Waiting game for AG report, as Berkshire Museum injunction expires Monday

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PITTSFIELD — Sanctions, or mere scolding?

Added weeks of injunction, or legal instruction?

The high-stakes Berkshire Museum art sale hits a pivot point Monday, when the Attorney General's Office delivers the fruit of its monthslong investigation into the planned deaccession of 40 of the institution's most valuable works.

Will Maura Healey's team go big, building out its stinging criticism of trustees with a broader indictment intent on preventing auctions?

Or will it play small ball, schooling museum officials on missteps in the arcane particulars of public charities law — and then go home?

One Boston attorney involved with the litigation predicts Healey will press to extend the injunction poised to expire Monday. But if not, legal barriers to sales, and perhaps challenges at the appellate level, could quickly disappear.

"We won't know until we see the report," said Michael Keating, a partner with the firm Foley Hoag.

On the eve of the big reveal, sale backers and opponents are lining up on familiar talking points.

Supporters of the sale were cheered by a Saturday column in the Boston Globe that referred to "elitists" and "deaccession police" who would prefer the financially challenged museum fail.

The column, by Jeff Jacoby, prompted a vigorous online debate, including a post from a woman who identified herself as a sale backer and museum member named Jeanne Marie Ward. In comments on the Globe's site, Ward noted Pittsfield's economic challenges and said she is distressed by "snarky" comments about the museum's New Vision plan.

"It is incredibly easy to complain and judge on social media and a few protests," she wrote. "The New Vision Plan is in keeping with The Museum's Mission Statement and with their early history."

The museum announced the sale July 12 and said that, without an influx of money, at a time of slack corporate support, it could be forced to close in eight years. Sale critics and outside experts have questioned that conclusion, saying the Pittsfield nonprofit's board can survive on far less than the $60 million officials hope to raise through art auctions.

Ward's post Saturday afternoon drew one in response 27 minutes later from Eric Korenman, a museum trustee. Korenman wrote to Ward, "Thank you so very much!"

The Eagle was not able to locate Ward for further comment about the issue.

Second vote?

Art-sale opponents, many of whom communicate through the Save the Art page on Facebook, insist they want what's best for the museum. In a post last week, one member, Peter Dudek, called for any dissenting trustees to use the right they have under museum bylaws to call for a second vote.

In a post Thursday, Dudek, a sculptor and art teacher with a home in Windsor, wrote, "Is the Berkshire Museum Board 50% or 100% behind the proposed sale of the museum's most important art works? According to their bylaws, it would only take the secretary, or another officer, or two trustees to call a meeting. And a majority vote of a quorum or those present will bring back the art."

Dudek said in an interview he sent the appeal because he'd been told by Van Shields, the museum's executive director, that a vote by the board could reverse course.

"It doesn't take much for a meeting to be called," he said Sunday. "We're hoping to prompt a person to call a meeting. All of us are very concerned about what is going to happen."

Leslie Ferrin of Cummington has urged fellow members of Save the Art to contact trustees, out of a hope that at least two have "the courage to call this meeting .... If you personally know any of them, there is no time like the present to reach out and ask them to call a meeting and force a vote," she said in a Facebook response to Dudek's post.

Carol Bosco Baumann, a spokesman for the museum, discounted the idea that trustees have second thoughts about the plan.

"The board remains committed to the New Vision plan and is eager to resolve these issues to secure the museum's long-term future," she said Sunday.

Members of Save the Art say they plan to meet Monday to digest developments following the release of the AG's report.

A spokeswoman for Healey's office confirmed Friday the report will be issued at some point Monday.

Lawyer's view

Keating, the Boston attorney who in October filed the first civil lawsuit challenging the art sale, said that if Healey's team determines the deaccession is improper, it will seek to preserve a restriction on the sale of museum art.

It was the Attorney General's Office that won a 30-day injunction from a Massachusetts Appeals Court justice, after losing in Berkshire Superior Court. That injunction ran first until Dec. 11, then was extended until Monday.

"I think she probably will move for an extension of the injunction," Keating said. "That's my sense of it. I could be wrong."

The office might ask that no sale be allowed until all legal questions are resolved at the appellate level, he said. That request would likely be made to the justice who granted and extended the injunction.

Healey's office has more than signaled its doubts about the propriety of the planned sale of works.

In a Jan. 3 filing with the Appeals Court, the Attorney General's Office cited errors by the museum. The brief was a response to an earlier filing by the museum seeking to reverse a decision to prevent further proceedings in Berkshire Superior Court.

As recently as three weeks ago, Healey's office believed that museum trustees had violated their "fiduciary duty" to the institution, according to the Jan. 3 brief.

Assistant Attorney General Andrew Batchelor wrote in that filing that selling the art would be improper because it would render the museum unable to fulfill its arts mission, violate the wishes of artist Norman Rockwell, who gave two paintings on the auction-bound list, and defy restrictions that apply to 21 of the 40 works.

The museum contends that none of the works are restricted from sale. And it says it can continue to exist as an art museum even as it parts with the most renowned works its collection.

The money received from art sales, trustees have said, would shore up their endowment and help finance a shift to science and nature programming, the thrust of the institution's New Vision.

Keating said he was encouraged by what he saw as "definitive statements" about perceived missteps by trustees in briefs filed by Healey's office.

Other possibilities

On the other hand, if sales are no longer prohibited, and if the "stay" that has blocked any action at the Superior Court level is lifted, the case now before the appellate court could fall away, Keating said.

Keating predicted that if the injunction is extended, the museum's attorneys will continue to press to have the matter litigated in Judge John A. Agostini's Pittsfield courtroom, where they won the first round decisively.

Keating would like to see the case remain before a three-judge panel of the Appeals Court, where it is now docketed.

Nicholas O'Donnell, a Boston attorney who represents a second group of plaintiffs challenging the art sales, told The Eagle that it is possible that works could be sold soon after an injunction expires.

When the first injunction lapsed after Dec. 10, it was not renewed for two days, opening a window that O'Donnell said could bring a quick transaction.

Keating, however, sees that as unlikely.

"I would be surprised, if there was a short gap, that either side would take precipitous action," he said. "It's kind of a courtesy to the court."

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


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