How not to deregulate art museums

I once asked a donor of major art to an important museum what would happen if that institution proceeded with a tentative plan to sell one of the donor's art gifts to raise money to cover the museum's mounting bills. That option has long been an art museum no-no. Professional museum standards forbid using income from art sold from the collection — the term is deaccessioning — to pay for anything except future art acquisitions. The answer I got from the donor was swift, brief and blunt.

“I'll sue."

Ever since then, any controversial deaccessioning story that turns up in the news makes me think of lawyers first. It's not pretty, I know. (Insert lawyer joke here.) But whatever public benefits may or may not accrue from such a sale, the one sure winner will be lawyers.

In billable hours, the nation's ongoing economic disaster has given art law a deaccession-surge. It isn't just that we live in a litigious society; it's that we live in a society where the myth of a free market permeates our economic assumptions -- even in museum matters. In reality, markets are not free. A vast court system where business disputes can be litigated is just one of many massive public expenditures undertaken to subsidize our market economy. In this pseudo-free market, lawyers are expensive.

Donn Zaretsky, an art and entertainment lawyer with the New York firm John Silberman Associates, has emerged as a primary cheerleader for changing professional standards around income from art museum deaccessioning. Zaretsky thinks a museum ought to be able to use the art in its care for any purpose -- presumably including turning it into cash to pay the light bill, giving the staff a big raise or, as one corporate consultant he likes to quote once put it, underwriting “even a boffo night out with your chums on the board.”

Why does he think this? Beats me. He's been shilling for the change  ...

... for a couple years on his law firm blog, but to my knowledge he's never made a sustained argument explaining it. Usually it's just asserted in a quick comment on a deaccessioning story in the news, in a snarky reference to a quote from someone else (including me) or even as a stand-alone non sequitur. Such is the nature of routine blogging.

But in the new issue of Art in America magazine, Zaretsky has stepped up to the plate. Er, sort of. He's written an eight-paragraph mini-essay on why the Assn. of Art Museum Directors should chuck its rule restricting the use of income gained from deaccessioning. And what a disappointment the essay is.

You can read it for yourself here, but this is the line that stopped me cold: “The rule [limiting the use of deaccession income] is usually justified on the ground that works in museum collections are held 'in trust' for the public and therefore cannot be sold.”

It is? Art museum professionals restrict the income's use because they believe that the art in their care cannot be sold? Not having heard that “usual justification” before, I quickly realized I was in the presence of a giant straw man about to be knocked down and pummeled. "Supporters of the AAMD position say that works can never be sold," Zaretsky later reiterates -- except that, no, by and large they don't.

The first sentence of the AAMD handbook guiding deaccessioning policy — adopted in 1987 and amended in 1991 and 2001 — says: “The board of an art museum should adopt a written policy pertaining to the deaccessioning and disposal of works of art from its collection.” That doesn't sound to me like the profession (or its "supporters") thinks works in museum collections cannot be sold. It sounds like they think that, when such sales inevitably happen, they need to be done with forethought and care.

That's what “held in trust for the public” means. The American public trusts their tax-subsidized museum professionals to use their art collections wisely and for their benefit. Only Pollyanna thinks that always happens. (The museum profession -- like the legal profession, journalism, NASCAR and several others --  has no shortage of knuckleheads.) But I'm doubtful that turning a painting from the collection into cash for a “boffo night out” for the board's chums really qualifies.

Cannibalizing a museum's art collection to pay expenses is a strategy that amounts to manufacturing wealth out of thin air. Ask an accountant: For good reason, most museums don't carry their art collection on their balance sheet; so, if a big pile of cash suddenly turns up from a deaccession to balance liabilities, it's basic abracadabra.

That's one prime reason for the huge financial mess that L.A.'s Museum of Contemporary Art got into last year. Its board chairman is a Zaretskian who figured that if MOCA was spending money it didn't have, it really didn't matter: When crisis hit and the time came to pay the piper, the museum could just peel off a masterpiece from its collection and save the day.

Wrong. 

Minus the office on Capitol Hill, Zaretsky is to established deaccessioning policy what former Sen. Phil Gramm was to established banking regulation — an eager enthusiast for destructive reform, either unaware of or, worse, indifferent to the general chaos that would follow. Gramm went on to become a super-rich executive with a Swiss bank, but how's that banking deregulation thing been working out for you lately?

One more question: What's up with Art in America? I'm dubious, but maybe a convincing argument can in fact be made for trashing the established AAMD regulation; if so, it'll take a whole lot more than setting up a straw man in a bloated blog-post for print. The magazine had a shakeup in its editorial ranks last year, but if this is the best they can do on a serious issue of such topical importance, it was apparently a wasted effort.

Case dismissed. 

-- Christopher Knight

Credits: Ken Hively/Los Angeles Times; Mark Boster/Los Angeles Times

Comments

[Pamela Logan]

When times are hard it is inevitable that some art museums will be faced with Sophie's Choice: deaccess a few works or risk losing the entire lot. The question of whether it is ethical or allowable to deaccess a work of art should be a private matter between the museum and the donor who contributed the piece. Wise donors with strong feelings against deaccession should insist on a donation agreement that forbids it. Wise museums that want to preserve a parachute to be used in time of emergency should be courageous enough to ask donors to grant them flexibility. Museum boards who spend funds frivolously should be subject to censure, dismissal, or prosecution using the existing checks and balances that all govern nonprofits. Policies are helpful to guide museum boards and to inform donors considering a gift, but in the end the two sides should be free to make any mutually satisfactory agreement. There is no need for regulation.

[Rembrandt]

how about New York Public Library head Paul "the laughing hyena" LeClerc? He sold the city's portrait of George Washington and turned around and gave himself a raise to $1 million a year.

I'm game with that -- sell the art, can I have the money? Thanks.

[Dani]

It seems that Zaretsky isn't really *listening* to the argument. He is focused on the public trust--the basis for tax exempt status--rather than to the basis of the argument of how, when, and why pieces from a collection can be used as capital. The issue isn't hinged on the concept of public trust. It is hinged on what constitutes a valid and ethical process for selling collection pieces. When parties are yelling at each other, rather than listening to each other, nothing gets accomplished.

[Adrian Ellis]

In hot and ad hominem pursuit of Donn Zaretsky, Christopher Knight refers twice and caustically to a comment that I made about how the proceeds of deaccessioning might be used - “even [for] a boffo night out with your chums on the board”. I think that any fair-minded reader of the short posting from which this comment was culled, and that is linked in his article above, will realize that I was using this example to try to show vividly that the preoccupation with the application of proceeds from sales - more art 'good'; everything else 'bad' - has blind-sided us to the issue of the fate of works of art deaccessioned.

I have argued - and won't bore the blogosphere beyond short summary here - that the primary concerns of the museum profession should be the conservational standards met by the buyer and the extent of public access to which the buyer will commit in advance of the sale. These should be equal to or greater than those of the museum that is deaccessioning the work. If there is not a commitment by the buyer to meeting these conditions, and in precise and explicit terms that can be policed by AAMD or another recognized body, then I would argue that the disposal should be censured, irrespective of what happens to the proceeds. I am aware that this requires greater interpretative effort than the current rules, but I believe that the effort would be well worth it, primarily because I fear that the status quo is not sustainable over the long term.

My sporadic proposal of a tightly circumscribed alternative approach to the current AAMD and ICOM positions is because I believe that there is a very real danger museums in dire financial straits - particularly smaller ones with boards that are less preoccupied with and less cowed by national guidelines - will at some stage break rank and dispose in order to fund operating expenses. This is what has happened in Germany, as I described in the Art Newspaper in 2006. Without some middle ground for those institutions, American art museums will move, with respect to this issue, from totalitarianism to anarchy, with no solid ground to stand on between the two because no-one has bothered or dared to build it.

Adrian Ellis

[Christopher Knight]

To: Adrian Ellis
From: Merriam Webster
ad ho·mi·nem
\(ˈ)ad-ˈhä-mə-ˌnem, -nəm\
Function:
adjective
Etymology:
New Latin, literally, to the person
Date:
1598
1 : appealing to feelings or prejudices rather than intellect 2 : marked by or being an attack on an opponent's character rather than by an answer to the contentions made