In museums we trust: analyzing the mission of museums, deaccessioning policies, and the public trust.

• Author: Tam, Sara
• Position: II. Evaluating the Prohibitions on the Use of Deaccessioning Proceeds A. Dictating Deaccessioning Policies: Whose Role? through Conclusion, with footnotes, p. 873-901

1. Dictating Deaccessioning Policies: Whose Role?

   This Section evaluates the different sources of deaccessioning policies. The New York State legislature is encroaching on an area that the New York State Attorney General had previously ceded to museums to regulate on their own. (164) Courts have had little opportunity to address and develop clear precedents for deaccessioning issues. (165) Museum professional organizations, courts, and state legislatures approach deaccessioning and the museum's related concerns from different perspectives. Each group has its own relationship with, understanding of, and influence over the museum community. These factors all have a bearing on the effectiveness of each group's governance of museums.

   1. Museum Professional Organizations

      Ethics codes promulgated by museum professional organizations have effectively implemented deaccessioning policies for museums. Since 1973, when New York State Attorney General Louis Lefkowitz chose to foster self-regulation within the museum community, rather than impose legislation, self-regulation had been the status quo. (166) Self-regulation underscores the tradition that American museums are predominantly private organizations. (167) Museums self-regulate by promulgating codes of ethics through their member-based professional organizations and by each museum developing and abiding by its own collections management policies to address the unique needs of its organization. (168)

      The leadership of organizations like AAM and AAMD is composed of museum professionals from their diverse member institutions. (169) Supporters of self-regulation argue that deaccessioning and collections management decisions are best made by museum professionals; museum staff should be able to exercise their expertise and address the specific needs of the organization. (170) The AAMD also recognizes that the mission, internal structure, and particular circumstances of museums can affect how principles of collections management should apply to that museum. (171) Supporters of self-regulation contend that the museum staff's discretion is greatly diminished if they are bound to rules that apply to one of their responsibilities, maintaining a collection, to the detriment of another, operating a museum that is open to the public with exhibitions and educational programming. (172) Finally, the professional organizations enforce their standards very strictly, mainly through the threat of social stigma within the museum community, revocation of membership, or the imposition of sanctions. (173)

      There are drawbacks, however, to relying on professional standards to enforce deaccessioning policies. Professional standards lack legal force and hinge on voluntary compliance. (174) Membership with a professional organization is voluntary, and museums can rescind their membership and no longer be subject to such standards. (175) Institutions elect to be members of one or more of the several professional organizations and to be bound by the standards and codes of those organizations. (176) Although AAM's and AAMD's ethical codes and professional guidelines are highly influential in the museum field, they may not be adequate in enforcing and holding museums accountable if there is no independent professional body to monitor whether museums are complying. (177) The social stigma associated with violations of AAM and AAMD codes effectively results in forcing all museums to follow the standards, whether or not they are members of or accredited by the organization, if only to avoid public scrutiny. (178)

   2. Judicial Analysis

      Courts can evaluate museum deaccessioning decisions on a case-by-case basis, taking into account such factors as the decision-making process of museum directors, the exigencies of the museum's need for funds, and the intended use of the funds. (179) Individualized review of museum deaccessioning cases would address the diversity of museums and the variety of difficulties each museum may encounter. (180) The deaccessioning cases show, however, that the law is unclear on the specific issue of using deaccessioning proceeds for a museum's operating costs, and courts have not set a clear framework of analysis. (181)

      The results of the cases discussed in Part I.C.2 suggest that courts are willing to allow museums some discretion regarding deaccession and the use of deaccessioning sales proceeds. (182) This allowance is probably spurred by the dire circumstances museums are in by the time their cases arrive in court. (183) Therefore, the cases that go to trial might not paint a full picture of the challenges brought against museum deaccessions because of standing requirements and the high cost of litigation. (184)

      State Attorneys General are heavily involved in many deaccessioning cases that make their way into courts. (185) State Attorneys General are responsible for overseeing institutions that are set up for the public benefit. (186) As such, they have standing to bring a case against a museum (or any charitable trust) for failing to achieve the museum's charitable purpose. (187) Donors, heirs of donors, and members of museums have also been able to sue museums, seeking injunctions on the sale of artwork. (188) One court held, however, that city taxpayers and the general public lacked standing to sue the trustees of an art museum charitable trust. (189) Financing and standing issues greatly hinder the ability of parties other than the State Attorneys General to sue museums. (190)

      Relying on the State Attorneys General to bring actions against museums or to challenge museum petitions to sell or transfer artwork presents problems as well. If the attorneys general play a predominant role in overseeing and challenging museum actions, there is some doubt about the ability of these offices to fulfill the role effectively. (191) There are a variety of critical public interests, such as the vast number of museums and other charitable organizations within an Attorney General's jurisdiction as well as the social influence exerted by the trustees of many of these charitable organizations, that will hinder the ability of the State Attorneys General to monitor museums. (192) Limitations on standing and cases actually brought to trial do not present a thorough view of judicial analysis of deaccessioning issues. (193)

      If there was a comprehensive judicial approach to analyzing deaccessioning decisions, (194) then museums could anticipate whether the courts would uphold their actions. Some scholars and commentators advocate for courts to apply a higher standard of fiduciary duties in reviewing museum decisions. (195) They argue that the higher standard of fiduciary duties imposed on trusts is appropriate for collections management decisions because trust law emphasizes complete loyalty to the interests of the public beneficiaries. (196) Museum boards, they suggest, can meet this higher standard if they establish procedures to which they adhere in their deaccessioning decisions. (197)

      Commentators have also recommended an arbitral review of deaccessioning decisions when the museum plans to sell the artwork and use the proceeds for operating costs. (198) An impartial decisionmaker, whether in the court system or private arbitration, would be able to assess the museum, the museum's fundraising efforts, its financial standing, its public, and the collection as a whole, as well as professional codes of ethics, to evaluate the actions of the museum. (199) Thus, while courts could assess decisions on a case by case basis, the standards are unclear, the evaluation is after the fact, and few parties have standing or means to sue.

   3. State Legislatures

      Some commentators believe that state legislation is the appropriate means to regulate museums because of the deep public interest in museums. (200) For one, museums are able to pursue their missions to collect and exhibit our artistic heritage because they receive government support through tax benefits and direct funding. (201) Additionally, where courts address deaccessioning on a case by case basis, legislation could create and enforce a comprehensive standard for deaccessioning and use of proceeds. (202) State legislation applicable to all organizations that collect or hold art and cultural artifacts regardless of their legal structure or stated purpose can deliver this comprehensive framework. (203)

      A significant aspect of having a deaccessioning rule enforced by the state is the protection of the state's interest in keeping art collected by its institutions within the state. (204) The way in which a State Attorney General represents the state's and the public's interests (205) in challenging a museum's decision to deaccession reveals some of the effects of adopting this position in the legislative scheme. The State Attorney General is frequently concerned with retaining the collection within the city or state in which the museum is located. (206) In the fall of 2011, the Folk Art Museum considered closing and dissolving after defaulting on a $31.9 million loan and depleting reserves for operating funds. (207) The museum was required to get the approval of the Attorney General's office for decisions concerning the dissolution of the museum and transfer of its collection. (208) If the museum donated the collection to another public institution, the Attorney General's office wanted to maintain the cultural value of the museum's collection to the New York community. (209) Therefore, although the Smithsonian Institution in Washington, D.C. might have had better resources to care for the Folk Art Museum's collection, the New York Attorney General's office considered transferring the collection to the Brooklyn Museum of Art, even though the Brooklyn Museum had been experiencing financial difficulties itself. (210) Maintaining art in a geographic range, rather than looking at who can best care for the art, might serve as a better focus. (211)...