Brandeis Donors Vow to Fight Sale of Artwork

The Nonprofit Law Blog reports that Brandeis Donors, incensed at the fire-sale, are vowing to fight the sale of the Rose Art Museum's artworks.

The January 28, 2009, issues of the Chronicle of Higher Education and The Boston Globe report that upset Brandeis University donors are looking at ways to stop the university's planned sale of artwork to cover university losses as a result of the economic downturn and the Bernard Madoff scandal. Here is an excerpt from the CHE article:

The decision has raised complicated legal questions over donor intent and the university’s use of money given to the museum and of the donated artwork, especially restricted donations that require the art to be publicly shown.

“Had I had any idea when I donated work that there was a chance they would be sold to benefit the university, I never would have donated them,” Jonathan Novak, a museum overseer and Brandeis graduate who has donated money and art to the museum, told the newspaper.

On a related note, Donn Zaretsky has almost convinced me that the deaccessioning police caused the Rose Art Museum's fire-sale. I'm laying low on this one. Too many chefs in a very small kitchen. My only prediction, based on a deaccession model, is that Brandeis will be worse off if they heed the threats of these so-called "donors."

Brandeis Donors Vow to Fight Sale of Artwork

CAA Denounces Brandeis' Fire Sale, and Specters of "Deaccession"

The College Art Association has just sent out an e-blast denouncing Brandeis University's decision to close The Rose Art Museum and sell its entire collection in order to raise funds to be used for general operating expenses. Although the CAA letter does not mention the word "deaccessioning" once, it does directly cite the AAMD's Code of Ethics, which "clearly state that works of art in museum collections are held as a public trust and that any proceeds of sales must only support the acquisition of new works."

The College Art Association (CAA) was shocked and dismayed to learn of the decision by Brandeis University to close the Rose Art Museum and sell its entire art collection for operating revenue.

CAA supports the Codes of Ethics of the American Association of Museums and the Association of Art Museum Directors, which clearly state that works of art in museum collections are held as a public trust and that any proceeds of sales must only support the acquisition of new works. However, perceiving an entire art collection as a disposable financial asset and then dismantling that collection wholesale to cover other university expenses is deeply troubling for all college and university collections.

The AAMD has a report from November of 2007 where they state:

The process of adding objects to a museum collection is known as acquisition. The counterpart of acquisition is deaccessioning, the practice by which an art museum formally transfers its ownership of an object to another institution or individual by sale, exchange, or grant, or disposes of an object if its physical condition is so poor that it has no aesthetic or academic value.

Deaccessioning is practiced to refine and enhance the quality, use, and character of an institution’s holdings. There are two fundamental principles that are always observed whenever an AAMD member art museum deaccessions an object:

The decision to deaccession is made solely to improve the quality, scope, and appropriateness of the collection, and to support the mission and long-term goals of the museum;

Proceeds from a deaccessioned work are used only to acquire other works of art—the proceeds are never used as operating funds, to build a general endowment, or for any other expenses. Funds from deaccessioning can be invested in an acquisitions endowment earmarked to support the long-term growth of a museum’s collection.

Now, I understand Donn's argument that this is not a "deaccession" in its proper sense, and although both Carol Vogel and Randy Kennedy do not site that word in their lengthy NY Times article once, I will attempt a somewhat humorous argument.

Vogel and Kennedy do cite Fisk University and Randolph College as two examples where "smaller colleges and univesities" have drawn controversy over similar attempts to sell-off some of its art works. I believe most bloggers writing on deaccessioning, including my good friend Donn, have clearly indicated these two situations as "deaccessioning." Thus, it is quite clear that Vogel and Kennedy's decision to omit the word "deaccession" is but a timid gestural magic trick meant to imply deaccession without actually taking on the responsibility of calling the Brandeis act what it is: a deaccession. The house is haunted, and the specter of deaccession looms large.

An example. If an individual (say, an ex-con) sells a kilo of cocaine from a streetcorner, and this individual is convicted of trafficking in narcotics (possession with intent for example), it would be quite logical to label this individual a "drug dealer." However, if the same individual selling a kilo of cocaine were not an ex-con but rather, say, a Wall Street CEO, I do not (logically) believe we would then call this second individual a "seller of goods." That the AAMD defines deaccession in a narrow sense, limited to art institutions, is simply that, the AAMD's definition.

Let me make myself clear. I am not arguing here for or against the (im)propriety of Brandeis University's decision to close The Rose Art Museum or its decision to sell off all of the artwork in order to raise operating funds. I am simply arguing that the Brandeis case is not one of semantics. The larger and more important issue trifurcates into one of ethics, law, and economics.

CAA Denounces Brandeis' Fire Sale, and Specters of "Deaccession"

Lee Rosenbaum on AAMD's New President

Culturegrrls Lee Rosenbaum has a lengthy profile on the AAMD's new president, Michael Conforti in today's Wall Street Journal. In this profile, Conforti gives his direct and unabridged views on the National Academy Museum's deaccessioning.

When he discovered that the academy had proceeded with the sale, ignoring his efforts to persuade its officials to address their financial predicament through other means, Mr. Conforti was angry. "I think we had, in this situation, an organization that was determined to sell and that sold before there was a public discussion," he said tensely. He revealed that he, along with AAMD's then executive director, had held a meeting prior to the sale with Carmine Branagan, the academy's then interim director (now director), and an academy trustee. He offered AAMD's help in exploring other strategies for financial recovery.

Lee Rosenbaum on AAMD's New President

More on the Brandeis Liquidation Sale

This morning Donn Zaretsky blogged about the different takes on the Brandeis fire-sale. He further argues that the fire-sale should not be seen through the deaccessioning prism at all, but rather:

I'm actually not sure it makes sense to view this through the "deaccessioning" prism at all. Isn't it more that the university has decided to get out of the business of running a museum altogether? If the National Academy, after embracing furious fundraising and failing, were to declare bankruptcy and close its doors, would that be properly viewed as a "deaccessioning" worthy of condemnation? In fact, I wonder if the taboo against selling individual pieces might not have contributed, in some small way, to Brandeis's decision to close the museum? If they could have sold five or ten of the most valuable works without controversy, might the trustees have reached a different conclusion?

In fact, a quick Google search shows us they did deaccession a few pieces back in the early 90's. Artinfo had a nice take on the previous Brandeis fire-sale here back in June of 2008. A brief quote:

[T]he Rose Art Museum of Brandeis University was lambasted in 1991 for auctioning at Christie’s 11 paintings by artists such as Renoir, Toulouse-Lautrec and Vuillard and using the $3.65 million in proceeds in part for conservation and to advance the museum’s “educational role.” Critics complained that the Rose had set a terrible precedent by converting a portion of
its collection into cash—“selling one of your children to feed the others,” according to the director of another museum.

Not to mention The Rose Museum's expensive addition earlier this decade.

Brandeis University's Rose Art Museum (architect Shigeru Ban) all have commissioned star architects to make major design changes.

I'm not sure I quite agree with my friend Donn's "this is not deaccessioning" argument. Even though it is not the museum that is deaccessioning, isn't an institution (in this case Brandeis University) selling off it's art assets to continue being in business?

Perhaps a deeper investigation into the directorial discipline will reveal a lax board of trustees. But to the extent of a fire-sale?

More on the Brandeis Liquidation Sale

Brandeis University to Deaccession Entire Museum

Well, maybe not the actual Rose Art Museum, but pretty close. Both the NY Times and the Boston Globe reported today that after years of financial deficits, Brandeis trustees took a play from our playbook and unanimously decided to close its museum's doors, sell off its art collection, and focus on educating tomorrow's youth.

President Jehuda Reinharz said tonight. “The Rose is a jewel. But for the most part it’s a hidden jewel. It does not have great foot traffic and most of the great works we have, we are just not able to exhibit. We felt that, at this point given the recession and the financial crisis, we had no choice.”

The Rose Art Museum, founded in 1961, holds more than 8,000 pieces. It is best known for its collection of modern art, including works by Andy Warhol, Jasper Johns and Roy Lichtenstein.

Brandeis University to Deaccession Entire Museum

Amendment

In my previous post concerning deaccessioning I stated that Donn Zaretsky's position was "pro deaccessioning." I wrote this under the assumption that a keen reader would have kept up with Donn's position well enough to know his exact position regarding the AAMD's "silly" rule regarding deaccessioning as well as his exceptions and detailing of this rule. In Donn's own words:

I wouldn't describe my position as "pro-deaccessioning" any more than you would describe someone who accepts the practice of deaccessioning-to-acquire-more-art as "pro-deaccessioning." The position I've been taking is that the AAMD's black-and-white rule is silly, and that the reasons traditionally given in support of the rule don't stand up to much scrutiny (in part because they fail to explain the disparate treatment of sales to buy more art -- which are considered fine -- and sales to fund other worthwhile things -- which are not).

I hope this clarifies my previous post.

Amendment

LACMA to Deaccession Cranach

The Los Angeles County Museum of Art has entered Lucas Cranach the Elder's Portrait of a Bearded Young Man (1518) in Sotheby's Jan. 29 Old Masters sale in New York. Sotheby's has listed the painting with a note that it is being "sold by the Los Angeles County Museum of Art to benefit future acquisitions." Sotheby's has estimated the painting at $600,000-800,000.

More from Modern Art Notes.

LACMA to Deaccession Cranach

Deaccessioning Wars: To Be or Not To Be...

Although there's been quite a bit of sparring in the deaccessioning colosseum lately, we've lagged behind a bit. Here's our attempt at playing catch-up.

The most recent action on the subject is revolving around the New York's National Academy Museum's decision to deaccession two paintings from its collection for $15 million in order to continue with its general operations. Quite a few voices have risen in response to the Academy's decision, with most attacking the Academy's decision to deaccession. The main maginot line of defense comes from The Art Law Blog's Donn Zaretsky, and to some extent from the Time's Richard Lacayo, UCLA's Mark Kleiman, and portfolio.com's Felix Salmon. The attacks against deaccessioning-as-fundraising come primarily from Tyler Green (the power of his comments, however, are unfortunately tainted by some childish comments and personal attacks) and CultureGrrl's Lee Rosenbaum.

The New York Times had a lengthy article on this mess this past December, and NPR threw in its two pesos here.

For solid pro-deaccessioning reasons, a must-read is Donn's Art Law Blog. In fact, the Art Market Monitor applauds Zaretsky's position, giving Zaretsky an easy 10-run lead with two outs in the bottom of the ninth (and with Carlos Beltran batting!):

Donn Zaretsky, author of the ArtLawBlog, is the unsung hero of the deaccessioning wars–the ongoing debate launched by the National Academy’s sale of two paintings recently. Zaretsky is consistently the most interesting voice in this debate because he applies unrelenting logic to a lot of emotional positions.

In all honesty, we've been converted to Donn's side ("DZ position"), but we would like to try and reconcile it (somewhat) with Tyler Green's position (sans personal attacks). A few thoughts are in order that surprisingly (at least to our understanding) have been, to this date, omitted.

1. Sanctity of Art Museums & Institutions: Tyler Green makes a valid argument regarding the necessary self-destruction and demise of an art institution if it fails to establish, adhere to and enforce its own rules, regulations and budgets. In brief, what I question here is the sanctity of art museums and art institutions. What makes them so valuable and precious that they should be immune from dissolution or bankruptcy proceedings? From a strictly artistic perspective, I wonder why art and its institutions should be privileged over other institutions, be they for-profit or non-profit. Why should donors or the tax-paying public be responsible for the maintenance and upkeep of an institution that for some reason has failed to exist on its own two feet? If this sounds like a non-profit version of a bailout, it probably is. Is there anything (really) wrong with allowing a tax-exempt art institution to close, and thus channeling its assets (ex: artworks) to other 501(c)(3) institutions or to the state under which it is incorporated. Are we really saying that access to a Pollock, Miro or Warhol is more valuable than production of Hummers or Chrysler LeBarons? I really don't think so, and I don't really see why a donor or the general public should have to allow for one or two deaccessions simply to allow an already failing and flailing institution to survive and thus continue to waste more private and public monies. In a nutshell, I would rather experience a Warhol in Iowa than in a mismanaged Los Angeles museum, whatever the cost to the California public (see #4 below).

2. Fiduciary and Legal Duties: Reason #1 leads to Reason #2. Nonprofit corporations are not privately owned, rather they are public entities controlled by a board of directors. These board members have fiduciary and legal duties to act in the best interest of the art institution. If the the board fails to live up to its fiduciary and legal duties , I believe the correct result should be that this institution is penalized, dissolved, or have its tax-exempt status revoked. I have indentified at least three tests (which i refer to as the three policing variables) to police and measure the board and the nonprofit institution's perfomance and "right" to continue as originally constituted--as a publically subsidied, tax-exempt organization.

When the fiduciary and legal duties are not met (see LA MoCA), there should (in a perfect world) be at least three policing variables which should (a) penalize the institution for its malfeasence, (b) initiate legal action against the board of directors, (c) revoke that institution's tax-exempt status, and/or (d) cease to provide that institution with donations, gifts, in-kind donations, or grants. The three policing variables are: (1) governmental (state and federal); (2) board of directors; (3) the general public.

In effect, any of the four "penalties" placed on the institution would be warranted, primarily because any board in charge of a million-dollar budget should be well-advised of any and all legal and ethical repercussions should it breach any of its fiduciary or legal duties. Selling a Warhol or Pollock would make sense if there was no foreseeable business risk, but tanking millions of dollars in a seemingly ignorant and careless manner does not warrant the deaccessioning of art for the sake of keeping a life-line on a dying institution. (Note: This is also called the band-aid on a bullet-hole theory.)

3. Conditions & Restrictions: So as to not seem heartless, there could be a "one-time exception" to Rules #1 and #2 above, so long as certain strict conditions and restrictions are met as a pre-condition. These could range from public disclosure on a bi-monthly basis of all insitutional expenditures, to a complete firing and replacement of that institution's board of directors. The revamping of that institution's staff, employees and volunteers would also be a welcome condition (with salaries and benefits comensurate with that institution's financial ability to meet them), as well as restrictions on the amount of money that could be spent by the museum on art installations, shipping & handling, insurance, as well as artist and guest lecturer honorariums and stipends. Of course, these restrictions and conditions could be limited to a number of years, so long as the museum passes muster each and every year with flying colors!

4. Public Oversight: Nonprofit tax-exempt institutions have a duty to disclose their certificates of incorporation, by-laws, tax-exempt ruling, and tax forms to the public. There's no reason why the general public should not take obtain this information and educate itself on the operations of a failing institution. This would facilitate notification by the general public of any perceived wrongdoing by the institution to the state attorney general, the charities bureau, as well as the IRS. The "right" of the citizenry to view and experience a Warhol, Miro or Pollock is not without a certain duty to review and inspect a nonprofit tax-exempt art institution's internal operations. Make the public responsible for its museums and institutions and I can gurantee that the board of directors will pay a bit more attention to its operations and decisions.

Deaccessioning Wars: To Be or Not To Be...