Attorney General on track to wrap up Berkshire Museum inquiry

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PITTSFIELD — The state Attorney General's Office expects to complete its investigation of the Berkshire Museum's proposed art sale by Jan. 29, the date on which a renewed preliminary injunction is to expire, provided that the museum produces final documents and interviews. 

That's good, said Elizabeth McGraw, president of the museum's trustees. 

But she countered that the state continues to block resolution of the case. 

In a required status report filed Wednesday with the Massachusetts Appeals Court, the office said that it is waiting to receive selected documents from the museum. It also seeks to conduct further interviews with employees and a board member, including Executive Director Van Shields. 

"These interviews and the remaining documents are important to the completion of the AGO's investigation," according to the report, the second that the office has supplied to the Appeals Court. 

Finishing the inquiry by Jan. 29 depends on continued cooperation from the museum, the office warned.

The attorney general's division of nonprofits and public charities won the injunction Nov. 10 from a single justice of the appellate court, stopping four auctions planned the week of Nov. 12 by the museum and Sotheby's. The first auction, Nov. 11, would have placed up for bidding two works given by artist Norman Rockwell to the museum, among other pieces.

The museum announced July 12 that it would sell 40 works from its collection to raise money to enhance its endowment, in the face of yearly deficits, and to help fund a building project enabling it to shift its focus to science and nature. 

The Attorney General's Office is examining whether the museum has the legal right to sell the works. The new status report notes that it sought an injunction "to enjoin the Museum from taking the extraordinary step of selling 40 works of art that amount to substantially all of the value of its fine art collection at auction."

The case is being watched nationally by museums and their trade organizations, among others, because it could set a precedent on the ability of such institutions to sell works to cover operational costs — an action viewed as unethical by the profession. 

But Berkshire Museum trustees say they are acting to save the 114-year-old facility from having to close within eight years. The works the museum seeks to sell carry no restrictions preventing their sale, trustees say. 

In the latest status report, Assistant Attorney General Emily T. Gabrault said additional interviews with museum employees are scheduled for Monday and Tuesday. 

With Shields' return to work from a medical leave, Gabrault said her office has "reiterated its request to interview him at a time and location most convenient to Mr. Shields."

Gabrault said her office is also seeking an interview with an additional trustee, who is not named in the status report.

The office interviewed three museum employees Dec. 12, after which it asked for other records. 

The office credits the museum and its legal team with providing many requested documents that the state asked for Nov. 15. Previously, the state said in legal filings that the museum had been slow to produce materials for its review. But in the filing Wednesday, Gabrault said the museum made files available Dec. 11, 14, 15 and 20. And the next day, representatives of the attorney general went to the offices of the law firm WilmerHale, which represents the museum, to study documents. 

At the same time, Gabrault said, the state has worked to narrow the range of documents wanted for the investigation.

Since the first status report the Attorney General's Office filed in early December, the museum has provided about 500 more documents, Gabrault writes.

Over the past few weeks, the museum's lawyers have criticized the pace of the inquiry. 

On Wednesday, McGraw, the board president, said her institution has offered "full cooperation" to the attorney general. 

She said the office's statement that it will complete its review by Jan. 29 "is welcome news."

"But it is disappointing that the Attorney General's Office continues to block trial proceedings critical to resolving this case," McGraw said in a statement to The Eagle.

"Prolonging legal roadblocks is not in the best interests of the people of Berkshire County or the museum they turn to for experiences in art, science, history and more," she said.

McGraw said the museum wants to see the case returned from the appellate level to Berkshire Superior Court. Its lawyers have tried to get the Appeals Court to direct that course of action — so far unsuccessfully.

That is the place, McGraw said, where "the issues in this case can be decided publicly, fairly, and swiftly, particularly in light of the Superior Court's previous decision that the museum board acted responsibly and within its rights."

On Nov . 7, Judge John A. Agostini of that Pittsfield court denied the attorney general's request for an injunction against the sale, and found that two groups of plaintiffs, including three sons of Rockwell, lacked legal standing to challenge the deaccession and sale of the art.

"Only then will the museum be able to secure its future," McGraw said Wednesday, "and continue its important contributions to education, culture, and the economy in a community where they are greatly needed." 

Gabrault's filing defends how the office has conducted its review.

"Despite the Museum's continued mischaracterization of this investigation and the AGO's authority to proceed with it, the AGO has been working diligently to review information as it is received and is striving to conduct its investigation in an efficient and cooperative manner," Gabrault writes in a footnote in the report. 

Larry Parnass can be reached at lparnass@berkshireeagle.com, at @larryparnass on Twitter, and 413-496-6214.



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