Berkshire Museum art sale dilemma isn't new to former AG Coakley

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PITTSFIELD — Hammered by recession, stewards of a famed art collection considered selling it. But first, the state agency that oversee nonprofits and public charities needed to take a look.

What's an attorney general to do?

Today, that question falls to Maura Healey, whose staff is reviewing the Berkshire Museum's plan to sell as many as 40 works from its collection, a task now quickened by a court challenge.

But in 2009, the duty belonged to Martha Coakley. She was Massachusetts attorney general when trustees of Brandeis University announced that, because of financial woes, they would sell their Rose Art Museum collection.

That never happened. The university dropped its plan two years later, in the face of a lawsuit. But the university's plan put Coakley's staff in motion, she told The Eagle this week.

"The Attorney General's Office played a significant role," Coakley said of the Brandeis case, in a phone interview from her law office in Boston.

Coakley no longer represents residents of Massachusetts. And she's not neutral on the Berkshire Museum case.

Her firm, Foley Hoag, represents plaintiffs seeking a temporary restraining order against the start of art sales by the museum. She is assisting fellow partner Michael Keating on a case filed Oct. 20 in Berkshire Superior Court.

Healey's office is being mum on its review.

But Coakley spoke freely about her approach to the Brandeis case and outlined what are likely to be Healey's central concerns in the Berkshires faceoff.

An attorney general's duty, she said, is to protect the interests of "bequestors," those who give things to nonprofits and public charities.

"They're often not around to protect their interests," said Coakley, a Berkshires native and Williams College graduate. "The attorney general, by statute, is the watchdog for all of this."

She recalled a case in which her office reviewed the wish of a church to sell a a gift it had received: an 18th-century silver chalice. The church felt that it couldn't use or display the valuable object and wanted to use sale proceeds to fix its roof. Coakley's office approved that sale.

In the Brandeis case, some of the people who donated work to the art museum were still living. Importantly, they had written records specifying that the pieces remain in the Rose collection.

The Berkshire Museum maintains that the works to be auctioned are not under similar restrictions, though plaintiffs represented by Coakley's firm disagree.

Coakley said her office met with parties to the Brandeis dispute, just as Healey's office is doing today on the Pittsfield issue.

While the legal particulars are different in the Brandeis and Berkshire Museum instances, the overall role of the attorney general is the same, Coakley said.

It starts by asking a lot of questions. What did donors intend? Have trustees performed their duty to protect a charity's assets?

"Is there authority for the charity to do what it's attempting to do?" she asked.

It can be hard to establish donor intent, she acknowledged, especially when many years have passed, as is the case with most of the Berkshire Museum pieces.

In her firm's case, three sons of artist Norman Rockwell maintain that their father would not have wanted to see his gifts sent to auction. Offspring can speak to the intent of a parent, she said.

"It's emotional and gets a lot of interest," she said.

In the course of its reviews, the Attorney General's Office usually steps lightly, Coakley suggested.

"We try never to be heavy-handed," she said. "We don't substitute our judgment for what the party did."

Rather, after hearing from all of the stakeholders — a step well underway on the Pittsfield matter, if not complete — Coakley said the office would apply the appropriate case law.

That makes the office part investigator, part judge, Coakley said. Lawyers with the agency collect evidence and seek to "give it appropriate weight."

While Coakley's team worked largely behind the scenes in the Brandeis case, Healey's attorneys might be forced out into the limelight. That's because her office is named as a party of interest in the lawsuit filed Oct. 20.

Healey's office is expected to file a response before the hearing next week.

Reach staff writer Larry Parnass at 413-496-6214 or @larryparnass.


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