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Attorney General Asks to Extend Preliminary Injunction Preventing Berkshire Museum Sales

The legal jousting in the Berkshire Museum case continues: The State Attorney General’s Office has filed a new motion in Massachusetts Appeals Court, seeking “to extend the current injunction and stay until Jan. 29, 2018.” The AGO says it is still waiting for a complete response to its request for a wide variety of documents that are listed in two letters to the museum’s lawyers (Exhibits 1 and 2 in the above-linked filing).

Judge Joseph Trainor‘s preliminary injunction, issued Nov. 10, prohibited the museum from disposing of any of the artworks that were to have been auctioned at Sotheby’s. That injunction was set to expire Dec. 11, but the AGO was allowed to request an extension (as it has now done).

Massachusetts Appeals Court Judge Joseph Trainor

The sweeping nature of the AGO’s document request suggests that the museum’s wrong-headed plan to monetize 40 of its most important artworks at Sotheby’s (to beef up its endowment, renovate its building and reinvent its displays) has entangled it in a much broader, more onerous investigation of its governance and finances than it had bargained for. If the trustees persist and eventually win the protracted legal struggle, the hit to the museum’s reputation and the monetary costs incurred could make this a Pyrrhic victory.

William Lee, attorney for Berkshire Museum in its court case

The documents the AGO has requested include correspondence with auction houses, board minutes, documents pertaining to past deaccessions, Collections Committee minutes, and materials and documents pertaining to fundraising.

The documents that most interest me, though, are “gift instruments for the 40 pieces which have been selected by the museum to be deaccessioned [and] any additional materials or documentation the museum reviewed when determining whether the pieces were subject to any restrictions [emphasis added].”

The museum has maintained that none of the deaccessioned objects were “subject to restrictions.” Apparently that’s not enough for the AGO’s investigators, however: They want to see the underlying documents for themselves.

According to the AGO’s Nov. 30 letter to the museum:

The museum produced accession slips on Aug. 23. It was not until the AGO visited the museum and met with museum officials on Sept. 12 that we became aware that additional files existed. These files include object files, director files, curatorial files, and “Zenas Crane” files. [Crane was founder of the Berkshire Museum.]

Ivan Olinsky, “Zenas Crane” (1900-28)), Berkshire Museum
Photo by Lee Rosenbaum

When we asked for the remainder of these files, we were again provided with an incomplete set in late September. It was not until late October that we understood that we had access to the remainder of the files responsive to the request we had made months ago.

As I’ve previously written, the documents that I regard as most crucial to the AGO’s investigation are those “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 appears that the AGO won’t rest until it has had sufficient time to work through that crucial pile of evidence. According the new filing:

The AGO will complete the ongoing investigation by January 29, assuming…the Berkshire Museum produces outstanding documents [requested by the AGO in previous filings] and makes its witnesses available for interviews [emphasis added] according to the timeline proposed by the AGO.

Witnesses? That’s another can of worms. Among those whom the AG wants to grill: board chair Elizabeth McGraw, board member Ethan Klepetar, and (health permitting) Executive Director Van Shields (currently on medical leave). “We may also want to meet with additional board members, employees, and/or affiants [persons who swear to affidavits] that we identify after review of the museum’s full production [emphasis added],” the AGO wrote.

A major production, indeed: This prolonged ordeal may effectuate what the Association of Art Museum Directors (AAMD) and the American Alliance of Museums (AAM) too often have failed to accomplish—convincing struggling museums that the downsides of desperation deaccessions outweigh any upsides.

Speaking of which, AAM is organizing a working meeting in Cambridge, MA, in partnership with AAMD and three other museum associations, titled: Don’t Raid the Cookie Jar: Creating Early Interventions to Prevent Deaccessioning Crises. Hosted by the Harvard Museums of Science & Culture, Dec. 14-15, this sounds like an idea whose time has come. Registration has already closed, but if this one is a success, it should be replicated around the country.

Below is the AAM program’s description, invoking someone I consulted often in my journalistic explorations—the late, great expert on museum law and ethics (and longtime deputy director of the Hirshhorn Museum), attorney Stephen Weil:

In 1992 Stephen Weil wrote an essay exhorting museums not to use the “deaccession cookie jar” as the functional equivalent of a cash reserve. He laid out the consequences of selling collections to pay operating expenses, including the corrosive effect of such practices on the public trust. Field-wide standards codify Weil’s position, and the field has created a framework to support nuanced, ethical decisions regarding the use of funds from deaccessioning.

Despite this consensus, instances repeatedly arise of museums selling collections as a way to address financial needs. At this convening, you will work alongside thought-leaders, from inside and outside of the museum field, to frame out a practical toolkit that would help institutions avoid such situations. How can our field create an “early warning system” to detect potential crises that might lead to inappropriate sales? What resources can we provide to help museums find other options to address their financial needs?

That said, I remember a talk Steve once gave, in which he suggested that some museums might need to practice “triage,” to make room for future acquisitions.

But let’s not go there…

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