The Berkshire Museum Case: A Time for Reflection

Many of the supporters of the art at the Berkshire Museum will undoubtedly be bitterly disappointed by the judgment of the Supreme Judicial Court this week. While it thoroughly disheartening to many, it is also frankly not unexpected, given the court’s limited room for maneuver. As the judge highlights, it the responsibility of the attorney general to oversee the charities law and to determine the extent that the museum’s actions comport “as near as possible” with the terms of the trust, if it is deemed to be impracticable to continue to do so. As such, when the attorney general thoroughly capitulated to the financial assumptions of the museum’s board on the necessity of raising a minimum of $55 million, and that this particular assemblage of 40 works should be sold to reach that target, then Judge Lowy apparently felt he had little recourse but to defer to her judgment in that respect.

It has always been our contention, implicit in the argument of our amicus brief, that the museum, as any museum, has a legal right to sell works of art at their discretion, given that they have clear title to them. But this is not an absolute right, and the attorney general implies as much by setting a restricted target of $55 million solely to solve their stipulated financial impairment, and to be achieved through a convoluted scheme of parsing the group to be sold in three tranches, following a private sale of Shuffleton’s Barbershop, until that threshold is reached. 

One wonders, however, if this “tranche” scheme is going to be properly overseen by the Attorney General, with a view of preserving the core American Art collections, if at all possible. There is a distressing sense from the museum’s attorney in court that they wished to meet the May sales deadlines, and this would likely mean the immediate sale of the core American works in the first instance. How this tranche could be justified as the first to be liquidated boggles the mind. But if that were indeed to happen, as I fear it might, it would make a mockery of the Attorney General’s purported oversight powers.  One could only conclude that they went straight from the judge’s order to greenlight the American art sale because it best comports with the pending auction calendar, not as part of a deliberative plan to mitigate the effects on the museum’s collections.

In our view, the monetary target to restore their core financial needs is significantly more limited than the $55 million target, and yet a selection that is informed by curatorial judgment could achieve this target more in keeping with the ethical norms of the museum community. The question left unanswered seems to be what forensic analysis of their finances concluded that this figure is truly the minimum necessary to continue to function as a charitable trust, but it appears the legal challenge to that assumption has now been settled.

However, beyond this legal right, now enshrined by the judge’s order, there is always the larger ethical responsibilities of the board to the donors’ intent and the preservation of collections for the public trust, which unfortunately cannot be enforced by fiat, but might be enjoined by persuasion and force of argument. One can only hope that the trustees will not now gloat in their victory and rush headlong into a disposal spree without a moment’s reflection, but take into consideration the passionate concerns of their own community as a valid counterweight to their proposed course of action. 

Indeed, the very determination of what “tranches” they should devise should only occur once the private sale of the Rockwell has been consummated, so that it can be calibrated to meet the directive to meet the threshold of $55 million. If the sale was for $10 million, $25 million or $45 million, then this benchmark would significantly affect the proper tranche for any subsequent sales. 

Perhaps they could take this cessation of legal challenges to pause and reflect as to whether they truly need that engorged target all at once, or if there are other partners in the museum community for further private sales, following the precedent they themselves have vouchsafed for Shuffleton’s Barbershop. 

And the court itself opines on this elective alternative in a final footnote to its memorandum, not as a mandate, but as an encouragement to abide by the public trust: “Given the important concerns presented by the amici, this court encourages that, to the extent possible and with the Museum’s best efforts, it shall endeavor to sell the identified works of art as it plans to do with Shuffleton’s Barbershop, with restrictions for public access to the art. As the Amici have argued, art is best preserved for the benefit of the many, not the few highest bidders.”

I truly hope therefore that the museum trustees take this opportunity for a moment of reflection, and to seek some compromise as encouraged by the court itself, by pausing in their endeavors and seeking out potential acquisitions by other museums in the first instance. That option was, ironically, always there from the beginning, but perhaps can now ameliorate some of the schism in the Berkshire community at the end.