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November 2017

Highlights of AG’s Argument to Block Berkshire Museum Art Sale | Archives

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PITTSFIELD – Legal briefs make it clear how the Attorney General’s office views the Berkshire Museum art sale.

His lawyers oppose it in eight ways from Sunday.

Although the office lost a big Tuesday in Berkshire Superior Court, it could seek to be heard in a higher venue, even as hours pass until Monday’s first sales.

As of late Thursday afternoon, the Massachusetts Magistrates’ Court online record showed no action in the case, two days after Judge John Agostini dismissed appeals for an injunction ending the auction.

If the office continues, Deputy Attorney General Courtney M. Aladro and his colleagues would likely build their argument based on material from the 15-page response and counterclaim they filed on November 2.

Their case, as the state overseer of public and nonprofit charities, rests on the notion of a “charitable trust”. Aladro and his colleagues cite a 1943 case, Wellesley College v. Attorney General, arguing that the assets of charitable companies, of which the museum is a part, are subject to the purposes for which those assets were donated.

That goal in Pittsfield, the bureau said repeatedly in its Nov. 2 submission, is to promote the study of art for the people of Berkshire County.

The trustees of the Berkshire Museum, in short, were obligated to honor their institution’s charitable purpose, the office says.

Since the passage of a law of 1932, the aim has been to supervise “in the town of Pittsfield an institution to help promote for the inhabitants of the county of Berkshire and the general public the study of the art, the sciences. natural, culture [and] the history of mankind and related subjects by means of museums and collections … “

The following are highlights of the arguments Assistant Attorneys General have presented – so far unsuccessfully – in a Massachusetts court and how others view these allegations.

WORKS ACQUIRED BEFORE 1932 ARE RESTRICTED: The Attorney General’s office maintains that an 1871 law of the legislature continues to prohibit the removal of gifts from the Pittsfield collection.

That’s because charitable trusts apply, depending on the purposes for which the art was donated, the office said in its brief. Those restrictions remained in place thanks to the founding of a museum in 1903 as part of the Berkshire Athenaeum, according to the office.

Additionally, although another act of the legislature separated the museum as a separate entity in 1932, this step did not erase the slate, according to the memoir. The legislature does not have the power to terminate a charitable trust, lawyers say.

The attorney general’s office made this clear to the museum even before it was involved in litigation on October 20. This is believed to be the reason 19 of the 40 original works that the museum planned to sell no longer appear on auction calendars. The office says it held 20 conference calls with museum lawyers and met in person with its officials.

WHAT THE JUDGE SAID: Because works donated to the museum before 1932 did not list the intentions of donors, they are only limited by decisions made by the charitable trust that looks after them – in this case, the museum, writes Agostini.

After a long reminder of the wording of the law of 1871, the judge concludes that the measure does not intend to impose a geographical restriction.

WHAT THE MUSEUM SAYS: William F. Lee, the Boston attorney representing the museum, argued in his October 26 response that because the Pittsfield restriction is not mentioned in the 1932 law, it does not exist. He cites the case law on this point and maintains that, while a limitation existed previously, it was lifted in 1932.

NORMAN ROCKWELL ALSO RESTRICTED WORKS: The term “charitable trusts” recurs in the Crown’s submission with respect to Rockwell.

The bureau argues that the artist intended his work to remain in the museum’s permanent collection. He maintains that the two paintings the artist donated cannot be sold.

The attorney general’s office argues that the terms of charitable trusts restrict sales. On top of that, the office says if any of the paintings donated by the artist were to be sold, the proceeds could only be used for the good of the permanent collection.

WHAT THE JUDGE SAID: Agostini did not accept this argument, writing that museums use the term “permanent” while eliminating work that no longer meets their needs. “The evidence of Rockwell’s intention to create a restrictive and self-sustaining trust… is insignificant,” the judge wrote.

WHAT THE MUSEUM SAYS:The museum presented Agostini with copies of 38 membership forms. Those for Rockwell’s gifts show no restrictions, Lee’s response notes. “The plaintiffs seek to raise a restriction from a letter” from the director of the museum at Rockwell, he wrote, then added: “Nothing in this letter indicates that the donation was conditional …”

SALE OF 40 “PREMIERES” ART WORKS IN ORDER TO RAISE MONEY FOR OPERATIONS BREACH OF TRUST: Unsurprisingly, the state’s statutory office of protecting charitable trusts argues that the sales violate the terms under which the museum holds the work.

By removing the monetary value of the work from its collection, the lawyers argued in their brief, the museum would violate its central purpose as an art museum.

In addition, the bureau lists the negative effects of such a sale, including the loss of relationships with museum groups and discouraging future donations.

WHAT THE JUDGE SAID: Agostini dissects the definition of “trust” and finds that the attorney general’s reference to “implied trusts” did not fit the circumstances of the case.

While the judge grants that the donation to a charity “generally creates some kind of charitable trust”, he ruled that case law allows a public charity to use a donation “in the manner that those controlling the charity. company consider the best… ”

WHAT THE MUSEUM SAYS: The “new vision” of the museum, writes Lee on behalf of the institution, is in keeping with its long-standing mission, even though he approves of the sale of works from his collection. The administrators would be failing in their duty to “maintain … an institution”, he argues, if they did not react to a financial crisis and allow the museum to close its doors.

THE MUSEUM ENCLOSED THE REQUIREMENTS OF THE “DUTY OF PROTECTION”: This is where the attorneys general’s office attacked the museum’s current leaders.

Under state law, members of the boards of charities, according to the brief, “must exercise the degree of caution that a prudent person would normally use in a similar position and act with intelligence. reasonable “.

Case law adds this definition: Prudence requires “complete good faith and the exercise of reasonable intelligence”.

According to the office, the directors and directors of the museum did not comply with these measures.

They did so, the brief states, with a goal of raising more money than the museum needed; by acting despite the likelihood of losing relations with other museums; by violating their own collection policy; and by not notifying the GA office before committing to Sotheby’s sales.

The magnitude of the demise, argues the office, has moved the museum to a whole new purpose and places it in an untenable status in the museum community. Changing its mission in this way, state attorneys say, requires the museum to seek court approval first.

WHAT THE JUDGE SAID: The Trustees have reasonably considered several options over two years. Reaching a deposit of $ 40 million in its endowment shows “the board’s commitment to the community in keeping the museum operational,” writes the judge. Regarding the collections policy, Agostini said that no law obliges the museum to respect ethical guidelines. Nothing in the museum’s charter, statutes or statutes, the judge noted, compels it to use the proceeds of the transfer solely for the good of the collection, as the museum world thinks it is the best.

WHAT THE MUSEUM SAYS: According to Lee, the plaintiffs have failed to demonstrate that the trustees breached any duty of care. “For nearly two years, the Board of Trustees embarked on a comprehensive and diligent process to develop and fund a new vision for the museum,” he writes. They only “reluctantly” decided that selling works of art “was the only way to not only maintain the museum in the short term, but also to maintain its existence and mission in the long term.”

Larry Parnass can be reached at [email protected], @larryparnass on Twitter and 413-496-6214.

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