The attorney general's office filed a motion after the proceedings to become a plaintiff in the case, aiming to stop a sale at Sotheby's.



In Contentious Hearing, Lawyers Battle Over Berkshire Museum Sell-Off

The Berkshire Museum.

Opponents of the Berkshire Museum’s plan to sell 40 artworks from its collection, including two major Norman Rockwell paintings given to the institution by the artist himself, had their day in court this morning in Pittsfield, Massachusetts, in a courthouse located just behind the museum.

In a hearing that ran a little over two hours in Berkshire County Superior Court, on a motion for a preliminary injunction to halt the sale, lawyers representing a variety of plaintiffs—including the three sons of Norman Rockwell, current and former museum members, and an artist with site-specific work at the museum—fielded questions from a skeptical judge, John A. Agostini, and dueled with the museum’s lead attorney.

At times, the hearing grew heated.

Raising his voice, Michael B. Keating, a lawyer representing the Rockwell sons and other plaintiffs, who had filed the first suit in the case, called the Berkshire Museum board’s decision to sign a contract with Sotheby’s to sell works before notifying the public “an outrageous act on their part.” He also accused the board of breaching its fiduciary responsibilities, saying its actions have “ripped this county apart.”

William F. Lee, the museum’s attorney, said that “loud voices and character assassination” would not be helpful in finding solutions to the museum’s problems. The museum’s leadership has said that the institution is in a precarious financial situation that represents a threat to its continued survival. Lee pointed out that a lawyer in court with the attorney general’s office, which filed a brief on Monday supporting the plaintiff’s request for an injunction, had herself said that the board had not pursued the plan in bad faith, calling claims that it had acted improperly a “conspiracy theory.”

Later in the day, the attorney general’s office, whose lead attorney, Courtney Aladro, was grilled by the judge about its views, filed a motion to officially become a plaintiff in the case, according to a spokesperson for the attorney general’s office.

In July, the Berkshire Museum, which is dedicated to art, natural history, and science, unveiled a plan to pursue a “New Vision” that would involve raising $60 million—$40 million for its an endowment and $20 million for building renovations—and increasing its focus on science and technology-enhanced displays. Museum groups have hammered its actions, since professional guidelines typically allow for collection sales only when proceeds are used to purchase additional art. Many museum professionals are closely following the case, which could have implications for how nonprofit organizations handle donations.

The first works to be offered from the museum’s collection, including Rockwell’s Shuffleton’s Barbership (1950), which is estimated to sell for between $20 million and $30 million, are scheduled to go on the block on November 13 at Sotheby’s headquarters on the Upper East Side of Manhattan.

The scene in the courtroom resembled that of a Norman Rockwell painting, perhaps the 1943 work Freedom of Speech, with around 100 people—some in suits, others in plaid shirts, sweaters, and jeans—filling almost all of the spots on six rows of wooden benches and additional chairs. Before the hearing began, they quietly shook hands and chatted. Catherine B. Deely, a former trustee at various nonprofits who lives in Pittsfield and who has been a passionate advocate for the Berkshire Museum’s “New Vision,” was sitting a row in front of me and said that, regardless of the case’s outcome, she hopes that all who have been involved will “extend their passion for the museum for solutions to come.” She declined to offer a prediction on how the hearing would go.

Others present in the room included one of Rockwell’s three sons, Jarvis; Laurie Norton Moffatt, the director of the nearby Norman Rockwell Museum, who has voiced opposition to the fellow museum’s plans while also supporting the efforts of its trustees; and the Berkshire Museum’s co-acting directors, Nina Garlington and Craig Langlois, in only their second official day in their positions. (The museum announced last week that its director, Van Shields, would go on temporary medical leave, likely through the end of the year, in order to have surgery.) Still others in attendance included members of the Berkshire Museum’s board and area residents who have been staging protests, writing local letters to the editor, and organizing on social media.

Judge Agostini, who was appointed to the bench in 2002 by Massachusetts Governor Jane Swift, a Republican, opened the proceedings a few minutes early, and warmly welcomed those present. “We don’t often see a large crowd here except for a few large murder cases,” he said. Noting that some “feel civil discourse has eroded to some degree,” he spoke of the importance of what was going to be discussed and the need for the audience to listen respectfully. “We can all benefit from this,” he said.

A large part of the hearing was devoted to whether the plaintiffs actually had standing—the right to sue—and the judge directed tough questions to the plaintiff’s lawyers.

Some of the plaintiffs have maintained in legal filings that, under the statutes that established the Berkshire Museum (and its predecessor institution, the Berkshire Athenaeum), members of the museum and all residents of the county have the right to sue for breach of contract since the departure of key works would mean that they could no longer be properly served by the institution. Saying that precedent does not support that argument for standing, the judge said that such a standard “would create havoc” and “send shockwaves” through the state’s museum community since anyone would only need to pay a fee to join a museum and then be able to sue over disagreements.

The judge also questioned whether the Rockwell children had standing since any promises made to the artist at the time of his donations would remain with his estate, and not the children individually.

Speaking to Courtney Aladro, the chief of nonprofit organizations and public charities in the Massachusetts attorney general’s office, Judge Agostini noted that, by arguing that museum members had standing to pursue accusations of mismanagement, the other plaintiffs had been “intruding upon what has been your exclusive realm,” since the attorney general has oversight responsibility for nonprofits in the state. This put Aladro in the awkward position of saying that her office did not agree with that aspect of the case.

But Aladro also argued that the museum’s board had not exercised what is known as “reasonable intelligence” in pursuing its plan since it failed to anticipate obvious repercussions of the deaccessioning, which could result in the museum being ostracized from the broader museum community, thus preventing it from properly fulfilling its charter to educate and inform the public. Pressed by the judge on whether the attorney general was arguing that the board had not acted in “good faith,” Aladro said that her office was not making that claim—a point to which Lee, the museum’s attorney, returned more than once.

In court, Aladro said that the attorney general’s office was adopting the claims of the plaintiffs, but the judge said that it would need to actually file its own suit as a plaintiff. Before the day was done, the attorney general’s office filed a motion to formally become a plaintiff in the case, in the event that the other plaintiffs are found to lack standing to sue. This could prove to be an important move since the judge seemed disinclined to side with the plaintiffs on the matter.

Discussions between the attorney general’s office and the museum’s legal team have already resulted in the museum and Sotheby’s voluntarily pulling 19 works from the scheduled auctions—for now. The attorney general’s office maintains that these pieces, which were given to the museum before 1932, are protected by an 1872 statute stating that they cannot be removed from Pittsfield. Judge Agostini expressed the view that later legislation rendered that provision moot. The Berkshire Museum’s lawyer, for his part, argued that, since the works are not on the calendar to be sold, the judge need not consider that aspect of the case when deciding whether to grant a preliminary injunction to stop the Sotheby’s sales.

Nicholas M. O’Donnell, who had filed the second suit in Suffolk County court intent on pausing the sale, working on behalf of current and former museum members, emphasized the harm his clients believe the museum is doing to itself. “Deaccessioning to capitalize is completely unacceptable in the museum community,” he said quickly and urgently. Noting the the museum has been criticized by the Association of Art Museum Directors and other groups, he said, “This museum will wither and die. It’s going to happen.”

The one point on which Agostini seemed possibly to be sympathetic to the plaintiffs was their contention that the museum’s board had violated its fiduciary duties by not being more public with their plans to sell work before they had actually signed a contract. The plaintiffs have submitted evidence showing that the museum engaged in focus groups with hundreds of people concerning the “New Vision” without mentioning that its cost would involve selling off works from the museum’s collection. If the museum had been open about its plans, Keating, one of the Rockwell sons’ lawyers, said, “They would have gained a dialogue,” and other solutions may have been possible.

“It really comes down to being open and honest,” the judge said at one point to Keating. “Exactly,” he replied.

Representing the museum’s trustees, Lee, speaking in a cool, deliberate tone, maintained that the board had acted properly throughout. There were other courses of action the board could have taken, he said, but he called criticism of the board’s actions “Monday morning quarterbacking.” He added, “Our legal system does not allow for that.”

Bringing the hearing to a close, Agostini said that he would rule as soon as possible, and thanked the crowd for its attention.

Deely, one of the “New Vision” supporters, turned to me and said, smiling, “I am encouraged.”

Opponents of the plan, who had been buoyed on Monday by the attorney general’s request for an injunction, were feeling less confident. “They never addressed that the interdisciplinary value of the institution is diminished without this art,” said Hope Davis, an art advisor who has a home in nearby Great Barrington, as she stood at the back of the court room. “They never addressed the quality of the art. They never addressed that there is no one on the board with any expertise in art and that there’s no curator.”

“They have divided the community, and the first object of a not-for-profit organization is to bring the community together and to get the community behind them,” said the artist and writer Carol Diehl, who has a home in the area and who has helped lead protests along with Davis.

Ethan Klepetar, the board’s vice president, said in an interview in a stairwell, “I felt very good and very confident in the legal arguments that our counsel made.” Langlois, one of the acting co-directors, stood nearby, but declined to be interviewed. Carol Bosco Baumann, a spokesperson for the museum, said that because the suit involved the board, the directors would not be commenting.

In its filing on Monday, the attorney general’s office had argued that the museum’s $60 million plan was overly grand, and some experts have said the museum could have stabilized its finances with a more modest increase in its endowment. Asked about this, Klepetar, an attorney who lives in Beckett, about a dozen miles from Pittsfield, said, “My daughter had her fifth birthday yesterday, and we had her birthday party at the Berkshire Museum on Saturday. My hope is not just to kick the can down the road for another ten years but to make sure that this museum is open for my daughter when she grows up—and hopefully for her children.”

Sotheby’s has already shown the works slated to be deaccessioned in California, Texas, Hong Kong, and London since taking possession of them. On Friday at 10 a.m., some of those pieces, including both Rockwells, a Bierstadt of the Connecticut River Valley, and a John La Farge still life of flowers in a vase, will go on view to the public in New York at Sotheby’s galleries on the Upper East Side.

Barring a court order, the first sale will take place on Monday, November 13, at 7 p.m. in the evening.

Update, 11:15 p.m.: Information about the motion by the attorney general’s office after the hearing has been added to this post.

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