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Court Hearing/Protest Demonstration: Crucial Week in Berkshire/La Salle Deaccession Deliberations

Coming to a boil this week, the heated controversies over the fate of endangered collections at two small, little-known museums pose a huge potential threat to museums around the country. And there’s only one sure way to arrest this downward spiral.

Tomorrow (Tuesday) at noon, an hour-long cy près hearing will be held by Justice David Lowy in Massachusetts Supreme Judicial Court that may determine whether it would be “impossible or impracticable” for the Berkshire Museum, Pittsfield, MA, to remain financially viable and fulfill its mission unless it receives an infusion of cash from sales of up to 40 artworks.

Justice David Lowy of Massachusetts Supreme Judicial Court

Meanwhile, at 12:30 p.m. tomorrow, a protest against planned sales of 46 artworks from the collection of the La Salle University Art Museum, Philadelphia, to beef up the university’s funds (not to benefit the art museum), will be staged outside the university’s Connelly Library.

If the Berkshire Museum and La Salle University get their way in “plundering their collections” (as constituents have rightly described it), the floodgates will open: Other financially pressed institutions will be emboldened to emulate these miserable role models:

The Berkshire Museum
Photo by Lee Rosenbaum

La Salle University Art Museum

Unlike previous desperation deaccessions, the Berkshire and La Salle sell-offs involve far more than just a couple works deemed expendable: Large chunks of the most important holdings of the these museums are being transferred to Sotheby’s (Berkshire Museum) and Christie’s (La Salle) to be monetized.

Four of the Berkshire Museum works that were exhibited at Sotheby’s before being withdrawn from the American Art sale that occurred Nov. 13
Photo by Lee Rosenbaum

The Berkshire Museum sales at Sotheby’s had to be postponed due to an investigation by the Massachusetts Attorney General and legal challenges by others. It now seems possible that the La Salle sales, which were to have begun at Christie’s, New York, on Apr. 18 (19th-century European art) and Apr. 19 (old masters), could also be delayed by Attorney General intervention: The day after I broke the story of the La Salle Faculty Senate’s strongly worded opposition to the sales, Stephan Salisbury of the Philadelphia Inquirer got the Pennsylvania Attorney General to admit what I’d already gotten wind of from a university source—that the AG’s office is looking into the proposed sales.

Additional La Salle works are slated to be sold in several upcoming sales at Christie’s, according to its press office—the Impressionist day sales in May, Modern British sales this summer, and the Old Master Drawings sale next January. My repeated queries to the auction house about whether the La Salle disposals might be delayed due to intervention by the AG have gone unanswered at this writing, as have my attempts to get comment from the museum’s director, Klare Scarborough.

Klare Scarborough, director and curator, La Salle University Art Museum

It’s high time for the leaders of our nation’s preeminent art museums and those care about them (especially concerned legislators and federal or state regulators) to do more than issuing statements of ethical principle that have been repeatedly ignored by museums determined to raise quick cash through art sales. Those who are serious about upholding professional standards must push hard for enactment of forceful laws and/or regulations to prevent any further self-mutilation by financially unbalanced, administratively off-kilter institutions. Rules enacted almost seven years ago by the New York State’s Board of Regents could provide a good model.

The exhortation that I saw this morning on a printed piece of paper near the entrance to New York University’s Institute of Fine Arts perfectly sums up my imperative for museums (although it refers to an actual fence):

Photo by Lee Rosenbaum

Museums cannot sit back and rely on Attorneys General for adequate deaccession oversight. Time and again, AGs have failed to stand between the museums and the marauders. One of the biggest disappointments in the Berkshire Museum case was Massachusetts AG Maura Healey‘s failure to publicly disclose the detailed findings of her office’s prolonged, exhaustive investigation of the facts and documents surrounding the deaccessioned works.

In her latest (and possibly last) brief filed in this case, Healey stated that her office had perused some 2,300 documents and interviewed museum employees, board members and third-party witnesses. But she gave scant detail in her perfunctory nine-page filing to support her conclusion that the museum desperately needs cash and “does not have any alternative sources” for it.

Massachusetts Attorney General Maura Healey

As attorney Nicholas O’Donnell said in his most recent brief for his clients, who oppose the sales:

The AGO’s endorsement, or at least refusal to oppose, this abandonment of the museum’s charitable restrictions is particularly disappointing; after assembling a months-long record of the museum’s mismanagement, the AGO now waves the trustees through the gate that it should be guarding….The AGO’s “settlement” [my link, not O’Donnell’s] was, in effect, a complete capitulation.

Where’s public accountability when we really need it?

I have every reason to believe that tomorrow’s 60-minute cy près hearing (where O’Donnell and other attorneys will each get 10 minutes to speed-date Judge Lowy) will go the way of two other major cy près cases involving art institutions—the Barnes Foundation and Corcoran Gallery debacles. In both of those cases (as in this one), the AG played the role of lapdog instead of watchdog.

The odds for Justice Lowy’s scuttling an agreement jointly arrived at by the museum and the AG (or even sending the case to the full court—another option) seem to me slim to nil. Everything now hinges on whether this particular arbiter believes that the deal’s opponents have an argument worth hearing and attending to.

If new laws are eventually enacted to prevent future desperation deaccessions, Attorneys General will be duty-bound to enforce them. Otherwise, there are going to be a lot more cy près maydays, and a lot more fodder for the jaws of chops-licking auction houses.

Raising money and belt-tightening are hard; selling art to raise quick cash is as easy as the drop of a hammer.

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