Healey Q&A on art sale: 'We handled this case like we handle all others, following the facts'

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Maura Healey, the Massachusetts attorney general, spoke about her department's handling of the Berkshire Museum art sale case last week in an interview with The Eagle. She also responded to questions about whether her years working with the museum's law firm, and the extent of donations from lawyers there, influenced the outcome.

On Tuesday, her office appeared before a Supreme Judicial Court justice in support of an agreement that, if approved, would allow the museum to sell up to $55 million of artworks under certain conditions.

QUESTION: Did your past involvement with WilmerHale influence your office's handling of the Berkshire Museum case?

HEALEY: Absolutely not. As an initial matter, I haven't worked at WilmerHale for over 11 years now. When I got elected as attorney general, I took an oath and swore to uphold the law and enforce the law. I've taken that seriously, and I'm really proud of the lawyers in my office.

My attorneys and staff handled this case as we handled all cases, which is to say we apply the law to the facts and do the best job that we can.

Here, I have confidence and faith in my team that handled it. I know that attorneys and staff in my office, particularly from our not-for-profit, charities division, worked extremely hard over several months on this case. There were complicated legal issues. There were some new legal issues, or at least legal issues that hadn't been fully addressed before, and there was a tremendous amount of work to do.

But I stand by our work. I stand behind my team and how my team handled this case. And I stand behind the result.

I understand, having heard from many of them, that there are people who are disappointed, ultimately, with the approach we took in the case. But that happens in any number of matters. There are always going to be some who would have liked to have seen things handled differently, or a different outcome. But I want you to know that we handled this case like we handle all others, following the facts, following the law, to reach the best outcome.

QUESTION: Why do you think that the cy pres petition by the museum is the right outcome? (That petition to the SJC would allow the museum to proceed to art sales, under certain restrictions.)

HEALEY
: I want to go back a little in time. I think we made the right decision to intervene in the [Berkshire] Superior Court case. I think we made the right decision to appeal to stop the sale so we could complete our investigation. It was important that our team complete a thorough investigation, and they did that. And then do what they always do, which is to use the results of that investigation to determine what would be the right resolution under Massachusetts charities law.

And that's our job. It is to apply the law. We don't write the law, we don't make the law. It is our responsibility to enforce the law. That's what we do. We never take action without an investigation, which is why it was so important that we stepped in to intervene over the objections of the Berkshire Museum trustees multiple times.

They fought us at every turn, both in attempting to intervene and then in our attempts to continue with an investigation.

But I'm glad that we were able to do the thorough investigation and then to determine what was appropriate under charities law. In addition, we listened to the voices of hundreds of people in the community. It was important in our view, and in my team's view, that the Rockwell masterpiece, "Shuffleton's Barbershop," belong in public view.

I was comfortable, based on my team's investigation and analysis, that [the petition to the SJC] was the appropriate result. Does it make everyone happy? No. And I understand that. And I sympathize very much with those who are disappointed by the outcome. That said, I'm confident that based on the facts and the law that this was an appropriate outcome.

The settlement does do several things that we think are important from a charities perspective. First, it requires the museum, as you know, to file this cy pres petition demonstrating the clear financial need, which, originally, the board wasn't willing to do and the Superior Court said wasn't necessary.

But we fought hard for that, and that's important as a matter of charities law. I care deeply about what happens here with the Berkshire Museum, but I have an obligation that extends beyond that in terms of how we look at the application of charities law [and how] there needs to be a clear demonstration of financial need.

We fought for that and we obtained that.

The second thing that's important is that it caps the amount of art that can be sold consistent with the cy pres principles. Again, that's something that's important with respect to this particular matter, but more broadly, it's important when you think about the application the charities law and the protection of charitable assets.

The third thing that's important here is that we were able to secure "Shuffleton's Barbershop." You know from the people you heard from how important that was, and I'm glad we were able to get an outcome that achieves that. And also achieves that it will be displayed in the Berkshires for some amount of time and that it will continue to be accessible to the public. That's really important.

And finally, the outcome ensures that the Berkshire Museum will have the resources to stay open for the people of Berkshire County. That is important as well. That's why I say I'm confident in my attorneys and staff and the team that did the investigation and analyzed this consistent with Massachusetts charities law, and I believe this was the best outcome that we could achieve.

QUESTION: You mentioned that you apply the law, you don't write it. In this case, did you run up against limits of what the existing law says in terms of what sway you could have?

HEALEY: You saw in Judge [John] Agostini's opinion [in Berkshire Superior Court] some of that laid out.

We have to look at what the articulated mission is [of a nonprofit or charity]. Here, the mission was really threefold, and so it wasn't just about protecting assets of an art museum, a singular prerogative or mission. It actually encompassed a couple of other missions as well. The other thing that I think that bears noting is that the Attorney General's Office, while we apply the charities law, we don't have the authority to overrule the decision of a board of directors.

Even when they make controversial decisions. And so that's something that maybe isn't apparent to the public, or some in the public that are disappointed with the outcome. I think there are some who thought that we could go in and essentially undertake our own analysis and determine what should be done in terms of the deaccessioning of any assets or whether there were any alternatives that could be engaged in in terms of development or fundraising.

There's a certain level of review that we can do, and that is the level of review that's consistent with what happens when you prepare and file a cy pres petition. We were really clear about holding the line on that and enforcing established law on that.

But there is a limit to what we are able to do under charities law. That, I think, was apparent in this case.

QUESTION: There was a sense of whiplash for some in the community between the filings in January and then what came to light in early February and that even made it into some of the amici briefs. Can you speak to that, because that's one of the things that people are still trying to get a handle on?

HEALEY: Sure, I appreciate that. I'm somebody who has spent time in the Berkshires. I appreciate the Hudson Valley school of paintings and art. I certainly appreciate the culture and heritage and history there. But again, my job is to enforce the law. What we have to do is handle this each stage at a time.

The first effort in court was to just make clear that we deserve the right to intervene. We fought real hard on that. Next was to fight to make sure that the court allowed us to pursue the appropriate investigation, an investigation that included the extent to which there was a demonstrated financial need. That process, as you remember, took many, many months. I wish we had had a more collaborative approach from the beginning with the trustees, who seemed to fight us tooth and nail, at every single turn.

But nevertheless, we were able to see that investigation through. Whether you are talking about filings made last summer or in the fall, or in January, each of those filings was specific to what we were trying to achieve at the time. And that's critical.

I appreciate that some people are disappointed. I'm sorry that some people are disappointed, but again, I have confidence and faith in my team. They handled it as they handle all cases like this and applied the law to the facts as we uncovered them during the investigation.

QUESTION: Did you consider, in light of the extent of the WilmerHale donations to your campaign, which works out to about six times the average of the other Top 10 law firms in Boston, that you might want to address that, even though you were not required to do so by campaign finance laws?

HEALEY: Absolutely not. We handled this case, my office handled this case, as we do all cases. In terms of contributions and campaign contributions, I have to say that I'm proud to have the support of members of the legal community across Massachusetts.

Contributions from a firm in no way influence or affect the decisions I make in upholding my responsibilities as attorney general. They never have and they never will. And again, I have full confidence and faith in my team in the Attorney General's Office. There's nothing more important to me than upholding that.

QUESTION: Would there be a dollar value of contributions that you think would rise to the level of posing at least the appearance of a conflict of interest?

HEALEY: Here, we follow the law and the rules as we do in all instances, and that's what I'm going to continue to do. I understand if people are going to try to critique the results here or the outcome of this particular matter. As I say, I understand that there are some who are disappointed by that, but I stand by the job that my team did here.

With respect to any conflict of interest, we followed the rules. We didn't have a conflict here, and the results speak for themselves.

QUESTION: State law regarding campaigns refers to what a reasonable person might think would give rise to some undue advantage or favor. Do you think it is unreasonable to ask whether WilmerHale donations, given the extent to which they came in, constitute the appearance of a conflict?

HEALEY: Well, I can tell you there was no conflict. As I say, I've received contributions from attorneys in law firms across the legal community. I'm proud as a lawyer committed to running a top-quality state public law firm to have support from the legal community. That said, we find ourselves engaged in any number of matters and cases with lawyers and law firms on the other side of us, all the time. Including WilmerHale. But the fact of the matter is that it's not going to change how I do my job. Or how anybody in my office does their job.

I just have to go back, in this particular instance, to how we handled this difficult and complicated investigation and case as we handle all matters. Do our jobs. Do the look, do the investigation. To do the research and apply the law to the facts and achieve the outcome that we think is appropriate. And that's what we did here.

QUESTION: Do you think attorneys should be prevented from making donations to these kinds of campaigns? Would that just make the whole thing better?

HEALEY: No. There's a longer discussion about money in politics. It has an outsized place in politics. It's unfortunate, as you look across this country and what's happened to money and politics, particularly post-Citizens United.

But I'm running for re-election as attorney general, and I'm going to run on my record and on what I've done in the last three years, and on the kind of law firm I've tried to build, which really is the people's law firm. I hope to have the support of voters across the state over the next several months.

That's what I'm going to be focused on building, and talking about our record and continuing to get out there and listen to people.


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