MUSEUM ETHICS: STILL A PROBLEM FOR THE PROFESSION AND CONTEMPORARY ART

This article ran in the New Art Examiner’s February 1982 issue. Why reprint it now? One reason is that the majority of museum and art world staff were quite young or not yet born when the incidents herein occurred and led to some reform, though enforcement remains weak. The key reason is that, while the names and details change, problems within the profession around professional standards and ethics continue to surface with regularity.

In just the past decade, Lawrence Small, head of the Smithsonian Institution, was forced to resign in 2007 over excessive personal expenses, what Iowa Senator Charles Grassley called his “Dom Perignon lifestyle”. The following year, four California museums, including the Los Angeles County Museum of Art, were involved in a raid by 500 federal agents of dealers, collectors and museums, aimed at sto

Boston Museum

pping an alleged black-market trade in artifacts from Southeast Asian nations and the American Southwest. Most recently, the Corcoran Gallery of Art in Washington D.C., founded in 1869, was dissolved two years ago due to what the Washington Post characterized as “erratic and incompetent leadership” by its trustees.

Given these new scandals and ones waiting to be uncovered, this article’s contents remain a relevant morality tale. A generation hence, museum personnel will recall that, in 1981, while artists, critics and art buffs attended to what hung on museum walls, many museum staff and directors were occupied with events taking place behind those boundaries, as the question of their own professional ethics came to the fore. These developments—a first-ever code of professional conduct for curators, an unprecedented booklet regarding museum trusteeship and a revision of professional practices by the Association of Art Museum Directors (AAMD)—occurred within the museum fraternity but are not far removed from the threat of mounting legal challenges and sharper public scrutiny. In the last decade alone, the art world has been rocked with highly publicized scandals, some resulting in indictments and trials. The list is long and troubling: Museum of the American Indian, the Metropolitan Museum of Art, Boston Museum of Fine Arts, the Brooklyn Museum, Mark Rothko Estate and the Marlborough Gallery, Maryhill Museum, George F. Harding Museum, Pasadena Art Museum (now the Norton Simon Museum) and Greenville (S.C.) County Museum of Art.

Boston Museum of Fine Art

Until now, the issue of professional standards has suffered from an image problem. Standards and ethics are like warm oatmeal—hearty, satisfying but horribly dull. Thinking and talking about such matters can turn museum staffers’ minds to mush.

At the American Association of Museums (AAM) annual meeting last year (1980), this reporter heard experienced panelists denounce formal codes of ethics as futile, since museum staff are “humanists” and “proper ladies and gentlemen” who know the law and abide by moral principles in their dealings.

This awareness argument is rich in irony. While all purportedly know and abide by the museum community’s unwritten rules, converting those rules into written form consumed six years on the part of curators, four years of heated debate by museum administrators, resulting in the vague 1978 AAM “Blue Book” and four years for the trustees’ handbook.

Roots of Reform

Greenville County Museum of Art

The surge of regulatory activity during the past year has different roots and three purposes. One, museums, begun late in the 19th century by rich benefactors as private preserves are seen today more as public trusts. A code of conduct is an acknowledgement that rising public funding and visibility demand great accountability.

Secondly, A published code of conduct is a forerunner to gaining professional recognition. Museums have long made to with armies of volunteers and underpaid staff. As museums grow more complex, they have ceased to be havens for rich amateurs and require trained personnel at every level. More and more curators welcome a written code as protection against unprofessional demands made by senior management and trustees.

The third reason is therapeutic. The art community recognizes, but is loathe to publicly admit, that the old unwritten rules are not up to dealing with a rapidly changing art world. A burgeoning art market dangles may financial temptations before curators, collectors and trustees. U.S. Customs officials estimate that the dollar volume of trade in stolen art is surpassed only by the traffic in cocaine, heroin and other drugs. A museum official at the AAM meeting recounted heavy smuggling of Meso-American artifacts. He said large quantities of such objects are being exported illegally, bought by American buyers, held for a year and a day, as tax law requires, then donated to a museum for tax purposes. Though the AAM adopted a code of ethics for museum workers as early as 1925, the document had little impact. It was so poorly distributed that, when the AAM’s publication, Museum News, reprinted the document in 1974, it noted that “many museum professionals who are members of the Association were not aware of its existence.”

It remained the museum world’s official ethical pronouncement until 1978! It might still be the industry standard had museums not been jolted out of their torpor by a landmark court case. On July 30, 1974, U.S. District Court Judge Gerhard Gesell ruled that five trustees of Sibley Hospital in Washington, D.C. failed to properly supervise the hospital’s funds and investments and engaged in illegal selfdealing practices. That ruling had wide-ranging implications on the trusteeship duties of all nonprofit institutions.

The AAM got busy and appointed a 20-person committee on ethics. The result: the 1978 AAM “Blue Book”. Most museums use it as a guide or have adopted it as their own staff code. It remains a vague, general policy document that reads like a United Nations resolution. No specific cases are cite to enlighten the novice or resolve disagreements among staff.

Museums Resist Drawing Up Codes of Conduct

Museums pay lip service to the AAM guidelines. Yet, as our museum survey of 14 major institutions shows, most of the major national museums do not follow many of the Blue Book’s basic recommendations such as: “Make public its policy regarding the acquisition and disposition of objects”; “Establish guidelines for conflict of interest”; “Every museum trustee should file with the board a statement disclosing personal, business and organizational interests and affiliations which could be construed as museum-related.” Museums continue to resist drawing up codes of conduct for their staffs. Only five of the 15 surveyed had such a code. Though museums have written policies regarding accession and deaccessioning, few make them public. Nearly all institutions permit personal collecting by curatorial staff yet only three require periodic disclosure of transactions. (Museums Surveyed were the Art Institute of Chicago, Boston Museum of Fine Arts, Cleveland Museum of Art, Detroit Institute of Arts, Fine Arts Museum of San Francisco, Houston Institute of Fine Arts, Indianapolis Museum of Art, Los Angeles County Museum, Metropolitan Museum, Museum of Contemporary Art, National Gallery of Art, Philadelphia Museum of Art, St. Louis Museum of Art and Walker Art Center) Finally, only the Boston Museum of Fine Arts and the Art Institute require trustees’ disclosure. One New York museum official, when asked about disclosure, responded “No Way”, as if such a request would be too damaging.

Metropolitan Museum of Art

A study of the codes themselves provides revealing insights into how curators, directors and trustees perceive the ethical issues confronting them. In 1972, Ian McKibben White, director of the Fine Arts Museums of San Francisco, law professor John Merryman and art historian Albert Eisen drafted a code for curators, similar to the one for directors.

Curators’ Soul Search

The San Francisco Museum rejected the curator code and it was never published as promised. Merryman says directors felt it was “too draconian, too vigorous”. Critics contended it would have created administrative confusion and placed responsibility for too many decisions on the director.

Personal collecting was allowed if the curator submitted an inventory of his/her collection at the time of employment and maintained an annual update. The museum was given first refusal right on works costing more than $500. Only nominal gifts from collectors from collectors and  dealers could be accepted. The code, interestingly, allowed an artist to give a work of art to a curator if the director approved and if ownership passed to the museum upon the curator’s death. (American critics rail against the French system of paying for a review. However, the donation of a canvas or sculpture by an artist has many of the same compromising features. Influential critics Clement Greenberg and former Guggenheim curator, Lawrence Alloway, saw nothing wrong in the practice and said they would never accept a painting from an artist whom they didn’t respect.) Two years after the San Francisco effort, Alan and Patricia Ullberg published another proposed code in Museum News. Ullberg at the time was associate counsel for the Smithsonian Institution.

Museum of the American India

He assisted the AAM panel drafting the Blue Book and, more recently, co-authored the AAM booklet on museum trusteeship with his wife. Their curators’ code appeared in the wake of Watergate. Its tone and recommendations reflected the impact that political scandal was having on all public institutions. It declared that personnel in privately supported institutions were “public servants” and subject to a code of conduct. The Ullbergs urged museums to define clearly the boundaries separating home decorating from collecting and to distinguish trading/upgrading from dealing. They frowned strongly on gifts from artists or substantial dealer discounts as leading to a compromising of a curator’s professional judgment.

No consulting activities were allowed without the prior approval of the director. A museum employee may be selling his museum’s reputation along with selling his/her services. Any association with a commercial gallery, dealer or collector must be watched and fully disclosed.

With Merryman and Ullberg as precedents, the latest code drafted by AAM Curators’ Committee was adopted in 1981. It was the first-of-its-kind document, stronger and more precise than the Blue Book. The code goes beyond earlier versions in forbidding curators from purchasing de-accessioned objects from their own museums, presumably even at public auctions. Joan Lester, a curator at the Boston Children’s Museum, feels strongly about this provision.

When her museum auctioned a lovely doll house that was in pieces, she refused to allow her daughter to bid on the item. She knew that the house could be easily repaired and felt this inside information put her at an unfair advantage in relation to other bidders. Once employed, curators are urged not to begin collecting in an area where their museum also collects. In the most controversial issue, the code said curators must never compete with their home institution for an object. The museum must have the right of first refusal when a curator wishes to sell an object. Curators should also lend any items from their personal collection anonymously to avoid inflating the value or prestige of their collection.

Directors Dislike Detail

If the curators’ code is clear and a cry from the trenches, the Association of Art Museum Director’s 1981 “Professional Practices in Art Museums’ reads as if it had been delivered from Mount Olympus. It did not lose itself in details but kept its gaze on the “Big Picture”. The 1971 “Practices” booklet was the first-ofits- kind. It was drafted to counter public pressure and press reports. Many professionals, including museum directors, think the document is a failure. Richard Boyle, director of the Pennsylvania Academy of Fine Art, said it was “apologetic and very defensive” and that it was “very flabby with hedges all over the place”.

Yet, rather than starting over, the 1981 version is essentially a reprint of 1971. Instead of trying until they got it right, the directors are determined to tough it out. Conflict of interest is handled in one neat paragraph, one paragraph more than appeared in the earlier edition. It affirms the usefulness of private collecting by the director, board members and staff. However, no collecting should be “either in fact or in appearance in conflict with the best interests of the museum and its collecting programs”.

The director and board are urged to discuss the possibility of conflict and develop “clear guidelines in writing”. Anyone looking for an ethical compass on this issue must shop in another store.

A reader of the report would have to be a crack cryptologist to define shifts in attitude and museum practice. Museum watchers might find gold in the following nuggets. The 1971 introduction says that museum trustees and staff, having confidence in each other “are united” in their commitment to the institution’s purposes. The latest edition merely states that the two groups “must be united”. Where did the mutual confidence go? Does the change reflect a decade of discord between boards and an increasingly professional and demanding staff? A world of meaning is contained in the shift of tone from assured certainty to cautious exhortation.

Corcoran Gallery of Art (now closed)

De-accessioning is one of a director’s most delicate tasks, a politically and ethically-charged issue. It was the cause of major scandals at the Metropolitan Museum of Art, the Brooklyn Museum and the Museum of the American Indian. It currently is the source of contention at the former Pasadena Art Museum, the Howald collection at the Columbus Art Museum and the George F. Harding Museum in Chicago. The AAMD earlier had hedged on the issue. It admitted that retention of all material entering a collection could be justified and frowned on sales made on grounds of taste. Those qualifiers were dropped last year. Instead, the booklet reiterated that any disposal should be related to broad policy rather than “exigencies of the moment”.

To insure that exigencies are not dictating policy, the current version states that whatever funds are realized from de accession, “must be used to replenish the collection.” Not pay salaries or finance deficits or new construction. On ethics, the earlier booklet “hoped” that the board and its chosen director would accept and be governed by the AAMD’s Code and Professional Practices Report. Unlike the medical, legal or accounting professions, the AAMD must solicit compliance. This year, that paragraph is dropped and the ethics code is printed as an appendix.

The 1981 publication imposes a trust standard for a director’s conduct, a high measure with strong legal consequences. The code deems three practices to be unprofessional and subject to disciplinary action:

1) Using influence or position for personal gain;

2) giving, for a fee, any certification on the authenticity or monetary value of a work of art, and

3) knowingly acquiring or even allowing a recommendation for purchase of any art objects stolen or illegally imported into the United States, a new provision.

The explosion in collectibles and growing adoption of an investment approach to Art has spawned some shady enterprises. In 1979, the AAMD adopted guidelines for reproductions of works of art to maintain ethical and professional standards. These reproduction guidelines were drafted to offset any damage from what one museum director referred to as “the bloody Rockefeller collection”. If anyone was a club member, certified art collector and a gentleman who should have known better, it was Nelson A. Rockefeller. Yet, the soaring art market of the ‘70s tempted even him. He offered millions the chance to buy works of “museum quality” that were exactingly reproduced from those in his own collection. These were said, in advertisements, to have good potential to increase in value.

Trustee Liability

The AAM handbook on Museum Trusteeship that appeared last September (1980) is surprising for three reasons: that it is a thick and informative study with more cohesiveness than any other code, that it proposes higher trustee standards and that it was published at all. It is an honest facing-up to a vexing problem. Being a museum trustee has, until recently, been viewed more as an honor than a demanding oversight post. The Sibley Hospital ruling changed all that. No court has yet entered a monetary judgment against a museum trustee but the position is under attack.

With such a radical change in the perception of their role, it’s not surprising that trustees are confused as to the real nature of their duties. Law professor Merryman says he never met a trustee who understood the full responsibilities of their duties. Charles Brody, an assistant attorney general in New York, who has worked on several museum cases, confirms that view. “It’s all very diffuse and unfocused. Trustees are constantly reacting in amazement as to what they are liable for.”

Museums have traditionally asked people with major collections to sit on the board. The practice raised few eyebrows. Now, however, the handbook notes that extreme price escalation has forced many private collectors to examine their activity in an economic light. Institutions are thus urged to “be aware that a collector may take board membership in order to influence the institution to accept his donations.” No problem if the collection is of museum quality but trickier when it consists of only a few masterworks among the dross. Another conflict, real or apparent, can arise if a trustee/collector can exert pressure to exhibit objects from his collection, thereby raising its value significantly. No dilemma is involved if the museum wants the collection but, if it does not, it may be placed in the position of promoting a collection of questionable quality.

Rather than a single paragraph or an abstract statement on conflict-of-interest liability, the Ullbergs devote seven pages to the issue. Nearly every person in business or public service has potential or actual conflicts. What is important is that trustees recognize the conflicts and acknowledge them “in a timely manner” to minimize criticism and avoid liability.

George F Harding Museum (no-longer-exists)

The trustee/collector must not compete with his museum. They are urged to submit a written statement on his/her collection and his own ambitions upon election to membership. Many museums say their nominating committee looks into this area but, when written statements are not required, trustees may forget or remain in the dark. Trustees must guard especially against acquiring objects from the museum’s collection. This de-accessioning process is most likely to attract the attorney general’s attention and damage the museum’s integrity. Yet, it happened with some frequency in the past decade, with trustees at the Brooklyn Museum, Maryhill Museum and the Museum of the American Indian. An all-too-frequent conflict is the case of a board member who sells goods or services to the museum. Thus, the lawyer trustee lands the museum’s legal business or the caterer provides the food service or the banker handles its investment portfolio. Such practices limit the museum’s autonomy to select and change suppliers and to obtain the best product at the lowest price. In Chicago, the Art Institute’s banking, legal, architectural and investment needs are provided by the trustees’ firms. Representatives of First Chicago and Northern Trust Banks; law firm Eckhart, McSwain, Hassell and Silliman; architects Skidmore, Owings and Merrill and nvestment banker William Blair and Co. sit on the board. There is nothing inherently unethical in such an arrangement but it can invite a negative public perception and charges of self-dealing. The Ullbergs declared that the best protection from liability for conflicts was full disclosure of outside interests. Disclosure should begin before trustees are nominated. This enables boards either to withdraw the candidate or structure the member’s board participation to lessen the conflict. Once on the board, trustees should file disclosure statements every year. As stated earlier, only 2 of 15 museums queried fully met such a standard. Museum officials are divided on instituting such policy requirements. Some see them as sensible rules to protect the collection and best serve the public good. Others feel such full disclosure will scare away many good candidates who may bristle at having their integrity closely questioned or else object to divulging the size and contents of their collections. Many museum directors also see rigorous enforcement of trustee obligations as a political issue and are backing away. They worry that, as trustees grow anxious over potential liability, they may try to gather even more control over operations.Such a move would divert power away from the professional staff to trustees and heavily alter existing relationships among curators, directors and trustees.

Will Codes Work?

Sitting in the audience at the AAM annual meeting as one of the few public members present, I felt like a restaurant eavesdropper overhearing juicy exploits at the adjoining table. Stories of incompetence, manipulation, vendettas and blatant law-breaking filled the air.

Thomas Leavitt, director of the Herbert Johnson Museum at Cornell, opened one panel by relating that a member of the AAM Council told him that, the night before, he was going around collecting certain objects which he planned to offer to his museum at a higher price. Leavitt’s tale illustrated the deeply divided nature of the art world. On one hand, it guards the most beautiful creations left by past forebears and civilizations. It exhibits these treasures for our delight, enlightenment and moral uplift. Yet, on a personal level, it is a world, as museum investigator, Karl Meyer, has written “secretive to the core”.

He wrote that it thrives on “rumors, tips, hucksterism and fads.” Museums exist in close proximity and interaction with an art market that, at its worst, is unregulated, collusive and corrupt. Anyone deeply involved with art museums knows this. Large crowds filled the meeting rooms at Indianapolis to grapple with this dark underside of museum activity. They appeared genuinely angry at the bad light unethical conduct casts on the entire profession and determined to set it right.

Their indignation is one of several signs of optimism. The string of scandals over the past 15 years has caused museums to drop their closed posture, accept their fundamentally public character and open their houses to inspection. Recent disclosures about the operations of museums now constitute an avalanche of information relative to what was known before.

The legal suits and in-house discussions have acted as a makeshift ethical barometer for museum staff and trustees. Whether the codes are rigidly enforced or not, it will prove harder to mask conflicts of interest, conceal transactions for personal collections and accept gifts from dealers and collectors. Ignorance as a defense is vanishing.

Another hopeful sign is that, wherever a scandal strikes, it usually results in tough ethical guidelines being adopted by the embarrassed institution. The Brooklyn Museum reportedly has a strong conflict-of-interest statement. The Greenville County Museum of Art, eager to erase the damage done former director, Jack Morris, has also issued a strong code. Even at museums untouched by unethical practices, a move toward greater self-regulation and accountability can be detected. The Detroit Institute of Fine Arts has taken the initiative and recently drafted its own 24-page “Professional Practices” booklet. The Art Institute of Chicago, in its latest annual report, noted the financial interests of its trustees in transactions with the museum for the first time. No dollar amounts or percentage figures were divulged, as they are in corporate reports, but the practice is an important first step. Many museum personnel see the flurry of ethical activity as salutary. Mary Jane Jacob, chief curator at Chicago’s Museum of Contemporary Art, favors a code for herself and trustees because “we end up dealing with such issues on an ad hoc basis.” James Burke, head of the St. Louis Art Museum, is one director who approves of the changes. “It’s sort of a new thing people are learning about and that is exciting. It’s probablygoing to take ten more years to get agreements

on what a standard level of behavior should be in specific cases.”

There remains a legion of museum staff who resist Burke’s call for positive action. At the AAM meeting and in later interviews, critics say the codes are unable to address all the ways persons can violate ethical standards; the more specific the code, they say, the more problems will emerge. Several developments might cancel the force of any code. The first is the presence of too much imprecise language. More “should” need to be replaced by “shalls” and “mights” by “musts”. Loose talk only promotes confusion and encourages the search for legal loopholes. Codes, by themselves, are not the answer. All the professional breast-beating and mea culpas will be for naught if the codes, once approved, simply gather dust. Unless some disciplinary process is instituted for correcting abuses, the talk of all the professional groups will have a hollow ring. The AAM has not been successful on this matter. Museums jealously guard their rights and have not given their own association power to independently enter any local disputes. Unless museum staff can, in the words of Michael Botwinick, Brooklyn Museum’s director, “go to mommy” to resolve disputes, the outlook is not promising. Scott Hodes, a Chicago attorney who is involved in art issues and is a board member of Lawyers for the Creative Arts, views the codes as unenforceable because the AAM has no power to punish. Codes will be seen as diversionary if they are not enforced. Sound and fury signifying nothing. If that perception gains ground, museums will have killed their best hope for remaining self-regulated.

Up to now, museum codes have been more for public consumption than personal practice. Lawyers involved with the art world, such as Hodes, are aware of the gap. They say that only case law and legal action by state attorney generals will force museums into line. Hodes explanation for why no strong preventive or punitive action has been taken over the past decade: “No one’s bled yet”.

A difficulty with regulating trustees arises because museums frequently are treated as charitable trusts, while they may be charted as not-for-profit corporations. Under the stricter standard, a trustee is held liable for mismanagement for simple negligence of his trust, while the more lenient “prudent man rule” of corporate law holds that a director must be guilty of gross negligence to be legally liable. It requires that only diligence be employed and that the director’s best judgment be exercised. A trust standard also disallows any form of self-dealing.

WHO OWNS MUSEUMS?

Norton Simon Museum

Though codes alone will not save the art world, the strongest argument for their adoption relates to the public trust nature of museuthese guidlinesms. Museums are not the owners but only the guardians of the objects within their care. What museums are doing in codes of conduct is acknowledging that fiduciary role. Codes are a way museums keep faith with the public trust. Right now, they enjoy the munificence of federal and state arts agencies and the adulation of increasing audiences. Yet, the issue of trust is fragile. Once broken, it is exceedingly hard to recapture.

George Seyboldt, chairman of the National Museum Services Board, spoke recently about the special place museums hold in the public eye. “Museums are booming all over the world,” he told a reporter. “People feel museums are honest. They have had their confidence shaken by politics, business, even the press, so museums are an intellectual and emotional refuge. They reassure people that the world has gone on for a long time and produced many marvelous things.”

Tamper with that trust and a museum rends its social contract with the public.Yet tampering is exactly what museums are doing by leaving enforcement to the conscience of every staff member and trustee. Such a laissez-faire attitude does nothing to reduce the depressingly common outbreak of shady dealings. Each scandal runs the risk of legal action. To date, museums have been spared the shame ofairing their soiled linen in public and very little case law has been issued. Museums have relied less on their own efforts than the reluctance of attorney generals to prosecute.

Pending lawsuits against museums and trustees may result in clearer, mandated guidelines that will make future prosecutions easier. The longer continue to ignore or give tepid support to the new codes, the greater risk they run of legal action and of having to live under more onerous legal mandates. The tragedy to be avoided is to have museums go the way of politics, business and the press in the public’s regard. If they join that trio, they will have mortgaged their moral authority, their most precious asset. What would happen if a museum hung a masterpiece and nobody came? That is the question buried deep within this issue. Let us hope we never find out.

Tom Mullaney

When this analysis appeared in the February, 1982 edition of the paper, Tom was a contributing editor who had written on other art topics, including coverage of the Harding Museum trial, the IRS’ Art Advisory Panel and the sale of the Graham Foundation Library. Surfaces of Control:

Volume 31 number 1, September / October 2016 pp 11-20

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