Court filing suggests talks underway to resolve Berkshire Museum art sale

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PITTSFIELD — A new twist has emerged in the Berkshire Museum art dispute: evidence the parties want to work it out.

In a one-page motion to a justice of the Massachusetts Appeals Court, the state Attorney General's Office on Monday asked that an injunction barring art sales be extended for one week, to Feb. 5, and that it have that added time to report on the status of its investigation into the museum's conduct.

The office had been instructed Jan. 12 by Justice Joseph A. Trainor of the Appeals Court to advise him no later than Monday on where that probe stands.

The same judge granted the injunction that prevented the museum from moving forward with its plan, announced July 12, to sell 40 works from its collection, including two paintings given by the artist Norman Rockwell.

While the Attorney General's Office did not specify that talks are underway to resolve the dispute, a statement Monday suggested it is taking a new tack.

"We are hopeful that a brief extension will allow us to fully analyze the information we have received in our investigation," said Emily Snyder, a spokeswoman for Attorney General Maura Healey, "in the hope of finding a way forward to secure the future of the Museum and ensure it is able to thrive in the years to come."

In its reference to the museum's long-term well-being, the AG's statement echoes one issued this weekend by the museum.

Spokeswoman Carol Bosco Baumann said Sunday the nonprofit "is eager to resolve these issues to secure the museum's long term future."

Baumann added Monday that the museum agreed to accept the request for what she termed "a brief postponement."

She reiterated that the institution wants to resolve the dispute "to secure the future of the Berkshire Museum for all it provides its visitors, young and old, in art, history, and science."

Because the museum does not oppose the request for an extension of the injunction, it is expected to be approved.

Michael B. Keating, a Boston attorney representing the first group of plaintiffs to challenge the art sales, said Monday he was not aware the state would seek more time, but said it may be due to the complexity of the case.

He cautioned against reading too much into Monday's development.

"It's a complicated and important matter and I'm sure she wants to take time with it," Keating said of Healey.

Also, he noted that the Appeals Court justice was likely to grant a one-week extension — even if opposed — after having the injunction in place for 60 days.

Nicholas M. O'Donnell, a Boston attorney who represents another group of Berkshire County plaintiffs, said the museum's willingness to accept another week of the injunction, after opposing it earlier, may be a simple professional courtesy.

If Healey's team and the museum turn out to be moving toward compromise, the terms they reach may or may not satisfy the original plaintiffs, O'Donnell acknowledged, when asked about that possibility.

"I guess we'd have to take that as it comes," he said.

Legal fight

The museum and Attorney General's Office have been dueling in court filings, and court appearances, since two civil lawsuits were filed in October seeking to block the sale of 40 works.

The museum declared the sales to be the only way it could halt a financial decline that left it at risk of closing within eight years.

Opponents of the deaccession of the museum's most valuable works — said to be worth as much as $75 million at auction — have questioned whether the situation is dire. They have charged that removing the works is unethical, unnecessary and would leave the institution isolated from the museum world, which holds that proceeds from art sales should not be used to cover operational costs, as the Pittsfield museum partly intends.

The state's review started last summer, after Mark Gold, a Pittsfield lawyer, wrote to Healey's office in June about the planned sale on the museum's behalf. His letter did not seek permission; the museum maintains it is within its rights to sell the works.

Over the late summer and fall, the state's "review" morphed into a full-fledged investigation, as the office's relationship with the museum changed.

Officials with Healey's office have said they usually work on an advisory basis with nonprofits and public charities, guiding them on points of law and accepted practice.

That relationship shifted dramatically in the course of two weeks in October, after the Attorney General's Office was named as an interested party in a civil lawsuit.

Following a Nov. 1 hearing in Berkshire Superior Court, Healey's office jumped in as the only plaintiff with legal standing to challenge the sale.

In the next two months, the state's sense of an advisory relationship with the museum grew strained, shouldered out by sharp language in a small mountain of legal briefs filed to the Massachusetts Appeals Court by both sides.

Lawyers for the museum, as well as a Superior Court judge, have criticized actions by Healey's office.

In his Nov. 7 decision to deny the first request for an injunction against the art sales, Judge John A. Agostini questioned whether Healey's office was committed to its probe, citing what he saw as its "initial indifference to this litigation."

The judge used 15 pages in his 25-page ruling to fault work by the Attorney General's Office on the case, suggesting it was "dragged into" the case, exhibited "faintheartedness" and didn't seem to think it would find grounds to support its objections to the sales.

"In this litigation, the AGO is a reluctant warrior," Agostini wrote.

Still, the state secured an injunction from the Appeals Court on Nov. 10, then was able to have it extended until Monday.

This story will be updated.

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


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