Expediency Trumps Policy: More on NYS Regents’ Deaccessions Flip-Flop UPDATED

Roger Tilles, chairman of the NY State Board of Regents' Cultural Education Committee, discussing the deaccession decision at Monday's board meeting

In reversing its course on enacting strong safeguards against desperation deaccessions, the NY State Board of Regents at least owes the public a better explanation than it got for its sudden and unexpected flip-flop.

Here's what Regent Roger Tilles, chair of the board's Cultural Education Committee, said in the webcast meeting (at 27:50) of the full Board of Regents on Tuesday:

We discussed the Regents' rule that we have been passing as an emergency rule for several months [actually since December 2008] and upon reflection on it, I suggested that [it] would not be a significant improvement over the existing rules and that it would be perhaps more appropriate and timely at this point to keep the existing language.

And here's the "explanation" provided to the media by David Steiner, the state's Education Commissioner:

The Board of Regents sought input from the museum community statewide and found there was no consensus on the efficacy of those emergency regulations.

Since when do the regulators take action based on the consensus of the parties to be regulated? It stands to reason that museums would not favor being saddled with tighter restrictions. The appropriate question is NOT whether the targets of regulation agree that new rules are a good idea. It's whether there is an important public purpose to be served by new rules. The answer to that question is yes.

As we have seen time and again, cultural institutions cannot be confidently relied upon to police themselves in matters of art disposals, especially in times of financial trouble. Without regulatory safeguards, expediency will trump policy and the public's patrimony will be endangered.

I wouldn't go so far as Assemblyman Richard Brodsky did, when quoted yesterday by Erica Orden of the Wall Street Journal. Calling the Regents' action a "disastrous move," he predicted:

This is the precursor of the massive transfer of art held in the public trust into private hands.

I don't think that the floodgates have been opened. But the slippery slope has gotten a lot greasier. The Regents have now withdrawn their specific prohibition (contained in the expiring emergency regulations) against the use of collection sale proceeds to defray institutions' capital expenses and debt. This change may be seen by some institutions' trustees as tacit permission to do what had been explicitly forbidden. In these financially strapped times, easing those written stipulations is a particularly problematic step.

You can see the Regents' regulations on Museum Collections Management Policies here (on Pages 4-6). The now expiring emergency provisions are underlined.

As you will see, the regulations that were in force before the enactment of the emergency amendment do afford some protection against desperation deaccessions. Those rules state:

In no event shall proceeds derived from the deaccessioning of any property from the collection be used for operating expenses or for any purposes other than the acquisition, preservation, protection or care of collections.

But for almost two years, financially pressed institutions were on clear notice that "preservation, protection or care of collections," could not be construed to include capital expenses or the payment of outstanding debt. Loopholes now loom.

UPDATE: Another loophole, Brodsky asserted to me after he read this post, is that the old regs (under Paragraph 6-ii) did permit the use sale proceeds for operating expenses, if the institution first changed its corporate purpose so as not to include collecting the type of material to be sold. He said this had been cured (in the now expiring amendment to the regs) by the following language added to 6-ii: "Deaccessioning of items or material in its collection is limited to the circumstances prescribed in Paragraph 7 of this subdivision." Paragraph 7 (discussed below) sets forth the only allowable criteria for deaccessioning.

The expiring rules (in Paragraph 7) said that an institution could deaccession objects ONLY if at least one of four criteria were met:

---The item or material is not relevant to the mission of the institution

---The item or material has failed to retain its identity, or has been lost or stolen and has not been recovered.

---The item or material duplicates other items or material in the collection of the institution and is not necessary for research or educational purposes.

---The institution is unable to conserve the item or material in a responsible manner.

Anne Ackerson, director of the Museum Association of New York, who attended (as an observer) the Cultural Education Committee's meeting, told me she believes the above four criteria were the chief stumbling blocks to final approval of the amendment. That's because they omitted such widely accepted rationales for deaccessioning as refinement of collections and repatriation of objects to their rightful owners.

"Collection refinement," to me, is too broad a brush and can be used to whitewash a multitude of sins. Nevertheless, it would have been vastly preferable to tweak the amendment than to kill it.

Stung by this contretemps, the Board of Regents is now contemplating establishment of an advisory committee to keep museum professionals in the loop. Near the end of the report of its Monday meeting, the Cultural Education Committee said that it has directed its staff to "develop a proposed charge for a Committee on Museums and recommend membership to the committee. This recommendation will be presented at an upcoming committee meeting. Staff were further directed to ensure a balance of geographic location, institution size and type of collection."