The International Journal of Museum Management and Curatorship (1987) 6,407-409

Legal Notes

An Introduction

DOUGLAS A. JOHNSTON

There is a lesson for museums in the account of the duelist who, as it began to rain, stopped in mid-pace, withdrew to his carriage and returned with an umbrella though it would clearly interfere with his aim. His explanation: ‘I do not mind getting killed, but I do mind getting wet.’ When it comes to legal concerns, museum priorities seem, like the duelist’s, directed at the avoidance of a perceived nuisance while ignoring fatal consequences. Neglect of legal matters jeopardizes not only the museum’s treasury but also individual programs and the hard-won support of donors and government.

Habit is in part the explanation. Stephen E. Weil, Deputy Director of the Hirshhorn, has identified the problem as a ‘nostalgia for when museums held themselves beyond questioning, the only regulations they knew were postal and their staffs thought it dignified to be underpaid’. But he and other legal scholars have found that only part of the problem. They recognize that museums are neither creatures of habit nor victims of nostalgia but exploit modern advances in conservation, education, and development. However, whilst each advance carries with it its own legal problems, there is seldom an appropriate level of legal inquiry made by conservators, educators, and development officers. Modern professional standards are met in other areas while legal resources are called upon infrequently, and then only in emergencies. Hamlet’s question, ‘Is it better to sleep or to take arms against a sea of troubles and by opposing, end them?’ is one echoed by lawyers concerned about museum operations. When it comes to the sea of legal concerns, museums no longer have the luxury of choice. The law is clear.

In contracts the law assumes you will be attentive to legal details. The agreements you write, whether in a letter or a formal contract, if ambiguous in any important way, will be construed against you. It is assumed that you had the opportunity to clarify precisely what was meant. Judges assume that you knew the contents and effect of agreements that someone else wrote and you signed. When a contract dispute arises, there is no comfort in the response that ‘I didn’t know that was what it said’, or ‘I didn’t intend that to be the result’. Similarly, government regulations are a part of museum operations for which ignorance and good intentions are no defense. The law assumes your knowledge of all pertinent regulations. Taxing authorities, for example, make you responsible for most of the efforts to convict you, when they believe you may have broken a law. You have the duty to detect your own violations, to collect the evidence against yourself and to present it to them for your punishment.

Other legal assumptions control museums in matters of safety responsibilities and in the rules governing liability of officers and directors. Where museums ignore potential problems, directors are responsible anyway under the ‘you should have known’ rule. Even if they were unaware of the danger, the museums will still be liable if the danger was one that normal inspection or inquiry ‘should have’ revealed. Intensification of

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408 Legal Notes

safety and maintenance duties, as well as closer scrutiny of documents and audit reports, will avoid failures in these areas.

Judith L. Teichman, Deputy Director of the Asian Art Museum of San Francisco, finds the question most frequently asked of museum lawyers, even by other lawyers, is ‘What kind of legal problems do museums have 2’ The question is asked in a tone which suggests a belief that museums are quiet backwaters of society where tranquility and harmony reign. The fact is that museums are like any other institution active in the mainstream of society and they have the same legal problems as other property owners, employers and taxpayers. However, in addition, museums have special concerns arising from their special legal status as charitable corporations and tax-exempt corporations. For example, the standard of care of the board lies somewhere between the business judgement standard of an ordinary corporation and the much higher standard of a charitable trust. ‘It is possible for a trustee to do his best and yet his best may not be good enough,’ Marie Malaro, Director of Museum Studies, George Washington University, reminds us.

What is routine for businesses or individuals has greater complexity when done by a museum. If individuals want to sell property, they find a buyer, agree on a price and close. If the deed is good and the check is good, the deal is made. Not so for museums which may only use museum assets for the benefit of the group that is the beneficiary of its charter and trust agreements. If the institution is publicly supported, additional regulations may apply. Special complexities also arise in purchasing buildings, artifacts, and supplies, and in borrowing to finance acquisitions. We can all think of countless situations where we have felt, ‘It could not possibly require all this red tape.’ But why do lawyers make things so needlessly complex? This question suggests a self-delusion of museums about why legal concerns should be avoided: lawyers complicate matters and interfere, believing themselves to be experts in the field of museums. In fact, lawyers are often astounded and astonished at board meetings by the vast powers which repose in museum directors and their boards, and find it very difficult to believe that it can really all be happening. What management must understand is that lawyers do not make the laws; they only identify those applicable and help to find ways to comply with them.

Where museums take the trouble to obtain legal services, lawyers can be a day-to-day part of the management team. The lawyers who are most valuable to the museum are those who are expected to assume duties beyond the traditional chores of drafting, negotiation, and litigation. Working with directors, they facilitate the development of programs by providing safeguards against the legal pitfalls of untried procedures. As they are more and more involved in museums, they improve in their ability and increase each administrator’s efficiency and flexibility. Furthermore, lawyers, as part of a team, need not interfere. There is no mandate for the legal ‘tail’ to wag the museum program ‘dog’. All good lawyers, for a museum or otherwise, know that though they may know more law, they are there to serve the client.

If this is true, why the continued resistance to confronting museum legal problems? If it is not the lawyers, though frustrating; if it is not the law, though complex; and if it is not nostalgia or lack of forward thinking museum professionals, what is the cause? It is not in the stars; it is in ourselves. It is a lack of curiosity, bred of habit and fear. Museum boards lack curiosity about the legal implications of museum government; museum administrators lack curiosity about the legal implications of museum management. Museums still pay insurance premiums without knowing what their liability really is. Their boards still approve minutes without asking why. Ironically, curiosity is not favored in management of those very museums where, of all places in society, hostility to

curiosity can be and is defied.

Legal Notes 409

What then could be more natural than to extend this curiosity to the implications of law in museum management and governance ? The museum accrediting process encourages this through requirements for appropriate policies and procedures for every important museum function. Specific help is at hand through seminars on legal problems of museum administration, as well as legal sessions at the annual meetings of museum groups. There are scholarly and readable publications by M. Malaro (A Legal Primer on Managing Museum Collections), by M. E. Phelan (Museums and the Law) and by the Ullbergs (Museum Trusteeship). Stephen Weil, Peter Powers, Nicholas Ward, Suzanne

Dupre Murphy, Beverly Wolff, Phillip J essup, and Robert Dierker have established the standards for competent, effective, non-interfering museum counsel. The involvement of law schools and attorneys general is growing, exemplified by the work of Leonard DuBoff, Robert Lind, Jill Cooper and Daniel Kurtz. All of these have contributed to a strong foundation of what can properly be called ‘museum law’. It is expected that this column will draw on their experience and the experience of others to give the fruits of their efforts still wider dissemination.

Art, science and history museums, respectively, reveal the mysteries of form, matter, and time. It is likely they will do these jobs better by not avoiding the mysteries of the law.

Editor’s Note

Legal Notes will be published regularly from March 1988 (Volume 7 No. 1) and Douglas A. Johnston, Assistant Attorney General, State of North Carolina, would be grateful to readers for suggestions as to suitable persons to form his advisory panel (Department of Justice, PO Box 629, Raleigh, North Carolina 27602, USA; (919) 733-6876).