Inside the legal case: Mass Cultural Council wasn't able to make against Berkshire Museum art sales

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Under state law, the Attorney General's Office quarterbacks the commonwealth's legal beefs.

And so, when the Berkshire Museum petitioned the Supreme Judicial Court this winter to allow it to sell artworks, only one state agency, the office of Attorney General Maura Healey, weighed in.

But another department wanted to be heard.

The Massachusetts Cultural Council prepared a draft of a "friend of court" brief in late February for Justice David A. Lowy to consider along with the museum's petition and the support for it provided by Healey's staff attorneys.

But the MCC did not file its fully drafted amicus brief. The agency, whose leader had been sharply critical of the museum's plan, held back hours before its staff planned to submit two documents to the Boston court. They hit the brakes after being advised by Healey's office that state statute and case law gave the attorney general full authority to handle such matters.

Officials in Healey's office say that is standard practice and ensures that, when it comes to legal disputes, the state speaks with one voice. They say they consulted with Anita Walker, the MCC's executive director, about her agency's concerns.

In the museum case, the state's single voice backed the plan to sell up to 40 works from the Pittsfield collection under certain conditions, including the provision that the most celebrated piece, Norman Rockwell's "Shuffleton's Barbershop," remain accessible to the public through a sale to a nonprofit museum.

While Lowy considered other friend of court briefs opposed to the museum's sales, along with one submitted out of the blue by Martin Gammon, a California art expert, the justice was not given the opportunity to consider the view of the MCC, the state's leading arts organization.

The Eagle used a public records request to obtain the 13-page draft brief that David T. Slatery, an attorney who is the MCC's deputy director, prepared for the SJC.

While the document carries no legal weight, and the issue is now moot, Slatery's brief offers a counterpoint to the conclusion reached by another state department — Healey's office.

In the brief, Slatery argues that the museum had not proved a central issue in its petition — that it was in dire financial distress.

"To the extent that the Museum now is perceived to suffer an existential crisis, this crisis has been self-created," he wrote.

Slatery also said museum leaders had violated the public trust by not employing "sound practices" in their management.

Further, he claimed that the petition Lowy was eventually to accept in early April would set a bad precedent for Massachusetts museums. He argued that when it came to the future of artworks acquired by the Berkshire Museum before 1932, the Legislature, not a court, should handle any effort to remove restrictions.

Nonetheless, it was the museum that prevailed at the SJC, based on its petition and on support from Healey's office.

In its court filing, the museum had said it needed money to survive.

"The Museum believes, and the Attorney General has informed the Museum that it agrees, that this Court's approval of the sales and use of proceeds set forth herein would effectively ensure that the Museum will be able to viably carry out its mission for the future," the petition said.

Two months later, after hearing brief arguments in court, Justice Lowy blessed the deal.

In his April 5 ruling, Lowy tipped his hat to Healey, saying that, as attorney general, she had "exclusive province" on a public charity's plight.

"Based on the Attorney General's investigation into the sale and her assent to the requested relief, the Museum has satisfied its burden of establishing that it has become impossible or impracticable to administer the Museum strictly in accordance with its charitable purpose, thus entitling the Museum to relief," Lowy wrote.

Similar points

Until early February, lawyers in Healey's office had made many of the same points in legal filings as Slatery was soon to do in his brief, as they pursued a monthslong investigation into the sales.

After plaintiffs behind two civil lawsuits were found by a Berkshire Superior Court judge to lack legal standing to fight the sales, Healey's office emerged as the main opponent of the museum's plan. Lawyers in her nonprofits and public charities division battled for months with the museum's law firm, WilmerHale of Boston.

But in early February, the two sides came together on a plan to seek approval from the SJC, leaving the earlier plaintiffs standing alone in opposition.

An official with Healey's office noted that it did not oppose efforts by those plaintiffs to argue against the sales in briefs presented to Lowy. Attorneys for those plaintiffs also appeared before the justice in a Boston hearing, articulating their views on why the sales should not be allowed.

A spokeswoman for Healey's office said the process allowed Lowy to hear dissidents, though it joined the museum in arguing against them.

"While the Mass. Cultural Council did not have the legal authority to submit an amicus brief in this matter, our office assented to the filing of several briefs from interested private parties opposed to the art sale to provide a full picture of the issue for Justice Lowy," said Emalie Gainey, a spokeswoman for the office.

Apart from the Berkshire Museum petition, Healey's office and the MCC continue to work on ways to advise museum leaders around the state on best practices, in light of controversy over the Pittsfield sales.

"The care and stewardship of art collections remains an important issue across Massachusetts and the AG's Office is working closely with the Mass. Cultural Council on ways to assist charitable boards considering those matters," she said.

But on the matter of the Berkshire Museum, the state's leading cultural group was not heard in the chambers of the John Adams Courthouse.

In his draft brief on behalf of the MCC, Slatery notes the agency's long history with the Berkshire Museum. The MCC, he wrote, had provided nearly $200,000 in operating support to the museum since 2007, as well as a capital grant award of about $950,000.

That relationship gave the agency insight into the museum's condition.

Slatery wrote that, in years of applications to the MCC, the museum had "not highlighted nor even indicated any imminent threat of closing or problem with fundraising. In fact the Museum reported progress on several different capital campaigns."

"No existential crisis was even noted in the Museum's submissions during the period in question," Slatery wrote.

Last July, after the museum announced its plan to sell works, the MCC took a deeper look at its financial position and came to doubt that it needed $50 million to $60 million. Instead, Slatery wrote, the MCC believed the museum could be put on a "sound footing" with $10 million to $15 million in new funding. He wrote that efforts by the MCC to obtain evidence from the museum regarding its need hit a wall.

And the museum, he said, "has refused to share its 'New Vision' business plan with the Council."

'Sound practices'

Deeper in his draft, Slatery argued that, by their nature, nonprofits are expected to "stay true" to their missions and "adhere to a certain reasonable level of care in their operations."

He questioned whether leaders of the Pittsfield museum met that standard, noting that, in a filing to the MCC a few weeks before it announced the sales, it said it planned "no significant change to our core programming" either in 2017 or 2018.

Museum officials have said that despite the art sales, their overall mission is unchanged.

In his draft brief, Slatery also flagged the fact that the museum approved a consignment contract last June with Sotheby's that stood in violation of the museum's existing collections policy. And he argued that the notice that attorney Mark S. Gold provided to Healey's office at the time "failed to identify the scope of the plan; the fact that the Museum would be radically altering its corporate purposes; that the subject artworks were subject to statutory and other restrictions; and that the Attorney General's review and a court's approval was required."

The museum has maintained that it did not need court approval or the blessing of Healey's office.

Slatery also cited concerns that the museum's petition, if allowed, would set a bad precedent for other collections in the state.

"While no doubt New York auction houses and wealthy private collectors across the globe would cheer this news, the residents of Massachusetts and the entire cultural field would suffer," Slatery wrote.

"The Council fears that, if the requested relief is granted, the temptation for cultural organizations, especially smaller struggling organizations, will be strong to sell off irreplaceable works in the collections to meet financial gaps and operating deficits," Slatery wrote.

The MCC lawyer's last point: The court was the wrong place to decide this. Slatery argued that, because works acquired by the museum before 1932 were subject to a law passed by the Massachusetts Legislature in 1871, that same body, not the SJC, should act.

The 1871 law said works must stay in Pittsfield. That restriction remained a key hurdle for the museum's sale plan, leading it to remove pre-1932 works from planned November auctions.

"The Court should therefore refrain from modifying any legislative restriction on the Pre-1932 Works and instruct the Museum to seek a legislative remedy," Slatery wrote.

AG practice

Two top officials with Healey's office, speaking at their request only on background, said it is common practice for state agencies to allow the attorney general to take the lead on legal disputes.

But the parties work collaboratively, they said, and this was the case with the MCC on the Berkshire Museum. It isn't unusual for other state departments to lobby Healey's office on what a legal position should be, but the decision lies with the attorney general, they said.

Rarely do these departments go ahead and draft amicus briefs that are never filed.

A divided voice, one official said, is, by nature, less strong. The decision to instruct the MCC not to file the draft brief was relatively routine and was not based on its contents, another official said.

It came after Healey's office learned that the MCC planned to join the former plaintiffs in filing friend of court briefs against the sales.

After Lowy granted the museum's petition in April, Walker called the outcome disappointing.

"It represents a significant loss of cultural heritage to the people of Berkshire County and to the entire Commonwealth," she said in a statement.

Under state law, it is the duty of the attorney general to "appear for the commonwealth and for state departments, officers and commissions in all suits and other civil proceedings in which the commonwealth is a party or interested."

Chapter 12, Section 3 of the general laws also states that the attorney general handles legal action "in which the official acts and doings of said departments, officers and commissions are called in question, in all the courts of the commonwealth. ..."

While that statute has been tested, case law has affirmed the attorney general's primary role, according to Healey's office, citing 1975 and 1977 cases.

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



Draft of Mass Cultural Council amicus brief by The Berkshire Eagle on Scribd


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