In consigning its collection’s 40 highest-valued artworks to Sotheby’s, the Berkshire Museum tried to pull a fast one. That’s not gonna wash.
In a nutshell, that’s the position taken by the Massachusetts Attorney General in her brief filed Monday (full text here) and in arguments yesterday in Berkshire County Superior Court. She chided the museum for “notify[ing] the AGO of the intended sale and vote to deaccession and sell the items” only after the museum “was already committed to a contract [with Sotheby’s] that carried with it the threat of significant penalties should the museum withdraw any pieces of art.”
If granted, the AG’s emergency motion (filed late yesterday) to elevate her status from that of respondent to plaintiff in the Berkshire Museum proceedings will add considerably more muscle to the pushback against the controversial art sales.
Let’s examine the AG’s arguments:
The biggest bombshell in the Attorney General Office’s (AGO’s) 27-page filing (linked at the top of this post) is this, on p. 8:
The Museum and Sotheby’s executed an agreement on June 13, 2017 for the sale of the 40 most valuable pieces of art that Sotheby’s had identified in the museum’s permanent collection….On July 12, 2017 [a month after the June 13 consignment agreement], the board voted to remove the following rules for deaccessions set forth in the museum’s Collections Management Policy:
If another museum expresses interest in any work being considered for deaccession, the museum will be given first option to purchase the work at fair market value or in exchange for a work or works of art of comparable value…
Funds realized from the sale of all work would be applied to the Acquisition and/or Preservation Fund. The Preservation Fund is only to be applied to the conservation of objects.
In other words, the documents obtained by the AGO indicate that the museum rejiggered its collections policy to retroactively permit the action it had already taken. “They had a good collections policy and they broke it,” said Nicholas O’Donnell, the lawyer for three plaintiffs in the current court proceedings.
Ironically, the Berkshire Museum deaccession policy that was in force from 2006 until it was expediently expurgated last July was even more stringent than the strictures of the Association of Art Museum Directors and the American Alliance of Museums, the leading arbiters of museum ethics. Neither professional organization calls for other museums to be given first crack at acquiring a museum’s castoffs.
Another explosive in the AGO’s arsenal is its repeated suggestion that if the Berkshire Museum doesn’t change course, the AG will call for cy près proceedings to determine whether compliance with restrictions (if any) on the sales of artworks has become “impossible or impracticable.”
If you need to ask what “cy près proceedings” entail, you’ve forgotten the Barnes Foundation’s and the Corcoran Gallery’s onerous legal ordeals. Cy près involves determining whether deviations from previously binding requirements are the closest and best solutions to an institution’s otherwise intractable problems.
The two sides differ on whether there are, in fact, any restrictions on the sales of the 40 works that the museum wants to sell: The museum’s June 22, 2017 letter to the AG, which notified her of the sale plans, assured her that “none of the objects to be sold are subject to restrictions.”
Here’s what the AG has to say (on p. 9):
On Sept. 1, a community member was the first to alert the AGO of the museum’s historical relationship with the Athenaeum, whose 1871 charter the AGO believes restricts the museum’s ability to sell 19 of the 40 pieces of art planned for auction. [Some 21 of the 40 works have now been withdrawn from the Sotheby’s auctions, possibly because of ambiguity regarding restrictions.]
The museum’s lawyers argue that the 1871 restrictions on sales by the forerunner of the Berkshire Museum no longer apply and are particularly irrelevant for works acquired after the museum separated from the library in 1932. Only time and Judge John Agostini will tell which side prevails.
The AG also believes that the sale of the deaccessioned works “may be so transformative that the museum should not be able to proceed with the sale and planned application of proceeds absent court review under the principles of cy près.”
One big advantage of having the AGO on the case is the state’s ability to pry loose documents that the plaintiffs’ lawyers were unable to obtain. “I asked for the museum’s bylaws, which they didn’t give me,” plaintiffs’ attorney O’Donnell told me yesterday. “I asked for the deaccession policy and the changes to it,” but those were not forthcoming.
Even the AGO seemed to be exasperated by the museum’s laggardly response to requests. In its brief filed on Monday (Oct. 30), it noted that “the museum’s most recent production of documents, consisting in part of documents that the AGO had originally requested on Aug. 18, 2017, occurred as recently as Oct. 24.”
Included in that last batch was “a number of boxes of documents made available to the AGO for review in its counsel’s office, due to their fragile nature. The AGO is still in the midst of completing that document inspection.”
My guess is that those boxes might contain what I obliquely referred to at the end of yesterday’s post as “one crucial element that’s missing from the various filings”—the documents that conveyed to the museum the 40 deaccessioned artworks. Examining that written evidence could be the best way to determine whether the sales of gifts or bequests to the museum would violate donor intent.
It will be up to the Berkshire Museum’s embattled board and its two acting co-executive directors (who assumed their posts after the recent departure on medical leave of director Van Shields) to decide whether to continue down their institution’s misguided course or to try to right the ship, heal the wounds and repair their museum’s damaged reputation.