Berkshire Museum releases impounded court documents

Meanwhile, museum says AG refused offer on injunction

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PITTSFIELD — The Berkshire Museum dropped its opposition Monday to the release of impounded court documents requested by The Berkshire Eagle, making public nearly 60 pages of material sealed since Nov. 1. 

But the newspaper’s effort to obtain all of the information in the impounded files will continue, its president said, because Monday's release contains redactions beyond those that exist in the court's copies. 

Meantime, the museum and the Attorney General’s Office are sparring over a failed effort to come to terms on the fate of an injunction barring art sales by the Pittsfield institution. 

The documents released Monday by the museum include a copy of the consignment contract between the museum at the Sotheby’s auction house, one of the files that were sealed from public view when entered with motions in conjunction with litigation before Berkshire Superior Court related to the museum’s planned deaccession of 40 works of art. 

But the newspaper has determined that the copy of the contract released by the museum Monday contains redactions that appear to pertain to its financial relationship with Sotheby’s which were not redacted from the copies submitted to the court. 

The Eagle received the files late Monday and will provide coverage about their contents online Tuesday and in print Wednesday. 

Fredric Rutberg, president of New England Newspapers Inc., the newspaper’s parent company, said that while he appreciates receiving the information, it does not satisfy its request before the court to terminate the impoundment. 

“The museum is being disingenuous, at best, when it claims these are the documents that The Berkshire Eagle requested, because the copy of the contract released earlier contains deletions which were not redacted from the copies submitted to the court,” Rutberg said. 

“Unfortunately, The Berkshire Eagle must continue to press its request to the court to terminate the impoundment order to be able to report the full story to the public," he said. 

In a press release that accompanied the release of files Monday, the museum said it was acting to provide documents “that provide insight into the planning that led to the Museum’s proposed New Vision and the financial challenges facing the museum.”

The New Vision project entails a shift in focus to science and nature programming, aided by the deployment of new exhibit techniques. The museum says it needs to sell works from its collection to afford that change and to insulate itself from ongoing budget deficits. 

The museum’s release notes that it had earlier asked The Eagle to disclose why and how it had earlier reported on a $1 million donation that an anonymous group offered to make to the institution in exchange for a one-year delay of the art sales and an independent review of the museum’s finances. 

William F. Lee, a partner with the Boston law firm WilmerHale, said in a statement provided by the museum that he regrets that the newspaper declined to “disclose its involvement in the anonymous offer. … The Museum nevertheless is releasing its information publicly.”

Elizabeth McGraw, president of the Museum’s board, said the documents released Monday illustrate the “exhaustive process undertaken by the Museum’s Board of Trustees in recognizing the serious challenges facing the museum and how best to overcome them and secure the museum’s long-term future.”

Injunction status

On another front, the museum and attorney general disagree over an alleged attempt to come to terms on the fate of the injunction that officially expired Monday. 

The museum said Monday it offered Attorney General Maura Healey's team a deal: It would support extending the injunction for seven weeks, as the state has requested, on the condition it allow a trial on the legality of the sale to go forward at the same time in Berkshire Superior Court. 

The state said no, according to Carol Bosco Baumann, the museum's spokeswoman. 

That account is incomplete, according to the attorney general. 

In a statement late Monday, the state said it and the museum were unable to agree to a deal related to extending the injunction. 

"First, when the Museum offered to agree to the injunction extension in exchange for the lifting of the Superior Court stay, the AGO did not simply refuse. The AGO was open to discussing such an agreement, but the parties could not come to terms on issues such as potential inference with the investigation," the office said in a court filing Monday.

Justice Joseph A. Trainor of the Appeals Court last week gave parties to the dispute until Tuesday to weigh in on the status of the injunction. 

In a response filed Monday, the museum's lawyers returned to arguments presented in court filings in recent weeks. In addition to fighting the issue of the renewal of the injunction before Trainor, in his role as a "single justice" at the appellate level, the museum is appealing the justice's decision to grant the injunction. 

That case is on a separate docket to be heard by a three-judge appellate panel in Boston. 

'Languid' probe

With an agreement between the museum and state a non-starter, the museum this week renewed sharp, even mocking, criticism of the way Healey's office has handled its inquiry. 

The state's investigation is "languid," unwarranted, improper and likely to fail to stop the deaccession of 40 works of art, the response claims. 

Further, it argues that the state's case is weakening as it is given hundreds of pages of documents by the museum. 

Felicia H. Ellsworth, of the Boston firm WilmerHale, questions why the state's motion to extend the injunction contains no new justification to prevent the art sales — which together are expected to bring in more than $60 million.

That, Ellsworth wrote, "amounts to a tacit acknowledgement on the part of the AGO that its case for an injunction has only diminished based on its belated information requests."

On that point, the state sharply disagrees, calling the assertion incorrect.

"The AGO provided an end date for the investigation, and not an update on the merits of the appeal," the office's Monday filing said, "because the Court asked for the former and not the latter. To the extent this Court will allow additional evidence on the merits of the appeal, the AGO will discuss a supplemental appendix with the Museum, ideally at the conclusion of the investigation." 

Leveling the field

While their response opposes extending the injunction, the museum's lawyers argue that if more time is granted, the single justice should level the playing field by allowing the case to go to trial in Pittsfield. 

"The AGO's desire to continue an extra-legal 'investigation' in no way undermines the Museum's right to prompt adjudication of the merits of the complaint the AGO filed as a plaintiff in Superior Court," Ellsworth's response reads. "Allowing the Superior Court litigation to proceed forward would return the parties to an equal footing."

The state's probe, the museum claims in its response, is not only "extra-legal" but "wholly unauthorized, prompting a "stark imbalance [that] is entirely unfair and unjustified."

Further, Healey’s office takes issue with the museum’s contention that it has supplied all of the materials it has been asked to produce in connection with the investigation in the planned art sale. 

It faults the museum’s legal team for not including, in a court filing, a letter from the attorney general’s office detailing materials that remain not yet made available to investigators. 

The litigation began Oct. 20 with the filing of the first of two civil actions. While the state was at first only named as a party of interest, prompting it to file a response, Healey's office later moved to be made a plaintiff if the original plaintiffs were found to lack legal standing in Berkshire Superior Court to oppose the sales. 

That motion was granted, but all opponents to the art sale lost Nov. 7 when Judge John A. Agostini denied the request for a preliminary injunction, days after hearing arguments from various sides in his courtroom Nov. 1. 

Three days after Agostini's ruling, Healey's office secured the 30-day injunction from Trainor, stopping sales of museum pieces at four separate Sotheby's auctions scheduled for the following week.

The art in question, including two paintings by Norman Rockwell, remains in storage at the New York City auction house. 

The state is now asking that the injunction be extended until Jan. 29. It says it can conclude its investigation by then, provided the museum continues to make documents and personnel available for its probe. 

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


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