Art-Wash: Regulations of Museums, Donors, and Board Members

July 8, 2019

By Jacqueline Crispino.

Museums are no strangers to scandals and protests. Controversies arise monthly, and have ranged from the ratio of men to women artists displayed to the stained reputations of curators. In the past few months alone, the Metropolitan Museum of Art, the Guggenheim, the South London Gallery, and other museums have announced that they will cease to accept gifts from the Sackler family due to their connection to Purdue Pharma and the opioid crisis. The Whitney Museum and the American Museum of Natural History are also now facing criticism for their board members’ connections to what many might consider controversial political activities.

These recent scandals raise questions of regulations and ethics in museum administration: do museums need to create new regulations? Are board members, donors, trustees, or museums themselves breaking any existing rules? What sort of regulations do inter-museum councils and individual museums use to self-govern and are they working? Is an individual’s reputational harm enough to remove him or her from the list of donors? Some people, including Oregon Senator Jeff Merkley, seem to think so. Finally, should there be better guidelines from the IRS or from other organizations in the federal government to govern or restrict the activities of board members?

PART I – Board Members: Talking Details

Currently, various inter-museum organizations offer basic regulations governing funding and responsibilities, but they provide only vague guidelines on how museum employees and those associated with the museum should behave.

The American Alliance of Museums (“AAM”) is one of the organizations that offers funding guidelines and governing regulations for museums.^[1] Given that these guidelines were published in 1993 and updated in 2000, the question stands as to whether these policies are unenforceable or simply unenforced to the extent that the behavior of museums and museum board members violates them. Under “accountability” in the section on Public Trust and Accountability, the AAM requires that “the governing authority, staff, and volunteers legally, ethically, and effectively carry out their responsibilities.”^[2] Essentially, the AAM expects museums to self-govern. Furthermore, the “governance” section in the Code of Ethics for Museums states that museum governance should ensure that “all those who work for or on behalf of a museum understand and support its mission and public trust responsibilities” and that “it is responsive to and represents the interests of society.”^[3]

Similarly, the International Council of Museums (“ICOM”) code of ethics contains a section titled, “Professional Conduct,” which requires museum employees to adhere to “fundamental ethical principles applicable to the profession as a whole.”^[4] It also requires them to understand “that no private business or professional interest can be wholly separated from their employing institution.”^[5] The Getty, one of the few museums that provides ethical guidelines for its trustees, focuses on preventing a potential conflict of interest between the trustee and the Getty. However, it does not specify a code of ethics for anything other than financial competition.

Although the AAM, ICOM, and the Getty have some form of regulations, reforming museum administration to better conform with these regulations does not seem to be a priority for museums. The closest topics that the American Law Institute-Continuing Legal Education (“ALI-CLE”) discussed at their March 2019 conference on Legal Issues in Museum Administration in D.C. were “Morality and Museums,” “Legal Ethics and Professional Responsibility,” and “Museums and the First Amendment.” Even the ARFI Seminar in 2018, which occurred after many of the allegations against the Whitney and the American Museum of Natural History came to light, does not seek options for reforms.

The Case of the American Museum of Natural History

Last year, over 400 scientists and members of the general public signed an open letter encouraging the American Museum of Natural History to remove Rebekah Mercer, a politically active climate-change-denier, from the board of the American Museum of Natural History. They wrote, “We ask the American Museum of Natural History, and all public science museums, to end ties to anti-science propagandists and funders of climate science misinformation, and to have Rebekah Mercer leave the American Museum of Natural History Board of Trustees.”^[6] This incident follows that of David Koch, a fellow trustee at the same museum who resigned after protests against him arose in 2016 for his connection to lobby groups that deny humans’ role in climate change. While some could argue the AAM’s Code of Ethics guidelines that provide that museums need to represent the “interests of society” are applicable to the American Museum of Natural History case, others could argue differently.^[7] For example, the climate change protestors here arguably represent one sector of society. Climate-change deniers, such as Mercer, represent another, although smaller, sector of society.

Two of the protestors, James Powell and Michael E. Mann, co-penned an article in February of 2018 in favor of removing Mercer. They argued that removing Mercer from the board would be neither be partisan nor a political move, because her activities directly contradict the mission of the museum which prides itself on science education; the official mission of the museum is to “discover, interpret, and disseminate – through scientific research and education- knowledge about human cultures, the natural world, and the universe,” and it is quite apparent that Mercer’s political activities are contradictory with the realities of science and nature.^[8]

Although Mercer does not represent the museum itself and is not an employee of the museum, she is connected to the museum and its reputation through her position as a trustee. As such, Mercer is supposed to show a duty of loyalty, prudence, and impartiality to the museum, contrary to a simple employee.^[9] As noted above, ICOM argues that a museum employee is never fully separated from their museum.^[10]

The Case of the Whitney Museum

In a case similar to that at the American Museum of Natural History, several of the Whitney board members are purportedly connected to political causes that may be viewed as being antithetical to the progressive nature of the Whitney Museum. They include Warren Kanders, Nancy Crown, and Pamela DeVos, all of whom are vice chairmen of the Whitney Museum. Unlike the Mercer situation, however, their activities arguably are not in opposition to the stated mission of the Whitney Museum which is dedicated to “collecting, preserving, interpreting, and exhibiting American art, and its collection” with a focus on living artists.^[11] Warren Kanders is the owner of Safariland, a weapons manufacturer that supplied the Trump administration with tear gas at the Mexican border.^[12] Nancy Crown owns shares in General Dynamics, which has been shown to be connected to the child detention centers at the Mexican border, and Pamela DeVos, the sister-in-law of Secretary of Education Betsy DeVos, has donated millions of dollars to rightwing candidates, including almost all of the Republican congressional candidates in Michigan.^[13] Some argue that the DeVos’ money has directly contributed to stifling the rights of immigrants, labor unions, and LBGTQ individuals.^[14] Yet, none of these board members’ activities directly interferes with the Whitney Museums’ stated mission.

Similarly, while AAM rules allow museum employees to advocate and lobby for specific causes, they do not permit them to endorse or oppose specific candidates. They are also not permitted to “directly or indirectly participate in any political campaign on behalf of (or in opposition to) any candidate for elective public office.”^[15] Similarly, board members cannot support or endorse candidates for public office, unless they are acting “in their individual capacity.”^[16] AAM rules are likely silent on political activism for board members to encourage political pluralism. Reynold Levy, Lincoln Center’s ex-president once stated, “As long as the mission and important portions of the programme [sic] are supported by the trustee, what they do in the political world shouldn’t be relevant.”^[17] Furthermore, setting limits on the board members’ actions might infringe on an individual’s freedoms and first amendment rights.

From a technical perspective, Kanders, Crown, and DeVos actions did not violate the AAM guidelines because they acted in their capacities as individuals. Protestors, including museum employees and Whitney Biennal artists, have argued that board members involved in controversial anti-immigration policies do not belong on the board of a progressive museum, and penned a letter to the “leadership at the Whitney Museum” encouraging the board to ask for Kanders’ resignation. However, it would be a stretch to argue that Kanders violated the AAM guidelines.

In December 2018, Adam Weinberg, the director of the Whitney, responded by saying that Whitney “cannot right all the ills of an unjust world, nor is that its role” and that museum staff and board members must show each other “mutual respect, fairness, tolerance, and freedom of expression.”^[18] Even though some of the protestors had personal connections to immigrants on the Mexican border and, consequently, were morally opposed to Kanders’ political beliefs, museums serve the interests of the public as a whole, per the AAM Code of Ethics.

Yet, the “interests of the public” is a vague standard and can have different meaning based on one’s political and cultural standards. However, if a museum’s board members engage in activities considered controversial to a large portion of the public, it may harm the museum’s reputation, especially when it comes to museum donors’ political activities. political activities of museum donors. Since museums are private, self-governing organizations, they are responsible for the composition of their boards and have to self-enforce the AAM rules.

PART II – Donors, or The Problem of History (And Robber Barons)

Besides controversies involving museum board members, there have been numerous instances involving public protests against museum donors. From a protestor’s perspective, this tactic has proven to be more successful than seeking to remove board members. However, many museums are still reluctant to refuse large donations except in the face of public protests.^[19] Their reluctance is likely due to the necessity of private contributions. This has a hidden side commonly referred to as “art-wash”, when “robber barons” – wealthy individuals who acquired money and power through questionable means – turn to museums to rebuild their reputation.

How Do Regulations Apply to Museum Funding?

Museum contributions primarily takes two forms: cash or art (in-kind) donations. Museums tend to have clearer laws regarding what types of gifts they can accept due to court cases such as the case of United States of America v. approximately four hundred fifty (450) ancient cuneiform tablets et al.^[20] Ultimately, the Museum of the Bible was forced to surrender their antiquities after federal authorities deemed that they had acquired them contrary to custom laws and that their antiquities dealers in the Middle East had lied about the items’ origins.^[21] The Museum of the Bible now requires under its “Acquisition Policy” that all objects they accept have a “satisfactory provenance” given the museum’s possession of looted objects when the museum first opened.^[22] The Met updated their guidelines in May 2019, as a result of the allegations against the Sackler family, aiming at formalizing the review process for significant gifts to the museum, thereby creating more transparency. Yet, The Met still trusts its board members to use their “best judgement” without elaborating more specific guidelines or rules on the qualifications of donor.^[23] On matters of funding, the AAM states that:

A museum should determine whether it will exclude any business or category of business because of the business’s products and services, taking into consideration the characteristics, values and attitudes of its community and audience, discipline and mission. Consequently, individual museums are given the freedom to determine with whom to do business; their unbiased judgement is expected. However, the guidelines for museums are vague; more specific requirements regarding background checks of donors would save museums the potential embarrassment of public protests later.

The Case of the Sacklers

One of the most famous current examples of funding involves the Sackler family. The Sackler family has been accused of starting the opioid crisis, which has led to thousands of deaths in the U.S., making it one of the primary causes of death.^[24] Although the Sackler family denies the allegations, many museums and organizations are still hesitant to be associated with what many consider “dirty money.”^[25] So many museums have rejected their family’s money that the Sackler Trust and the Dr. Mortimer and Theresa Sackler Foundation decided not to engage in philanthropy for the time being. As recent as May 2019, The Met publicly stated that they would no longer take funding from the Sackler family; it even updated its gift policy. This decision followed similar decisions of the Tate Modern in London, the Solomon R. Guggenheim Museum in New York, and the American Museum of Natural History. Met President Daniel Weiss announced that taking money from the Sacklers was no longer in the public’s or the museum’s interest. Yet, The Met has no plans to change the name of its large Sackler wing, likely signifying that the change occurred to protect its reputation and not because of any moral objections the museum leadership felt against the Sackler family.^[26] The Smithsonian Institution revealed earlier this week that they will also keep the Sackler name on their museum.^[27] Furthermore, as the vague ethics rules discussed above imply, the Met did not break any of its own rules by taking money from the Sackler family.

Other similar instances of protests against funding sources include protests against the Amsterdam’s Van Gogh Museum for accepting money from Shell, which protestors argued contribute to climate change, and protests in England that the British Museum still takes “tobacco money.” Just last week, protestors at the Louvre demanded that the museum remove the Sackler family name from one of its wings. The issue of museum funding is worldwide and guidance from the ICOM and other bodies could lead the way in establishing more specific rules for museums to follow.

Potential Consequences of Stricter Rules

Stricter rules on funding, however, would bring its own complications. Museums are private organizations and likely would find it difficult to enforce strict funding rules unless individual museums created their own. Museums need all the support they can get, especially in the United States, where the federal government is trying to decrease funding for the arts. Stricter rules on donor funding could lead to less donor support and clearer rules on board members’ political activism could lead to a decreased interest in serving on museum boards, and therefore less support for the museum and less political diversity in board members.

The Absence of Legal Precedent?

Although there is a lack of direct precedent, there are a few cases related to the resignation of board members or trustees, who were sued for breach of trust. Such cases could be the basis for disqualifying controversial museum board members – with caution. In the case of Summers v. Collette, the trustees of a charitable organization were permitted to sue each other for breach of trust.^[28] A future case could emerge if a board member’s outside activities are deemed not in the best interest of the museum and another board member or a protestor seeks to force him or her to resign from the board. To take legal action, protestors would have to prove that trustees and board members are not carrying out duties in good faith and that their behavior is grossly against the interest of the museum and its policies. More importantly, the protestors would have to prove that their claims go beyond politics to establish that it is not possible for the board member to serve in good faith.

The More Rules, The Better?

Creating broader regulatory guidelines would allow museums to minimize future scandals and protests about board member’s activities, which would ultimately maintain the respectable reputation of museums in the eyes of the American public. Such broader guidelines likely will include self-enforcement by the museum. In the absence of effective self-regulation, it is likely that museums would face regulatory oversight from an external source. Such oversight already exists in regards to these activities, such as regulations in place to prevent money laundering.

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^[1] AAM Code of Ethics for Museums, 2000, American Alliance of Museums.

^[2] Ethics, Standards, and Professional Practices, American Alliance of Museums (2019).

^[3] AAM Code of Ethics for Museums, American Alliance of Museums (2000).

^[4] ICOM Code Of Ethics for Museums, International Council of Museums (2006).

^[5] Id.

^[6] Open Letter from Scientists to the American Museum of Natural History, The Natural History Museum (January 25, 2018).

^[7] AAM Code of Ethics for Museums, American Alliance of Museums (2000).

^[8] The Museum’s Mission, American Museum of Natural History.

^[9] Trustee Duties and Liabilities, Justia (2019).

^[10] ICOM Code Of Ethics for Museums, International Council of Museums (2006).

^[11] About the Whitney, Whitney Museum of American Art (2019).

^[12] Zachary Small, A Closer Look into the Whitney Museum’s Board, Hyperallergic (May 7, 2019).

^[13] Jonathan Oosting, DeVos family pumps big bucks into GOP campaigns as Dems bemoan influence, The Detroit News (November 1, 2018).

^[14] Small, A Closer Look into the Whitney Museum’s Board, Hyperallergic (May 7, 2019).

^[15] Ember Farber, YES, You Can Advocate! What Nonprofits Can and Can’t Do, American Alliance of Museums, (August 22, 2018).

^[16] Id.

^[17] Adrian Ellis, Museums in the Changing World Order: A Question of Ethics, The Art Newspaper (February 22, 2019).

^[18] Caroline Goldstein, The Whitney ‘Cannot Right All the Ills of an Unjust World,’ Artnet (December 3, 2018).

^[19] Daniel Penny, The Artist-Activists Decolonizing the Whitney Museum, The Paris Review (March 22, 2019).

^[20] 1:17-cv-03980 (E.D.N.Y. filed July 5, 2017).

^[21] Id.

^[22] Guest Policies, Museum of the Bible.

^[23] Gift Acceptance Guidelines, The Met (May 14, 2019).

^[24] Ian stewart, Report: Americans are Now More Likely to Die Of An Opioid Overdose than On the Road, NPR (January 14, 2019).

^[25] Elizabeth A. Harris, The Met Will Turn Down Sackler Money Amid Fury Over the Opioid Crisis, The New York Times (May 15, 2019).

^[26] Id.

^[27] Smithsonian Institution Will Not Remove Sackler Name from Asian Art Museum, Artforum (July 2, 2019).

^[28] 246 Cal. Rptr. 3d 116 (Ct. App. 2019).

About the Author: Jacqueline Crispino is a Summer 2019 intern for the Center for Art Law. She is a recent graduate from Georgetown University with a double major in classical studies and history. She will join the Berkeley Law Class of 2022 this fall. Jacqueline can be reached at jc2454@georgetown.edu.