by Emily Behzadi*
With the musical chairs of museum and auction house directors moving from one institution to another, series of announcements about Miami art museums losing their directors in quick succession seems distressing. How important is it to have a director and how long can an institution survive with an interim leader at the helm?
A growing trend in museum management shows the likelihood of directors moving from one institution to another. However, this is particularly alarming as a large number of museums in Miami, one of the art world’s most prominent cities, have or will have concurrent current vacancies in 2015.
Over the past decade, Miami has become one of the premier destinations for contemporary art. Miami boasts several museums in its orbit, which cover a broad range of interests. However, four of Miami’s museums experienced directorship successions in the past year. On February 11, 2015, Suzanne Weaver, former-interim director of The Institute of Contemporary Art (ICA), stepped down just over four months after her arrival. The reason for her departure is a mystery. The Pérez Art Museum Miami (PAMM) has been without a director since March of 2014. Its past director, Thom Collins, stepped down last March to become executive director and president of the Barnes Foundation in Philadelphia. Furthermore, Cathy Leff, the former director of Florida International University’s Wolfsonian Museum, has been absent for nearly a year. Lastly, the Cisneros Fontanals Art Foundation (CIFO), is absent a director after Jesús Fuenmayor, who led the organization for less than three years, left.
With this news, a formidable question to answer is how important is it to have a director and how long an institution can survive with an interim leader at the helm. A director must wear many hats. He or she must be a shrewd business person, an art scholar, a teacher, a publicist and fundraiser. In today’s wavering financial climate, museum leaders are moving more to fields of business or administration than to the arts. A reason for this may be that museums are conspicuously trying to employ strategies to raise funds and widen their audiences.
The management’s knowledge and skill can be beneficial or detrimental to the health and survival of the museum. For example, the Corcoran museum faced a plethora of legal difficulties due to “peculiar and egregious mismanagement,” according to the Save the Corcoran (STC) coalition. Some of Corcoran’s officers, such as the former chief operating officer, Lauren Garcia, were not trained and educated in the arts or museum management. Perhaps this is one of the many reasons the museum faced years of financial and management troubles before ultimately closing in 2014.
Furthermore, although many of the responsibilities of a director, such as overseeing the museum’s policies and assets, are shared with an institution’s trustees, the director has its own responsibilities. A director’s role varies according to the mission of the museum. The museum director’s role is not limited to the programming of the institution. The director has its hands in many aspects of a museum’s day-to-day operations. Although the board of trustees is important in evaluating a museum’s acquisitions and dispositions, a director acts as the figurehead and the chief administrative officer of the institution.
The director must not only see that the institution’s operations are running smoothly, but also must manage the trustees’ expectations and demands. Without a director at the helm to run the museum, the future of an institution is uncertain. This is evident in the case of CIFO, which is an institution that does not have a board of trustees or an endowment and relies solely on the management of a board of directors and the president.
Most notably, the director is in charge of fundraising. The director’s fundraising practices must be in compliance with the professional standards articulated by the Association of Art Museum Directors (AAMD). This includes avoiding any fundraising practices that could damage the public’s trust. The director serves as a figurehead at donor fundraising events and represents the museum to potential donors. Successful directors must be able to secure private funding in order to keep an endowment, which ultimately ensures the survival of the museum.
For example, PAMM’s absence of a director comes at an especially precarious time as its endowment is currently at $14 million, which is well below its announced target of $70 million. This is difficult because PAMM now must struggle to compete with ICA and Miami’s other institutions. Likewise, a vacancy at ICA is problematic because the institution needs a mouthpiece to obtain funding for its new facilities, which the museum purports will be ready by Art Basel 2016.
As briefly mentioned above, directors and the museums they govern must abide by a set of codes of ethics, policy statements and guidelines of the American Association of Museums (AAM) and the AAMD. The director is responsible for staff appointments, in which the AAMD emphasizes a director “should build and sustain a high level of morale and productivity.” If a director does not “[uphold] the highest standards of professional practice and ethical conduct,” he or she is subject to censure and or a sanction by the AAMD. For example, the former director of the Wolfsonian, Cathy Leff, was rumored to have left in April 2014 due to complaints of her creating a “hostile work environment” and inappropriate behavior towards her employees. If true, she and the museum may be subject to censure and/or sanctions by the AAMD.
Additionally, the AAMD holds the director responsible for the “daily monitoring of the institution’s compliance with laws and regulations. Legal matters that arise in the operation of the museum include those concerning the collections, exhibitions, personnel and labor relations, contracts, governance, finances, facilities, taxes, rights and reproductions, and events. The museum also has legal counsel, who is available to advise on general and specific matters. According to the AAMD, the board, the director, and general counsel all work together “to share current information about legal issues and legislation relevant to the institution and museum standards.”
A museum can face legal troubles if its management is not run correctly. The management of a museum relies on a director, a board of trustees and a curatorial staff. Museum trustees and some directors owe fiduciary duties to the museum in order to further its enumerated nonprofit and charitable purposes. These duties are divided into two categories: the duty of care and the duty of loyalty. A fiduciary’s duty of loyalty entails the obligation “to remain loyal to the purpose of the charitable or nonprofit organization.” Thus, the fiduciary must give to the public the benefit to which the entity earned its tax-advantaged status, i.e. the educational value of a museum. These purposes should be articulated in the organization’s incorporation documents and bylaws which the fiduciary must work to carry out.
The fiduciaries also have an obligation to exercise reasonable care and diligence in the management of the museum and its assets. If the fiduciaries fail to do this, they may be liable for negligence to the beneficiaries of the trust or for financial losses due to the mismanagement. This duty may be comprised of many aspects including the duty to take possession of and to protect the trust property, the duty to make the trust property productive through prudent investment, and in some cases, to sell trust assets to render the trust more profitable. For example, the Delaware Art Museum in March 2014 decided to sell up to four works from its collection, “to right its finances and save the museum from closing.” This is a particularly contentious issue because it is acceptable for museums to sell works of art in order to buy other works, however, selling works to pay for operations is regarded as an ethical violation. Issues may also arise in regards to the proper investment of institutional funds and accounting.
In the absence of a director, the board of trustees is responsible for operating the museum in a fashion that complies with its mission and incorporating documents. This may be especially hard to do if the director is in charge of the day-to-day tasks of an institution. The trustees may not be equipped to adequately complete these tasks. This is because although the trustees and the director share some of the same tasks and responsibilities, the trustees are only present intermittently. For example, the board carries full responsibility of investment policies, however, the director prepares the budget of the museum with the hands on knowledge of the museums daily expenditures. Thus, the fiduciary duties to the public could be breached in the absence of a director, putting the management of a museum into peril.
Sebastian Smee, Pulitzer Prize-winning art critic for The Boston Globe, claimed in an interview with Radio Boston, that directors cannot just be art lovers and scholars; they have to be visionaries and fundraisers. In the end, it is easy to conclude that directors are massively important to the management of a museum. Although they share responsibilities with the trustees and curators, they contribute to the funding and programming of an institution, which are two of the most important aspects of running a successful museum. The museum industry is self-regulated through its own membership in professional membership programs such as the AAM and the AAMD. Museums are self-regulatory in function; as such they have the discretion to determine whether in the absence of a director, they are complying with their individual organizations’ mission and purpose. The absence of a director may impact the prosperity of the museum and raise doubts among those benefiting from the public trust. Again, this also depends on the contractual duties the board entrusted upon the director’s position.
Legal issues in Museum Administration are varied and few, if any, are specifically art related. The director’s duties are just one of many issues that lawyers in the field of art law will need to know to diligently represent potential clients in the museum administration profession. The annual conference on the subject of “Legal Issues in Museum Administration” (scheduled for DC in Spring 2015) will cover employee diversity, visitor access, fair use developments and trends, copyright (global and virtual), managing collections and financial challenges, social media and technology, authentication, museum mergers, tax and legislation updates, federal grants updates and strategies for gift agreements.
As for the museums currently without directors or with interim directors, best of luck with the interviews.
- Jennifer Donnelly, The CEO Art Museum Director: Business as Usual?, Transatlantica, Dec. 15 2010, http://transatlantica.revues.org/5044
- Mary Hiland, Effective Board Chair-Executive Director Relationships: Not About Roles!, Nonprofit Quarterly, December 21 2006 https://nonprofitquarterly.org/governancevoice/584-effective-board-chair-executive-director-relationships-not-about-roles.html
- Patty Gerstenblith, Art, Cultural Heritage, and the Law (Carolina Academic Press 2012).
- Professional Practices in Art Museums, Association of American Museum Directors, 2011 https://aamd.org/sites/default/files/document/2011ProfessionalPracitiesinArtMuseums.pdf
About the Author: Emily Behzadi is a 3L at Georgetown University Law Center.