Meeting of the Board of Regents | December 2008

THE STATE EDUCATION DEPARTMENT / THE UNIVERSITY OF THE STATE OF NEW YORK / ALBANY, NY 12234

TO:	Cultural Education Committee
FROM:	Jeffrey W. Cannell
SUBJECT:	Emergency Amendment of Regents Rule §3.27 Relating to Museum Collections Management Policies
DATE:	December 1, 2008
STRATEGIC GOAL:	2, 4
AUTHORIZATION(S):

 

 

Summary

 

Issue for Discussion

 

              Should the Regents adopt an emergency amendment of §3.27 of the Rules of the Board of Regents, relating to museum collections management policies?

 

Reason for Consideration

 

              Implementation of Regents policy.

 

Proposed Handling

 

The pr   oposed amendment is before the Cultural Education Committee for discussion and recommendation to the Full Board for emergency action in December. 

 

Procedural History

 

The proposed amendment has been recommended by the State Education Department and State Museum management to protect collections held by museums and historical societies in financial difficulty.

 

Background Information

 

Regents Rule §3.27 provides standards for chartered museums and historical societies.  Sections 3.27 and 3.30 were first promulgated effective March 1971, and the Regents added a collections management policy requirement effective July 1998.  The March 2006 amendment greatly expanded the standards by providing increased oversight for collections and resources held in the public trust. 

 

In the current financial downturn, museums face deficits that threaten to cancel programs, cut hours and close doors.  A large deficit could threaten a museum’s existence and send the trustees to court for bankruptcy protection or other disposition, which could result in a court-directed sale of all or part of a museum's collection to satisfy the museum's outstanding debt.

 

We believe current Regents Rules on collections are inflexible if a museum faced a sudden, unexpected and critical financial reversal.  We don’t want a major museum to close, and don’t want to lose collections held in the public trust to debt. 

 

The emergency provisions would apply to chartered museums and historical societies authorized to own and hold collections under Rule §3.27, and would:

 

• Enumerate the specific criteria under which an institution may deaccession an item or material in its collection.

 

• Allow the Regents to grant an exception to allow deaccession of an item or material deemed part of the museum’s collection, by sale or transfer to another museum or historical society in New York, and allow proceeds from deaccessioning to be used to pay outstanding debt, provided the institution demonstrates to the satisfaction of the Regents that the sale or transfer is necessary to pay outstanding debt that would otherwise threaten the ability of the institution to continue to operate and carry out its mission.

 

• Remove the option allowing an institution to designate a structure as a collections item; but keep intact any such designation made by vote of a board of trustees prior to November 15, 2008.

 

• Specify that no proceeds from deaccessioning may be used for capital expenses, except to preserve, protect or care for an historic building previously designated as part of the institution’s collection, as above. 

 

We will ask constituents to comment on the proposed amendment through a mailing with cover memo, announcements on web sites, and copies sent to listservs and electronic mailing lists.

 

The proposed amendment is being presented for adoption as an emergency action.  A Statement of Facts and Circumstances Which Necessitate Emergency Action is attached. 

 

Recommendation

 

              It is recommended that the Board of Regents take the following action:

 

              VOTED: That 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 be amended, as submitted, effective December 19, 2008, as an emergency action upon a finding by the Board of Regents that such action is necessary for the preservation of the general welfare in order to protect the public’s interest in collections held by a museum or historical society in financial distress by immediately establishing procedures to permit the institution, with the approval of the Board of Regents, to sell or transfer items or material in its collections to another museum or historical society for purposes of obtaining funds to pay outstanding debt, and thereby provide an alternative to the institution's bankruptcy or dissolution, and the possible loss or liquidation of a collection because of debt.

 

Timetable for Implementation

 

If approved in December, the emergency rule would become effective on December 19, 2008 and would remain in effect for 90 days.   It is anticipated that the proposed amendment would be presented for adoption as a permanent rule at the March 2009 Regents meeting. 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

PROPOSED AMENDMENT OF SECTION 3.27 OF THE RULES OF THE BOARD OF REGENTS PURSUANT TO EDUCATION LAW SECTIONS 101, 207, 215, 216 AND 217, RELATING TO MUSEUM COLLECTIONS MANAGEMENT

STATEMENT OF FACTS AND CIRCUMSTANCES WHICH NECESSITATE EMERGENCY ACTION

The purpose of the proposed amendment is to protect the public’s interest in museum collections held by institutions in financial difficulty.  The amendment applies to chartered museums and historical societies authorized to own and hold collections under section 3.27.

Specifically, the proposed amendment authorizes the Regents to allow museums that face deficits that threaten the institution’s existence, to deaccession an item or material deemed part of the museum’s collection by sale or transfer to another museum or historical society in New York and to use proceeds from deaccessioning to pay outstanding debt.  The museum must demonstrate to the satisfaction of the Regents that the sale or transfer is necessary to pay outstanding debt that would otherwise threaten the ability of the institution to continue to operate and carry out its mission.  The amendment is intended to provide an alternative to bankruptcy or dissolution and possible loss or liquidation of a collection because of debt.

 The amendment also enumerates the specific criteria under which an institution may deaccession an item or material in its collection.

Further, the amendment removes the option in section 3.27 allowing an institution to designate a structure as a collections item; but keeps intact any such designation made by vote of a board of trustees prior to November 15, 2008.  If such designation was made, 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.

Section 3.27 was first promulgated effective March 1971, and the Regents added a collections management policy requirement effective July 1998.  Effective March 6, 2006, an amendment greatly expanded the standards by providing increased oversight for finances, collections and resources held in the public trust.

In the current financial downturn, museums face deficits that threaten to cancel programs, cut hours and close doors.  A large deficit could threaten a museum’s existence and send the trustees to court for bankruptcy protection or other disposition, which could result in a court-directed sale of all or part of a museum's collection to satisfy the museum's outstanding debt.

              The proposed amendment will provide an alternative to bankruptcy or dissolution for museums in financial distress by allowing them to sell or transfer an item in their collection to another New York museum or historical society.  Current rules are inflexible by forbidding a museum to sell or transfer an item or material deemed to be part of its collection.  The amendment requires the recipient museum to care for the item or material and thus the artifact remains in the public trust and available to the people of the State. 

              Emergency adoption of the proposed amendment is necessary for the preservation of the general welfare in order to protect the public’s interest in collections held by a museum or historical society in financial distress by immediately establishing procedures to permit the institution, with the approval of the Board of Regents, to sell or transfer items or material in its collections to another museum or historical society for purposes of obtaining funds to pay outstanding debt, and thereby provide an alternative to the institution's bankruptcy or dissolution, and the possible loss or liquidation of a collection because of debt.

It is anticipated that the proposed amendment will be presented to the Board of Regents for adoption as a permanent rule at the March 2009 meeting of the Board of Regents, which is the first scheduled meeting after expiration of the 45-day public comment period mandated by the State Administrative Procedure Act.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

AMENDMENT OF THE RULES OF THE BOARD OF REGENTS

Pursuant to sections 101, 207, 215, 216, 217 and 233-aa of the Education Law

1. Paragraph (7) of subdivision (a) of section 3.27 of the Rules of the Board of Regents is amended, effective December 19, 2008, to read as follows, provided that such amendment shall expire and be deemed repealed March 18, 2009:

(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;

2.  Paragraphs (6) and (7) of subdivision (c) of section 3.27 of the Rules of the Board of Regents are amended, effective December 19, 2008, to read as follows, provided that such amendment shall expire and be deemed repealed March 18, 2009:

(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;

(ii)  ensure that the acquisition and deaccessioning of its collection is consistent with its corporate purposes and mission statement, including that deaccessioning of items or material in its collection is limited to the circumstances prescribed in paragraph (7) of this subdivision;

(iii)  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)] (vi) of this paragraph;

(iv)  ensure that collections or any individual part thereof and the proceeds derived therefrom shall not be used as collateral for a loan;

(v)  ensure that collections shall not be capitalized; and

(vi)  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 not relevant to the mission of the institution;

(ii) the item or material has failed to retain its identity, or has been lost or stolen and has not been recovered;

(iii) the item or material duplicates other items or material in the collection of the institution and is not necessary for research or educational purposes; and/or

(iv) the institution is unable to conserve the item or material in a responsible manner.

(8)  Education and Interpretation. The institution shall offer programmatic accommodation for individuals with disabilities to the extent required by law.