Museum's lawyer asks Eagle to address 'potential conflicts of interest'

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PITTSFIELD — A lawyer for the Berkshire Museum called Friday for The Berkshire Eagle to disclose its "interests and motivations" in seeking to obtain impounded court documents.

The request came in a letter to the attorney representing the newspaper in its effort to gain access to information submitted in connection with litigation over the museum's controversial plan to sell 40 works of art.

In that letter, attorney William F. Lee of the Boston firm WilmerHale implies but does not state that he believes the newspaper might have a conflict of interest in its reporting on the museum because of an Aug. 25 story.

Nothing legally compels the newspaper to answer the museum's requests. The museum released a statement on the letter Friday, headlined, "Berkshire Eagle asked to disclose potential conflicts of interest."

In his letter, Lee asked the newspaper's attorney, Jeffrey J. Pyle of Prince Lobel Tye, to provide information on the newspaper's handling of the August story.

The story reported that an anonymous group of donors had come forward to offer a $1 million gift to the museum on the condition that it pause its planned art sale for one year and allow an independent group to review its financial condition. The story appeared online Aug. 25 and in print Aug. 26.

The museum turned down the offer on the same day it was communicated, saying the board could only consider a proposal made directly to it in writing.

Lee wrote Friday to Pyle that the information about the proposed donation and its sources is needed as the museum considers its response to the newspaper's request that a Berkshire Superior Court judge terminate an impoundment order.

"Given the assertions in your motion," Lee wrote, "we assume you accept that the Berkshire Eagle and its owners owe the public full disclosure of their interests and motivations, especially concerning decisions to provide anonymity when reporting matters in which the Berkshire Eagle is directly involved."

A hearing on the newspaper's motion to release the documents is scheduled for 2 p.m. Dec. 13 at Franklin Superior Court in Greenfield, where Judge John A. Agostini will be presiding this month.

The newspaper is asking Agostini to allow materials impounded at a court hearing Nov. 1 to be available for public review. The documents include a copy of the contract that the museum reached with Sotheby's to sell the artworks, along with a consultant's report on the museum's financial condition and records of two board retreats in 2016.

Pyle first took the newspaper's motion to terminate the impoundment to the Massachusetts Appeals Court. On Tuesday, the single justice of that court referred the matter back to Berkshire Superior Court.

Pyle filed a revised motion with the Pittsfield court Wednesday.

Seeking names

Lee, the museum's lawyer, asks in his two-page letter that the newspaper identify the unnamed parties who made the offer of the $1 million donation.

Further, Lee asks that the newspaper disclose whether there is any relationship among donors, the unnamed spokesperson who communicated their offer to The Eagle and any current employee of the newspaper or its parent company.

Fred D. Rutberg, president of New England Newspapers Inc., said that as a matter of policy, the newspaper does not reveal the identities of people who provide it with information on the promise of confidentiality.

"That policy, which is standard in the news industry, helps ensure that the public learns newsworthy information that would not otherwise come to light," he said in a statement.

Rutberg said he hopes the museum will reconsider its stance on the impounded documents and agree to allow public access to them.

"The Eagle is disappointed that the trustees of the Museum are apparently trying to prevent the public from learning the full story of this important matter not only by insisting that court records remain secret, but by attacking the press and seeking to pry into its editorial decision-making process," Rutberg said.

In addition to asking for names of the would-be donors, the museum's legal team wants to know who within the newspaper participated in the decision to report on that offer and to communicate it to the museum.

It also asks whether the newspaper evaluated the ability of the unnamed donors to fulfill their $1 million pledge.

The museum also wants the names of newspaper employees who decided to allow the donors to remain anonymous.

Aside from the August story on the donors, Lee is asking Pyle to provide information about an editorial that reversed The Eagle's support, in an earlier editorial, for the museum's planned art deaccession and New Vision project.

The editorial appeared online Oct. 31 and in print Nov. 1.

Lee asks the newspaper's attorney to disclose whether the anonymous donor group was involved in shaping the paper's revised stance on the deaccession. He also wants Pyle to share details of all communications that Rutberg, the company president, had regarding the offer from the group of anonymous donors.

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


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