“Tepid Investigation” by the AG: Judge Permits Berkshire Museum Sales

It seems that the Attorney General Office’s intervention in the Berkshire Museum case was too little, too late in the view of Judge John Agostini of Berkshire County Superior Court. He ruled this afternoon (full text here) that the museum could proceed with its controversial planned art sales, notwithstanding the opposition of several plaintiffs and the Attorney General’s Office (AGO), all of whom sought a temporary restraining order or preliminary injunction to delay the sell-off.

The judge also rejected the plaintiffs’ argument that the museum was restricted from selling objects that had been owned by its forerunner, the Berkshire Athenaeum. I suspect we may soon hear that the 21 works that had been pulled from the Sotheby’s auctions will eventually be offered, bringing the total of Berkshire Museum cast-offs back up to 40.

According to the judge’s ruling:

The AGO’s initial indifference to this litigation, compounded with its later faint-heartedness, strongly suggest that the AGO…has little expectation of discovering evidence supporting its concerns.  The public’s interest in having the AGO continue its tepid investigation pales in comparison to the public interest in ensuring that a public charity does not needlessly lose potentially millions of dollars by canceling a contract that it has every right to make.

Here are the reactions from the affected parties:

From Elizabeth McGraw, board president, Berkshire Museum:

We believe we acted consistent with our responsibility to this community and our collections, to keep this museum open now and strengthen it for generations to come.  We are grateful the Judge recognized the care and diligence the Board exercised in arriving at this decision, and that today’s decision will ensure we can move forward. Zenas Crane created this museum to provide his less well-traveled neighbors with what he termed ‘a window on the world.’ We’re working to keep that window open.

From the museum’s legal counsel WilmerHale: 

Judge Agostini’s thorough and thoughtful decision recognizes the Berkshire Museum took great care to make sure this important resource can continue to serve the community for generations to come.

From Sotheby’s:

Sotheby’s is very pleased that the court reaffirmed that the board of trustees acted in good faith and fulfilled its fiduciary duties. We are looking forward to successful auctions beginning next week that will ensure a bright future for the Berkshire Museum in support of the community of Pittsfield and Western Massachusetts.

From Nicholas O’Donnell, attorney for three of the plaintiffs:

My clients had certainly hoped for a different outcome, but we are reviewing the decision and considering my clients’ options.

From Michael Keating, attorney for other plaintiffs, including descendants of Norman Rockwell:

We are disappointed our clients and others who are Berkshire County residents will no longer have an opportunity to see this treasured art. We are especially disappointed on behalf of the Rockwell family whose father was promised his paintings would always remain home and be shown in Berkshire County. The sale of these artworks represents a huge loss to the community.

Joint Statement by the Association of Art Museum Directors and the American Alliance of Museums:

[We] are disappointed at the Court’s unwillingness to halt the proposed sale of works from the Berkshire Museum’s collection. Our organizations remain deeply concerned that the Trustees of the Berkshire Museum are considering deaccessioning works from their collection to support operating expenses and fund an endowment.

Museums acquire collections for the benefit of present and future generations. Responsible stewardship of a museum’s collection, and the conservation, exhibition, and study of these works, are at the heart of a museum’s service to its community and to the public. It is, therefore, a fundamental professional principle of both AAM and AAMD that there are clear limitations on the use of funds from deaccessioned works, and these limitations prohibit the use of these funds for operating costs, capital expenses, or general endowments.

We will continue to seek out appropriate opportunities to make this case with respect to the Berkshire Museum’s plans, and we stand ready to assist it and other museums facing financial difficulties to avoid resorting to sale of collections as a remedy.

From the Massachusetts Attorney General’s Office:

We are reviewing the decision and no further comment at this time. Thanks for checking in.

As I eyeballed the museum’s two deaccessioned Rockwells on Friday at a Sotheby’s press preview, I was struck by how much more vibrant and energetic they are in person than in reproduction:

Surprisingly, they were installed with the auction house’s Impressionist/Modern highlights (where more monied collectors congregate), not with the American Art offerings on a different floor (which included other Rockwells from other consignors), with which they will be sold on Nov. 13.

The Berkshire Museum’s five other American art consignments were clustered here:

As AAMD and AAM doubtless realize, this is a huge setback for museum ethics that may encourage other small museums to take the easy, irresponsible way out when they face financial shortfalls. It remains to be seen whether other legal remedies may yet be found.