Court renews Berkshire Museum art sale injunction to Monday, but says that's it
PITTSFIELD — A Massachusetts Appeals Court justice gave the state's top prosecutor a bit more leash Thursday, letting it bar Berkshire Museum art sales through Monday. But not beyond that.
"No further extension should be anticipated," said Justice Joseph A. Trainor.
Meantime, talks are underway between the museum and the attorney general to resolve the dispute, The Eagle has confirmed. Neither side would comment, and it isn't known whether there is serious buy-in on the outcome from either side, due to secrecy surrounding the proceedings. What a compromise might entail remains uncertain.
The Berkshire Museum case is considered a test of long-standing prohibitions against using proceeds from art sales to cover operational costs. The dispute has generated headlines around the country.
With Trainor's action Thursday, the dispute appears headed for an inflection point Monday, when Attorney General Maura Healey must show her hand, nearly seven months after trustees said that only by tapping the value of their collection could they stave off collapse.
Trustees announced in July that they plan to use as much as $60 million in proceeds from art sales to expand their endowment by $40 million and to pursue renovations. Those changes, they said, would enable the museum that Zenas Crane founded 115 years ago to shift programming to emphasize science and nature, while still exhibiting works from its art collection.
Though the injunction lapsed Tuesday, the works remain in the custody of the Sotheby's auction house in New York City, despite the fact that no restrictions were in place for nearly three days.
"I can confirm that they're still here," Darrell Rocha, a Sotheby's vice president, said Thursday.
Carol Bosco Baumann, a museum spokeswoman, would not say whether the museum is hoping to negotiate a resolution to an impasse over the art sale.
"The museum is declining to answer your questions," she said.
She would also not say whether the museum will consider scaling back on the list of 40 works announced in July, including two paintings that artist Norman Rockwell gave to the museum.
A representative of Healey declined to answer questions about behind-the-scenes efforts to end the conflict.
But as that office's monthslong investigation of the proposed sale wraps up, The Eagle confirmed that an effort is being made to resolve the dispute.
The paper also learned that a former employee was interviewed this week by the Attorney General's Office, evidence that, even as that office pursues talks, investigatory wheels are turning.
In a motion Monday to the Appeals Court, Assistant Attorney General Emily T. Gabrault asked for a one-week extension of the injunction, as well as another week to provide a status report on its inquiry.
In his order Thursday, Trainor said the office must submit that status report on or before Monday.
Emily Snyder, a spokeswoman for Healey, said in a statement Monday that the office wanted to use the added time to "fully analyze" information it had gathered about the proposed sale.
She linked that review to "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."
'Cut a deal'
Jim Lamme, a Berkshires lawyer advising one of two groups of plaintiffs opposed to the sales, said that whether or not the attorney general and museum find common ground, his clients' challenge remains before the appellate court.
Those plaintiffs, who include three Rockwell sons, are appealing the dismissal of their action by Judge John A. Agostini of the Berkshire Superior Court. The plaintiffs wanted an injunction, but were found to lack legal standing.
Lamme said he had anticipated that the Attorney General's Office might seek to resolve the dispute with the museum, preferring not to go toe-to-toe with the institution, despite the office's statutory authority to oversee nonprofits and public charities.
"They'll cut a deal," Lamme said.
Lamme added that although the injunction lapsed Monday, after being in place for 60 days after an initial renewal Dec. 11, he doubted that Sotheby's or the museum would seek to sell the works during any gap.
"I don't think these works of art are going to go anywhere," he said. "I would not allow a client to buy one of those works as long as a lawsuit is pending."
On the Sotheby's website, the two Rockwell paintings were listed Thursday as elements for an "Upcoming Lot."
Rocha said that designation was used after the museum works were pulled from a Nov. 13 auction, after the Nov. 10 issuance of the first 30-day injunction by Trainor. No auctions are planned for the pieces.
"It's something that happens with withdrawn lots," Rocha said. "No, there are no dates at this time."
Michael B. Keating, the Foley Hoag law firm partner who leads the legal effort on behalf of Rockwell's sons and other plaintiffs, said any settlement would not clear the decks of litigation.
"Our appeal is separate from the AGO/museum matter, and we intend to press forward with it in any event," Keating said.
With Monday now a deadline for a status report from the state, little time remains for the parties to reach terms for a compromise — if one is possible.
This week, the museum and Save the Art, a community group opposed to the sales, issued position papers.
Neither of the parties showed an inclination to compromise.
In a two-page statement she labeled "Key Facts," the president of the museum's board reaffirmed the need to sell works to safeguard the institution's future, in light of its recurring deficits.
Elizabeth McGraw also refuted charges advanced by Healey's office as recently as last month that museum trustees breached their duty to the institution.
Using bullet points, McGraw's memo declares that, even with the sale of 40 works, the museum's mission would not change. The attorney general has argued that the sales would void its ability to operate as a fine arts museum.
McGraw also said that under its planned New Vision renovations, more items from the collection would see the light of day.
Addressing the museum's financial challenges, McGraw said that while a consultant once estimated the museum could stabilize its finances by raising $25.6 million, that sum would not be enough to reinvent itself at a time when it, like other regional museums, has lost large donors.
The statement included a list of schools that have engaged with museum programs, as well as a roster of artists whose work would remain in the collection.
"For all that's been said about the museum's extraordinary collection, our most valuable asset remains our open doors," McGraw's statement says.
Backing the AG
In its own statement Thursday, Save the Art said it backed the state's investigation and wants all of the works on the sale list returned to Pittsfield.
Like the museum, the group appeared to be sticking to its original position. Members met twice this week to reset their principles.
The statement asked trustees to promise to follow collections practices of the museum industry, to be open about finances and to commit to "vigorous fundraising."
"By adopting these conditions," the group said, "the Berkshire Museum will find many friends willing to help build a successful and sustainable future. There is courage and wisdom in changing course in light of altered circumstances."
Like Healey's office, the group expressed a wish to be part of the solution.
"We affirm our group's desire to assist the Museum in finding an alternative to address its fiscal issues while preserving the Museum's vital regional identity," the statement said.
Larry Parnass can be reached at email@example.com, at @larryparnass on Twitter and 413-496-6214.
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