S T A T E   O F   N E W   Y O R K
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                                  4888

                       2015-2016 Regular Sessions

                          I N  A S S E M B L Y

                            February 9, 2015
                               ___________

Introduced  by M. of A. ENGLEBRIGHT, TITONE, JAFFEE, ZEBROWSKI -- Multi-
  Sponsored by -- M. of A. RAIA, SCHIMEL -- read once  and  referred  to
  the Committee on Tourism, Parks, Arts and Sports Development

AN  ACT to amend the education law, in relation to the deaccessioning of
  property by collecting institutions; and to repeal  subdivision  5  of
  section  233-aa of such law relating to proceeds from the deaccession-
  ing of property from museums

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Legislative  findings.  The  legislature hereby finds and
determines that the state of New York has the finest  collecting  insti-
tutions  in  the  world,  giving the people of the state and visitors an
unequaled opportunity to  experience  the  world's  cultural,  artistic,
historical,  natural  history  and scientific heritage. These collecting
institutions exist across the state, range in size from the smallest  to
the  largest  institutions in the world, and are all  creatures of state
government. Some are directly chartered by the legislature and  some  by
the  board of regents, but all are subject to the public interest as set
forth in law,  regulation,  charter  requirement  and  sound  collecting
institution  practice as also set forth by collecting institutions asso-
ciations and accreditation organizations.    This  act  is  intended  to
assure and enhance the continuing interest of collecting institutions in
abiding by and protecting the public interest.
  The  legislature further finds and determines that there is a need for
clarification and standards with respect to the ways  collecting  insti-
tutions  acquire, hold and dispose of property, especially property that
is part of their collections. The need for  such  improvement  in  state
policy and practice is a long-standing concern, and has been highlighted
by  the  recent  and  widely discussed increase in financial pressure on
cultural institutions.  The legislature notes attempts in this state and
elsewhere to monetize collections and the asserted use of  those  monies

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08456-01-5
              

A. 4888                             2

for purposes other than the protection and expansion of collections. The
legislature  further finds and determines that such practices are incon-
sistent  with the interest of the people of the state, are  inconsistent
with  requirements  of governing documents, accreditation standards, and
accepted collecting  institution  practices,  and,  if  unchecked,  will
permanently  endanger the integrity and existence of collecting institu-
tion collections handed to  us  by  earlier  generations  as  a  sacred,
cultural, ethical and public trust.
  The  legislature therefore finds and declares that the requirements of
this law are necessary to protect the cultural, artistic, historical and
scientific heritage of the state, and the public interest, are  consist-
ent  with long-standing professional standards set forth by the collect-
ing institution community and are  consistent  with  the  statutory  and
constitutional  responsibilities  of  the  legislature  and the board of
regents.
  S 2. The education law is amended by adding a new section  233-aaa  to
read as follows:
  S  233-AAA. ACCESSION AND DEACCESSION OF PROPERTY. 1. FOR THE PURPOSES
OF THIS ARTICLE THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
  (A) "COLLECTING INSTITUTION" MEANS  A  MUSEUM  OR  OTHER  CULTURAL  OR
EDUCATIONAL  INSTITUTION  THAT  IS  OPERATED  BY  A GOVERNMENTAL ENTITY,
EDUCATION CORPORATION, NOT-FOR-PROFIT CORPORATION  OR  CHARITABLE  TRUST
AND  OWNS OR HOLDS COLLECTIONS, OR HAS COLLECTING AS A STATED PURPOSE IN
ITS CHARTER, CERTIFICATE OF INCORPORATION OR OTHER ORGANIZING DOCUMENTS,
OR INTENDS TO OWN OR HOLD COLLECTIONS.
  (B) "ACCESSIONING" MEANS THE PLACEMENT OF AN ITEM  INTO  A  COLLECTING
INSTITUTION'S COLLECTION AND ON ITS COLLECTION REGISTER FOLLOWING PROCE-
DURES  THAT  ARE  SET  FORTH  IN THE COLLECTING INSTITUTION'S COLLECTION
MANAGEMENT POLICY AND MISSION STATEMENT.
  (C) "DEACCESSIONING" MEANS THE REMOVAL OF AN ITEM  FROM  A  COLLECTING
INSTITUTION'S  COLLECTION  AND  ITS COLLECTION REGISTER FOLLOWING PROCE-
DURES THAT ARE SET FORTH  IN  THE  COLLECTING  INSTITUTION'S  COLLECTION
MANAGEMENT POLICY AND CONSISTENT WITH ITS MISSION STATEMENT.
  (D)  "DISPOSAL"  MEANS THE REMOVAL OF AN ITEM FROM A COLLECTING INSTI-
TUTION'S OWNERSHIP BY MEANS OF ITS SALE, DESTRUCTION,  TRANSFER,  LEASE,
GIFT OR ANY OTHER MEANS.
  (E)  "MISSION  STATEMENT" MEANS A STATEMENT APPROVED BY THE COLLECTING
INSTITUTION'S GOVERNING BODY, WHICH IS  MODELED  ON,  DERIVED  FROM  AND
CONSISTENT  WITH  THE COLLECTING INSTITUTION'S CORPORATE PURPOSES AS SET
FORTH IN ITS CHARTER, CERTIFICATE OF INCORPORATION OR  OTHER  ORGANIZING
DOCUMENT  THAT  IDENTIFIES  ITS PURPOSES, BENEFITS, ACTIVITIES AND PRAC-
TICES.
  (F) "COLLECTION MANAGEMENT POLICY" MEANS A STATEMENT APPROVED  BY  THE
COLLECTING  INSTITUTION'S  GOVERNING BODY AND ADMINISTERED BY ITS BOARD,
OFFICERS, EMPLOYEES AND CONSULTANTS  WHICH  INCLUDES  ALL  POLICIES  AND
PRACTICES  RELATED  TO  THE  PRESERVATION,  ACCESSIBILITY AND USE OF THE
COLLECTING INSTITUTION'S COLLECTIONS AND ASSOCIATED DATA, INCLUDING LOAN
MANAGEMENT, COLLECTION GROWTH AND REFINEMENT; DISCHARGE  OF  THE  PUBLIC
TRUST WITH RESPECT TO COLLECTIONS; METHODS OF ACCESSIONING, DEACCESSION-
ING  AND  DISPOSAL;  PLANNING  AND  ESTABLISHING  COLLECTION PRIORITIES;
OBTAINING,  ALLOCATING  AND   MANAGING   RESOURCES,   AND   COORDINATING
COLLECTION  PROCESSES  WITH  THE  NEEDS  OF  CURATION,  PRESERVATION AND
COLLECTION USE; AND A PUBLIC REGISTER OF  ACCESSIONED  ITEMS,  WHICH  IS
MODELED  ON,  DERIVED  FROM  AND  CONSISTENT  WITH THE COLLECTING INSTI-
TUTION'S MISSION STATEMENT.

A. 4888                             3

  (G) "COLLECTION" MEANS THE TANGIBLE OR  INTANGIBLE  THINGS  OWNED  AND
ACCESSIONED  BY  A  COLLECTING  INSTITUTION,  INCLUDING  THINGS THAT ARE
GENERATED BY VIDEO, COMPUTER OR SIMILAR MEANS OF PROJECTION AND DISPLAY,
INCLUDING CONCEPTS, THAT HAVE INTRINSIC HISTORICAL, ARTISTIC,  CULTURAL,
SCIENTIFIC, NATURAL HISTORY OR OTHER VALUE.
  (H) "ITEM" MEANS AN INDIVIDUAL ELEMENT OF A COLLECTION.
  (I)  "REFINEMENT"  MEANS  CHANGING  THE  ITEMS  IN A COLLECTING INSTI-
TUTION'S COLLECTION IN  ORDER  TO  FULFILL  ITS  MISSION  STATEMENT  AND
COLLECTIONS MANAGEMENT POLICY.
  2.  EACH  COLLECTING  INSTITUTION  SHALL  DEVELOP, ADOPT AND PUBLISH A
COLLECTION MANAGEMENT POLICY AND A MISSION  STATEMENT.  EACH  COLLECTING
INSTITUTION  SHALL  BE BOUND BY ITS COLLECTION MANAGEMENT POLICY AND ITS
MISSION STATEMENT.
  3. A COLLECTING INSTITUTION MUST ACCESSION ALL ITEMS IN ITS POSSESSION
THAT ARE CONSISTENT WITH ITS MISSION STATEMENT AND COLLECTION MANAGEMENT
POLICY.
  4. EACH COLLECTING INSTITUTION SHALL PUBLISH A REGISTER  OF  ITEMS  IN
ITS  COLLECTION.  SUCH REGISTER SHALL BE PUBLISHED WITHIN THREE YEARS OF
THE EFFECTIVE DATE OF THIS SECTION. THE BOARD OF REGENTS MAY EXTEND  THE
DEADLINE AFTER GOOD CAUSE HAS BEEN SHOWN. NOTWITHSTANDING THE FOREGOING,
AS  OF  THE  EFFECTIVE DATE OF THIS SECTION, ALL COLLECTING INSTITUTIONS
SHALL PUBLISH A REGISTER OF NEWLY ACCESSIONED  OR  DEACCESSIONED  ITEMS.
ANY  REGULATIONS  PROMULGATED  BY  THE  REGENTS SHALL INCLUDE REASONABLE
STANDARDS AND REQUIREMENTS FOR SUCH REGISTER WHICH SHALL INCLUDE THE USE
OF CLASSES OF ITEMS WHERE THE  INDIVIDUAL  LISTING  OF  ITEMS  WOULD  BE
BURDENSOME.
  5.  NO  COLLECTING  INSTITUTION MAY DISPOSE OF AN ITEM OR ITEMS IN ITS
COLLECTION EXCEPT AS SET FORTH IN THIS SECTION AND IN ITS MISSION STATE-
MENT AND COLLECTIONS MANAGEMENT POLICY AND NOT UNTIL THE ITEM  OR  ITEMS
HAVE BEEN DEACCESSIONED.
  6.  PROCEEDS  FROM DISPOSAL OF AN ITEM SHALL ONLY BE USED FOR PURPOSES
SET FORTH IN THIS SECTION.
  7. NO ITEM IN A COLLECTING INSTITUTION'S COLLECTION SHALL BE  USED  AS
COLLATERAL  OR  BE CAPITALIZED. NOTHING IN THIS SECTION SHALL AFFECT ANY
COLLATERALIZATION  OR  CAPITALIZATION  AGREEMENT,  ENTERED  INTO  BY   A
COLLECTING  INSTITUTION  IN  EXISTENCE  FOR  OVER SEVENTY-FIVE YEARS AND
WHOSE CERTIFICATE OF INCORPORATION, AS AMENDED, HAS BEEN FILED WITH  THE
SECRETARY  OF  STATE, THAT IS ALREADY IN EFFECT OR PREVENT ITEMS PLEDGED
AS COLLATERAL OR CAPITALIZED ON THE EFFECTIVE DATE OF  THIS  SECTION  TO
CONTINUE  TO  BE  USED  AS  COLLATERAL OR CAPITALIZED AT ANY TIME IN THE
FUTURE PROVIDING THAT THE ITEMS REMAIN IN THE POSSESSION OF THE COLLECT-
ING INSTITUTION EXCEPT THAT NOTHING IN THIS SUBDIVISION SHALL  IMPAIR  A
LENDER'S  RIGHTS UNDER A COLLATERALIZATION AGREEMENT TO FORECLOSE ON THE
COLLATERAL UNDER THE TERMS OF THE AGREEMENT. THE EXISTENCE OF ANY COLLA-
TERALIZATION OR CAPITALIZATION  AGREEMENT  SHALL  BE  DISCLOSED  TO  THE
DEPARTMENT.
  8.  A COLLECTING INSTITUTION MAY DEACCESSION AN ITEM IN ITS COLLECTION
ONLY IF ONE OR MORE OF THE FOLLOWING CRITERIA HAVE BEEN MET:
  (A) THE ITEM IS INCONSISTENT WITH THE MISSION OF THE COLLECTING INSTI-
TUTION AS SET FORTH IN ITS MISSION STATEMENT;
  (B) THE ITEM HAS FAILED TO RETAIN ITS IDENTITY;
  (C) THE ITEM IS REDUNDANT;
  (D) THE ITEM'S PRESERVATION AND  CONSERVATION  NEEDS  ARE  BEYOND  THE
CAPACITY OF THE COLLECTING INSTITUTION TO PROVIDE;
  (E)  THE ITEM IS DEACCESSIONED TO ACCOMPLISH REFINEMENT OF COLLECTIONS
AS REQUIRED BY AND/OR STATED IN ITS COLLECTION MANAGEMENT POLICY;

A. 4888                             4

  (F) IT HAS BEEN ESTABLISHED THAT THE ITEM IS INAUTHENTIC;
  (G)  THE  COLLECTING INSTITUTION IS REPATRIATING THE ITEM OR RETURNING
THE ITEM TO ITS RIGHTFUL OWNER;
  (H) THE COLLECTING INSTITUTION IS RETURNING THE ITEM TO THE DONOR,  OR
THE  DONOR'S HEIRS OR ASSIGNS, TO FULFILL DONOR RESTRICTIONS RELATING TO
THE ITEM WHICH THE COLLECTING INSTITUTION IS NO LONGER ABLE TO MEET; OR
  (I) THE ITEM PRESENTS A HAZARD TO PEOPLE OR OTHER COLLECTION ITEMS.
  9. THE REGENTS IS DIRECTED TO CREATE A STATEWIDE REGISTER AVAILABLE ON
THE INTERNET FOR THE PURPOSES OF COLLECTING AND PROVIDING PUBLIC  INFOR-
MATION  ABOUT  DEACCESSIONING,  WHICH  SHALL  INCLUDE  THE  ABILITY OF A
COLLECTING INSTITUTION TO LIST AN ITEM FOR ACTUAL OR POTENTIAL  DEACCES-
SIONING.
  10. (A) PROCEEDS FROM THE DISPOSAL OF AN ITEM OR ITEMS MAY BE USED FOR
THE  ACQUISITION  OF ANOTHER ITEM OR ITEMS FOR THE COLLECTION AND/OR FOR
THE PRESERVATION, PROTECTION  OR  CARE  OF  AN  ITEM  OR  ITEMS  IN  THE
COLLECTION.  IN  NO  EVENT,  HOWEVER,  SHALL  PROCEEDS  DERIVED FROM THE
DISPOSAL OF AN ITEM OR ITEMS FROM A COLLECTION BE USED  FOR  TRADITIONAL
AND  CUSTOMARY  OPERATING EXPENSES.  NOTHING IN THIS SECTION SHALL LIMIT
THE ABILITY OF A COLLECTING INSTITUTION TO SET MORE RESTRICTIVE POLICIES
RELATING TO THE USE OF PROCEEDS FROM A DISPOSED ITEM.
  (B) A GOVERNMENTAL ENTITY OPERATING  A  COLLECTING  INSTITUTION  SHALL
ESTABLISH  A COLLECTION RESERVE FUND. PROCEEDS RECEIVED FROM THE SALE OF
A DISPOSED ITEM SHALL BE USED TO PAY OFF ANY REMAINING DEBT INCURRED  IN
THE PURCHASE OF THE DEACCESSIONED ITEM THAT WAS SOLD. ANY MONEYS REMAIN-
ING  AFTER  THE  PAYMENT  OF SUCH DEBT SHALL BE PAID INTO THE COLLECTION
RESERVE FUND AND SHALL BE DEPOSITED AND SECURED IN THE  MANNER  PROVIDED
BY SECTION TEN OF THE GENERAL MUNICIPAL LAW. THE GOVERNMENTAL COLLECTING
INSTITUTION MAY USE MONEYS FROM THE COLLECTION RESERVE FUND ONLY FOR THE
PURPOSES AUTHORIZED IN PARAGRAPH (A) OF THIS SUBDIVISION.
  11.  THE  REGENTS  SHALL  ADOPT  RULES OR REGULATIONS TO IMPLEMENT THE
PROVISIONS OF THIS SECTION.
  S 3. The board of  regents  is  hereby  authorized  and  directed,  in
consultation  with  groups  and  individuals  who  have expertise in the
field, to consider and make recommendations concerning whether  collect-
ing  institutions  should  include  buildings  in their collection. Such
study shall include, but not be limited to:
  (a) The reasons for the inclusion of a building in a collecting insti-
tution's collection;
  (b) Criteria for determining when  it  is  permissible  to  include  a
building in a collecting institution's collection; and
  (c)  Whether funds from the sale of disposed items can be used to care
for the physical well-being of the structure and if so what limitations,
if any, should there be.
  The regents shall submit a copy of the  study  to  the  governor,  the
temporary  president  of  the  senate,  the speaker of the assembly, the
chairperson of the senate higher education committee and the chairperson
of the assembly higher education committee no later than six months from
the effective date of this act.
  S 4. Section 233-a of the education law is amended  by  adding  a  new
subdivision 5 to read as follows:
  5.  PROCEEDS  FROM  THE DISPOSAL OF AN ITEM OR ITEMS FROM A COLLECTING
INSTITUTION'S COLLECTION MAY BE USED FOR THE ACQUISITION OF ANOTHER ITEM
OR ITEMS FOR THE COLLECTING  INSTITUTION'S  COLLECTION  AND/OR  FOR  THE
PRESERVATION,  PROTECTION OR CARE OF AN ITEM OR ITEMS IN THE COLLECTION.
IN NO EVENT, HOWEVER, SHALL PROCEEDS DERIVED FROM  THE  DISPOSAL  OF  AN
ITEM  OR  ITEMS  FROM  A COLLECTING INSTITUTION'S COLLECTION BE USED FOR

A. 4888                             5

TRADITIONAL AND CUSTOMARY OPERATING EXPENSES. NOTHING  IN  THIS  SECTION
SHALL LIMIT THE ABILITY OF A COLLECTING INSTITUTION TO SET MORE RESTRIC-
TIVE POLICIES RELATING TO THE USE OF PROCEEDS FROM A DISPOSED ITEM.
  S  5. Subdivision 5 of section 233-aa of the education law is REPEALED
and a new subdivision 5 is added to read as follows:
  5. PROCEEDS FROM THE DISPOSAL OF AN ITEM OR ITEMS  FROM  A  COLLECTING
INSTITUTION'S COLLECTION MAY BE USED FOR THE ACQUISITION OF ANOTHER ITEM
OR  ITEMS  FOR  THE  COLLECTING  INSTITUTION'S COLLECTION AND/OR FOR THE
PRESERVATION, PROTECTION OR CARE OF AN ITEM OR ITEMS IN THE  COLLECTION.
IN  NO  EVENT,  HOWEVER,  SHALL PROCEEDS DERIVED FROM THE DISPOSAL OF AN
ITEM OR ITEMS FROM A COLLECTING INSTITUTION'S  COLLECTION  BE  USED  FOR
TRADITIONAL  AND  CUSTOMARY  OPERATING EXPENSES. NOTHING IN THIS SECTION
SHALL LIMIT THE ABILITY OF A COLLECTING INSTITUTION TO SET MORE RESTRIC-
TIVE POLICIES RELATING TO THE USE OF PROCEEDS FROM A DISPOSED ITEM.
  S 6. This act shall take effect immediately.