Posted Friday, February 9, 2018 9:30 pm

PITTSFIELD — If approved by the state's top court, the Berkshire Museum will sell Norman Rockwell's "Shuffleton's Barbershop," its most valuable work, on the way to drawing $55 million out of its collection and resolving a standoff that has mesmerized the art world.

But in a concession, the work will be sold to a nonprofit museum in the United States, not at auction to a buyer anywhere in the world.

And four months after that transaction, the acclaimed painting, considered Rockwell's masterwork, will spend 18 to 24 months on display at the Norman Rockwell Museum in Stockbridge.

The museum and Attorney General's Office on Friday revealed details of their effort to resolve a dispute over the legality of art sales. Their agreement capped months of court battles and rallies that split museum supporters and, to a degree, the community itself.

The divide remained Friday, as members of Save the Art, a community group, assailed the agreement as not in keeping with the museum's mission.

"The 'compromise' agreement ... is flawed," the group said in a statement. "It flouts all standards of museum best practices and fails to honor the Berkshire Museum's duty to the community's cultural past or its future generations."

Instead of protecting the public trust, the pact violates it, the group said.

The agreement is considered a breakthrough in the long-running dispute and could influence how museums view potential sales of works in their collections.

The museum's plan must be approved by a single justice of the Supreme Judicial Court, but that is considered likely given the state's endorsement. The agreement includes requirements the museum report to the attorney general on steps it will take to sell the 40 works it listed for sale last summer.

The art will be sold in three batches, with specific works to be selected by the museum.

Sales must stop when proceeds reach $55 million, the agreement says. That is the figure that the Attorney General's Office decided, after a monthslong investigation, that the museum needs to shore up its finances.

That means that not all 40 of the works will necessarily be sold, depending on prices obtained through sales.

With the agreement, the attorney general and museum avoid an extended fight through the appellate level, consuming months or years of time and expense.

Because the petition represents the views of both sides, and contains an agreed-upon set of facts, the court can review and judge them much faster.

The museum and state are expected to drop pending actions before the Massachusetts Appeals Court. Lawyers for two other groups of plaintiffs have said they will review the agreement before deciding whether to continue to contest the sales.

The sale of "Shuffleton's" is expected to take place "relatively quickly" after securing court approval, a museum official said.

By selling works to cover operational expenses, the museum broke ranks with trade associations. Ethics codes of those groups say revenues from the deaccession and sale of art should only be used to address the needs of museum collections.

Premier painting

For months, fears of losing "Shuffleton's," Rockwell's acclaimed scene of musicians in the back room of a darkened barbershop, galvanized opposition to the sale. Rockwell gave the painting to the museum in 1959.

The painting, which appeared on the cover of The Saturday Evening Post on April 29, 1950, had been valued by Sotheby's at between $20 million and $30 million.

Its next owner remains a mystery. The museum declined to identify the prospective buyer or to say how much will be paid for the painting.

While the agreement preserves public access to "Shuffleton's Barbershop," the fate of the other painting the artist gave to the Pittsfield museum, "Shaftsbury Blacksmith Shop," will not be known until it is grouped into one of three lots that the museum can sell, under terms of the deal.

The agreement paves the way for the museum to raise nearly all of the money trustees said they needed to overcome recurring deficits of over $1 million a year and to embrace a shift to science and nature programming.

But in the weeks ahead, the museum must prove to a court, through what's known as a "cy pres" petition, that it could not survive without selling assets.

That's a win for lawyers in Attorney General Maura Healey's office, who in court filings faulted the museum for planning sales without complying with laws governing nonprofits and public charities.

Article Continues After Advertisement

"Importantly, the agreement adheres to Massachusetts charities law and sets an important precedent for other museums that charitable organizations must act transparently," said Emily Snyder, a spokeswoman for Healey.

Snyder said the standards will now be met, and they include a need to "seek court approval to modify restrictions and sell charitable assets in accordance with their charitable mission and demonstrated financial need."

Even critics of the museum's planned sales found reason to applaud the fact that after months of litigation, the Attorney General's Office and the museum found a way to keep the painting widely considered to be Rockwell's best available to the public.

Anita Walker, executive director of the Massachusetts Cultural Council, said Friday she was pleased that "the beloved Rockwell painting" will be shown in the Berkshires for nearly two years. Her group had criticized the museum's plan; the council pulled its funding to the museum for this fiscal year.

"While today's legal action is not the outcome we had sought, there are some important benefits to the citizens of the Commonwealth," Walker said in a statement to The Eagle.

Walker said that in addition to preserving public access to "Shuffleton's Barbershop," the agreement bolsters the state's claim that public charities like the Berkshire Museum need to conform to the law and not seek to sell off significant portions of their holdings without authorization.

"They should not consider this a precedent, nor should any museum consider deaccessioning as a viable solution to financial difficulties," Walker said.

Community 'healing'

Both Pittsfield Mayor Linda Tyer and state Rep. Tricia Farley-Bouvier, D-Pittsfield, lauded the agreement, in comments provided by the museum's public relations staff, as good for the city and the museum.

Tyer noted the attorney general's "exhaustive" investigation and Farley-Bouvier said the plan will preserve "an institution so critical to our children."

State Sen. Adam Hinds, D-Pittsfield, said it will be important to work to bring the community together to back the museum as it goes forward.

"This is not the time for a victory lap. This is not the end of the story," he said. "The museum will be on most solid ground when there is healing that takes place.

Article Continues After These Ads

Elizabeth McGraw, president of the museum's board, said she too hopes for reconciliation.

"We all need to take a deep breath and come together," she said.

"It hasn't been easy," she said, when asked how the board responded to the investigation and community questions. "When things are tough, your true character comes out. The board chose to keep the museum open for this community. Imagine the empty shell of a building. That's what kept me up at night."

She added, "We have a lot of healing to do in the community. The board is fully aware of that."

That work presumably starts with activists allied with Save the Art. The group has called for changes in leadership at the museum and on its board.

"By leaving intact the current museum leadership, despite clear evidence of poor management and bad stewardship, the accord does nothing to protect the collection from future sales," a statement from the group said. "The deaccession of the museum's finest art treasures strikes at the heart of the principles of public trust, and sets a precedent that will undermine cultural and historical institutions in the Commonwealth and across the country."

The group said Friday members are studying the agreement and plan to raise further questions about it.

Later sales

After the initial sale of "Shuffleton's Barbershop," all of the remaining 40 works the museum marked for deaccession and sale will be eligible to be sold.

Proceeds up to $50 million could be used for any purpose, according to the agreement, including to enhance its endowment. Any sum after that up to $55 million can be used for the benefit of the museum's overall collection, including its planned New Vision renovation.

Because the work will be sold in lots, proceeds may inadvertently top $55 million. In that case, the agreement calls for that money to be put into a separate fund to benefit the museum's art collection.

McGraw said Friday she does not know whether the museum will take steps to retain Rockwell's "Shaftsbury Blacksmith Shop."

Article Continues After Advertisement

She also said she does not know the identity of the intended buyer of "Shuffleton's."

In court briefs and public statements, the museum has insisted that without an influx of money, the institution that philanthropist Zenas Crane founded in 1903 could be forced to close within eight years.

Outside experts, including the Massachusetts Cultural Council, questioned whether the nonprofit's financial condition was as dire as reported.

The attorney general's probe determined that the museum's financial condition was indeed an emergency. Through the agreement, the museum must go through legal steps to win a court's approval to sell the works — a step it did not take last year.

By establishing a series of phased sales of art, Healey's office is calibrating the amount of money raised to the museum's actual need — as it determined them through its review, officials with the office said.

Along the way, protecting "Shuffleton's" from disappearing into a private collection emerged as a way to break the logjam.

The office was determined, officials said, to enforce accountability and transparency from the museum, which they viewed as key to restoring public confidence in the institution.

When trustees announced plans to sell top pieces from their collection, they said they faced no restrictions on sales. Proceeds from auctions, they said, would add $40 million to their endowment.

They also planned to apply another $20 million in auction proceeds, and other funds, to the renovation and re-invention project they dubbed the New Vision.

The petition to the SJC is expected to be reviewed by Justice David A. Lowy, the single justice sitting for February.

In a joint filing Monday with the Massachusetts Appeals Court, the two sides had signaled they were ready to find common ground.

"The AGO and the Museum have agreed to resolve [their] differences and will file a petition for judicial relief," a status report signed by both sides said.

One line in the report pointed to a compromise that was to be spelled out in the document filed Friday: "The AGO will support the relief requested by the petition."

That relief turned out to be the agreement to sell works, but only after petitioning the SJC for permission and only letting "Shuffleton's" go to a nonprofit buyer willing to keep it in the public domain through exhibits.

A spokesman for the Norman Rockwell Museum said Friday the institution was still digesting the news of the deal — and the fact that the painting could be in its custody for up to two years.

Disagreement remained

As they drafted the petition together, lawyers for both the state and museum sought to resolve a key problem: They disagreed about the legality of the proposed art sales.

After completing its probe, the Attorney General's Office held the position that the artworks were restricted from sale. But the museum said nothing barred the sales.

State prosecutors have been in the driver's seat since they managed to halt auctions at Sotheby's in New York City that were to start the week of Nov. 12. Sotheby's has custody of the art.

The auction house will continue to represent the museum in the future sales. The museum will face no penalties as a result of the shift in how the works are sold, according to the museum.

On Nov. 10, the Attorney General's Office won the first of three injunctions granted by Justice Joseph A. Trainor of the Appeals Court. Those orders prohibited the art from being sold.

The last injunction expired Monday, but by then the two sides had an agreement, which included a promise by the museum not to sell works until the court entered an order on the matter.

According to people familiar with the SJC's single justice system, it is routinely used to resolve issues involving nonprofits and public charities overseen by the Attorney General's Office.

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

Berkshire Museum/Massachusetts Attorney General's Office Final Settlement Summary 020818[2] by The Berkshire Eagle on Scribd