Attorney General joins call for Berkshire Museum to halt art sale
PITTSFIELD — A filing Monday by the state attorney general tips the odds towards those seeking to halt the Berkshire Museum's sale of art, less than two weeks ahead of a multi-million dollar auction.
But it will be up to a Berkshire Superior Court judge to decide whether to stop the sales, after considering arguments Wednesday morning and a growing body of legal arguments in two separate lawsuits.
For months, people on both sides of the controversy have been waiting to see how lawyers working for Attorney General Maura Healey would come down on the question, as that office reviewed the case in its role as overseer of nonprofits and public charities.
Attorneys for both the museum and plaintiffs had met with Healey's office, advancing their views on the legal landscape and, in a way, working the ref.
But a 26-page filing Monday puts that referee entirely on the side of those seeking to halt the sale.
"It's a great development for us," said Michael Keating of Foley Hoag, the Boston law firm representing the three sons of the late artist Norman Rockwell and others opposed to the sale. "I knew the court would be very interested in whatever their opinion is."
Healey calls on the museum to stop sales that are to begin Nov. 13 at Sotheby's in New York City, days after the international auction house erected billboards displaying images of two Rockwell paintings that are expected together to draw bids of up to $40 million.
The attorney general's filing, in response to a lawsuit that includes three of Rockwell's sons as plaintiffs, argues that the artist intended for both of his gifts to remain with the Pittsfield museum.
In the motion filed Oct. 20, the Rockwells joined with community members to seek a temporary restraining order barring the auction on the grounds that it is not allowed under state statute and would violate what they see as the museum's duty to act in the public interest.
On Monday, the attorney general's office lent the weight of its office to that argument.
"There are a number of aspects of the Museum's plans that raise concerns, some of which the Plaintiffs have detailed in their Complaint, and others of which have arisen in the course of the AGO's investigation," the attorney general's response says.
The response faults the museum for not presenting "all relevant facts" when it sent notice of the sale in June. Selling works from a collection in order to pay operational costs, as the museum intends, goes against policies of the American Alliance of Museums, to which the Pittsfield museum belongs.
The museum has argued that despite that ethical constraint, it was free to engage in a large-scale deaccession of works to ensure its future.
The attorney general's filing notes that the museum board voted July 12 — the same day it approved the deaccession of 40 works — to void two tenets of its collections rules. One called for it to first offer works it wanted to remove from its collection to another museum. The other required it to apply proceeds from art sales to a fund dedicated to the conservation of objects. The museum did neither.
Elizabeth McGraw, president of the museum's trustees, said that while the 39 South St. institution respects the attorney general's role in the review, she believes the museum has the right to proceed with its sale.
"We have strong legal grounds to move forward," McGraw said in a statement, "and secure the future of the Berkshire Museum as an invaluable asset to the educational, cultural and economic life of our community."
Citing a roughly million-dollar yearly deficit, the museum says that it risks closing within eight years unless it acts to stabilize its funding.
The planned auctions could raise as much as $60 million to build its endowment and help pay for renovations that would redefine the nonprofit that Zenas Crane founded in 1903.
"We have made clear that the Board of Trustees acted consistent with its mission and the founding principles of this museum and our fiduciary responsibility. Our plan is to proceed, but these are now issues for the court to decide," McGraw said.
The case will be heard at 11 a.m. Wednesday by Judge John Agostini.
The attorney general's request came in response to a motion filed Oct. 20 by three sons of Rockwell, and others, seeking a temporary restraining order against the museum's plan to sell 19 of the works at auction beginning next month. In all, the museum planned to sell 40 of its most valuable holdings.
That suit named Healey as a party of interest in the complaint, a move that required her office to respond.
That long-awaited position is unequivocal in the filing.
"Any sale of the art in question in violation of the law would result in irreparable harm to the public interest," according to the response filed by Healey's office.
Emily Snyder, a spokeswoman for the attorney general's office, said, "The Berkshire Museum is important to the community and a resource for the entire state. We are hopeful that this court proceeding presents an opportunity to explore alternatives to this sale that will maintain the art collection and allow the museum to thrive in the years to come."
In siding with the plaintiffs, the office notes that it is still pursuing its review, not yet completed.
Monday's response is not the attorney general's last word on the matter, but in order to preserve the status quo, and prevent the works from leaving the country and the reach of the American court system, the office joined the plaintiffs' motion for a temporary restraining order stopping the sales.
After an auction of American art scheduled for Nov. 13, Sotheby's is scheduled to sell six other pieces owned by the museum in three other auctions that same week, followed by other sales in 2018.
Darrell Rocha, a spokesman for Sotheby's, said the house is prepared to move forward with the sales. In court filings last week, the auction house noted that it has invested nearly half a million dollars in preparing for auctions of works owned by the Berkshire Museum.
"Sotheby's is fully committed to the museum's success and, unless a court rules otherwise, will proceed with the auctions beginning on Nov. 13," Rocha said in a statement.
William F. Lee, the WilmerHale attorney representing the museum, said that while he respects the office of the attorney general, he does not feel it needs more time for further inquiry.
"For more than four months, the museum has cooperated fully in providing documents and information to the attorney general's office," he said in a statement.
Lee said he looks forward to arguing the museum's case in court this week.
"While the museum appreciates the time and attention given this matter by the attorney general's office we continue to believe that there is no legal barrier to the museum proceeding with the deaccession and its plans for a sustainable future which are critical to the region."
In its filing, the attorney general's office argues that legal restrictions prohibit the museum from selling artwork donated before 1932.
That was the year that an act of the state Legislature spun off the museum from its longtime parent organization, the Berkshire Athenaeum.
Though Mark Gold, the museum's attorney said in a June letter to the attorney general's office that the works were not restricted from sales, that isn't what the office has determined.
The attorney general's filing concludes that Rockwell fully intended his gifts of the paintings "Shuffleton's Barbershop" and "Shaftsbury Blacksmith Shop" to remain with the museum. The issue of donor intent has been a central question.
Keating, the attorney for the three Rockwell sons, said he learned in a call Monday that the attorney general's office, which he named as a "party of interest," would support his arguments.
"I knew the court would be very interested in whatever their opinion is," Keating said.
He said he did not know until the call Monday what that opinion would be.
"I think that's something that the judge will be attentive to," Keating said of the filing. "Not that he's bound by it."
Wednesday's hearing will include arguments by Keating and Lee's law firms, as well as presentations stemming from a Suffolk Superior Court lawsuit filed by attorney Nicholas O'Donnell on behalf of three residents of Lenox.
Staff writer Larry Parnass can be reached at 413-496-6214 or @larryparnass.
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