Art expert files last-minute amicus brief in Berkshire Museum case

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PITTSFIELD —Even as a top Massachusetts jurist quizzed lawyers Tuesday about Berkshire Museum art sales, another point of view was winging its way east to his court.

A California museum consultant filed an unexpected friend of the court brief that same day. It urges Justice David A. Lowy of the Supreme Judicial Court for Suffolk County to preserve the Pittsfield museum's American works and to keep it on a shorter financial leash than the plan endorsed Feb. 9 by Attorney General Maura Healey.

Martin Gammon, a longtime former employee of the Bonhams auction house and author of a forthcoming book on the practice of removing works from collections, faults the museum for appearing to have selected art based on monetary value.

The museum should only be allowed to sell European and non-Western artworks, Gammon argues, and be required to return to the court for permission for any other sales needed to address its financial problems.

"It's a fascinating case and it obviously has brought a lot of emotions to the surface," Gammon said in a phone interview from San Francisco. "I simply wanted to make a contribution."

Gammon's brief had not been officially accepted by the court as of Thursday, but is nonetheless in the judge's hands, according to Amy Stewart, an assistant clerk handling the Berkshire Museum case.

"He has a copy of the motion (to accept the brief) and the brief," Stewart said Thursday of Lowy.

Lowy is expected to rule soon on the museum's petition that it be allowed, despite any possible legal or donor restrictions, to sell up to 40 works, for a maximum of $55 million in proceeds. The matter is in his hands after months of litigation in lower courts.

Museum trustees say they need that amount of money to cover a recurring yearly deficit of more than $1.1 million. Opponents who filed separate friend of the court briefs claim the museum's financial distress is exaggerated. They want proposed sales curtailed or at least monitored by an outside party, in addition to oversight from Healey's office.

Gammon, who has appeared as an expert on "Antiques Roadshow" since 2008, ran the museum services department at Bonhams, a prominent auction firm, where he worked for 17 years.

He argues in his brief for "a more reasonable and balanced approach" to the the plan before Lowy.

Gammon believes trustees are in the wrong to seek to sell the 40 works. The attorney general's consent, he adds, has "in many ways exacerbated and compounded those flaws."

In an interview, Gammon said the list of works selected for sale by the museum appears to be what experts at an auction house would have identified.

Sotheby's stands poised to sell pieces by auction or private sale. The museum hopes to receive a go-ahead from the court by April 6, in time to produce sales materials for a May auction.

Keep core works

Gammon argues in his amicus brief it would be better for the museum to work to strengthen the American core of its collection, in light of its ownership of two prominent paintings by Norman Rockwell, given by the artist.

"Their proposed course of action alternatively entails the wholesale disposal of works in many collecting categories without any curatorial rationale whatsoever," the brief says.

Gammon believes that, in this instance of "deaccessioning," defined as the considered removal of works from a collection, it would be better for the museum to repeat its choice of a decade ago, when it sold three paintings by Russian artist Boris Grigoriev.

"In truth, there is simply no reason why these core works of American Art need to be sold," he writes, "if the proceeds from the [Grigoriev] works and other European and non-Western works were to be sold as a last resort. This should yield in the neighborhood of $15 million or more in their own right, which is more than sufficient to restore the endowment given the financial assessments by others."

Just how much the museum needs has been subject to debate. On Tuesday, Justice Lowy questioned how an early estimate of $25.6 million in needed funds grew to $55 million.

Any selection based on auction value rather than curatorial importance is misguided, Gammon says.

"This is perhaps not surprising given that the Berkshire Museum appears to have no curator in charge of the art collections at present, but that further raises the expectation that they should seek outside counsel in that regard, and not depend on the selections preferred by an auction house," his brief says.

"Normally a museum will not depend solely on the money value of the work to be sold," Gammon added by phone from California.

Though the museum and Healey's office shaped a plan to keep Rockwell's "Shuffleton's Barbershop" available for public viewing through a sale to an unnamed museum, including a period on exhibit in the Berkshires, Gammon questions the museum's handling of donor wishes.

"At the Berkshire Museum, they have adopted a quixotic vision of the museum's future which clearly violates their duty to the donor's intent, and which ignores their duty for the proper care and preservation of collections whenever possible," his brief says.

Gammon also questions why the agreement supported by the museum and Healey's office places no restrictions on use of the first $50 million received through auction sales.

Similar pattern

In his work advising museums, and in researching a book due out next month on deaccession, Gammon said that when controversy arises, museum trustees tend to dig in their heels, or to reverse course in the face of public opposition.

"We've been in this kind of situation before, and there are a number of lessons that come out of those cases," he said in the interview. "People tend to retreat into hyperbole pretty quickly."

Gammon's book, "Deaccessioning and its Discontents: A Critical History," will be published next month by MIT Press. It does not include an examination of the Berkshire Museum case.

In a Delaware deaccession, museum trustees clung to their plan. But in an equally prominent Detroit case, trustees reversed course, Gammon said, and ended up being on the receiving end of a groundswell of public support.

"There really is a middle ground and it is one where it would be reasonable if the financial impairment is valid," Gammon said.

He cautioned that sales like the one anticipated by the Berkshire Museum break a compact with donors.

In the Rose Art Museum case at Brandeis University, Gammon notes that officials ran "serial" deaccessions, starting with "Old Masters" and moving on to Impressionist works. Museums can come to depend on such sales, to their detriment.

"It's like being in a lifeboat. The temptation to drink seawater is attractive, but it will hasten your demise," he said. "There are a lot of museums at danger of drinking the seawater."

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


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