'Special master' urged to oversee Berkshire Museum finances, changes

Opponents of the Berkshire Museum's plan to raise $55 million through the sale of artworks have filed briefs with the Supreme Judicial Court. It is their final attempt to affect the outcome of the case, which now is in the hands of a single justice.

PITTSFIELD — If it allows the Berkshire Museum to sell artworks, the Supreme Judicial Court should name a special master to make sure the institution uses proceeds wisely, a new court filing says.

That is the remedy urged Tuesday by a group of Berkshire County residents in a "friend of the court" brief.

For two weeks, a museum petition sat without challenge before a Boston justice. Now, Justice David A. Lowy has the "no" vote.

Two briefs filed late Monday and Tuesday with the SJC oppose 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.

Justice Lowy is expected to decide a question that has gripped museum backers in the Berkshires and the wider art world.

For opponents, "friend of court" briefs offered their last attempt to influence the outcome.

"The Court is once again the last resort," wrote Nicholas O'Donnell of Sullivan & Worcester, attorney for three Lenox residents. "Only this Court can stop it now."

He represents James and Kristin Hatt and Elizabeth Weinberg.

The other brief was filed by Michael B. Keating of the Boston firm Foley Hoag. He 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 Berkshire Eagle's advisory board.)

The arguments

Keating and O'Donnell slam the sales as unjustified, undeserved and for the most part unnecessary.

The museum and Attorney General Maura Healey say otherwise. Without an influx of $55 million, the two parties now agree, the museum risks closing at some point.

Keating and O'Donnell question that figure. They also express concern about the role played by the Attorney General's Office. After battling the museum for months in court, the office early this month agreed to allow the art sales, provided a single justice of the SJC approves.

The briefs filed this week are designed to widen the justice's understanding of the case. They do not grant their authors actual standing in the litigation. Still, both attorneys ask in their briefs for permission to speak at any hearing the court may call on the museum issue.

O'Donnell said in an interview Tuesday his clients opted to provide what's known as an "amicus" brief to ensure their involvement. Court papers note that an attempt to gain intervenor status would have been fought by the museum.

"We wanted to get our thoughts on the record as soon as possible," O'Donnell said.

After months of work in lower courts, both attorneys now concede that art could be sold.

Keating asks the court to at first deny the sale of any work other than "Shuffleton's Barbershop." O'Donnell asks the court to either deny all sales, or to allow only "Shuffleton's Barbershop" to go to new hands.

Both attorneys question plans by the museum to allow a sitting trustee, Jeffrey S. Noble, to be involved with future construction through his company, Hill-Engineers, Architects, Planners of Dalton. Since 2011, Hill-Engineers has been paid at least $578,000 by the museum, according to the institution's Form 990 filings to the IRS.

The attorneys note that Healey's office investigated Noble's receipt of money from the museum while also sitting on its board.

Seeking oversight

In his 16-page brief, Keating urged Lowy to ensure ongoing financial oversight of the museum, if he accepts the museum's petition and allows the sales.

"It appears that the Attorney General intends to conduct little oversight of that process," Keating writes. "Given these concerns, the large sums of money involved, and the Museum's importance to the community, [his clients] respectfully suggest that the Court ... maintain a supervisory role."

That kind of supervision is needed, Keating argues, because of what he characterizes as a spotty record by the museum of handling its own financial affairs. He pulls from materials put into evidence in the course of lower-court proceedings to fault museum fundraising, note its internal secrecy and question the depth of detail available about its planned New Vision project.

When announcing plans to sell works July 12, museum officials said proceeds were needed both to bulk up its endowment and pay for renovations related to its shift in focus to multimedia programming about science and nature.

Keating cites case law to suggest the SJC can "retain jurisdiction over this matter to ensure that the Museum is properly discharging its obligations."

A special master familiar in museum finance, Keating writes in his brief, should have access to all of the museum's financial and administrative records.

That person, he says, could be asked by the court to do the following:

• Report on whether the museum actually needs to sell more works, after "Shuffleton's Barbershop," and to ensure that the sequence of sales keeps total proceeds from exceeding the $55 million cap, while "preserving the most artistically important works to the maximum extent possible."

• Review and seek court approval for a "detailed plan for the New Vision and a detailed business plan."

• Oversee the hiring only of contractors or subcontractors for the New Vision project — and only "through an open and competitive bidding process."

• Check the qualifications of any investment manager handling proceeds from the art sales, with that person picked in a competitive process. Also, to ensure that the manager's fees conform to industry standards.

O'Donnell brief

O'Donnell's 46-page brief argues that the museum has failed to show that it is "impossible or impracticable" for it to continue without selling the artworks. And he asserts that any change the SJC allows in regard to the museum's charitable purpose must match "as near as possible" its original purpose.

O'Donnell spares no feelings. He argues that the museum's leadership opted to "cash in" on its collection and decided to shelve fundraising efforts.

"The considered wisdom of museum professionals resoundingly and unanimously rejects this mercantilist approach to cultural stewardship," O'Donnell writes.

The court, he says, "is now the last resort to avoid the Commonwealth becoming a shameful opening salvo in the pillaging of museum collections nationwide by opportunists."

The brief quotes repeatedly from filings in other courts by Healey's staff.

In a document filed to the Appeals Court, her lawyers argued that the museum's officers and directors breached their fiduciary duty in four ways: by failing to find less drastic means to raise money, picking art to sell based only on value, violating their collections policies, and intending to sell works subject to restrictions.

If granted, the petition before the SJC would remove any such restrictions, which the museum has argued do not exist.

O'Donnell argues that given the strenuous objections Healey's office raised for months about the museum, that office's decision to endorse a sale, even with conditions, represents "a complete capitulation."

Lacking support from Healey, O'Donnell writes, his clients "come to the Court ... to seek the only safeguard left for the cultural artifacts — and reputation — of the Commonwealth."

Other points in the O'Donnell brief include:

• The letter from Healey's office backing the museum's SJC petition fails to detail how it found that the museum needs to raise $55 million. Earlier, the office had suggested a lower figure would be adequate.

Healey's office says its views changed in January, when it received new information through its probe.

O'Donnell's brief also questions the museum's commitment to fundraising. More robust efforts could have allowed it to address recurring deficits, he suggests.

• The "real genesis" of the museum's move to sell art, O'Donnell writes, was the 2011 hiring of Executive Director Van Shields. O'Donnell says Shields spoke of "monetizing" the collection "almost as soon as he arrived." Also, museum lawyer Mark Gold, he writes, argued in a book essay that museums should be free to pursue such sales.

• While a museum consultant estimated that $25.6 million would be enough for the museum to stabilize its finances, that amount climbed unnecessarily, O'Donnell asserts.

Healey's office came to support the higher amount of $55 million, which museum leaders called essential to allowing them to pursue a makeover emphasizing multimedia exhibits.

"An argument for a figure to stabilize the Museum somehow morphed into a 'need' for a dramatic expansion," O'Donnell writes. He calls the museum's petition to the SJC "the final stage of the solution in search of a problem. ... Regrettably, the [Attorney General's Office] has acceded to this disastrous outcome even as it confirms the Museum's mismanagement."

Outside views

O'Donnell praises another state agency's stance on the museum's art sale. The Massachusetts Cultural Council had faulted the museum last year for violating "important guidelines" of museum practice.

In a statement Tuesday, the council's executive director, Anita Walker, said she regretted the terms of the Feb. 9 pact between Healey's office and the museum.

"We are disappointed that the settlement does not protect the beloved collections that so many people in the Berkshires fought to keep in their community," Walker said.

Last summer, the MCC came down hard on the Berkshire Museum in words and deeds. The agency suspended financial support for the museum this fiscal year.

"Museums are only as strong as their relationship with the public," Walker said Tuesday. "They owe the public honesty and transparency by virtue of their nonprofit status and the public investment they receive. When museums disregard their responsibility to care for the treasures they steward on behalf of the public, they have broken the public trust."

She added, "We have seen the consequences of this in Pittsfield." Meantime, she said her agency is working to prevent a similar situation.

Members of the group Save the Art — Save the Museum said in a statement Tuesday they believe the SJC justice's decision could set a precedent in the museum field.

"The outcome, now in the hands of the courts, will affect the future of all museums, libraries, and historical societies nationwide that hold collections of valuable objects for public enjoyment, education, and scholarly research," the statement said.

Leslie Ferrin, a group leader, said Save the Art supports the people who filed amicus briefs, believing those documents make clear why members oppose the proposed art sales.

Keating's original clients were the first to challenge the planned sale with an October lawsuit filed in Berkshire Superior Court. Those clients included three sons of Rockwell. They opted out of further involvement after the museum agreed to sell "Shuffleton's Barbershop," the painting considered by many to be their father's masterwork, to a nonprofit museum, keeping it accessible to the public.

O'Donnell's clients sued in late October to stop the sales. The Berkshire Superior Court judge ruled they lacked legal standing, a decision they appealed; that challenge remains before the Massachusetts Appeals Court.

Keating's clients, except for Patti, were also found to lack standing. They have withdrawn their appeal of that ruling.

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

Brief of Amici Curiae James Hatt, Et Al by The Berkshire Eagle on Scribd

Keating Amicus Curiae Brief by The Berkshire Eagle on Scribd