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Deaccession Dejection: Court Allows Berkshire Museum Sales (UPDATED 5Xs)

Justice David Lowy of Massachusetts Supreme Judicial Court has just handed down a lamentable decision that rubber-stamps the devil’s bargain between the Attorney General and the trustees of the Berkshire Museum (the details of which I previously reported here).

Maybe we’ll finally learn the identity of the nonprofit museum that has made an unspecified offer for the star discard, “Shuffleton’s Barbershop,” with a promise to display it prominently and to lend it to the Norman Rockwell Museum in Stockbridge, MA, for 18-24 months.

Norman Rockwell, “Shuffleton’s Barbershop,” 1950
Photo by Lee Rosenbaum

Here’s how the Justice justified his action, in his Memorandum regarding the decision (with my explanations in italics):

Based on the Attorney General’s investigation into the sale and her assent to the requested relief [the sale of up to 40 highlights from the collection], the museum has satisfied its burden of establishing that it has become impossible or impracticable [the requirement under the cy près doctrine] to administer the museum strictly in accordance with its charitable purpose, thus entitling the museum to relief to sell the designated artwork….

The museum will provide reports to the attorney general throughout the deaccession process.

Here are the statements from the protagonists in this case:

Elizabeth McGraw, Chairman, Berkshire Museum Board of Trustees:

This is great news for the people of Berkshire County and everyone who visits the Berkshire Museum for one-of-a-kind experiences in history, art, and science. We recognize this decision may not please those who have opposed the museum’s plans. Still, we hope people will be able to move forward in a constructive way to help us secure and strengthen the future of this museum, at a time when our community needs it more than ever.

Michael Keating, attorney who represented members of Norman Rockwell‘s family and other clients in this case:

While we are disappointed with the Court’s decision, we believe that our clients raised important questions concerning the museum’s decision to sell the art which are not only important to the citizens of Berkshire County but also to the art world in general.  Our clients hope that the museum has a successful future, considering the enormous cost the museum and the citizens of Berkshire County will incur by the sale of its art collection. We note that the Court’s decision encourages the museum to sell it art in ways which preserve public access to that art and we hope that the museum adheres to that suggestion.

Nicholas O’Donnell, an attorney who represented several opponents to the sales:

My clients are disappointed in the Single Justice ruling but remain grateful for the opportunity to address the Court with their views. The decision makes it more clear then ever that the Office of the Attorney General’s abrupt and unexplained about-face less than three weeks after forcefully and accurately denouncing the Trustees’ fiduciary lapses played an overwhelming role in the outcome. It is a sad day both for the people of Massachusetts and the true custodians, working tirelessly to preserve and protect our local and national heritage, throughout America.

—Sotheby’s (which will handle the sales):

We are very pleased that the court approved the agreement reached between The Berkshire Museum and the Massachusetts Attorney General. We look forward to working with the museum to ensure a bright future for the people of Pittsfield and western Massachusetts [emphasis added]…

That “bright future” will be dimmed without the luster of Pittsfield’s brightest works of art. This is also bad news for opponents of planned sales at Christie’s from the La Salle University Art Museum, who might have hoped for a better legal precedent.

I’ll be updating this story.

UPDATE 1: Already, the Association of Art Museum Directors has predictably shot off what must have been a pre-drafted statement, impotently deploring the decision. What else ya got?


—From Anita Walker, executive director of the Mass Cultural Council (the state arts agency):

We are disappointed in the outcome of this long and difficult ordeal. It represents a significant loss of cultural heritage to the people of Berkshire County and to the entire Commonwealth. While the actions of this museum are contrary to all nationally accepted museum standards and practices, they in no way represent the professionalism and stewardship practiced by museums across Massachusetts. In this we take heart.

The Mass Cultural Council will continue to support excellence in museum practice that respects the public stake in museum collections. We are working with our colleagues [my link, not theirs] in the museum community to develop strategies to protect our cultural heritage [emphasis added] in Massachusetts and to support our museums who prioritize the public interest.

As I wrote here, one strategy that the MCC has been considering is crafting legislation to regulate deaccessions. To my mind, that can’t come soon enough. Here’s a model.

UPDATE 3: The American Alliance of Museums has sent me its statement (soon to be posted online), which very closely tracks the Association of Art Museum Directors’ statement. But it does not include AAMD’s threat of “censure and/or sanctions.” As the National Academy and Delaware Art Museum debacles illustrate, such threats are not much of a deterrent to museum boards and administrators who are desperate for a quick financial fix.

UPDATE 4: Save the Art—Save Berkshire Museum, the citizens’ group opposing the sale, issued this statement:

We continue to oppose the sale and the unrestricted use of the resulting funds. We deeply regret the the judge’s decision to disregard the public trust and the importance of future consequences from this sale on public collections. As a group, we will make a more detailed statement after meeting in person to consider the loss to our community, the impact from the results of this decision and future actions.

UPDATE 5: And this from the public servant who has let down the public, Massachusetts Attorney General Maura Healey (via her spokesperson):

We are pleased that today’s decision will help to ensure that the Berkshire Museum can continue to fulfill its broad mission for Pittsfield, Berkshire County, and the general public, preserves “Shuffleton’s Barbershop” for public view, and reaffirms the Attorney General’s role in protecting charitable missions and restrictions. It is critical that charities are transparent and accountable to the public—and ultimately, to the courts [emphases added].

So the AG’s involvement was all about being “transparent” in blithely betraying the public trust and the museum’s benefactors. Notwithstanding the sanctimonious lip service, this was not, by any stretch of the imagination, about “protecting…restrictions.”

It was about circumventing them.


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