In three out of the four previous editions of the Legal Canvas, we have written about issues relating to the deaccessioning of art by museums. Deaccessioning is the removal of a work from a museum’s collection. A core ethic among museum professionals is that works in a collection should not be sold except where the proceeds are used to purchase other works or, in some formulations, to otherwise care for or preserve the collection. This principle has been expressed in the ethical codes of the American Association of Museums (“AAM”) and the Association of Art Museum Directors (“AAMD”), among others. Violations have led to censure by those groups – a significant event in the museum community.

New rules on deaccessioning have been promulgated by the New York Board of Regents, which oversees most museums in the state that were formed after 1889. If a museum violates these rules, it risks losing its charter.

The New York Board of Regents

In 2008, the Board of Regents sought to respond to a proposal by Fort Ticonderoga (a historical site and museum) to sell artifacts and artwork to make up for a budget shortfall. At first, the Regents considered enacting emergency rules that would have permitted museums “with the approval of the Board of Regents, to sell or transfer items or material in its collections to another museum or historical society for purposes of obtaining funds to pay outstanding debt, and thereby provide an alternative to the institution’s bankruptcy or dissolution, and the possible loss or liquidation of a collection because of debt.”

Under considerable pressure, the Board of Regents withdrew this proposal, which one commentator called the “desperation deaccession” rule. Instead, it issued a different set of emergency rules that were even more stringent than the ethical guidelines of the AAMD. Under the adopted emergency rules, not only were museums required to use proceeds from the sale of art only for the purchase of other art, but deaccession could occur only in four defined circumstances: (1) the item or material is not relevant to the mission of the institution; (2) the item or material has failed to retain its identity, or has been lost or stolen and has not been recovered; (3) the item or material duplicates other items or material in the collection of the institution and is not necessary for research or educational purposes; and/ or (4) the institution is unable to conserve the item or material in a responsible manner.

Notably absent in the temporary rules were provisions permitting deaccession for the refinement of collections or the return of objects to their rightful owners. As a result, the Regents’ efforts were harshly criticized by some of New York’s most prominent museums. Museum of Modern Art director Glenn Lowry, for example, wrote in a letter to Dr. Merryl H. Tisch, the chancellor of the Board of Regents, that “this rule would remove from Regents-governed institutions the curatorial discretion that has made them among the most respected in the world.”

When the Regents allowed the temporary rules to expire in October 2010, Tisch appointed an ad-hoc committee to review the issue from scratch and to come up with new rules that acknowledged the interests of both sides of the debate.

New rules from the Regents.

Those new rules were approved on May 17, 2011, and went into effect on June 8, 2011. The rules are meant to provide museums with the discretion to refine their collections over time, while at the same time ensuring that museums’ collections are preserved for the public.

The new rules continue to make clear that proceeds from deaccessioning may never be used to pay operating expenses, and may only be used for “the acquisition of collections, or the preservation, conservation or direct care of collections.” However, the rules expand the circumstances in which deaccession can take place:

  1. the item is inconsistent with the mission of the institution as set forth in its mission statement;
  2. the item has failed to retain its identity;
  3. the item is redundant;
  4. the item’s preservation and conservation needs are beyond the capacity of the institution to provide;
  5. the item is deaccessioned to accomplish refinement of collections;
  6. it has been established that the item is inauthentic;
  7. the institution is repatriating the item or returning the item to its rightful owner;
  8. the institution is returning the item to the donor, or the donor’s heirs or assigns, to fulfill donor restrictions relating to the item which the institution is no longer able to meet;
  9. the item presents a hazard to people or other collection items; and/or
  10. the item has been lost or stolen and has not been recovered.

In another significant change, the new rules require that each institution shall include in its annual report to the State Education Commissioner a list of all deaccessions in the prior year.

Principle v. process.

Although the new rules are more forgiving than the temporary rules that were allowed to expire, the specificity of the circumstances in which deaccession is permitted make them still arguably more stringent than the ethical guidelines of the AAM and the AAMD. They also have the force of law – in other words, they are not rules that a museum should follow, they are rules that a Regents-governed museum must follow if it wants to remain open.

Not surprisingly, those in favor of further government regulation of museum deaccessions applauded the implementation of the new rules. Former Assemblyman Richard Brodsky, who had proposed deaccessioning legislation, called the measure “an extraordinary moment in the cultural history of the state,” and stated that the Regents “have vindicated fundamental cultural values and helped preserve New York’s museum collections for future generations.” Others reacted more coolly. Both the AAM and the AAMD issued tepid statements stating that they would prefer that deaccessioning standards be left to museum professionals rather than government regulators, but endorsing the principles behind the new rules.

From the point of view of a museum trustee, the new rules have the advantage of clarity. What they don’t provide is flexibility when a museum is faced with dire financial circumstances. Successful fundraising ended Fort Ticonderoga’s fiscal emergency before any sales had to take place. But where a board of trustees really does face a choice between selling some art and closing the doors, will the Regents’ rules force New York institutions to close?