One doesn’t expect to hear the words “nudity” and “children’s theatre” discussed in the same sentence. But there’s been a lot of that juxtaposition going around up in Boston as a result of the Boston Children’s Theatre production of One Flew Over The Cuckoo’s Nest in the latter half of April. “Artistic director caught in storm over nude scene at Boston Children’s Theatre” blared the headline in The Boston Globe one day late last week, only to be followed the next day by “Amid nudity flap, board member resigns at Boston Children’s Theatre.” WBUR’s The Artery had commentary headed “Nudity Turns ‘Cuckoo’s Nest’ Into Hornet’s Nest at Boston Children’s Theatre.”

The headlines were spurred by internal disputes between the board and staff of BCT regarding the nudity in the production. Executive artistic director Burgess Clark informed the press that he is on layoff at the moment, as an alternative to his resigning, in the face of what he sees as board meddling in his artistic prerogatives. He characterized what took place to Don Aucoin of the Globe as attempted censorship by two “overreactionary ninnies” on the company’s board.

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Scene from One Flew Over The Cuckoo’s Nest, as seen in The Boston Globe

The fuller situation, as pieced together from e-mail correspondence with Clark and BCT executive director Toby Schine, a phone conversation with BCT board member Henry Lukas, and the press accounts, is as follows.

The not-for-profit BCT, through its program for young people aged 14 to 19, has been producing shows in the past few years geared towards more mature youths, including Rent, Spring Awakening and Reflections of a Rock Lobster. Cuckoo’s Nest was part of that progression of work. Clark says that he has done the full texts of those shows, not student editions.

When Cuckoo’s Nest was announced for production, there was no public notice that nudity would be part of the production, nor was the board apprised of it. Clark, in an e-mail, said that the nudity (one male actor, aged 21, enacted during an exchange that covers less than one page of the acting edition script) was not pre-planned, but, per Clark, originated at the actor’s suggestion at the first rehearsal. “I asked him if he had ever appeared nude onstage before and he said no,” wrote Clark, “but that he was willing. I thought it was a brave risk for a young actor to offer.  I told him we would attempt it if it seemed organic. Five weeks later when we were in tech, we tried it and it played beautifully.  The cast had become so comfortable with one another by that point that it was pretty casual and had just the right tone.”

Asked when he learned of the nudity, Schine, the executive director, wrote, “Burgess mentioned it to me two weeks in to the rehearsal process. He had considered it for the scene in the pre-production, but thought it better not to take the risk, given that we likely wouldn’t have an actor who was comfortable with the idea. On the first day of rehearsal, the actor playing McMurphy, Sam Mulcahy, asked if the scene would be played with him nude for a few moments – Burgess then reconsidered. He finally said he wanted to move ahead with it two weeks before we opened.”

For student performances, the actor wore boxer shorts, and for the first two general public performances (there were ten general audience shows in total), he wore them as well. The nudity was introduced at the third public performance and was in place for the remainder of the run.

“We had agreed to try it both ways—so we did it without the nude scene the first two performances and did on the next two,” wrote Clark. “The scene as we had rehearsed it (nude) worked much better with our audiences.” In light of that decision, Schine wrote, “We contacted the parents involved in the scene and had discussions with them, [and] had Sam Mulcahy sign a nudity waiver based on AEA’s for his protection and for the theatres.”

During the second week of the three-week run, following the introduction of the nude scene, all parties agree that two board members contacted Schine to discuss the nudity; one audience member also called the company with concerns. What is unclear is the exact nature of the board members’ communications, which has been described variously as “demands from the board members to cut the nude scene” to “a concern about process.” Arts Integrity has asked Schine for clarification, since he was on the calls, and none of the complaints went directly from board members to Clark; as of the morning of May 9, Schine’s e-mail has an auto-respond message saying he is out of the office for two days.

In response to the initial expressions of concern, heated or not, Clark writes, “Toby called Hank [Miller, the board president] back and Hank said, ‘This is an artistic decision and I have to trust you to make the right one. You have my support.’” Lukas, the board member interviewed, confirms that Miller gave his support and makes clear that the board never met or discussed the issue until after the production had closed, and that at no time did the board ask for the production to be altered. Clark acknowledges that the two board members were acting independently.

Clark has said that from the time the concerns were raised, he felt uncertain from day to day as to whether the show would go on. He characterizes the subsequent events as, “After daily harassment from these board members, who were acting completely without authority, I made my plan to resign.  My board president and my executive producer collectively offered the alternative of being temporarily laid off rather than have me resign, until they could present a united front from the board. That has yet to take place.”

Subsequent to this, one of the two board members who took issue with the nudity resigned. The board met on Monday May 8, following which Lukas said, of the more advanced work Burgess has done with the older participants, “Burgess has done a great job.” He went on to say, “We’re hoping that we can sit down with Burgess, clarify the issues and have him back. Asked whether there have been any other organizational changes coming out of the meeting, Lukas responded, “Not that we’ve finalized, no.”

News accounts report that the staff has gone on “strike” in support of Clark, and BCT classes were canceled this past weekend. Asked about the strike, Schine responded, “I did not strike – I felt it was most advantageous for our process as an organization to stay on staff and work aggressively to move conversations forward between our Board President, Burgess and the Staff. As of this moment, I’m hopeful that we will be able to move past this challenge towards a very invigorated Boston Children’s Theatre. We’ve had very, very challenging conversations, and we have learned a lot as an organization about how we need to re-align our organizational spine.”

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Scene from One Flew Over The Cuckoo’s Nest at Boston Children’s Theatre (BCT publicity photo)

There are numerous issues bound up in the situation at Boston Children’s Theatre – censorship, public nudity, content for children’s theatre, not-for-profit leadership and governance among them – and they bear consideration, separately and together.

Taking censorship first, it is clear from all accounts that the board of trustees Boston Children’s Theatre did not attempt to censor Burgess Clark’s production of One Flew Over The Cuckoo’s Nest. While two board members independently did express concern – what they sought, how strongly, how often and at what volume is in dispute – they were not acting on behalf of the board. The board never met to discuss the issue while the show was running, and the board president was supportive of the company’s staff leadership in making the decision that they thought best under the circumstances.

In a letter to the BCT board, dated May 8, the National Coalition Against Censorship’s Director of Programs, Svetlana Mintcheva wrote, in part:

“Adults, possibly shamed about their own thoughts and fantasies, may occasionally be embarrassed, but if anyone can look at a nude and not see an issue, it is a child. Nevertheless, there are frequent calls to censor artwork containing nudity so as to “protect children” from what some claim is “indecent,” or simply to avoid controversy.

However, the U.S. Supreme Court has stated multiple times that simple nudity (i.e., representations of the nude body in a non-sexualized manner) is constitutionally protected expression. Schad v. Mount Ephraim (1981), Jenkins v. Georgia (1974), Osborne v. Ohio (1990).”

One Flew Over The Cuckoo’s Nest was originally seen as a three-act play on Broadway in 1963 for a short run and subsequently revised into a two act for an Off-Broadway revival in 1971. The Off-Broadway script is the one that is available for production through Samuel French. It carries a message from playwright Dale Wasserman saying:

“There is profanity and strong language in the play. Particularly as concerns educational institutions and community theatre, you may feel free to modify or delete language which may give offense in your community without, however, altering the basic text.”

What it does not have is any stage direction indicating nudity. Indeed, in the scene in question, the script notes that the character of McMurphy, when told to remove a towel around his waist, reveals silk boxers covered in white whales, saying:

“Ain’t they some shit? They was a present from a co-ed at Oregon State. She said I was some kind of symbol.”

Commenting on the addition of nudity in his production, Clark wrote, “When it was written, I doubt that would have even been an option.” At a separate point in the correspondence, he wrote, responding to a question about the dialogue about the boxers, “The dialogue was the same with and without the boxer shorts. The particular line ‘Ain’t they some shit?’ (which now referenced his manhood on display) got quite a laugh as I recall.”

In a phone call with Samuel French, the company’s executive director Bruce Lazarus said that BCT had not sought any permission to alter any of the show’s text. Stage directions and costuming, however, are not the same as text in some cases, and not always followed in staging shows unless the action is essential to the plot or the author’s clear intent.

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The issue of nudity on stage is a complicated one when working with professional actors, let alone young ones. Professional practice generally requires that any role requiring nudity be stated as such in a casting notice, and that the actor agree to it in writing at the time of contracting. In university theatres, many schools have guidelines that require nudity to be discussed prior to the start of production with a department chair, and state that no student should be required to perform nude or appear in a production with nudity if they do not wish to do so, among other protections (including prohibitions on photography and video recording of any nude scenes). The advance notices and stipulations are designed to insure that, in the power dynamic between a director (who also may be an employer or teacher) and their cast, no one is expected or pressured to participate in a process that makes them uncomfortable, or seen to be opposing the wishes of the majority opinion on such matters. Such guidelines have been increasingly implemented over the past few decades as protection for all concerned.

While the actor who appeared nude reportedly suggested the idea himself, and the other actors who appeared on stage in the scene who were under 18 received parental approval to participate, the process for nudity in a children’s theatre production could have been more thorough, consistent with professional or educational practice. Burgess professed to being surprised that the nudity had become “such an electric issue.” Separately, he wrote, “The nude scene is organic to the story, and I was proud to again be the first children’s’ theatre in the country to be staging full male nudity by a 21-year old actor.”

This also begs the question of whether it was appropriate to make the audience aware of the nudity, especially in the context of production by a youth theatre program that’s part of a children’s theatre company. “We gave ample warning of the nudity, language and adult themes,” Clark wrote. Schine wrote, “The audience was warned on signs upon entering the theatre, the website, during a curtain speech and in the playbill. During the tech process, we invited parents, theatre staff (those not working on the show already) and solicited opinions.”

However, while notice may have been given at the theatre, BCT’s website speaks only of  “strong language and adult themes,” and notes that, “No one under 14 will be admitted without a guardian’s permission.” Unless there was a pop-up box in the ordering process, now disabled, there is not specificity about nudity in the online advisories. With the nudity only added to the show following the first two performances, the question of whether ticket buyers should have been or were advised about the nudity in advance of arriving at the performance, and how and when, remains unclear.

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Regardless of one’s moral, ethical or even legal perspective on the issues surrounding Cuckoo’s Nest at BCT, the problems that emerged would seem to stem in particular from a failure of communications within the totality of the organization. While board members certainly have the right to share their thoughts with the company’s leadership, if individual board members did in fact demand that the show be altered, they were placing the executive director in an untenable situation, since artistic and managerial leaders typically report jointly to the board, not to individual board members or factions within the board. If that was their demand, as characterized by Clark, then they should have asked for an emergency board meeting to address such an action, since artistic leaders are indeed empowered to make creative decisions for the organization, but are ultimately accountable to a board. If they were asking only for conversation, as characterized by Lukas, then Schine’s account of the conversations may have precipitated the kind of brinksmanship that arose, as Clark was relying upon what he was told by Schine, having never spoken directly to the complainants. The circumstances remain unclear.

While at professional organizations, or for that matter any not-for -profit, the danger of a board trying to micromanage, let alone dictate appropriate artistic content, is always a concern. Strong artsboards have grappled with the issues of governance and put in place procedures for communication and oversight of staff. However, when an artistic director has no direct communications with any of the board in a time of crisis, that is only bound to exacerbate issues. Additionally, when an organization is anticipating potentially controversial issues, not apprising the board in advance, or as soon as possible when such circumstances arise, is foolhardy, since the board’s support and guidance can help to protect against any blowback.

It’s impossible to say how this will all resolve, since the situation seems fluid. There appears to be a great deal more communication needed, ideally with all pertinent parties in the same room at the same time. As for the efforts of BCT to serve older youths beyond the nomenclature of “children’s theatre”? That seems a worthy goal, provided the company follows best practices, hewing to, as the vision statement on their website includes, “maintaining and understanding artistic discipline,” with “professionalism and professional standards play[ing] a key role.” That process calls for – and in light of the specific controversy you should pardon the expression – getting everything out into the open. Everyone in leadership, staff and board, at BCT, needs to be on the same page, on the same team, and acting in the very best interests of the young people they are there to train and serve.

Addendum: As this post was to be published, Don Aucoin at The Boston Globe published a commentary piece which also sought opinions from other youth theatre companies in the Boston area. You can read it here. It concludes with a paragraph that seems counterproductive to a positive theatergoing experience. It reads:

“Reassuring words, but it’s still probably wise for parents to be ready to clap their hands over the eyes or ears of their little ones when they take them to any theater, anywhere. Just in case.”

That seems an awful state of mind for parents to be in when taking their children to the theatre. If they have any concerns, they should call the theatre company and inquire as to specifics of content. Sitting poised for alarm seems no way for anyone to attend the theatre, and to do so seems a certain way of spoiling the show for both parents and children.

Update, May 11, 7 am: The Boston Globe reports that Burgess Clark and the Boston Children’s Theatre staff have returned to work at the company. A total of three board members, specifically board president Hank Miller as well as the two trustees who registered complaints about the nudity in Cuckoo’s Nest, have resigned. The company’s annual benefit, which generates roughly 10% of its income, has been postponed from next week until the autumn. A series of steps are being put into place to address longstanding financial instabilities which have come to light, as well as the company’s failure to compete mandatory tax filings since 2014.

Update, May 12, 8 am: Contrary to their account from one day earlier, The Boston Globe now reports that there is again a rift a Boston Children’s Theatre. Next steps seem to be uncertain following the seeming detente of the prior 24 hours.

This post will be updated as circumstances warrant.

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Note: in the interest of full disclosure, I acknowledge that I attended high school and was friends with BCT board member Lori Correale. While I was aware of her son’s participation in the company, I did not know she was a board member until I began researching this article, at which point I determined that I couldn’t interview her, in order to avoid any real or perceived conflict of interest. I did ask her for help with contact information for board members who might be willing to speak with me.

According to an old aphorism, “dog bites man” is not big news, however “man bites dog” is something to report. Consequently, in the arts world, “board of directors fires staff” may be of interest, but it’s hardly novel. “Staff fires board of directors” is something else entirely, and that’s what’s playing out right now in Seattle.

Of course, that’s highly reductive, but the fact is, on April 24, the majority of the staff of Theatre Puget Sound, a theatrical service organization for the greater Seattle community, signed a letter to their board which began, “In good faith, we ask you to resign from the TPS Board of Directors. We do this because you have given us reason to have no confidence in your leadership.” It further read, in part:

We stand united to inform you that we will not continue working under your governance. Should you reject this request for your resignation, we will discontinueour employment by May 7.

TPS is now paralyzed by an atmosphere of distrust and organizational dysfunction of your collective making and perpetuation, and only a newly constituted Board of Directors working in full trust, transparency, and partnership with an appropriately supported Executive Director and staff can effectively govern the organization going forward.

This request is made solely with the best interest of Theatre Puget Sound, its mission, and its membership in mind. In the Summer of 2016 you set in motion a cascade of substantial organizational actions, the inevitable consequences of which cannot now be disguised or avoided.

TPS
 cannot function without the current staff, but it can and will function without the existing Board.

To date, the TPS board has not resigned, and evidences no intention of doing so.

TPS has been going through a good deal of transition lately. Karen Lane, the organization’s longtime executive director, left her post in November 2016, succeeded on an interim basis by Zhenya Lavy, who had joined TPS in September 2016 as Lane’s deputy. According to a report by Rich Smith in The Stranger, the board asserts that it received a letter from Lavy on April 1, “demanding that they end their search for an executive director, install her in that position, and guarantee her a certain salary. If they don’t meet those demands, then she walks May 5. They have until April 7 to respond.” Per Smith, the board did not agree to the demands and reasserted their intention to conduct a full search.

In Smith’s account, “Lavy paints her ultimatum to the board–that they make her executive director or she leaves May 5 – as a matter of survival…even after working there for a few months, Lavy claims the board hadn’t yet outlined a clear job description for her, nor had they discussed pay commensurate to the task. Because she had been working so much since she started –spending upwards of three nights in arrow sleeping in the office, she says– she’d have to leave the company by May 5 in order to save her health.”

When the staff demanded the board resignation, one employee name was absent, that of Shane Regan, listed on the company website as being in charge of “programs” while identified by Smith in The Stranger as “membership programs associate.” Whatever his title, in the immediate wake of these events, an outpouring of comment on Facebook characterized Regan as the popular, most public face of TPS. Shortly before the letter was sent to the board asking then to resign, Lavy terminated Regan, she says for cause. Rumors swirled that he was fired for refusing to sign the letter, but Regan told Smith that he was never asked to sign the letter.

Smith reported that Lavy was suspended for firing Regan without board approval, but board member Shawn Belyea, who is speaking publicly on behalf of the board, told Arts Integrity that that was not the case. While being careful not to discuss matters that about employees that are legally precluded from being made public, Belyea did not cite Regan’s firing as the cause of her suspension, referring instead to the totality of recent events. He affirmed that the hiring and firing of staff members was within the purview of the executive director.

Because the day of Regan’s firing and the staff letter was also supposed to be the day of a board meeting, Belyea cites the circumstances of the meeting’s cancellation as one reason why Lavy has been suspended, even as he notes that because Regan never signed a termination letter, his status is actually now that of being on vacation. Belyea explained:

Unless it’s stated in the bylaws that you will have x number of public meetings or all your meetings will be public or any of those things, standard practice for non-profits is not public board meetings. Nor would there typically be public notice of the board meeting. So if you go back to Monday there was an announcement put out by the staff on the TPS website that said the board meeting is open to the public. Come to the public board meeting of the TPS board. So that alone constitutes some questionable action. Posting that, then sending out a public notice specifically inviting people from the public to come to the board meeting, that is also a very questionable act.

We had two options in this situation as a board. We have to go to the place where it has been incorrectly posted that the public is invited, where we know from other sources that people have been invited and told that the meeting is public. So we are faced with two choices: we have to go in and tell everybody, no, the board meetings are not public and then close the doors and exclude all these people, or we have to cancel the board meeting and do a separate executive session and start doing some investigation into why these things are happening and what is the agenda of the group that is doing them. All of these things happened on the day of the board meeting, so we did not have a lot of time to respond…

There’s a whole series of actions there that we need to investigate exactly who made those decisions, how those decisions came to be made, what the impact of those decisions are, what the legal ramifications of those decisions are, how these things were communicated to the staff, how these things reflect what the staff believes, what are the staff’s understanding of the situation of their decisions – there’s just a tremendous amount of fact finding that we have to do, partly because none of these actions were taken by the board.

Arts Integrity attempted to reach both Zhenya Lavy and staff member Catherine Blake Smith, identified by The Stranger as “membership and communications specialist,” but received no replies. A Facebook post by by former executive director Karen Lane, cited in The Stranger, backed the call for the board to resign.

In the staff’s resignation request, mention is made of legal counsel advising the staff, which led them to proffer the steps by which the board could resign and a new board take over without jeopardizing the company’s not-for-profit status. Belyea said the board has consulted several attorneys on not-for-profit procedure and human resources procedures, and was also being counseled by Josef Krebs at the consulting firm of Scandiuzzi Krebs, with additional support their City of Seattle liaison at the Seattle Center, where TPS manages multiple rehearsal studios.

Bottom line? It’s a mess. It’s also a very public mess, not simply because of the reporting in The Stranger, but because Lavy sent the request for the board’s resignation to a wide cross section of the Seattle community, including the media, leaders of other arts organizations, community philanthropists and more, and even included a pair of internal e-mails by the board. In addition, Lavy attached the theatre’s whistleblower policy, adopted only at the end of February.

This situation will play out for some time in Seattle. Belyea said the board’s investigation of events was not yet complete when speaking on April 20; a public forum on the situation is scheduled for April 27. It is described as follows on the company Facebook page:

The purpose of this meeting is to dialogue with members concerning recent events at TPS and to provide details regarding the upcoming search for the next Executive Director. Part of this discussion will be for the Board to hear feedback on how best to ensure members are meaningfully involved in the ED search process.

It’s worth noting that with Lavy’s circulation of the whistleblower policy, a flaw in that policy may be exposed. While it seems primarily structured to address issues that arise within the staff, within the board, or between the two, it doesn’t seem to speak to when the two constituencies find themselves in the position of questioning the performance of one another as complete entities. While the policy does allow for circumstances where an executive director’s complaints are lodged against the whole board, in which case they are to consult outside legal counsel, the policy does not suggest that such consultation precipitate the removal of the board. Indeed, the board that has the ultimate legal and fiduciary responsibility for the organization.

The circumstances that led to the brinksmanship at TPS are certainly specific to the organization and the individuals involved, both staff and board. Parsing every gory detail won’t serve the larger national arts community, though The Stranger is on the case for those who want more information, and for future study by arts management educators and students. However, the bird’s eye view of the contretemps should serve as a reminder for boards and executive and senior leadership of arts organizations to examine their practices and policies, because while the situation is rare, it demonstrates how a rapid cascade of events can put an arts organization at risk. That it holds the organization up for public examination, while embarrassing, is not necessarily a problem in and of itself, because it forces the organization to address what have surely been long festering concerns and structural issues.

To be sure, there is crisis at Theatre Puget Sound. As of this writing, the organization’s website lists only two staff members; one week ago it listed five. However, while who has acted properly or improperly, and who has the best interests of TPS at heart – and most likely everyone does, just as everyone probably shares some burden of blame for what evolved – are important questions, certainly a thorough reexamination of the organization’s purpose, structure, leadership and governance is vital. It’s regrettable that it took such an adversarial situation to bring it to the fore.

P.S. While it may now be a footnote in regional theatre lore, in 1976, Adrian Hall, artistic director of Trinity Repertory Theatre in Rhode Island, did essentially fire the theatre’s board when they sought to fire him after a controversial season. He replaced them with a board that supported his artistic vision. But that was 41 years ago, and Hall had personally founded the company. Few have tried it since, or at least few have tried and succeeded.

This post will be updated if the parties concerned respond to Arts Integrity’s prior inquiries, and as events transpire.

An earlier version of this post misspelled Josef Krebs’s first name. It has been corrected above.

In reporting on the dispute between Ars Nova and Howard Kagan, a lead producer of Natasha, Pierre and the Great Comet of 1812, both The New York Times and the New York Post have seemingly reduced the dispute, at times, to three words or two words, respectively. They’re not wrong about this being triggered by “a mere three words” in the language of the Times report. But there’s really something deeper going on that such diminishment does not fully convey.

For those who have not read about this situation previously, here’s a precis. Ars Nova, a small company well known for staging inventive new works, including not only Great Comet, but Jollyship The Whiz-Bang, Small Mouth Sounds and the current Underground Railroad Game, among others, staged the premiere of Great Comet in 2012. With Howard and Janet Kagan leading the producing team, along with Paula Marie Black, the show transferred to a tent, dubbed Kazino, under the High Line in 2013, later moving to an empty lot on 45^th Street near Eighth Avenue. It then was produced at American Repertory Theatre in late 2015 before the current Broadway production began previews at the Imperial Theatre last week, for a mid-November opening.

According to reports, Ars Nova learned two weeks ago that instead of receiving its contractually agreed upon billing on the title page of the Great Comet Playbill, which was to read “the Ars Nova production of,” only their name appeared, as the last in a list of above the title producers, albeit on its own line and immediately before the title of the show. The bulk of the producers were shown in a fairly standard block arrangement, with American Repertory Theatre also afforded its own line after that block, and before Ars Nova. The Kagans appear in first position. The title page also contains language, in much smaller type at the bottom of the page, stating “Originally commissioned, developed, and world premiere produced by Ars Nova,” accompanied by similar language noting ARTS’s contributions.

To date, Howard Kagan and the Great Comet production have issued no statement regarding the billing change, and Ars Nova has only issued a general statement and shared information with the Times. However, the Times report affirms the contractual language that Ars Nova says has been breached, and the company’s managing director, Renee Blinkwolt, says that Kagan began to seek a billing change on October 9, but no such alteration was agreed upon. Press representatives from both Ars Nova and The Great Comet have declined to answer any questions from Arts Integrity.

“The Great Comet” at Kazino in 2013

The implication that this dispute over billing is somehow petty, because it involves only three small words, including “the” and “of,” belies the importance of such a credit to a not-for-profit organization, especially one as small as Ars Nova. While the company may have built a strong reputation in a relatively short period of time, Great Comet is their first show to reach Broadway, and the number of people who will see it nightly will outstrip the number of people who could see any show in their home theatre on 54^th Street in a week. This could result in more people taking an interest in seeing work at their home base, in addition to raising their profile in the funding community. Because the current billing now equates them with ART, and denies them a possessory credit, their primary role in fostering and premiering the work is diminished, with any lost impact unknown.

One can only guess at Kagan’s rationale for the unilateral change in the credit. But perhaps given the show’s growth and transformation from Ars Nova to Kazino to ART to Broadway, Kagan feels that the show has developed far beyond what was first seen at Ars Nova, and that with his leadership and financing, it is a transformed production. But ultimately, that doesn’t matter. There is – so far as we know – a contract in force, Kagan was unable to renegotiate it, and neither he nor the current production have the legal right to ignore its terms, regardless of how large or small the alteration.

The Times report included mention of potential legal action by Ars Nova, noting that the theatre’s attorney, “accus[ed] Mr. Kagan personally of breaching his fiduciary duty as an Ars Nova board member by threatening to initiate “a smear campaign in the press in order to irreparably harm Ars Nova’s reputation” as well as by harming its gala.” In a seemingly retaliatory step, the production scheduled its recording session opposite the Ars Nova gala, where the Kagans were to be honored and the Great Comet cast was to perform.

The matter of fiduciary responsibility is not small. While most often thought of as a financial responsibility, the term is really more expansive. According to law.com, a fiduciary is “a person (or a business like a bank or stock brokerage) who has the power and obligation to act for another (often called the beneficiary) under circumstances which require total trust, good faith and honesty.” Board members of corporations, not-for-profit or otherwise, have a fiduciary responsibility to that organization, and it is understood (and often spelled out in writing) that they will operate in that entity’s best interests.

In not-for-profit management, it has become increasingly common for conflict of interest policy to be included in board guidelines, and even for board members to annually sign a disclosure form delineating any possible conflicts of interest. Whether Ars Nova has such a policy or not, the conflict as it is publicly known suggests that by putting any aspect of the commercial production ahead of the interests of Ars Nova, a breach may indeed have occurred.

Howard Kagan is hardly the first board member of a not-for-profit to play a role in taking a production from a company in which they are involved into the commercial arena. Whether as producers or investors, it’s often a matter of pride for board members to participate in the future life of a project. But such relationships require greater scrutiny by the board of directors or trustees (regardless of the term used) to insure such conflicts of interest don’t arise. Even if there is an annual questionnaire, even if it is properly vetted by a board committee empowered to do so, circumstances can arise which change the equation. It is incumbent on board members to disclose even the potential of such situations as they emerge, as well as for boards to seek out such information.

Brittain Ashford and Denée Benton in “The Great Comet” at American Repertory Theatre in 2015 (Photo by Gretjen Helene)

It’s worth noting that this is not unique to board members. In the case of Great Comet, the company’s artistic director, Jason Eagan, is fifth billed on the production, alongside Jenny Steingart, president and co-founder of Ars Nova; Eagan himself is also listed as a board member of the organization. This presents yet another somewhat incestuous relationship between Ars Nova and the Broadway Great Comet, even if it is clear from his public stance that Eagan is clearly acting first and foremost in the interest of defending the company position, rather than the wants or needs of the Broadway run. The Times noted that board members with financial interest in Great Comet were recused from discussion of these issues.

There is also a fiduciary responsibility for the lead producers of Broadway productions, since they have managerial control of the limited liability corporation established to produce any given show. Depending upon the outcome of the current dispute and the legal expenses which accrue to the production, other producers and investors might wonder at the wisdom of the approach that has been taken, since it adds expense that might otherwise have been used to benefit the production, or be returned to those who have a financial interest in the show.

While in Michael Paulson’s Times report, he notes, “The dispute does not affect the financial agreement between the commercial producers and the nonprofit,” that’s somewhat premature. Even with participation in the gross weekly box office receipts, the Times story came out one day after the first preview was performed. No financial distributions would have been made until at least yesterday, and for a show in its first week, even that would be extremely fast. It remains to be seen whether the conflict extends to other contractual terms as well.

This is an evolving situation and hopefully the original contract between Ars Nova and Kagan will be honored, unless the parties come to mutually agreeable new terms. But even if this is all resolved today, it will remain an object lesson for not-for-profit boards and companies about the pitfalls that arise when shows move into commercial production, with key players at the original company taking leadership and financial roles. While it no doubt starts with the best of intentions on everyone’s part, conflicts can arise. Only with disclosure and scrutiny can all parties ultimately come out winners.

Update, October28, 2016: The New York Times reported early this evening that Ars Nova has filed complaints with the American Arbitration Association and the New York State Court over the denial of its contractual billing and Howard Kagan’s breach of fiduciary duty as a member of the board of directors of Ars Nova. It included quotes from a statement by the producer of Great Comet on Broadway:

Ms. Blinkwolt [managing director at Ars Nova] said the two sides had attempted to reach a compromise that would settle the dispute, but those talks broke down.

In a statement, the producers of the show expressed their respect and gratitude for the nonprofit and said they were surprised to hear that the nonprofit had filed suit because they thought the talks were continuing and had made great progress.

The producers said “our understanding is that we are still in discussions. We continue to work toward a swift resolution of this matter for the sake of everyone involved in the show, and we hope that those discussions can continue privately.”

A Facebook post signed by “Jason, Renee and the Gang at Ars Nova,” also posted this evening, read in part:

It has truly taken a village to get The Great Comet to land on Broadway. If you were to remove the contributions of any one partner along the way, we couldn’t be in previews on Broadway today. And yet with no explanation, the proper recognition of our contribution has been taken away. We believe that the show currently on Broadway started at Ars Nova. That it grew and grew and grew until it was a big, beautiful Broadway musical. That narrative – that the show people are seeing on Broadway is, at its core, the show that started at Ars Nova, is extremely valuable to Ars Nova’s past, present and future, and is communicated to the tens of thousands of people seeing The Great Comet on Broadway each week only through our title page billing.

With seemingly no other alternatives to seeking remedy for this lost value, our Board voted unanimously last night to file suit for breach of contract to compel the commercial producers of The Great Comet to honor their contractual obligation to bill the show as “The Ars Nova Production Of.” We are devastated that it has come to this, but steadfast in our belief that the billing we are owed is both valuable and deserved.

This post will be updated as circumstances warrant.