Michael Phelan is beaming like a kid playing with a gargantuan erector set. The far West Texas sun is starting its drop into the Western sky, illuminating the face of the controversial Marfa art maven as he stands under a construction crane that holds an eight-thousand-pound shipping container. The crane operator lifts one end and positions it at an angle atop another container. It’s a leg, or at least it’s going to be, once all twelve steel rectangles are placed into the form of someone reclining in the middle of a big field. Together, they form Sleeping Figure, a massive sculpture designed by Los Angeles artist Matt Johnson and now on permanent display in Marfa.
Phelan is here mainly to watch, since Johnson and engineers already have detailed plans for how to make these massive containers fit, but he grins with each flare from a welder’s torch and yells the sculpture’s praise over the roar of the crane’s motor. He’s also here to celebrate what he sees as a victory after three months of media scrutiny surrounding the Marfa Invitational, his annual art fair and eventual sculpture garden in the tiny town. “As the high desert sun shines bright on Sleeping Figure, the phoenix rises,” he tells me.
Although he’s a veteran of New York’s chic arena of top artists and galleries, Phelan looks more like the high desert landscape that stretches out from Sleeping Figure—scrubby and thorny. A foam ball cap rarely leaves his unbrushed hair, a patchy beard shadows his face, and he bears a striking resemblance to Garth from Wayne’s World, with thick-rimmed glasses and a toothy grin.
The grin never subsides, but when we first spoke several weeks prior, Phelan was in a fluster. He is facing allegations of, at most, charity fraud and, at least, financial incompetence for his spending habits with Marfa Invitational, a 501(c)3 charity that runs an annual art fair. In a complaint to the state attorney general’s office, Kathleen Irvin Loughlin and Alex Scull, two former members of the nonprofit’s inner circle, say that Phelan took a donation from Loughlin that had been earmarked to construct an exhibition building and instead put the money toward personal expenses. In October, Loughlin filed a charitable trust complaint with the Texas attorney general, which will be reviewed by the AG’s office and may or may not lead to a full investigation. The complaint is still under review, with no action yet taken by the agency. (The AG’s office did not return multiple interview requests.) In the meantime, Phelan maintains that the building will still be constructed.
Before Phelan decided that he wanted to live among art in far West Texas, he created art in New York City. He moved to Marfa in 2006, fashioned a home out of an old gas station, and invited artists to town to show work and mingle. “It was to hang out, break bread, to not only experience the art, but to meet one another,” he says. In 2019, he and his wife, art consultant and realtor Melissa Bent, expanded that breaking of bread to a full-blown feast of a fair, with numerous parties, speakers’ series, and showings held each year throughout the town of 1,700 people.
By its third year, Marfa Invitational was on a roll, or maybe a stampede. In one of the more notable events, New York designer Cynthia Rawley made custom outfits for local women ranchers—think a lot of shine, and pink from boots to hat—to kick off the fair in a roping arena west of Marfa. Riders pounded the dirt into whirling clouds of dust, spun their horses, and stood atop their saddles. Despite local concerns, national media from the New York Times to Vogue ate up the concept; the latter published a review of Marfa Invitational that reads more like a list of art-world glitterati. Phelan and Bent were successful in bringing in a fair-size art-world crowd each year. Local Marfans, meanwhile, have mixed feelings about the parade of visitors that flock to their high-desert town for several upscale events held there each year; those who benefit from it like the tourist money but grumble about the bad tippers and the people in Southwestern-style frocks and immaculate hats taking photos in the middle of the street.
By its fourth year, different kinds of headlines arrived. In the fall, Artnet and the Big Bend Sentinel reported that Marfa Invitational hadn’t filed 990 tax returns since its nonprofit status was granted in 2020. The IRS yanked its charity designation. Then Loughlin, a former Marfa Invitational board adviser, went public with the allegations that Phelan misused her 2023 donation of $125,000 intended for the new exhibition building. A follow-up article in the Sentinel outlined that Phelan had blown through thousands of dollars. The charges, in statements obtained by the paper, included car payments for his Mercedes, big-ticket travel, and a subscription to SiriusXM.
Loughlin tells Texas Monthly that she was shocked that much of her donation seemed to have been used at the whim of Phelan, who, as president of the Marfa Invitational board, had little to no oversight from its other members, she claims. She discovered the financial discrepancies, she says, when she and fellow Marfa Invitational adviser Scull reviewed bank and credit card records to try to make sense of what was spent and how much would be left for the building and for the cranes and welders needed to erect Sleeping Figure. Loughlin then resigned from her advisory position and filed the complaint with the Texas attorney general’s office. Loughlin and Scull offered a written statement to Texas Monthly that mirrors what’s in the official complaint: “Specifically, we found that more than 50% of $125,000 donated by Kathleen Loughlin in 2023 for the construction of the first structure on the five-acre campus was spent on a variety of unexplained expenses, none of which could be tied to the building or construction.” Phelan and his attorney, Liz Rogers, deny that the source of the revenue for his spending was from Loughlin, saying much of it came from a $50,000 loan Phelan made to Marfa Invitational.
Loughlin asked for $25,000 of her donation back, which Phelan wired to her in October. She declined to ask for more money and stated that she still believes in the inspiration behind the art fair, but not in its operation as a nonprofit. “I still support Michael’s vision for the Marfa Invitational Art Fair LLC, but I did not want supporters to naively donate money to the Invitational’s charitable arm without further scrutiny of questionable expenses,” she said.
In a conversation with Texas Monthly, Rogers brushed off the significance of the questionable expenses. After all, she told me in her car en route to the sculpture garden, Phelan needs to live, drive a car to pick people up from faraway airports, and network in the art world, so who’s to question whether those are reasonable expenses? Phelan made 804 charges on the Marfa Invitational American Express card in nine months, averaging three a day, for a total of $140,827. The charges included $58,609 to the Gage Hotel, in Marathon, which Phelan says went toward catering for the 2023 festival. According to bank statements, he also appeared to spend at least $1,700 in food and accommodations for an August jaunt to Costa Rica with his wife, allegedly to visit and network with the local art community.
Even across Marfa Invitational promo materials, Phelan’s messaging has often been inconsistent. He originally announced plans for the exhibition building in 2021, and he stated as recently as May 2023 that it would be erected that fall. Language on Marfa Invitational’s website states that proceeds from the $600 VIP festival tickets will go “directly” to the building, but Phelan admits the funds will be diverted to the fair itself. Through it all, he’s claimed the building will one day rise.
Several recent and former Marfa Invitational board members declined our requests for public comment. Many agreed with the assessment by New York magazine art critic Jerry Saltz, who says artists don’t usually make good organizational or financial executives. “When I heard what happened, I thought, ‘Well that’s f—ng perfect.’ It’s exactly why organizations like this get started by artists, but they don’t know anything about how to file papers,” he told me. Saltz spoke at last year’s fair: “I thought the energy was beautiful, loving, off the map. A kind of celebration of art and getting together and hanging out,” he says.
Back on the scrubby lot, Phelan rambled off excited proclamations for what’s next for Marfa Invitational, which is still set to kick off its fifth year in May. Later, though, he said in a text that Loughlin and Scull had attempted to gain control of the nonprofit and launched a “scorched earth campaign” when that wasn’t happening. Loughlin and Scull deny that claim and say they only discovered the financial problems after months of asking for records.
Marfa Invitational got its IRS nonprofit status reinstated in late November, and Phelan says he and Rogers have gotten a team together to fix the nonprofit’s finances, as well as given the board oversight of expenditures. But despite the need to focus on these grounded organizational pursuits, he’s still focused on the lofty, like Sleeping Figure. Some Marfans are aghast at the idea of stacked shipping containers welcoming visitors to a town known not only for its art, but also for its ranching heritage and natural beauty. A Facebook post linking to a Big Bend Times story announcing the arrival of the shipping containers garnered 472 comments, and it’s difficult to find any positive ones. “Looks like a junk pile that we as people in Marfa would get fined for,” one commenter writes. “This stretches the definition of art to the absurdly ridiculous,” agrees another.
Phelan points to the containers and assures me they will be a lasting and, eventually, beloved monument. He says he’s planning to make the sculpture so permanent that it will withstand any shifts in the earth: “We’re building this for the next hundred years.”