A Berkshire Superior Court judge is considering a preliminary injunction to halt the Berkshire Museum’s sale of 40 artworks, including two Norman Rockwells, to fund capital improvements and an endowment.
The three sons of Norman Rockwell and members of the Berkshire Museum in Pittsfield, Massachusetts had their first day in court Wednesday.
Representatives from the Massachusetts Attorney General’s Office, including attorney Courtney Aladro, joined the plaintiffs after signing on to calls by the Rockwells to stop the sale planned for this month.
“We adopt the claims of the plaintiffs as well,” Attorney Courtney Aladro says.
But Judge John Agostini says the attorney general’s involvement was unclear.
“I don’t know what that means. I just don’t know,” Agostini says. “There was no cross claim. There is no motion from the attorney general. It’s simply joining the plaintiff’s’ motions so that’s what I take it to be.”
Aladro says the office’s role is to ensure the due application of charitable funds and enforce restrictions it believes are associated with the pieces the Berkshire Museum plans to sell. Aladro says the AG’s office is also enforcing the museum Board of Trustees’ fiduciary obligations.
"This is not a motion of the commonwealth. You are joining with the plaintiffs’ motion,” Agostini says. “That’s all I have, so that’s all I can deal with.”
Attorney Michael Keating represents the three sons of Norman Rockwell. Keating says the museum did not plan its New Vision in “good faith” and with “reasonable intelligence,” the parameters needed for a preliminary injunction based on a breach of fiduciary duty.
“And that is a breach of a fiduciary duty: not to be fully honest and candor. Total good faith is what the law requires,” Keating says. “This decision, as I have said before, what they could have avoided if they perhaps if they had been willing to discuss this two and a half years ago when they decided to sell the art – what could they have avoided, they could have avoided this.”
Keating pointed to the courtroom gallery, where some 80 opponents of the art sale and lawyers were packed in. Jarvis Rockwell, Norman’s son, who lives in North Adams, sat in the front row.
“What they did that was wrong was they didn’t come to the table,” Keating says.
Keating says the museum had engaged in talks with auction houses in 2015, shortly before it abandoned its capital campaign. The Board of Trustees voted to approve the agreement with auction house Sotheby’s the day before it announced its plans in June 2017.
Aladro of Attorney General Maura Healey’s office contends residents, members and especially art donors, like the Rockwell estate, had the right to know about the sale.
“We do believe that there is strong law on that donors are presumed to know the terms of the charter, including both the powers and the purposes that are contained in there,” Aladro says.
Aladro is referring to specific legal restrictions that prohibit the museum from selling artwork donated before 1932.
Those works were removed from this month’s auction.
Judge Agostini called into question whether Rockwell’s children and other opponents even have the authority to question the museum’s fiduciary duty. Keating argued yes, at least over the two Rockwell pieces for sale.
Attorney Nicholas O’Donnell says the rest of the public and museum members have the authority because the Berkshire Museum is a corporation.
“Join us, give us money because you’ll have the chance to interact and to make your voice heard in the future of the museum. Not every organization does that, this one does. So that injury flows to my client and to any member,” O’Donnell says.
“Every institution around the commonwealth, if they know its members has the ability to do what the attorney general has been specifically, and I believe exclusively allowed to do, it would create havoc,” Agostini says.
Board of Trustees Attorney Bill Lee contends the Berkshire Museum spent ample time researching and putting together the New Vision plan. The Massachusetts Cultural Council, the Association of Art Museum Directors and the American Alliance of Museums have all condemned the sale.
“The only thing that people are doing now is Monday morning quarterbacking of a two-year process, saying you might have done some things differently. But our legal system doesn’t allow for that,” Lee says. “And at the end of the day: Loud voices, accusations, character assassination are not the kind of thing that you resolve an issue like this.”
The first of many Sotheby’s auctions, expected to bring in $68 million all together, is November 13th.
“The attorney general has not brought a complaint. The attorney general has not sought a temporary restraining order. The attorney general has not sought a preliminary injunction. And as Your Honor now knows, the attorney general has been engaged with us for four months and has known about this sale since September and they still have not brought that motion,” Lee says.