When It’s OK to Sell the Monet: A Trustee-Fiduciary-Duty Framework for Analyzing the Deaccessioning of Art to Meet Museum Operating Expenses
Contrary to the view adopted by current codes of ethics, this Note argues that courts should approve a museum director’s use of proceeds from the sale of deaccessioned art to meet operating expenses if the director’s conduct comports with the duties of trustees under the law of trusts. Part I explores possible organizational structures for museums, including the charitable trust and the nonprofit corporation. Part I also compares the fiduciary duties of museum managers under trust and corporate law. Part II argues that courts should apply trust-law principles both to trustees of charitable trusts and directors of charitable corporations26 because these managers perform the same role regardless of the organizational form of the museum entity and because the public’s interest in the museum’s assets necessitates a heightened fiduciary duty. Part III explains how courts can apply the duties of trust law – namely, loyalty and care – to the legality of a museum director’s proposed deaccessioning plan. This Note concludes that, by evaluating deaccessioning plans based on their consistency with the fiduciary duties of trustees, courts best can serve the interests of a museum’s intended beneficiaries, the public.