The Berkshire Museum (photo by AlexiusHoratius, via Wikimedia Commons)

The Berkshire Museum (photo by AlexiusHoratius, via Wikimedia Commons)

After throwing the Berkshires into chaos in July, Pittsfield’s storied Berkshire Museum has found itself brought up in front of Berkshire County’s Superior Court. The museum had bet everything on a desperate and deeply unethical plan to sell off the most valuable and historic artworks in its collection, rip out the architectural heart of the building, and build up a fortress endowment so large that it would never need public support again. Now, that plan could be headed for a legal slap-down; the museum’s disaster-prone director Van Shields is on medical leave through at least the end of the year; and, as far as anybody can tell, there is no Plan B.

Albert Bierstadt, "Giant Redwood Trees of California" (1874), oil on canvas, 54 1/2 × 65 1/2 in (Berkshire Museum, via Wikimedia Commons)

Albert Bierstadt’s “Giant Redwood Trees of California” (1874) was given a pre-sale estimate of $1.5–2.5 million by Sotheby’s (Berkshire Museum, via Wikimedia Commons)

To be clear: From day one, the plan looked very, very bad. The job of a museum is to preserve its collection; the job of a collection is not to preserve the museum and to help it reinvent itself as something out of Harry Potter. (Seriously, that’s Shields’s vision, he said so himself.) Under the scheme devised by the museum, 40 pieces would be sold, including two Rockwells, a number of important Hudson River School paintings, and the first two Calders that the artist ever sold to any museum. The proceeds would mostly go into the museum’s endowment, after first spending $20 million on gutting the museum and replacing it with – well, no one really knows what exactly, but there’s a lot of word salad about “a radically new interdisciplinary approach” where artworks will be “integrated with cutting-edge technology”.

Now, however, there is real hope that the Berkshire Museum’s treasures will not be sold off, and that the star lot of Sotheby’s American Art sale on November 13, “Shuffleton’s Barbershop” (1950), will have to be pulled. An undisputed masterpiece by Norman Rockwell, it was donated to the museum by the artist himself in 1958, long before the word “deaccessioning” had even entered the English language. (The first museum to cause a scandal by selling off valuable paintings was New York’s Metropolitan Museum, 14 years later in 1972.)

At a hearing yesterday, Berkshire County Judge John Agostini did not reach a decision about issuing a temporary restraining order against the auction. Going into the hearing, all expectations were that he would grant that order before November 13, if only because the attorney general asked him to. What’s more, the AG’s 14-page legal motion is much more than a simple plea for a restraining order. Rather, it’s a devastating brief which makes it abundantly clear just how little regard the museum’s regulator has for the institution’s opaque and arrogant behavior. But the judge questioned the assistant attorney general aggressively about the standing of the plaintiffs, and it’s not at all clear that he will end up granting the AG the restraining order she requested.

Thomas Wilmer Dewing's "The White Dress" (1921) was given a $600,000–800,000 pre-sale estimate by Sotheby's. (Berkshire Museum, via Wikimedia Commons)

Thomas Wilmer Dewing’s “The White Dress” (1921) was given a $600,000–800,000 pre-sale estimate by Sotheby’s. (Berkshire Museum, via Wikimedia Commons)

Nevertheless, the attorney general, armed with subpoena power, has unearthed non-public information about the proposed sale that makes it look even worse than it did before. For instance, she confirms that the 40 works to be sold at auction are indeed “the 40 most valuable pieces that Sotheby’s had identified in the Museum’s permanent collection.” She also gives good footnotes: in one, she does the legal equivalent of an Angela Merkel eye-roll at the acres of buzzy New Vision verbiage, going out of her way to quote a museum professional as saying that “interactive exhibits quickly become dated, appeal to a limited audience, and seldom generate repeat visitation”.

More substantively, the attorney general makes a very strong case that the core of the deaccession is not only unethical (the Berkshire Museum has already withdrawn its affiliation with the Smithsonian, and faces unanimous opprobrium within the museum profession, including from the American Alliance of Museums and the Association of Art Museum Directors) but also illegal.

For one thing, 19 of the works slated for sale were donated before 1932, when the museum was part of the Trustees of the Berkshire Athenaeum and Museum. Under the Athenaeum’s 1871 charter, none of those works “shall ever be removed from the town of Pittsfield.” Sotheby’s seems to have realized the shaky legal footing of that part of the sale earlier this month: the auction house withdrew the 19 works from their scheduled sales, without offering any explanation.

There is also substantial evidence that the two most valuable works being sold — the two Rockwell paintings — were donated with the clear intention that they remain in the museum’s permanent collection, and not be sold. Since the gifts took place before Rockwell created his own museum, and since the paintings are so important, it’s entirely reasonable to believe that he donated the works specifically in order to ensure that they remain in the Berkshires.

To this day, the museum’s collection policy says that the donor’s wishes should be considered before any deaccession decision; in this case, those wishes seem abundantly clear. The AG’s argument to this effect spans six pages of her motion, and emphasizes that even if the sale of the paintings were permissible, courts would still need to weigh in before the sale so long as the paintings were being sold to bolster the endowment.

William-Adolphe Bouguereau's "L'Agneau Nouveau-Né" ("The Shepherdess," 1873) has been valued at between $1.5–2 million by Sotheby's. (Berkshire Museum, via Wikimedia Commons)

William-Adolphe Bouguereau’s “L’Agneau Nouveau-Né” (“The Shepherdess,” 1873) has been valued at between $1.5–2 million by Sotheby’s. (Berkshire Museum, via Wikimedia Commons)

On top of all that, the AG makes it clear that she is just as disgusted with the museum’s go-it-alone attitude as many others are. The museum’s strategy was cowardly from the beginning: they signed the deal with Sotheby’s before they announced that they were experiencing any kind of financial difficulties, and then decided that the best thing to do was to hunker down, set a sale date as soon as possible, say as little as possible to the press or to anybody else, and, once the sale was over, come out the other side with somewhere north of $40 million to play with.

The museum took that strategy so far that they even refused to talk to the Massachusetts Cultural Council, the state agency in charge of all cultural activities in Massachusetts, and a long-time donor to the museum. (The MCC has given the museum more than $1 million over the past decade.) Fatally, it seems, they also decided that they were also going to play the running-down-the-clock game with the AG, even though she had the power to halt the sale.

After the AG requested certain documents from the museum on August 18, for instance, the museum was still answering her request as recently as October 24 — more than two months later. It also insisted on keeping some of the documents on file at the offices of the museum’s lawyers, making it even more difficult for the attorney general’s staff to inspect them.

It’s abundantly clear, from reading the AG’s motion, that relations between the museum and its overseer are frosty at best, and that the museum has done a dreadful job of getting the attorney general onside. It calculated that it would be able to get away with doing the legal bare minimum; that calculation now looks ridiculously hubristic.

It’s also clear that even if the AG bars only the 19 pre-1932 works and the two Rockwells from being sold, that alone would scupper the New Vision. Those 21 pieces between them comprise the overwhelming majority by value of the sale items – which means that selling the remaining works would be largely pointless.

The exterior of the Berkshire Museum (photo by Daderot., via Wikimedia Commons)

The exterior of the Berkshire Museum (photo by Daderot., via Wikimedia Commons)

All of this means that if the museum’s trustees are smart, they’ll take this opportunity to restart the entire process: Come to an agreement with the AG that halts the sale (and which doesn’t leave them on the hook for massive penalty payments to Sotheby’s); quietly inform Shields that he doesn’t need to bother returning from his medical leave; start engaging with and apologizing to the community, especially those who were angriest and most vocal about the deaccession plans; and, perhaps, begin good-faith discussions with other Berkshire museums, including the Norman Rockwell Museum, about solutions that might help shore up some of the Berkshire Museum deficits while keeping its most valuable treasures in Berkshire County.

The real legacy of this debacle, however, will be felt across the nation. For three months, museums and donors both were terrified that the Berkshire Museum would singlehandedly upend all the norms around deaccessioning, and make it far too easy for museums to fill budget gaps with sale proceeds. If Maura Healey succeeds in putting paid to that idea, the entire country will owe her a debt of gratitude. On the other hand, if Judge Agostini doesn’t allow her to do so, he could singlehandedly damage America’s museums beyond measure.

Felix Salmon is the host and editor of Cause & Effect.