It looks like an agreement may be in the works (subject to court approval) between the Berkshire Museum’s trustees and the Massachusetts Attorney General, regarding the museum’s controversial deaccessions. Details are to be revealed in Massachusetts Supreme Court on Friday “or shortly thereafter.” That’s when the parties plan to file a joint “petition for judicial relief,” which the AG has pledged to support.
In a joint status report filed by the AG and the museum’s trustees late today in Massachusetts Appeals Court, the museum committed to “not sell[ing] any of the 40 works at issue,” until the Single Justice of the [Massachusetts] Supreme Court “acts on the [planned joint] petition” or until the Berkshire County Superior Court “enters final judgment” in the case.
The two parties, according to the status report, have “agreed to resolve” their differences over whether the works deaccessioned by the museum were “subject to restrictions” prohibiting sale.
Here is the official statement released today by both parties:
We are working together to resolve this matter, recognizing our shared responsibility for the collection of the Berkshire Museum and to the community the museum serves. We are committed to helping this museum secure its future.
After the AG’s office reviewed more than 1,500 documents and interviewed key museum employees and board members, it concluded that 40 of the deaccessioned works “are subject to restrictions, which the museum does not believe exist,” as stated in the joint status report.
It remains to be seen whether the court and the other plaintiffs in this case (Norman Rockwell‘s family; a group of museum members) will go along with any as-yet-undisclosed settlement.
Michael Keating, lawyer for the Rockwells, told me today that it was his “surmise” that the AG believes the Rockwell paintings should not be sold because of commitments said to have been made to the artist/donor. He added that “the  artworks that were given to the Berkshire Athenaeum [the forerunner of the Berkshire Museum] should not be sold, because they were supposed to stay in Pittsfield.”
That would leave 19 works potentially up for grabs on the market. But the two cash cows among the deaccessioned works were to have been (and may yet be) the museum’s star Rockwells.
Here’s one of them:
Keating offered this additional analysis, which may or may not be confirmed in court:
The other thing that she [Attorney General Maura Healey] obviously has concluded is that for them to sell the remaining works is a violation of their charter and that therefore they have to get permission of the Supreme Judicial Court….If they don’t get that permission, it would be the Attorney General’s view that they cannot sell them.”
The charter comes into play, he said, because “if they decide to sell the art, then they really are transforming their purpose,” privileging history and science over art. The museum, however, has maintained that displaying art would continue to be part of its mission.
This case may not end with a ruling by the Single Justice of the Supreme Court. According to Keating, “there’s usually an appeal from the Single Justice to the full bench. They don’t mention that [in the joint filing], but that’s typically what happens.”
UPDATE: Nicholas O’Donnell, attorney for other plaintiffs in this case—two Berkshire Museum members and one former member—said that he infers from the joint status report that the AG and the museum have come to a substantive agreement on how to resolve their differences, but they will “still have to convince the court.” O’Donnell’s clients, who opposed the deaccessions, are not party to the agreement (assuming that there is one) and will “have to size up the way the petition pitches it and decide if there’s a chance that we can do anything.”
One thing seems certain: If the courts ultimately do allow the monetization of some works to address the museum’s financial shortfalls and planned capital expenses, the Pittsfield institution may “secure its future” in the short-term, at the cost of endangering its collection and professional reputation in the long-term.
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