Berkshire Museum, AG respond to art sale opponents in SJC filings

BEN GARVER — THE BEKSHIRE EAGLE The Berkshire Museum lobby will be greatly expanded, opening into a two story atrium That will reconfigure the auditorium and the Crane room above.

PITTSFIELD — Our call, not yours.

That's the gist of what the Berkshire Museum and attorney general told art sale opponents Tuesday in legal briefs.

Last month, setting aside months of litigation, lawyers for the museum and Attorney General Maura Healey went hand-in-hand to the state's top court. They asked it to bless a plan to sell up to 40 works from the museum's collection to keep the place solvent.

The two tag-teamed it again Tuesday, this time to brush back 11th hour objections from Berkshire County residents once aligned with Healey's office. Last week, those residents filed "friend of court" briefs — known as amici curiae — to the Supreme Judicial Court.

In one, residents suggested Healey's office had let the public down as overseer of nonprofits and public charities and called on the court to appoint a special master to monitor the museum's financial affairs.

On Tuesday, it was the museum's turn.

William F. Lee, the museum's lead lawyer, called the opponents' filings a "grab bag of objections" containing "flippant and unsupported accusations."

No special master is warranted, he said.

"Amici may well dislike the outcome," Lee wrote, "but they have no legal basis to block it."

Lee called for a resolution by the SJC "as expeditiously as possible."

The documents stamped "RECEIVED" in blue ink Tuesday by the SJC clerk could be the last arguments in the high-profile dispute. The case has received national attention because it upends widely accepted museum practice about collections and the use of proceeds from art sales.

Though once litigants, the museum and Healey's office now agree the 115-year-old Pittsfield institution needs an influx of $55 million to keep afloat.

Justice David A. Lowy could decide, based on briefs now before him, to grant the museum's request. He can also refer the case to the full court rather than handling it on a "single justice" basis.

The case has been under advisement by Lowy, pending final responses.

Courtney M. Aladro, the lawyer who led Healey's investigation into the art sale, suggested in her office's response to the friend of court briefs that sale opponents are overstepping.

Aladro said critics "have no authority to substitute their judgment for that of the Museum's Board or to supplant the AGO's role in overseeing and investigating the Museum's plans in this case."

She also said, in a footnote, that opponents of the sale are wrong to cite her division's earlier objections to the art sale. Those positions, she wrote, have become "irrelevant" in light of further investigation that Aladro said upheld the museum's need for proceeds from art sales.

Healey's lawyers argued in January in a filing to the Massachusetts Appeals Court that museum officers and directors breached their fiduciary duty. The brief faulted trustees for failing to find less drastic means to raise cash, picking auction items based only on value, violating collections policies and intending to sell works that were subject to restrictions.

Earlier briefs

The responses Tuesday countered claims in briefs filed last week by Boston lawyers on behalf of eight Berkshire County residents.

Nicholas O'Donnell of Sullivan & Worcester represents three Lenox residents — James and Kristin Hatt and Elizabeth Weinberg.

Michael B. Keating of Foley Hoag represents Pittsfield artist Tom Patti, Patti's company and four Berkshire County residents: Jonas Dovydenas, Jean Rousseau, James Lamme and Donald MacGillis. (MacGillis is chairman of The Eagle's advisory board.)

Their briefs opposed the museum's Feb. 9 request that it be allowed to raise up to $55 million by parting with works it has owned for decades, including two paintings by Norman Rockwell.

The attorneys questioned the need for art sales and criticized museum leaders. O'Donnell argued that the museum failed to show it is "impossible or impracticable" for it to continue without selling art.

Lee said opponents' ideas on how the museum should have responded to its financial crisis were "assessed and rejected" by board members.

In her response, Aladro said that after completing its inquiry, her office believes the museum needs proceeds from the sale of works.

"The AGO agrees with the Museum that there is evidence," she wrote, "to support a petition to the court claiming that it is impracticable for the Museum to remain financially viable without a limited sale of some of its artwork."

The museum's petition to the SJC, known as a "cy pres," would enable it to sell art under terms of an agreement worked out with Healey's office.

Along with putting Rockwell's "Shuffleton's Barbershop" into the hands of another museum, with a pledge to allow a loan of the work to the Norman Rockwell Museum in Stockbridge for up to two years, the pact sets a cap on proceeds.

It also requires that works be sold in groups, potentially restraining the number of pieces that would leave the collection.

Lee's response said that through a staging of sales, "the museum believes it will be able to retain many of the 39 works" other than "Shuffleton's Barbershop."

Aladro wrote that her office became "satisfied" that the museum's board of trustees "reasonably concluded that the sale of artwork would provide the Museum what it requires for a viable and sustainable path forward."

Aladro acknowledged sentiments held by opponents who filed briefs.

"The amici clearly care deeply about the Museum and its planned sale of artwork from its collection, "Aladro wrote.

In passing, Lee offered an olive branch of sorts to opponents at the start of his reply to their briefs, saying "the Museum does not begrudge these individuals their genuinely-hold opinions."

But the opponents' views, he said, "however deeply held and fervently expressed," don't justify setting aside the museum and AG's agreement.

Lee wrote that the museum needs the money desperately, in part to address physical plant emergencies.

"Its endowment is dwindling, ceilings leak, walls weep, interior floors grow icicles, and storage areas are threatened by mold," he wrote.

Both of Tuesday's filings contained calls for the court to allow the sales to go forward with no further litigation.

Healey's office indicated that no more arguments should be heard.

To that end, Aladro called on the court not to grant requests in the opponents' briefs that they be allowed to speak, if a hearing is called before the SJC.

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

Response of the Berkshire Museum Trustees to the Amici Curiae by The Berkshire Eagle on Scribd

Attorney General's Response to Briefs of Amici Curiae by The Berkshire Eagle on Scribd