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Brodsky Bill: NY Assemblyman Targets Desperation Deaccessions UPDATED

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NY State Assemblyman Richard Brodsky

NY State Assemblymen Richard Brodsky and Matthew Titone are about to introduce legislation to regulate deaccessioning by museums in the state. Brodsky, a veteran assemblyman with a longstanding interest in oversight of museums and art auctions, told me that the bill will most likely be introduced tomorrow.

Disposals by most museums in the state are already regulated by the New York State Board of Regents, which yesterday renewed its amendment that prohibits using deaccession proceeds to defray debts, operating expenses, and most capital expenses. This was originally adopted last December, in place of another proposal that would have allowed deaccessions to defray debts, in the event of otherwise imminent bankruptcy. That proposal set off an avalanche of criticism from the professional museum community, causing the Regents to reverse course.

Nevertheless, according to Clifford Siegfried, the New York State Education Department’s assistant commissioner for museums, the Regents may eventually revisit the issue of allowing desperation deaccessions to avert bankruptcy. Proponents of such an escape clause note that if an institution declares bankruptcy, its collection could be subject to seizure by creditors.

“We don’t want to institute regulations that the field is adamantly opposed to,” Siegfried told me today. But he also noted that about 15 to 20 of the 120 museums responding to a recent survey conducted under his auspices indicated that they did want to be permitted to sell art as an alternative to declaring bankruptcy.

The Board of Regents has authority only over New York museums that were chartered after 1889. Older museums, including the National Academy (widely condemned for its recent sales of two paintings to fund operations) were chartered directly by the state legislature. The proposed legislation, unlike the Regents’ regulations, would apply to all museums in the state, regardless of when they were chartered.

Brodsky told me that while there may be some minor technical changes in the bill before it is introduced, the substance is set. Here’s its description of the impetus behind the legislation:

The Legislature notes attempts in New York and elsewhere to monetize museum collections and the asserted use of those monies for purposes other than the protection and expansion of collections. The Legislature further finds and determines that such practices are inconsistent with the interest of the people of the State, are inconsistent with requirements of governing documents, accreditation standards, and accepted museum practices, and, if unchecked, will permanently endanger the integrity and existence of museum collections handed to us by earlier generations as a sacred cultural and ethical trust.

And here are some of its key provisions:

Each museum shall publish a register of the contents of its collection.

No museum may dispose of an item or items in its collection except as set forth in this statute and in its mission statement and collections management policy and not until the item or items have been deaccessioned.

Proceeds from disposal of an item in its collection shall only be used for purposes set forth in this statute.

No item in a museum’s collection may be used as collateral or may be capitalized.

A museum may deaccession an item in its collection only if one or more of the following criteria have been met:
(a) the item is inconsistent with the mission of the museum as set forth in its mission statement.
(b) the item has failed to retain its identity
(c) the item is redundant
(d) the item’s preservation and conservation needs are beyond the capacity of the museum to provide;
(e) the item is deaccessioned to accomplish refinement of collections as required by and/or stated in its collection management policy.
(f) it has been established that the item is inauthentic
(g) the museum is repatriating the item or returning the item to its rightful owner;
(h) the museum is returning the item to the donor, or the donor’s heirs or assigns, to fulfill donor restrictions relating to the item which the museum is no longer able to meet;
(i) the item presents a hazard to people or other collection items.

Any museum disposing of an item must make a good faith effort to sell or transfer such item to another museum in New York State. If such sale or transfer cannot be accomplished a museum must make a good faith effort to sell or transfer such item to another public museum.

Proceeds from the disposal of an item or items from a museum’s collection may be used for the acquisition of another item or items for the museum’s collection and/or for the preservation, protection or care of an item or items in the collection. In no event, however, shall proceeds derived from the disposal of an item or items from a museum’s collection be used for traditional and customary operating expenses.

I imagine that even the mainstream museum establishment may have problems with some of these provisions: Unlike the Association of Art Museum Directors’ SUGGESTED criteria for objects to be deaccessioned, the bill (like the Regents’ amendment) says that objects can be deaccessioned ONLY if one or more of the listed criteria (i.e., redundancy, condition problems, etc.) are met. However, allowing sales that are intended “to accomplish refinement of collections” can permit just about anything.

More controversial may be the requirement of a good faith effort to sell or transfer deaccessioned items to a museum within the state, or, failing that, a public institution elsewhere. I’m in favor (on the grounds that museum-quality works in the public domain should stay in the public domain), but I suspect many, if not most, museums would say this could seriously limit the amount of money that they would be able to obtain for an object.

UPDATE: Robin Pogrebin has now posted an online report about the new bill, to be published in tomorrow’s NY Times. Her piece also provides an online link to the bill’s complete text, here.

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