Berkshire Museum art sale opponents pin hopes on AG

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PITTSFIELD — The most recent plaintiff to challenge the Berkshire Museum's planned art sale is now the last one with standing.

Legal standing, that is.

The office of Attorney General Maura Healey is being urged to seek a higher court's review after failing to persuade a Berkshire Superior Court judge to stop a series of auctions set to begin Monday.

Anita Walker, executive director of the Massachusetts Cultural Council, wrote Wednesday to Healey urging her office to appeal a ruling by Judge John Agostini denying a request for a preliminary injunction halting the sales.

"They must appeal this," Walker said of Healey's office.

Taking the challenge to a higher court, Walker said, is vital to protect museum collections held for the public good.

During an event at the Statehouse, Walker also called on artists to push for an appeal.

The citizens group Save the Art-Save the Museum endorsed that step as well, in a statement released last Wednesday.

A spokeswoman said the Attorney General's Office has been reviewing Agostini's ruling. It isn't yet known whether the office will seek further legal review.

The attorney general joined two combined lawsuits as a plaintiff only Nov. 2, after first entering the fray as a party of interest drawn in by other plaintiffs opposing the art sales announced July 12.

The office holds statutory authority to oversee public charities and nonprofits. It had been reviewing the museum's plans for months.

Both lawsuits had been filed in late October. But that legal front closed Tuesday, when the motions were rebuffed by Agostini.

While the judge ruled other plaintiffs failed to show standing, and thus the right to bring legal action, the Attorney General's Office can elect to take the case to the Massachusetts Appeals Court or directly to the Supreme Judicial Court.

That's what one other plaintiff, James Lamme, of Great Barrington, hopes to see happen.

"She has to take up the cause," Lamme said of Healey.

"She's the only one left with the authority and legal standing to take it forward," he said. "I'm confident that she will because of the national consequences of this case."

Another plaintiff, Pittsfield artist Tom Patti, said he too believes the sale would set a bad precedent in the museum world.

"There are still some options," Patti said. "I'm not through yet."

The ruling

In his 25-page decision, Agostini noted that while museum organizations disapprove of selling art to pay operational costs, those policies do not bar an institution from doing so.

William Lee of the Boston law firm WilmerHale, who represents the museum, said Wednesday he didn't know whether the Attorney General's Office would seek a higher court's review.

"Your guess is as good as mine," Lee said. "But if it does go to the Appeals Court, the issues will be substantially the same."

The most famous of the works to be sold are two paintings by Norman Rockwell, both now scheduled for auction Monday at Sotheby's in New York City. The sale begins at 4 p.m. The museum's seven works are in lots near the start of the sale.

Margaret Rockwell, a spokeswoman for the family, said Agostini's ruling came as "a huge disappointment." Three sons of the late artist had filed suit seeking the injunction, joined by Patti, Patti's business and four other Berkshire County residents. A second lawsuit was filed by three residents of Lenox.

Rockwell said the family was still taking stock, in the wake of Agostini's ruling.

"I'm not sure what the legal counsel will advise," she said.

The family is represented by Michael Keating of the Boston law firm Foley Hoag. Keating could not be reached Wednesday for comment.

In a statement released late Tuesday, Keating expressed disappointment on behalf of his clients — and of area residents in general who stand to lose access to the artworks scheduled to be sold.

The museum announced in July that it would use proceeds from art sales to expand its endowment to shelter it from what it has called a structural deficit of roughly $1 million a year.

Some of the money received would also help pay for a $20 million renovation keyed to a shift in focus to multimedia and interactive exhibits.

"We are especially disappointed on behalf of the Rockwell family, whose father was promised his paintings would always remain home and be shown in Berkshire County," Keating said in his statement.

Ruling rapped

Leaders of the group Save the Art-Save the Museum said in a joint statement Wednesday they believe Agostini's ruling unfairly criticized actions by the Attorney General's Office.

"The AG's office has pursued its investigation in a thorough and appropriate manner," the group said. "The inquiry was impeded by the Berkshire Museum's unresponsiveness and lack of transparency, conduct all too common since the deaccession was announced in July."

The group said it believes the judge overlooked "a pattern of well-documented misdeeds and bad faith" by museum trustees.

"We are hopeful that this ruling will be appealed in a higher court and that Attorney General Maura Healey will prevail," the statement said.

Lamme, the Great Barrington plaintiff in the same civil action, said he expects Healey will push on with the case.

"It's a big setback for us, but we're hopeful this decision will be reviewed," he said.

Lamme said he expected that if an appeal is sought by the Attorney General's Office, it would be to the Supreme Judicial Court, "given the time constraints here."If the matter reaches that level, the court would be expected to hold oral arguments involving the Attorney General's Office and the museum's counsel, said Lamme, who is an attorney and served as local counsel on the lawsuit.

Patti, an internationally known glass artist with works at the Berkshire Museum, said he has been reflecting on Agostini's decision.

"I'm trying to get focused on what's going forward," he said Wednesday in an interview from his Pittsfield studio.

Patti said that if the sale takes place, he believes museum trustees will be guilty of "pillaging" the area's cultural heritage and what he termed a shameful disregard for the public trust of running a collection.

"If the sale happens, I can at least leave that thought in people's minds," he said.

Elizabeth McGraw, president of the museum's board of trustees, said in a statement Tuesday that she and others acted to preserve the museum and to protect and strengthen it "for generations to come."

"We are grateful the judge recognized the care and diligence the board exercised in arriving at this decision, and that today's decision will ensure we can move forward," she said.

MCC stance

Walker, the Massachusetts Cultural Council executive director, said she wrote to Healey's office early Wednesday after spending the night studying Agostini's decision.

In an interview Wednesday, she said elements of the decision send the wrong messages to the museum community and to the public.

For that reason, she believes the Attorney General's Office should press on with its opposition, articulated in several legal filings over the past week.

"He seemed to assert or leave the impression that it's common practice to sell off their collections if they face financial challenges," Walker said of Agostini's ruling. "We think that's a really dangerous and unfortunate message to send out to our field."

Walker announced earlier this fall that the council, which has provided more than $1 million in funding to the museum in the last decade, was opposed to the sale of art.

She said Wednesday that museums are healthier when they engage with their audiences in regular, continual fundraising.

Walker also flagged as troubling the fact that the museum changed its collections policy only after agreeing to terms with Sotheby's to sell the art.

"That sends a message that our policies are optional," she said. "That's not the purpose of a policy. These are the guardrails."

Further, Walker faults the judge's ruling for seeming to invest too much authority and independence in the museum board. She said that as a nonprofit public charity, the board, like all others, needs to be judged on the reasonableness of its actions — a test she believes it failed in the decision to cull out the museum's most valuable art works for sale.

Link to artist

Patti's own career was kindled by Rockwell, after the famous artist, newly relocated to Berkshire County, took an interest in the young man's work and encouraged him to attend art school.

If his friend Rockwell were to depict the museum's actions, Patti said, it would be on a canvas in which people are seen handing off works to Sotheby's representatives in the "dark of night."

The artist gave "Shuffleton's Barbershop" to the museum in 1958 and "Shaftsbury Blacksmith Shop" in 1966.

"Those were Norman's most important works in that period of time," he said. The paintings were given to the museum through Stuart Henry, a close friend of the artist who served as the museum's director.

"Anybody following this is going to reconsider a handshake as the last word," Patti said, referring to what he views as trust between the two men that the paintings would remain in Pittsfield.

Since his name surfaced as a plaintiff in the case, Patti said he's received many inquiries about the case, including from dealers in Europe who handle his work.

"I've been getting a lot of calls from all over the world on this," he said. "It's a big, big issue."

Larry Parnass can be reached at lparnass@berkshireeagle.com, at @larryparnass on Twitter and 413-496-6214.


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