Professional Documents
Culture Documents
APPEALS COURT
2017-J-0510
Berkshire County, ss.
v.
CONSOLIDATED WITH
Date: 12/6/2017
Courtney M. Aladro (BBO No. 671104)
Emily T. Gabrault (BBO No. 682555)
Andrew M. Batchelor (BBO No. 673248)
Assistant Attorneys General
Office of the Attorney General
One Ashburton Place
Boston, MA 02108
(617) 963-2545
Courtney.Aladro@state.ma.us
Emily.Gabrault@state.ma.us
Andrew.Batchelor@state.ma.us
INTRODUCTION
1
The AGO reports as follows: On December 6 , 2017,
2
the information then available, and moved for a
December 1, 2017.1
are provided.
Respectfully submitted,
MAURA HEALEY
ATTORNEY GENERAL
5
CERTIFICATE OF SERVICE
I, Emily T. Gabrault, hereby certify, under the
penalties of perjury that on December 6, 2017, I filed
the foregoing with the Clerk of the Appeals Court via
the Court's electronic filing service and served by
email and first-class mail on counsel of record listed
below:
Michael B. Keating
FOLEY HOAG LLP
155 Seaport Boulevard
Boston, MA 02210
Nicholas M. O'Donnell
SULLIVAN & WORCESTER LLP
ZAG/S&W LLP
One Post Office Square
Boston, MA 02109
William F. Lee
WilmerHale
60 State Street
Boston, MA 02109
I further certify that the foregoing document was
served by email and first-class mail on this day with
Associate Justice John A. Agostini of the Superior
Court for Berkshire County.
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EXHIBIT 1
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T H E COMMONWEALTH OF MASSACHUSETTS
OFFICE OF THE ATTORNEY GENERAL
ONE ASHBURTON PLACE
B OSTON, MASSACHUSETTS 02108
MAURA HEALEY (617) 727-2200
A HOKNKY G ENERAL wwv.inass.gov/ago
Dear Felicia:
Thank you for your November 29 letter and the additional information provided. We look
forward to further production from the Museum in response to our requests.
As you know, we have been investigating the Museum's plans since receiving its initial notice of
the deaccession and planned sale in a June 22, 2017 letter. Unfortunately, that letter did not
provide our office with a complete picture. For example, the letter did not include any
information about restrictions on items acquired before 1932, of which counsel for the Museum
and at least one Board member was aware (though we understand the full Board was not). In an
attempt to clarify questions and complete the narrative, over the course of the last several
months, we requested documents related to the Museum's plans, at times needing to repeat
certain requests in response to incomplete production. We have been making and continue to
make every effort to move as expeditiously as possible notwithstanding the Museum's
incremental provision of necessary information.
We have also been transparent with the Museum throughout this process and specifically advised
the Museum in October that our investigation was not complete. Nonetheless, the Museum
elected to proceed with plans to sell these 40 items in November. In accordance with the AGO's
statutory and common law authority, as well as Justice Trainer's Orders of November 10 and 20,
we are attempting to complete our investigation into the proposed sale and the application of
charitable assets. The Museum's continued characterization of certain documents as irrelevant to
our investigation and refusal to produce such documents that are responsive to our requests
hinders our ability to complete our investigation and resolve this matter swiftly.
Cs
Felicia Ellsworth, Esq.
November 30, 2017
Page 2
Though we disagree with most of the remaining points raised in the preamble of your letter, we
reserve our positions and right to provide a more fulsome response while we focus on proceeding
with our investigation.
3) All documents related to auction houses (such as Christie's and/or Sotheby's), from 2010 to
the present, including but not limited to correspondence M'ith the auction houses (or their
representatives) and internal documents concerning the decision to work with the auction
houses.
Reserving its rights to seek information prior to 2014, the AGO agrees to revise the
relevant time period for this request to: "from 2014 to the present." This includes, as
noted in the request, correspondence with auction houses and internal documents
concerning the decision to work with the auction houses.
4) All board meeting minutes or materials presented, provided or reviewed by the Board, TDC,
or Gary J. Moynihan in assessing the financial state of the Museum from 2010 to present. If any
documents were not reviewed by all three, please identify which documents were reviewed by
whom.
The AGO agrees to proceed as described in your November 29 letter, reserving its rights
to seek information prior to 2012.
At this time, we do not require any additional documentation in response to this request.
6) All documents related to any deaccessioning of art undertaken by the Berkshire Museum,
including but not limited to the deaccessionings in 1934 and 1935 (referenced in 10 and 11 of
the Garlington Affidavit) and the 2008 deaccession.
As stated in my November 28 letter, the AGO's requests for documents related to the
Museum's deaccessions and sales in 1934, 1935 and 2008 remain unchanged. The AGO
will consider narrowing the remainder of Request No. 6 upon review of the summary
chart described in your November 29 letter.
7) All documents related to the Collections Committee, including but not limited to notices of
meetings, agendas, minutes, notices of donations, materials presented at Collections Committee
meetings and/or reports by the Collections Committee from 2006 to the present.
The AGO looks forward to Collections Committee minutes and materials from 2008, and
understands that the Museum has produced those same types of materials from 2014 to
present. The AGO's requests for all documents related to the Collections Committee,
including notices of meetings, agendas, notices of donations, materials presented at
2
Felicia Ellsworth, Esq.
November 30, 2017
Page 3
8) All board meeting minutes or materials presented, provided or reviewed by the Board relating
to collections policies and/or the Collections Committee from 2006 to the present.
The AGO will consider narrowing Request No. 8 upon review of the summary chart
referenced under Request No. 6 above.
10) All documents, board meeting minutes, or materials presented, provided or reviewed by the
Board relating to fundraising, including executed and contemplatedfttndraising efforts, plans,
activities, events/campaigns, from 2010 to present.
The AGO looks forward to the Museum's production of "additional documents," which
we anticipate to be fully responsive to this request.
12) All documents related to the selection, engagement of and payments to Hill Engineering,
including but not limited to documents related to potential conflict of interest of board member
Jeff Noble.
The AGO has not yet narrowed this request and looks forward to information the
Museum plans to produce.
14) Confirm that the Museum has produced to the AGO copies of all files referenced in para. 9
of the Garlington Affidavit.
We had originally requested all materials referenced in para. 9 of the Garlington Affidavit
on August 18 ("Gift instruments for the 40 pieces which have been selected by the
Museum to be deaccessioned [and] [a]ny additional materials or documentation the
Museum reviewed when determining whether the pieces were subject to any
restrictions."). In response, the Museum produced accession slips on August 23. It was
not until the AGO visited the Museum and met with Museum officials on September 12
that we became aware that additional files existed. These files include object files,
director files, curatorial files, and "Zenas Crane" files. When we asked for the remainder
of these files, we were again provided with an incomplete set in late September.1 It was
not until late October that we understood that we had access to the remainder of the files
responsive to the request we had made months ago.
1 Note that at our September 12 meeting, we had agreed to prioritize files related to items acquired after 1932 given
the Museum's seeming acknowledgement of our concerns about the Museum's ability to sell items acquired prior to
1932. It is our understanding that the Museum later pulled items acquired prior to 1932 fiom the fall auction in
response to our concerns and in consideration of a cy pres petition.
3
Felicia Ellsworth, Esq.
November 30, 2017
Page 4
Please let us know their availability. Please also let us know if you represent Maria
Mingalone.
As noted before, we anticipate that we will need to conduct additional interviews in order to
complete our investigation. We would like to interview Board Chair Elizabeth McGraw, Board
member Ethan Klepetar, and (health permitting) Executive Director Van Shields. We may also
want to meet with additional Board members, employees, and/or affiants that we identify after
review of the Museum's full production. Given that we will not be able to meet with any of
these individuals until the Museum completes its production of materials responsive to our
requests, we request that the Museum agree to complete production pursuant to the above by
December 11 so that interviews may be scheduled soon thereafter.
Courtney Aladro
Chief, Non-Profit/Public Charities Division
Office of the Attorney General
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EXHIBIT 2
8
<t\
T H E COMMONWEALTH OF MASSACHUSETTS
OFFICE OF THE ATTORNEY GENERAL
ONE ASHBURTON PLACE
B OSTON, MASSACHUSETTS 02108
MAURA HEALEY (617) 727-2200
A ITORNHY G I;NKRAI. www.mass.Eov/aco
Dear Felicia:
Thank you for the Museum's continued production of documents, including a summary chart of
deaccessions that took place at the Museum between 2006 and the present. After reviewing the
summary chart, and reserving the right to seek additional documents, the AGO reiterates the
requests set forth in its letter of November 30, 2017, but agrees to narrow requests 6, 7, and 8 as
follows:
6) All documents related to any deaccessioning of art undertaken by the Berkshire Museum,
including but not limited to the deaccessionings in 1934 and 1935 (referenced in UK 10 and 11 of
the Garlington Affidavit) and the 2008 deaccession.
All documents related to the Museum's deaccessions and sales in 1934 and 1935, and all
documents related to the deaccessions that took place on April 28, 2008.
7) All documents related to the Collections Committee, including but not limited to notices of
meetings, agendas, minutes, notices of donations, materials presented at Collections Committee
meetings and/or reports by the Collections Committee from 2006 to the present.
All documents related to the Collections Committee from the year 2008 and also from
2014 to present. The AGO understands that the Museum has already produced many of
these materials. Please let us know if there are additional documents responsive to this
request that have not yet been produced.
Ci
Felicia Ellsworth, Esq.
December 5, 2017
Page 2
8J All board meeting minutes or materials presented, provided or reviewed by the Board relating
to collections policies and/or the Collections Committee from 2006 to the present.
In addition to the narrowed requests, we reiterate our interest in meeting with Jason Verchot,
Logan Recchia and William Blaauw as soon as possible. Consistent with the discussion on our
November 27 call regarding our document requests, please let us know when it would be
convenient for our team to come to the Museum to meet with these individuals and have them
guide us through the archive search referenced in ^(9 of the Garlington Affidavit. Please also
confirm whether or not you represent Maria Mingalone.
Sincerely,
Courtney Aladro
Chief, Non-Profit/Public Charities Division
Office of the Attorney General