December 15, 2018
Appeals Court Blocks Berkshire Museum Art Sale

November 11, 2017 — The state Appeals Court late yesterday granted a temporary injunction to halt the sale of artworks by the Berkshire Museum in Pittsfield, which said it needs to generate funds to implement a strategic plan aimed at stabilizing its finances.

The injunction had been sought by Attorney General Maura Healey, who claimed that the decision by the Berkshire Superior Court earlier this week to deny her request for a preliminary injunction to halt an auction of the first of 40 works of art, originally set for Nov. 13, contained "clear errors of law."

Healey said the proposed sale "would amount to the application of previously acquired assets to new purposes in violation of the charitable trusts for which the museum holds those assets."

The board of the nonprofit Berkshire Museum, has maintained its right to sell the art as part of an effort to shore up its finances and create long-term stability.

The injunction is set to expire on Dec. 11, but the AG's office can request an extension.

Superior Court Judge Lauds Museum Board for Following Its Duty

The Nov. 7 court decision allowing the Berkshire Museum to proceed with the artwork sale was noteworthy, in part, for the degree to which the judge lauded museum trustees for engaging in a deliberate process to address the nonprofit's financial plight.

Berkshire Superior Court Associate Justice John A. Agostini said the trustees engaged in "a deliberate and careful review of the available options and chose what they believed to be the appropriate course. That was their duty."

Moreover, in his 25-page opinion, he wrote, "Though the attorney general, the non-governmental plaintiffs, and perhaps many in the public might disagree with the resulting decision, the law does not hold the trustees to a standard of popular or political approval. Rather, the law requires reasonable care under the circumstances, and there is no evidence that the trustees afforded this decision less than reasonable care."

He also cited oral arguments by the attorney general that the decision to deaccession and sell the artwork was made in good faith.

While a consultant found that the museum needed $25.6 million to stabilize its operations, the trustees adopted a new strategy developed over nearly two years, to strengthen links between science, history, and the arts and provide financial stability, which would require $60 million. Twenty million dollars expected from the sale of all 40 works has been earmarked to fund the strategy, with the remaining $40 million to create a new endowment.

Agostini said creating an endowment, "demonstrates a commitment to the community to keep the museum operational. The decision to maximize the museum’s endowment and to improve substantially its facilities was not unreasonable, nor did it fail to take into account the individual donors and the community."

Rebutting assertions that museum management principles hold that proceeds from selling items from its collection should go toward acquiring other artwork, Agostini said no law exists that says a board must follow the professional ethics of the field in which the organization operates.

Noting that deaccessioning is a common practice within the museum industry and has become "a necessary evil...due in large part to loss of funding and economic upheaval," Agostini said the museum's "trustees evidently considered the ethical implications of their decision and weighed those implications heavily."

Among the paintings the museum wants to sell are Norman Rockwell’s “Shuffleton’s Barbershop” and “Blacksmith’s Boy – Heel and Toe (Shaftsbury Blacksmith Shop)”, two paintings by Albert Bierstadt of the Hudson River School, a pair of works by sculptor Alexander Calder, a watercolor by Edouard Vuillard, and an oil painting by Benjamin West.

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