S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3355
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 29, 2019
                                ___________
 
 Introduced by M. of A. ENGLEBRIGHT, JAFFEE, ZEBROWSKI -- Multi-Sponsored
   by  --  M.  of  A.  RAIA -- 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.
              

                                                            LBD07129-01-9

 A. 3355                             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.
   § 2. The education law is amended by adding a new section  233-aaa  to
 read as follows:
   §  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. 3355                             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. 3355                             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.
   § 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.
   § 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. 3355                             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.
   §  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.
   § 6. This act shall take effect immediately.