Attorney General seeks more time for Berkshire Museum art sale probe

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PITTSFIELD — The Attorney General's Office needs nearly two more months to complete its inquiry into the Berkshire Museum art sale, the office says.

And wrapping up an investigation by Jan. 29 still depends on cooperation from the museum.

In a motion filed late Wednesday with the Massachusetts Appeals Court, the office asks that the monthlong preliminary injunction it was granted Nov. 10 be extended until the last week of January.

At issue is the museum's plan to sell 40 works from its collection and use proceeds to cover operational costs and help fund a renovation. The state says its inquiry is based on the attorney general's duty to oversee public charities.

"That investigation [has] included such issues as ensuring that the Museum's board complied with its fiduciary obligations and determining if there were any charitable trusts or restrictions that would limit the Museum's proposed sale of its art," the motion reads.

The injunction that halted November auctions is scheduled to expire Monday. When it was granted, Justice Joseph A. Trainor allowed the attorney general to seek an extension if it could provide a specific date when its investigation would be complete.

It took that route Wednesday.

It could not be determined Thursday whether the museum will oppose the motion to extend the injunction.

Carol Bosco Baumann, a spokeswoman for the museum, said its lawyers are reviewing the state's motion.

The court on Thursday asked parties to the litigation to file responses by Tuesday.

The Attorney General's Office says while the museum has cooperated in general with its request for documents, the state hasn't been able to obtain materials deemed essential to the inquiry.

In its motion, the office says if the museum produces the documents by Monday, as now requested, and then confirms by Jan. 5 that it will make witnesses "reasonably available" for follow-up interviews by Jan. 22, the state will be able to conclude its study before Jan. 29.

But the state signaled Wednesday that it might come back to the court for more time.

"The Museum, however, has not yet committed to producing the outstanding documents [by Dec. 11]," Emily T. Gabrault, an assistant attorney general, wrote in the motion filed on behalf of the office.

While the motion notes the museum's cooperation to date, including the provision of documents as recently as Dec. 1, the office points out in a footnote that it has the power under state law to pursue a Civil Investigative Demand.

Under that court proceeding, the office would take a more adversarial role into what Gabrault's motion calls "the extraordinary step of selling 40 works of art that amount to substantially all of the value of its fine art collection."

The motion says the office preferred to pursue "a cooperative investigation," saving time that would be consumed in a separate Superior Court trial process under the Civil Investigative Demand option.

Lawyers for the museum, as well as Judge John A. Agostini, have faulted the state for appearing to proceed slowly with its investigation.

In a late November letter to the AG's office, Felicia Ellsworth, one of the museum's lawyers, offered to make documents available for inspection nights and weekends.

The state says in its latest motion and status report to the Appeals Court that it got to work after being notified in June of the sale.

The museum maintains that the art works, which include two paintings by Norman Rockwell donated by the artist, are under no sale restrictions.

The attorney general says that until documents it seeks are provided, it cannot complete its interviews.

"The interviews will be inefficient or less effective unless held after the outstanding materials are provided," Gabrault's motion reads.

Adjusted request

In a Dec. 5 letter to the museum's legal team, the Attorney General's Office pared back the scope of document requests laid out in a Nov. 30 letter.

The office said it now wants "all documents related to the Museum's deaccessions and sales in 1934 and 1935, and all documents related to the deaccessions that took place on April 28, 2008."

That demand narrows an earlier request to the years mentioned.

And in another adjustment, the attorney general is now focusing on obtaining Collections Committee documents from 2008 and from 2014 to the present, some of which, it acknowledged, the museum has already provided.

Similarly, the office reduced to that same time frame its request for documents covering board meeting minutes and materials related to collections policies and to the work of the Collections Committee.

The Dec. 5 letter also asks the museum to help it schedule interviews with three museum employees. Those employees, and the job titles listed for them on the museum's website, are: Jason Verchot, collections experience manager; Logan Recchia, collections associate registrar; and William Blaauw, special events manager.

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


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