To the editor:
When the dust settles over the court proceedings, what's next? Whether or not the Attorney General's Office (AGO) succeeds in stopping the sale of the art, the whole incident raises substantial questions about the ability of the Berkshire Museum's board of trustees to carry out its fiduciary duty of care.
Because the board is the steward of art held for the public trust, the board should be required to institute a whole host of good corporate governance practices that, from the AGO's legal filings, would appear to be lacking. These include overseeing and finally approving management's development of the strategy for the museum, ensuring that in developing the strategy there are appropriate deliberative and transparent processes, and ensuring an appropriate plan is in place to carry out this strategy.
These processes require a board with the skill set capable to judge the viability of the strategy and oversee management's execution of that plan. A credible and transparent board nomination process should be instituted so that board members have skills and are free from conflicts of interest. After that, the newly constituted board should hire skilled management, including people with curator-type expertise who have a successful track record in managing cultural institutions. Also, the board must make certain that management undertakes a significant fund-raising and exhibition campaign to put it on a better financial footing. Finally, the board will have a great deal of reputational damage to repair to ensure vital support of the Berkshire community as well as the far-reaching museum community, which has censured the museum for monetizing its art to pay for operational expenses unrelated to collections.
Who will ensure that the board exercises these good governance fiduciary duties of care? Whether or not the AGO is successful in stopping the sale, the museum still operates under the charitable/public trust umbrella of the AGO and enjoys tax-exempt status that makes it accountable to the public in the commonwealth. The AGO should appoint an independent corporate governance monitor to school the board on its duties and take it through these governance processes so that the board will exercise the appropriate level of duty of care. All major not-for-profit institutions pay close attention to their fiduciary duties of care and the Berkshire Museum should be no exception. If the museum cannot be trusted to do this on its own then, lawsuits aside, the AGO would seem to be the appropriate entity to appoint an independent monitor on behalf of the public to make this happen.
Carolyn Kay Brancato,
The writer founded The Conference Board's Global Corporate Governance Center and Directors' Institute and has trained boards of directors in the U.S. and throughout the world.