Administrative Law

It's been a while since I posted on the proposed legislation to regulate deaccessioning from cultural institutions in New York.  The complete meltdown of the State Senate has put that matter on hold, but in the meantime, my attention shifted to the Board of Regents.  They had issued emergency regulations last December governing deaccessioning from state-chartered museums and historical societies.  The goal was to issue permanent regulations in October, and the big question was whether those regulations would mirror some of the problematic features of the proposed legislation.

The final proposed regulations have been distributed by the Dept. of Education.  Since they are not readily available online yet, I will post the full text after the break. 

There is some good news in the regulations.  First, they apply only to museums and historical societies, not libraries and archives.  Second, they omit much of the procedural detail that would have made the proposed legislation onerous.  The list of reasons why one might want to deaccession an item from a collection seems at first glance reasonable, though I have to admit that I am not conversant with current professional best practices in this area.  I wonder, too, if this isn't an area where professional practice and the seasoned judgment of a Board of Trustees might not be better than explicit regulation.  SAA's Acquisition and Appraisal Section has proposed a Working Group to investigate issues in reappraisal and deaccessioning, which suggests to me that standards in this area may be in flux and that regulations are premature.

There are two problematic issues that I see in the proposed regulations.  The first concerns how institutions can use the proceeds from the sale of deaccessioned items.  The regulations stipulate that monies received can only be used for new acquisitions or preservation, but not for operational or capital expenses.  This approach mirrors the standards of the Association of Art Museum Directors, but it has also been heavily criticized (see, for example, this essay in Art in America and the Deaccessioning Blog).  I might simply note that if the Southworth Library in Dryden, NY had been an historical society, then it would not be able to use the $3.5 million it received from the auction of a Lincoln document this spring to construct a new wing.

The second issue could be a real source of pain for small historical societies.  The regulations require that historical societies must have a written collections management policy to guide institutional decisions regarding the collection.  The policy must be filed with the state.  At a minimum, the policy must "satisfactorily" address the following subject areas:

(a)   acquisition.  The criteria and processes used for determining what items are added to the collections;
(b)  loans.  The criteria and processes used for borrowing items owned by other institutions and individuals, and for lending items from the collections;
(c)  preservation.  A statement of intent to ensure the adequate care and preservation of collections;
(d)  access.  A statement indicating intent to allow reasonable access to the collections by persons with legitimate reasons to access them; and
(e)  deaccession.   The criteria and process (including levels of permission) used for determining what items are to be removed from the collections, which shall be consistent with paragraph (7) of this subdivision, and a statement limiting the use of any funds derived therefrom in accordance with subparagraph (vii) of this paragraph.

How many institutions have written policies in all five areas?

The text of the proposed regulation follows.  Note that the full text of the regulation being amended is found here.  Public comments are due by 25 September.

SUBJ:  Permanent amendment of Regents Rule 3.27 on museum collections management

The State Education Department has filed a proposed permanent amendment of Regents Rule 3.27 on collections management for museums and historical societies with collections.

We propose that the Regents act on the attached permanent regulation at their October meeting.  The regulation is modeled on the emergency regulations on collections management first adopted in December 2008.

The regulation has been e-filed August 11 with the Department of State and will be published in the August 26 State Register.

The last day for receipt of public comment will be September 25.

Public comments will be compiled no later than October 1.

The October Regents meeting is October 19-20.

Please send public comments by September 25 to:

David W. Palmquist
Head, Museum Chartering
NY State Museum
NY State Education Department
3097 Cultural Education Center
Albany NY 12230
518-473-3131
FAX 518-473-8724

e-mail:  dpalmqui@mail.nysed.gov

Web site:  www.nysm.nysed.gov/charter/

Attached are:

(1) Terms of the Amended Rule effective November 12, 2009

(2)  Revised Regulatory Impact Statement

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AMENDMENT OF THE RULES OF THE BOARD OF REGENTS
Pursuant to sections 101, 207, 215, 216, 217 and 233-aa of the Education Law and Chapter 220 of the Laws of 2008
1.  The amendment to paragraph (7) of subdivision (a) and paragraphs (6) and (7) of subdivision (c) of section 3.27 of the Rules of the Board of Regents, which was adopted by emergency action at the July 27-28, 2009 meeting of the Board of Regents, is repealed, effective November 12, 2009.
2.  Subdivision (a) of section 3.27 of the Rules of the Board of Regents is amended, effective November 12, 2009, as follows:
     (a) Definitions. Whenever used in this section, the following terms shall have the meanings indicated:
     (1)  .   .   .
     (2)  .   .   .
     (3)  .   .   . 
     (4)  .   .   . 
     (5)  .   .   . 
      (6)  .   .   . 
 (7) Collection means one or more original tangible objects, artifacts, records or specimens, including art generated by video, computer or similar means of projection and display, that have intrinsic historical, artistic, cultural, scientific, natural history or other value that share like characteristics or a common base of association and are accessioned; for purposes of this section, historic structures owned by an institution shall be considered as part of a collection only when so designated by the board of trustees of the institution by vote conducted on or before December 19, 2008, or on or after January 15, 2010; 
     (8)  Collection care means the responsibility and function of an institution that involves developing and implementing policies and procedures to protect the long-term integrity of objects, artifacts, records and specimens, as well as their associated data and documentation, for use in research, education and exhibits.
     (9)  Collection management means the responsibility and function of an institution, through its collections managers, subject specialists, curators, and other institutional administrators to foster the preservation, accessibility, and utility of the institution?s, collections and associated data, including recommending and implementing policy with respect to: artifact, record or specimen acquisition, collection growth, and deaccessioning; planning and establishing collection priorities; obtaining, allocating, and managing resources; and coordinating collection processes with the needs of curation, preservation, and collection use.
     (10)  Collection management policy means a statement approved by the institution?s governing body and administered by its board, officers, employees, and consultants which includes all policies and practices related to the institution?s collections, which is modeled on, derived from and consistent with the institution?s corporate purposes and mission statement.
     [(10)] (11) Deaccession means:  (i) removing an object from an institution?s collection, or
     (ii) the act of recording/processing a removal from an institution?s collection.  
     [(11)] (12)  Diversity means broadly inclusive participation in every aspect of governance, staff, operations and programs to represent the community and constituency served in terms of race, ethnicity, gender, economic background and geography.
     [(12)] (13)  Education/public programs and exhibitions means the full range of mission-related educational activities in which the institution engages, to promote understanding and appreciation of a subject, and to support life-long learning.
     [(13)] (14)  Hours of operation means publicly stated and promoted regular hours during which the public has reasonably convenient access to the institution?s education/public programs and exhibitions.
     [(14)] (15)  Interpretation means the ways that the institution uses its collections, exhibits, and research to communicate meaning to the public.
     (16)  Intrinsic value means a collection item?s value attributed to its history, associations, ownership, provenance, artistic or esthetic qualities which produces value beyond or greater than its physical form or characteristics.
     (17)  Item means an individual element of a collection.
     [(15)] (18) Mission statement means a statement modeled on and derived from the institution?s corporate purposes, as set forth in its charter or certificate of incorporation, that identifies the benefits derived from the institution?s activities.
     [(16)] (19)  Operating budget means the amount of annual income or expenditures of the institution, excluding funds raised for capital improvements, funds received or designated for addition to endowments and funds raised or obtained from sale of collections.
     [(17)] (20)  Professional staff means at least one paid employee who commands an appropriate body of special knowledge in the area for which he or she is employed, and the ability to reach museological decisions consonant with the experience of his/her peers and apply accepted standards of practice, and who also has access to and acquaintance with the expertise, best practices, literature and scholarship of the field; provided, however, that a museum with an operating budget of $100,000 or less shall be appropriately and professionally staffed by paid and/or volunteer personnel who possess sufficient training and knowledge to meet the requirements of its mission and the needs of its collections.
     [(18)] (21)  Public trust means the responsibility of institutions to carry out activities and hold their assets in trust for the public benefit.
     [(19)] (22)  Research means a studious inquiry conducted in support of an institution?s stated purposes in order to bring to light new facts or to confirm or revise accepted conclusions.
     3.  Paragraphs (6) and (7) of subdivision (c) of section 3.27 of the Rules of the Board of Regents are amended, effective November 12, 2009, as follows:
     (6)    Collections care and management. The institution shall:
     (i) own, maintain and/or exhibit original tangible objects, artifacts, records, specimens, buildings, archeological remains, properties, lands and/or other tangible and intrinsically valuable resources that are appropriate to its [mission] corporate purposes, mission statement and collection management policy;
     (ii) ensure that the acquisition and deaccessioning of its collection is consistent with its corporate purposes, [and] mission statement and collection management policy;
     (iii) ensure that deaccessioning of items or materials in its collection is limited to the circumstances prescribed in paragraph (7) of this subdivision;
     [(iii)]  (iv) have a written collections management policy providing clear standards to guide institutional decisions regarding the collection, that is in regular use, available to the public upon request, filed with the Commissioner for inspection by anyone wishing to examine it; and which, at a minimum, satisfactorily addresses the following subject areas:
     (a)   acquisition.  The criteria and processes used for determining what items are added to the collections;
     (b)  loans.  The criteria and processes used for borrowing items owned by other institutions and individuals, and for lending items from the collections;
     (c)  preservation.  A statement of intent to ensure the adequate care and preservation of collections;
     (d)  access.  A statement indicating intent to allow reasonable access to the collections by persons with legitimate reasons to access them; and
     (e)  deaccession.   The criteria and process (including levels of            permission) used for determining what items are to be removed from the collections, which shall be consistent with paragraph (7) of this subdivision, and a statement limiting the use of any funds derived therefrom in accordance with subparagraph (vii) of this paragraph;
     [(iv)]  (v)  ensure that collections or any individual part thereof and the proceeds derived therefrom shall not be used as collateral for a loan;
     [(v)]  (vi)  ensure that collections shall not be capitalized; and
     [(vi)]  (vii)  ensure that proceeds derived from the deaccessioning of any property from the institution?s collection be restricted in a separate fund to be used only for the acquisition, preservation, protection or care of collections.  In no event shall proceeds derived from the deaccessioning of any property from the collection be used for operating expenses, for the payment of outstanding debt, or for capital expenses other than such expenses incurred to preserve, protect or care for an historic building which has been designated part of its collections in accordance with paragraph (7) of subdivision (a) of this section, or for any purposes other than the acquisition, preservation, protection or care of collections.
     (7)  Deaccessioning of Collections.  An institution may deaccession an item or material in its collection only where one or more of the following criteria have been met:
     (i)  the item or material is inconsistent with the mission of the institution as set forth in its corporate purposes, mission statement and collection management policy;    
     (ii)  the item or material has failed to retain its identity;
     (iii)  the item or material has been lost or stolen and has not been recovered;
     (iv)  the item or material is redundant or duplicates other items or material in the collection of the institution and is not necessary for research or educational purposes;
     (v)  the institution is unable to preserve or conserve the item or material in a responsible manner;
     (vi)  the item is deaccessioned to accomplish refinement of collections as required by and/or stated in its collection management policy;
     (vii)  the item has been established as being inauthentic;
     (viii)  the institution is repatriating the item or returning the item to its rightful owner;
     (ix)  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;
     (x)  the item presents a hazard to people or other collection items.
     [(7)] (8)  Education and Interpretation. The institution shall offer programmatic accommodation for individuals with disabilities to the extent required by law.

***************************************************************
PROPOSED AMENDMENT OF SECTION 3.27 OF THE RULES OF THE BOARD OF REGENTS PURSUANT TO EDUCATION LAW SECTIONS 101, 207, 215, 216, 217 AND 233-aa AND CHAPTER 220 OF THE LAWS OF 2008, RELATING TO MUSEUM COLLECTIONS MANAGEMENT REVISED REGULATORY IMPACT STATEMENT

Since publication of a Notice of Emergency Adoption and Proposed Rule Making in the State Register on January 7, 2009, the proposed rule has been substantially revised as follows:

Section 3.27(a)(7) has been revised to provided that historic structures owned by an institution shall be considered as part of a collection only when so designated by the board of trustees of the institution by vote conducted on or before December 19, 2008 "or on or after January 15, 2010."  This change provides time for the Department to study the question as to whether the prohibition against allowing an institution to designate a historic structure as part of its collection should continue or lapse.  During the Fall of 2009 the Department intends to discuss this question with legislators, institutions and constituents, and draft a report for Regents review and approval.  The Department expects the Regents to make a decision on this question and adopt appropriate regulatory language no later than January 15, 2010.

New paragraphs (10), (16) and (17) have been added to subdivision (a) of section 3.27 to provide definitions, respectively, of "Collection Management Policy", "Intrinsic Value", and "Item."  The terms "Collection Management Policy", "Intrinsic Value", and "Item," are found in the rule but are not defined; therefore the amendment adds definitions to make clear the meaning of these terms.

Section 3.27(c)(6)(i) and (ii) have been revised to require that the items in the collections of museums and historical societies be appropriate to its corporate purposes, mission statement and collection management policy, and that museums and historical societies with collections ensure that the acquisition and deaccessioning of its collection is consistent with its corporate purposes, mission statement and collection management policy.   This change requires that institutions refer to their corporate purposes and collection management policies, as well as to their mission statements, to provide guidance on decisions about accessioning or deaccessioning of collections, and thus ensures that institutions act consistently with respect thereto.

Section 3.27(c)(7) has been revised to clarify and add additional criteria that a museum or historical society with collections must meet in order to deaccession items or materials in their collections.  This change adds ten criteria under which an institution may deaccession items or materials in its collection.  These criteria are recognized by national and international museum associations and have been provided by the Department as guidance since 1998.  Adding the specific criteria to the regulation provides clarity and allows institutions to clearly understand the reasons under which they may deaccession collections.

The aforementioned changes require that the Needs and Benefits section of the previously published Regulatory Impact Statement be revised as follows:

3.  NEEDS AND BENEFITS: The proposed amendment is necessary to implement Regents policy to protect the public's interest in collections held by chartered museums and historical societies.

Specifically, the proposed amendment clarifies restrictions on the deaccessioning of items and materials in an institution's collections, consistent with generally accepted professional and ethical standards within the museum and historical society communities.  An institution may deaccession an item or material in its collection only where one or more of the following criteria have been met: (i)  the item or material is inconsistent with the mission of the institution as set forth in its corporate purposes, mission statement and collection management policy; (ii)  the item or material has failed to retain its identity; (iii)  the item or material has been lost or stolen and has not been recovered; (iv)  the item or material is redundant or duplicates other items or material in the collection of the institution and is not necessary for research or educational purposes; (v)  the institution is unable to preserve or conserve the item or material in a responsible manner; (vi)  the item is deaccessioned to accomplish refinement of collections as required by and/or stated in its collection management policy; (vii)  the item has been established as being inauthentic; (viii)  the institution is repatriating the item or returning the item to its rightful owner; (ix)  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; (x)  the item presents a hazard to people or other collection items. In addition to the existing prohibition against using proceeds from a deaccessioning for operating expenses, the proposed amendment would extend such prohibition to also include the use of such proceeds for the payment of outstanding debt and for the payment of capital expenses other than those incurred to preserve, protect or care for an historic building which has been designated part of its collections.

The proposed amendment also removes the option in section 3.27 allowing an institution to designate a structure as a collections item; but allows such designations made by vote of a board of trustees prior to December 19, 2008 or on or after January 15, 2010.  For designations made prior to or on or after such respective dates, an institution may use proceeds from deaccessioning for capital expenses, to preserve, protect or care for an historic building designated as part of the institution's collection.  During the Fall of 2009, the Department intends to study the question as to whether the prohibition against allowing an institution to designate a historic structure as part of its collection should continue or laps, including discussions with legislators, institutions and constituents, and draft a report for Regents review and approval.  The Department expects the Regents to make a decision on this question and adopt appropriate regulatory language no later than January 15, 2010.