LETTERS
At the invitation of the editors, Monroe Price, professor of law at the University of California, Los Angeles, submitted the following letter. Professor Price helped to establish a Los Angeles program to provide free legal services to artists and art organizations and has followed the Pasadena situation for some time.
To The Editor:
John Coplans’s article about the Pasadena Museum in February’s Artforum is primarily a saga about people: about trustees who were weak or guilty of bad judgment or not sufficiently knowledgeable, about a succession of directors who were well-intentioned but (with some notable exceptions) not tough-minded enough to counter the board, about a very smart businessman who saw a superb opportunity and appropriately took it when it suited his needs.
What interests me is the legal and institutional framework in which this drama took place. Assuming the trustees of the museum were inadequate to the task, what mechanisms were there or should there have been to assure that the public would be better served? What limits should there be to the ways in which we have insulated charitable institutions from scrutiny and legal challenges? What are the rights of individuals, not on the board, who contributed substantially to the development of a particular kind of museum? How free should the trustees be to change radically the direction of an institution?
First, some comments on the accountability of boards of trustees. In California, as well as in most states, the activities of nonprofit institutions can be reviewed by the attorney-general who has the power to protect the assets of charities so that they are not wasted by the board and to assure compliance with the purposes of the trust. In New York, the attorney general has begun to use his powers to assure regular deaccession policies by museums.
In California, when a charity dissolves and transfers its holdings to another charity, it must obtain the approval of the attorney general. Even when it goes out of business, a charity must, to the extent possible, honor the intentions of donors to the institution and the purposes that it has declared for itself. The Board of the Pasadena Museum did not take this step. I would argue that there was, in effect, a dissolution of the Pasadena Museum of Modern Art, and a transfer of its holdings (works of art and a building) to another charitable corporation, one controlled by Mr. Simon. The press releases tried to mask this fact. While the old board announced that they had “dramatically expand(ed) the scope of our Museum,” it would have been truer to say that the museum had closed and another was coming in to take its place. The trustees attempted to avoid accountability by their own characterization of the transaction.
If the old board failed to protect the holdings of the museum, it could be held accountable. Before they moved into the new building, for example, the Pasadena Museum deaccessioned a large number of works in a manner that approximated a garage sale. If the management of the trust, including deaccessioning policy, followed this pattern, attorney general intervention would have been and might still be appropriate. Indeed, it is said that the Simon staff, when it came to audit the museum’s holdings, was disturbed at the state of order in which accounts were kept.
Conflicts of interest in museum direction and management are also worthy of inquiry. Should trustees or professional staff be precluded from collecting art that is increased in value by the museum’s program? Undoubtedly there will be an audit by the new board of all outstanding commitments to the museum, including promised gifts of money and paintings. The attorney general should require full disclosure of such promised future gifts, particularly where they are by persons associated with the Norton Simon Foundation. In some instances, a member of Mr. Simon’s family may have made promised gifts to the institution or commitments in which a life estate was retained. Without disclosure, there is always the danger of a conflict of interest weakening the will to collect.
In the absence of a better protector of charitable trusts, the role of the attorney general is vital. I believe that the attorney general’s office should be notified on each occasion a major action is to be taken that substantially alters the purposes of the museum or affects the assets of the charity. A major shift in control of the board, accompanied by a substantially changed agenda for the museum, is the kind of action that should be approved by the attorney general to assure that it is consistent with the museum’s purposes.
This is not to say that the attorney general is an expert on art or that the power should be used in a heavy-handed manner. Rather, it must be recognized that if the attorney general has no review, then there is virtually no constituency to which the board is answerable. A self-perpetuating board, like the Pasadena’s, can become tired and give up, it can transfer assets, it can change directors at will, it can gamble wildly on a massive new building with no check. There is no group, such as shareholders, that can change the board. There is no political unit that can replace designated trustees with fresh talent. Unfortunately, conscience and goodwill are not adequate protection for important institutions such as museums. Service on a board of trustees is an aid to the public. It cannot be made too cumbersome. On the other hand, if a group undertakes a trust responsibility, there must be adequate standards and adequate sanctions.
One difficulty with dependence on an attorney general is that the strength and interest of the office vary from state to state. Most such officers have not given the policing of charities a high priority. Another answer to the problem of accountability is to increase the power of others in society to hold the board to adequate standards. From the attorney general, one must turn to other interested parties: donors, artists represented in the collection and the general public. In the case of Pasadena the situation is dramatic. A large number of artists and photographers graciously gave of their work to build a museum collection dedicated to contemporary art. Quite rightly, they feel that the charity to which they gave has now diverted their gift. In the special circumstances of the Pasadena, where there has been so major a shift in the purposes of the museum (where, as one might argue, the museum really dissolved), these artists should have a right to redirect their gifts or at least obtain assurances as to the exhibition and deaccessioning policy of the new board. Much the same argument, though with less fervor, can be made for nonartist donors to the Pasadena.
Let me turn to some of the larger institutional issues. The experience at Pasadena might be the special combination of various forces: a rising economy, accelerating market prices for works of art, the special way in which the federal charitable deduction works. The museum was a monument to a peculiar relationship, still undefined, among government, collector and museum. It was an interesting moment in the history of patronage.
In essence, the Pasadena is a case study in substantial indirect government support (through the tax system) without an adequate public say. Despite the fact that the museum was governed by a self-perpetuating board, some members of which had considerable to gain by the kinds of exhibitions mounted by the museum, the public was paying a large part of the bill through the federal tax deduction for charitable contributions.
Perhaps the art community should reevaluate its attitude toward pending proposals that would alter the opportunity to deduct the appreciated value of works of art and other tangible objects. There is something corrupting about the current operation of the tax laws. The power of museums to affect the tax liability of its patrons must have been (and must continue to be) an impressive aspect of the relationship between donor and institution. The charitable deduction, as currently structured, has, perhaps, exacerbated the decline of more wholesome traditions of collecting and giving and of government support. The current scheme favors donors in the highest tax brackets and discriminates against some classes of potential benefactors, particularly artists.
One legislative alternative would move toward equalizing the economic value of a gift (within limits) to the dollar return (after taxes) from a sale of a work of art. While people should not be disadvantaged for giving art to museums rather than selling it on the open market, at present, for some, the value of the charitable deduction may be higher than the after-tax proceeds from a sale of the work. And under the present scheme, the government reward for donations is arbitrarily and unevenly available. A changed tax system might in itself lead to altered patterns of giving and therefore altered strategies for structuring a board of trustees. Artists, for example, under a different approach, might again be significant contributors and the likelihood of seeking their participation in the governance of the institution would be enhanced.
Another range of possibilities goes to the public quality of the museum. One could conceive of regulations that denied exempt status to museums that did not comply with standards established by the national accrediting association. One could conceive of requiring, as a condition of exemption, that only publicly owned institutions could receive gifts partially subsidized through the charitable deduction. One could perceive of other changes, such as elections of several members or a board by the thousands of people who think they are joining as “members” of a museum when they buy membership cards but who gain no political rights in the museum’s government.
The point of the Pasadena story is that there was no one to guard the guardians. When there are few critical decisions to be made, such a situation is satisfactory. But the need for responsible trustees is increasingly great. Either the mechanism for assuring adherence to standards should be improved, or the system of rewarding nonprofit institutions through the benevolence of the tax system should be altered.
—Monroe E. Price
Los Angeles, California
To The Editor:
The reactions to “Pasadena’s Collapse and the Simon Takeover” [February, 1975] are varied here . . . For my part, I hope much more will be written about this chapter in the history of American museums.The Pasadena Art Museum history might well be a case study for sociologists and behavioral psychologists as well as for scholars in the humanities. Its history spans years of overwhelming change, the breakdown of a social structure, the strong emergence of the women’s movement and a complete change in individual modes of perception. All of the elements and dimensions of future shock are contained in those brief years. Those of us in the eye of the storm were undoubtedly affected by pressures from without as well as within. . . .
Few of the museum’s directors or curatorial staff made any effort to communicate with or understand the problems of Pasadena. The museum was its own small world filled with pride and prejudice. We all floated somewhere above the ordinary citizen and his concerns. And don’t think the average citizen, the city fathers, old residents and civic and business leaders didn’t know it. You will insist that the museum’s goals went far beyond the community and you are right. Nevertheless, the museum is on city land, receives city funds and Pasadenans have been the major contributors to the institution. I am not suggesting that we should have lowered our standards. The truth is very few people anywhere really understand and appreciate modern art. Since a museum can’t exist as an island, some bridge must be found to the community from which it receives its major support.
You write of a board president having to go to the city “hat in hand and beg.” All Pasadena’s cultural institutions need more money. Funds for cultural needs are included in each year’s budget and institutions and organizations apply routinely on an annual basis. The city directors were as generous as the budget allowed, additionally the cost of maintaining the museum grounds are a major expenditure to the city.
I am amused at the reverence accorded the education department in your article. I chaired the trustee advisory committee to that department for several years. Never was there such an uphill battle! Most directors felt it was just one more headache. For years we tried to point out its service to the community and that it was one of the museum’s strongest and most understandable ties to the community. Only when it opened the door to federal funds did a director give it the time of day. With the exception of Tom Terbell either the directors wanted to change its entire focus or get rid of it altogether. Preferably the latter. And so did most presidents of the board. But, to play the devil’s advocate: the education department didn’t support itself; it drained funds from the operating budget which affected the exhibitions program and since exhibitions have rightful priority, what decision does one make? Decision-making isn’t all that easy, even in retrospect.
Lack of money was the root of most of our problems. You are quite right. We should have kept the old building, expanded and remodeled it. We should not have saddled ourselves with the huge debt and operating costs of a new facility when we were operating at a deficit in the old one. I wasn’t a trustee at the time that decision was made, however it would have taken a man of steel to have reversed the momentum generated by past presidents and other trustees devoted to the goal of a new museum on our original site. . . .
You fantasize when you presume that any of the trustees would have abrogated their moral, ethical and legal responsibilities to the museum and “walked away” from the building. Yes, we dreamed those dreams.some of us who have a love affair with art, particularly the art of our own time. Yes, we dreamed of a large, airy, inexpensive supermarket structure somewhere. But in the midst of grim reality, dreams provide a brief escape. None of us expected those dreams to be reported in a national magazine. We knew that we had an obligation to donors, city and community to find a viable solution for the use of the building. In the final analysis, it was not a matter of what we wanted, but what was possible. . . .
You correctly assessed the basic philosophical problem of conflicting goals within the museum’s governing body. Fifty years was a long time without a clear, well-defined common goal. One that could withstand “private greed and egomania,” personal ambition, excessive zeal and the very human need for personal satisfaction. Such goals are rare, true leaders are rare, humble people are rare, unselfish commitments are rare. Therefore the needs of a museum totally committed to contemporary art were too rare to enable it to survive.
—Mrs. Jack Padve
Pasadena, California
To The Editor:
For whatever reasons, the recent article on the Pasadena Art Museum failed to deal with the related issue of the photographic medium and the important collection of photographs held there. This surprised me given Artforum’s continuing focus of interest in the medium. While the loss of the program is deeply felt by the community, its particular effect on those interested in photography is critical, not only for Los Angeles, but also nationwide.
Only the Pasadena Art Museum during the tenure of Fred Parker as curator of photography demonstrated any ongoing commitment of professional curatorial enthusiasm toward educating the Southern California audience in relation to contemporary photography. One came to expect the museum to continue its leadership in the field locally, and to continue its intelligent and exciting exhibition program. Also present was the potential that acquisition funds would be found to expand the existing collection of photographs.
The manner in which Fred Parker initially formed a large part of the collection was debatable, and met with some opposition from the artists concerned. He solicited gifts from nationally known photographers on the basis that these donations would form a museum collection for Los Angeles, a city where none previously existed.
Any hesitations concerning the idea of making these gifts was reconciled one way or another by the individuals approached, but I can only assume that the reputation of the museum, Parker’s demonstrated curatorial capacities, and the promised visibility of the collection were overriding factors in each decision to give.
Until the Simon takeover the photographic program was excellent. The exhibitions consisted of well-balanced group and one-person, historic and contemporary and conservative and radical shows. Several exhibitions were circulated, lectures were initiated, and a wide range of publications appeared.
The collective content of all this activity was more than encouraging, and a first-rate photographic center seemed capable of emerging. It is now impossible to predict what will happen to either the collection or future exhibitions—nor has there been any discussion.
If Pasadena does not intend to continue the program, then it seems reasonable that the collection should be put on longterm loan to some other Los Angeles institution which could effectively continue this valuable program.
—Bob Heinecken
Los Angeles, California
To The Editor:
In my article “Leon Golub: Art and Politics” (Artforum, October, 1974), quoting from memory, I misspelled the name of my student at Stony Brook who had worked on Claes Oldenburg. The correct name is Ann Cooperberg.
—Lawrence Alloway
New York, N.Y.
