Judge John J. Agostini of the Pittsfield Superior Court gave his decision on Tuesday in the widely publicised deaccession case brought by the sons of Rockwell and others against the Berkshire Museum.
As a brief reminder, the Berkshire Museum’s financial situation had been bleak for many years and wealthy donors had all but disappeared. The Board of Trustees had considered numerous solutions such as increasing ticket sales, hiring freezes, and reduced programming. None of these solutions provided the financial relief sought. Deaccession of some 40 works of art, including two Rockwell paintings, was first considered in 2015 and an agreement was finally entered into with Sotheby’s on 13th June 2017. This decision sent shock waves throughout the Museum community. Injunctive relief was sought by Rockwell’s sons, members of the Museum and, at the last moment, by the Attorney-General’s Office (the AGO) of Massachusetts, which alleged that there had been a breach of fiduciary duty by the Museum’s Trustees.
The Judge first disposed of Rockwell’s sons’ petition on the basis that they had no legal standing to bring the action, nor to enforce any promise made to their father to keep the paintings in the Berkshire Museum. Responsibility for enforcing such a promise, if it existed, would have rested with Rockwell’s estate and the Judge concluded that there was no evidence that such a promise was made or requested by the artist. Although the letter acknowledging the gift did mention that the works would remain in the ‘Museum’s permanent collection’ this merely meant, in ‘museum parlance’, that the paintings would be accessed by the Museum.
Having dealt with the issue of legal standing in favour of the Museum, the judge turned his attention to the AGO. The AGO was made aware of the planned sale on the 23rd June in a five-page communication, which listed the works to be put on the block. The AGO then embarked on some 400 interviews and had at least 40 phone calls with or involving the Museum Trustees. The AGO only entered into the legal fray late in the day and on the basis that the other parties were denied legal standing.
The Court noted that the AGO had made every effort not to get involved. A “reluctant warrior”, as the Judge described it, the AGO was unable to state exactly what additional information it required to bring its investigation to fruition. The AGO’s position was that the deaccession raised ‘concerns’ and it needed more time to reach a conclusion. The judge was quick to point out that ‘concerns’ or ‘troubling’ acts were not legal standards and went on to say that the AGO’s “lack of aggressiveness speaks volumes in this case”. He referred to the AGO’s “initial indifference” compounded by its “faint-heartedness” which suggested that the AGO has little expectation of discovering evidence against the Trustees.
On deaccession itself, the Judge said that the word “is not a pejorative term; it is an integral part of collection management in Museums, neither illegal nor unethical” and that the wording of the 1932 Act, establishing the Museum, contains “no language prohibiting its property from being removed from Pittsfield”.
In closing, the judge found in favour of the Museum Trustees and rejected any request for injunctive relief while finding no breach of fiduciary duty on their part.
He recognised that “[t]his may very well mean that timeless works by an iconic local will be lost to the public in less than a week’s time”, but his duty was to act dispassionately and decide on the legal merits alone.
A good legal decision maybe, but a sad result nonetheless.