Here’s the complete official doc while awaiting Single Justice ruling. More to come.
VIA EMAIL February 9, 2018
William F. Lee, Esq. WilmerHale 60 State Street Boston, MA 02109
Re: Sale of Works of Art by Trustees of the Berkshire Museum
Dear Attorney Lee,
Thank you for your and the Trustees of the Berkshire Museum’s (the “Museum”) continued cooperation while the Attorney General’s Office (“AGO”) investigated the proposed sale of 40 of the Museum’s most valuable works of fine art in order to fund a “New Vision.” As the AGO indicated to the Museum last September, after reviewing the proposed sale of all 40 items and planned use of proceeds ($76 million or more based on auction estimates), the AGO concluded that the objects that have been deaccessioned and offered for sale are subject to restrictions that prohibit the Museum from selling them in the manner proposed absent court approval lifting or modifying the restrictions. As we have also discussed, and as we outline further in this letter, while we continue to believe that these restrictions apply, the investigation has led us to agree with the Museum that it would be impracticable for the Museum to continue its operations without a sale, subject to, however, certain guidelines. Therefore, the AGO is prepared to support the Museum in its request to the Supreme Judicial Court for approval to sell up to 40 items subject to certain agreed-upon sale parameters.
The Museum first provided notice of the planned sale on June 22, 2017. The notice indicated that the Museum was proposing to sell 40 works of fine art from its collection in order to fund a “New Vision,” which will include the creation of a $40 million “endowment” and dedicate $20 million to facilities upgrades and repairs. Over the course of further communications with the AGO pertaining to the AGO’s investigation, the Museum asserted that it is in dire financial need and requires a significant capital infusion in order for the Museum to be able to continue to fulfill its charitable mission. Further, the Museum asserted that the only way it could achieve that necessary capital infusion was by selling the identified 40 of works of fine art from its permanent collection. The Museum stated that it had come to this decision as part of a two-year process undertaken by the Board of Directors to consider alternative directions for the Museum that would create a more sustainable financial future for the Museum.
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Upon receipt of the Museum’s June 22, 2017 notice letter, the AGO undertook a careful investigation of the Museum’s plans. As part of this review, the AGO requested and reviewed over 2300 documents bearing on the Museum and its Board’s decision-making process as well as donor intent and restrictions on objects donated or bequeathed to the Museum. These documents included, inter alia, board materials, minutes and agendas, committee materials, meeting minutes and agendas, board retreat materials. Museum policies and procedures, other internal Museum and board communications, files associated with each of the artworks that the Museum plans to sell, archival director files, and other historical files. The AGO also interviewed Museum employees, board members, and third party witnesses regarding, inter alia, the Museum’s history, the Board’s efforts to date to stabilize the Museum’s finances, the Board’s decisionmaking process related to deaccessioning and selling art from its collection, the Museum’s consideration of alternatives to selling art to revitalize the Museum, the intent of donors, and employee experience at the Museum.
In addition to the AGO’s review of documents and interviews with witnesses, the AGO also worked to understand all components of the Museum’s decision. In doing so, the AGO consulted with and relied on experts to provide the AGO with information regarding museum industry best practices, the Museum’s finances, and the impact of a decision to deaccession and sell art from a museum’s permanent collection.
The AGO is charged with review of the proposed sale for compliance with charities law, including an assessment of such factors as whether there are any restrictions that limit or prohibit the Museum from selling the chosen objects and whether, if such restrictions exist, it is impossible or impracticable for the Museum to fulfill its charitable mission and meet the intent of the donors without seeking court approval to lift or amend those restrictions. A summary of our conclusions related to this part of our review is described below.
1. Restrictions On The Works of Art Proposed for Sale
As detailed elsewhere (e.g., in its filings in the litigation referenced above) the AGO believes that all of the works of art deaccessioned and proposed for sale are subject to one or more restrictions that limit the Museum’s ability to proceed with its planned sale and use of proceeds to fund an endowment, pay for operating expenses and fund renovations. The Museum continues to believe no restrictions (beyond the Museum’s charitable purposes) apply. In light of certain findings from the AGO’s investigation described below, and in an effort to avoid unnecessary expenditure of charitable and government resources on litigation to determine which view of the restrictions would ultimately be found to be legally correct, the AGO and the Museum have agreed on a framework for requesting authorization for a sale under specific conditions. First, all of the 40 works of art identified for sale have been, until recently, part of the Museum’s permanent collection. These works of art constitute most of the monetary value of the Museum’s fine art collection and have historically been devoted to fulfilling the art component of the Museum’s three-part mission. The Museum has also long represented itself to donors and the public as an art museum (even though not solely an art museum). Further, the Museum policies and professional affiliations in place at the time the objects were selected for deaccessioning reflect a commitment by the Museum to hold its art for art puiposes, and