Amicus Brief - Berkshire Museum Case

After consultation with counsel, I submitted an amicus brief to the Supreme Judicial Court of Suffolk County in the proceedings related to the Berkshire Museum case held this afternoon.  I thought I would share the contents as this is now part of the court record.



Civil Action No. SJ2018-065





I am the former director of Museum Services at Bonhams auction house, and have for the last 17 years worked with dozens of museums on deaccession reviews. I have been a sponsor and featured speaker at the AAM, AAMD, AAMC, AAMG and Museum Trustee Association meetings for over a decade.   I am also the author of the first critical history of deaccessions by museums since the 18th century, which is forthcoming next month by MIT Press, Deaccessioning and its Discontents: A Critical History.  On the basis of this professional experience, I formed an independent art advisory firm to counsel museums, trustees and curators on the prudential steps necessary for ethically navigating challenging deaccession reviews. 


In my opinion, the scope of the deaccession sales proposed by the board of trustees of the Berkshire Museum is flawed on a number of fronts, and the recent determinations of the Attorney General’s filing before Massachusetts Supreme Judicial Court on February 9, 2018, have in many ways exacerbated and compounded those flaws.


When we examine the historical record, we find many precedents for the Berkshire Museum case: an institution with financial difficulties, and a new vision plan for reinventing their mandate.  The closest analogue is the New-York Historical Society in 1995, when, facing potential insolvency, they elected to sell selected European works from the Thomas Jefferson Bryan collection of Old Masters in order to refund their endowment and retool their mission.  However, in the N-YHS case, the items selected were deemed out-of-focus to the Society’s mission of collecting the history of New York and American Art, and no American works were slated to be sold from the Bryan collection or other N-YHS holdings as a result.  In addition, only a small sliver of their core collections was liquidated, and finally, the attorney general ruled that NY state institutions were granted a right of pre-emption to acquire works at a slight discount of fair market value after the auction, to ensure works could stay in the public trust whenever possible.


While the Berkshire Museum faces an analogous set of challenges, their proposed course of action alternatively entails the wholesale disposal of works in many collecting categories without any curatorial rationale whatsoever.  These works have been chosen apparently solely for their high market value, not in keeping with a core curatorial mandate that ensures the core collections are preserved.  This is perhaps not surprising given that the Berkshire Museum appears to have no curator in charge of the art collections at present, but that further raises the expectation that they should seek outside counsel in that regard, and not depend on the selections preferred by an auction house.  Furthermore, apparently from the outset, no serious attempt has been made to keep these important works within the public trust if possible through a private sale to other museums, apart from the now latent prospect of the sale of one of the Rockwells to another museum.


While it is certainly true that museums have an obligation to refine collections from time to time, and deaccessions may be a prudent consequence of such reviews, it is our strong view, and the clear inference from the historical record, that they should always be guided by clear curatorial objectives


Furthermore, one of the chief findings of our book on the history of deaccessions includes the proposition that there are three distinct constituencies that need to be addressed in any proper curatorial review: the donor, the object itself, and the museum as a public trust.  One cannot promote fealty to one constituency in abeyance of the others; rather, they must be considered in equal measure.


In that regard, you cannot advance a vision of the museum’s mandate that runs roughshod over any consideration of the donor’s intent when bestowing the collections in the first place, nor can you abandon your responsibility to ensure the collections under your care have a proper home and enduring legacy in the public trust whenever possible.  At the Berkshire Museum, they have adopted a quixotic vision of the museum’s future which clearly violates their duty to the donor’s intent, and which ignores their duty for the proper care and preservation of collections whenever possible.


In specific terms, they have promulgated a “New Vision” plan that couples an ambitious rebuilding program with a new set of science technology exhibits, as well as a greatly expanded target for their endowment that seems beyond their true fiduciary needs, even in the face of years of chronic deficits.  The only financial means at hand by which to secure this grossly ambitious three-pronged initiative, from the outset, was to countenance the wholesale decimation of the most valuable paintings and works of art in their collections to pay for them...


In truth, there is simply no reason why these core works of American Art need to be sold if the proceeds from the Gregoriev works and other European and non-Western works were to be sold as a last resort.  This should yield in the neighborhood of $15 million or more in their own right, which is more than sufficient to restore the endowment given the financial assessments by others.  Under any circumstance, the rebuilding and technology programs should be funded by other means than the sale of core collections.


After months of review, the recent Attorney General’s resolution of February 9, 2018 is also seriously flawed for a number of reasons, and should not guide the court in the determination of this matter, in our opinion, as the AG’s recommendations oddly make the subversion of the trustees’ ethical mandate even worse.  In particular:


•    The seven works that were originally withdrawn from the November 2017 auction in October because of objections from the Attorney General’s office, apparently because they were acquired before 1932 and could not be sold according to the Museum's original charter, no longer appear to face that same restriction or embargo, as they appear to be part of the 40 works the AG now warrants for sale.   What happened then to that stopgap provision enshrined in their original charter?

•    The $55 million proposed threshold to be raised is excessive and can be justified only by accepting the necessity of funding the complete wish list of projects the trustees would like to undertake.  However, the liquidation of core collections should only be a last resort and severely curtailed to solely address the core fiduciary goal of supporting the museum’s continuing operations, which the AG provisionally estimates at an already high $25 million.  However, that might be achieved by the proposed sale of the one Rockwell painting alone, rendering all other sales moot.  Conversely, granting such a high financial target beyond any defensible rationale will virtually guarantee that all the works will need to be sold, because in the real world auction estimates can generally be inflated against the actual net proceeds.

•    Furthermore, the ominous criterion in the AG’s filing that that first $50 million can be used for "any purpose whatsoever" is a bizarre and serious regression from all ethical standards, in that at least in the original plan the funds were earmarked for the endowment and the New Vision plan.  Can they now raise the Director's salary to $1 million a year, pay for a six-week Caribbean vacation for all staff, or other irresponsible measures with impunity from those funds?   What purpose does this reckless clause serve?

•    Only the thin sliver of $5 million above that $50 million threshold is now secured for the preservation of collections, which is the actual ethical standard that the AAM requires of all deaccession funds, but even that portion can also be used for the "New Vision" costs as well in the AG’s determination.  So the principle of securing funds for future acquisitions or care of collections is completely gutted, and it reinforces the interpretation that the first $50 million can now be used for purposes beyond their original proposal as well.

•                Although there is a clause about exploring other homes in the public trust among the 40 works now on the block, none of that is enforceable or even advocated as a first step.


In summary, if the court were to authorize only the sale of European and non-Western works from the collection, they would be supporting an action that comports with a clear curatorial rationale; even if the proceeds were not sequestered for future acquisitions, as most museum protocols require, they should significantly improve the endowment and stabilize the financial conditions of the museum.  This narrowly confined purpose, as in the N-YHS case, is the only acceptable rationale for diverting the funds from the sale of artworks from the collection to anything but future acquisitions.  The broader ambitions for a rebuilding campaign and technology exhibits should only be funded from other sources, not the commodification of collections, or otherwise they would be seriously abrogating their duty to donor intent.


Even if we suspend disbelief and something like $55 million is ultimately justified by some defensible fiduciary rationale, why this summary rush to liquidation?  Why the urgency of auctioning the entire targeted cohort as soon as possible?  In truth, the historical record indicates that many other institutions—like the Detroit Institute of Arts, the Frank Lloyd Wright Foundation, and the Wedgewood Museum in Great Britain—when they tabled deaccession as a possible last resort to stave of financial insolvency, often found that in fact other sources and donors stepped forward that made that ‘last resort’ option ultimately unnecessary at the end of the day.


In contrast, the Berkshire Museum trustees oddly seem to elicit little or no reticence or regret about this drastic course of action, insist they cannot countenance any alternative options or refuse to pause long enough to properly deliberate about them.  Conversely, they appear intensely eager to dispose of the highpoints of their core collections at auction as quickly and expeditiously as possible, from which there can be no remediation once the gavel falls.  That alone seriously calls into question their adherence to core custodial principles, if nothing else.


Where lies the specter of financial Armageddon that will ensue if all these works are not sold as soon as possible?  I fail to see it and see no argument to support it.  Likewise, the concept that their fiduciary prospects have been seriously impaired by the Attorney General’s recent review is, in fact, the inversion of the truth.  In actuality, auction houses have sales on a regular 6-month cycle that could always accommodate these works at any time, and indeed, a less controversial atmosphere might actually aid and abet the financial results, as in truth many market participants might refrain from a sale infected with the many perceived ethical defects in this case.  If they were to ameliorate some of those perceptions by a good faith effort to compromise, they might, in fact, see their financial goalposts have dramatically improved.


[Let me add, parenthetically, that I am acutely aware of the tremendous strains and difficulties that many museum trustees face, as these often unsung volunteers on behalf of the public trust we all enjoy are often treated unfairly by those outside the administration who are not conversant with or sensitive to the nuances of the complex financial challenges many museums face.  I am sure the current trustees are acting in good faith and an honest commitment to what they perceive as the best course of action for the museum.  I think, however, they have been seriously misguided by bad advice or a limited discussion of their true latitude to consider other options, compounded by a failure to truly engage their professional peers at the AAM and AAMD that could offer more holistic counsel.]


Consequently, if the court were to warrant a limited sale of the European and non-Western works, and that in turn proves to be insufficient for supporting operations in the course of time, then the trustees could then petition the court and consider some of the core American works for potential sale, but then they should be offered in a collaborative process through the auspices of the AAMD to other public institutions first, as the likelihood of another museum willing to acquire them is high, and they would in most cases remain in the public trust.


This would be a more reasonable and balanced approach, and comport with the limited cases in the past, like the N-YHS in 1995, where such campaigns have proven successful in bringing museums back onto a solid financial footing without severely abrogating their obligations to donor intent and the preservation and care of collections.

March 19, 2018                                               Respectfully submitted,

                                                                        MARTIN GAMMON