Berkshire Museum Gets High Court's OK to Sell Artwork

April 6, 2018 — The Berkshire Museum in Pittsfield received court approval yesterday to sell up to 40 artworks to fortify its finances, signaling an apparent end to a months-long controversy that pitted the nonprofit against local activists, the Massachusetts Cultural Council, and professional art associations, who claimed the sale would violate the museum's role as guardian of the region's cultural heritage.

The Massachusetts Supreme Judicial Court on Tuesday approved an agreement between the office of the attorney general (AG) and the Berkshire Museum that will let the museum sell, among other artworks, its most valuable possession, Norman Rockwell's Shuffleton's Barbershop, as part of an effort to raise $55 million.

The decision stipulates that the buyer will loan “Barbershop” to the Norman Rockwell Museum in nearby Stockbridge for up to two years and will explore opportunities to exhibit the painting at other Massachusetts museums, according to a report in The Boston Globe. In addition, the decision allows the sale by auction of 39 other works.

“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,” Elizabeth McGraw, chair of the museum board of trustees, quoted in The Globe. “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.”

An AG spokeswoman said, “We are pleased that [yesterday'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.”

The plan to sell the artwork to support its fiscal stability plan sparked protest from the American Alliance of Museums and the Association of Art Museum Directors, as well as from the Massachusetts Cultural Council, which argued that the plan is "a violation of the museum's public trust."

Opponents of the sale were unhappy with the decision.

Michael Keating, who represented some of the plaintiffs seeking to block the sale, said, according to The Globe, “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."

The Association of Art Museum (AAMD), in a statement, said the decision "does not resolve the violations of ethical and professional standards that will occur when the museum’s plans are implemented," noting that professional practice rules prohibit a museum from using the proceeds from sales of art to fund anything other than new acquisitions.

It added that "if the Berkshire Museum proceeds with its current plan for selling deaccessioned works and utilizing the funds for operating and capital purposes, AAMD will have no choice but to consider taking further action in accordance with its policy, which may include censure and/or sanctions."

Anita Walker, executive director of the Massachusetts Cultural Council, also quoted in The Globe, said, “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."

The controversy erupted after the Berkshire Museum trustees adopted a new strategy, developed over nearly two years, to strengthen links between science, history, and the arts and provide financial stability. A consultant hired by the museum determined it needed $25.6 million to stabilize its operations. Proceeds from the sale of all 40 works has been earmarked to fund the strategy and create a new endowment.

Last November, Berkshire Superior Court Associate Justice John A. Agostini, who allowed the artwork sale, but was then overruled by the state Appeals Court, and finally supported this week by the Supreme Judicial Court, noted that 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."

He added that "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."