a Hoover-like city-initiated criminal investigation of Harrod for tax purposes? How is it that there is an ABC (Alcohol Beverage Control) raid conducted on the North Hall admittedly as a result of actions taken by the chair of EMCAC in her capacity as member of the ABC Board? There are also letters in the record reflecting requests for the Inspector General to take action against Market 5 Gallery. Market 5 Gallery is the only tenant that is subject to this vast scrutiny. The question is why?

What is the Case Really About?

Market 5 Gallery believes the city's actions in taking over and attempting to evict the Market 5 Gallery are illegal.

We also believe the agreement overly relied upon the
advice of private citizens in making decisions, contrary to the interests of that community.

Tragically, the mayor has allowed his lawyers to go into court and tell judges on the record that this is an issue that is "about money," rather than an issue that's about the history of our city, the history of a particular community, the wonderful diversity and eclecticism that Market 5 Gallery has been able to develop with open arms to artists of all backgrounds and races and cultures to promote the arts and in so doing to nurture and develop an agenda the city itself has not been able to carry out. The appreciation that
Harrod gets for spending more than a quarter century of his life working in support of this community arts organization is a denigration of his name, an attempt to evict him, a total disrespect for the artists he has helped develop.

Current Status of the Litigation Proceedings

To Market 5 Gallery's credit, when the city illegally attempted to evict them, we were able to secure both a temporary restraining order and a preliminary injunction, by two different judges. Both judges agreed that the city's actions were likely illegal and therefore that we were likely to succeed on the merits of our claims.

The city then attempted to dismiss the case by summary judgment. Judge Zeldon denied the motion. That meant that we had issues in this case that the court should consider. When the case was transferred to the fourth judge, Judge Grae, the city again filed a motion for dismissal and summary judgment, and Judge Grae denied this request.
The case has now been transferred to the sixth judge, who is Judge Clark.

We have exchanged quite a few documents and we have learned quite a bit in the discovery process. We are still in discovery and we will be completing discovery sometime in the next 30 to 60 days.

Once the discovery process is completed, of course, the case should go to trial, but that will depend on the city's intransigence.

The Real Value of the Market 5 Gallery

The Market 5 Gallery is one of the very few places in our town where people of all races, cultures, ages, and backgrounds come together as a family. It's something that we want to preserve and encourage. In that respect, we have fought tirelessly with very little resources to ensure all protections within the framework of the law.

We promise one thing: we will continue to do so, until public abuse is exposed and the public's interest is advanced.

What Can Individual Community Members Do?

First, be vigilant. I think people should ask questions about what's going on. People should read some of the documents that have been uncovered in this litigation. The record is an open one. Deposition transcripts are all available to be read. Some of them are very instructive. They show the influence of the EMCAC on the Mayor's decision-making process; it is extraordinary and troubling. They show how several individuals caused the government to wreak havoc on a small nonprofit organization and its chief manager.
To the extent that people believe in this case, they should assist us in developing the resources to litigate this case. We've invested literally hundreds of hours on faith alone. We hardly have the resources to compete with the DC government.

People should ask the City Council and the Mayor about their positions and demand detailed answers.
They should familiarize themselves with the legislation
and ask why the first refusal right is not being given to the existing tenant, Market 5 Gallery.

Why Is the Market 5 Gallery Not Being Treated Like a Tenant? Why Is This Case 'Simply About Money?' What did Market 5 Gallery do so badly in its 25 years of public service that justifies the wrath of people who weren't around when it first started, who didn't do anything to build it, who don't do anything to support it, but who do everything to harass and torment it? Why was John Harrod the subject of a DC criminal tax investigation?

How is it that the ABC Board allowed one of its members to initiate a raid on the Gallery and then subsequently recuse herself, realizing the inevitable and inherent conflict of interest? Why Are They Doing This to Market 5 Gallery? Why play this mean-spirited divisive game that does nothing whatsoever to benefit our community or to bring people together?

Take Action

Write and call the Mayor, the City Council, and the City Council Chair.

Every Mayor before this Mayor and many members of the City Council know about and have supported what this Gallery has done. Why the Change? John Harrod hasn't made $50,000 a year in 25 years, despite the 10 to 14 hours a day he spends at the Gallery promoting the arts and arts empowerment agenda. Nor does he have some well financed pension plan; yet there are those who would say that John Harrod is stealing from the Gallery. If anything, it's the reverse: John Harrod has given to the public interest, and the city has yet to say thank you.

Why Should We Care?

Anybody in the city should care about this from a cultural point of view because people from all over the city, in fact, from all over the region, come to Market 5 Gallery to enjoy the art, the interaction, the diversity, and the opportunity to purchase different products.

Market 5 Gallery is a jewel of the city - not a jewel of the Market, not a jewel of Capitol Hill - it is a priceless jewel of Washington, DC - God's kiss to the District.

~ End of interview ~

Attorney Donald Temple.
Photo by Avner Ofer