Our museum has an item on long-term loan that is potentially pretty valuable--a 200-yr old document.
We no longer wish to have this item in our custody unless it is gifted to us outright, and no longer on loan.
The gentleman who loaned it to us lives out of state and is considering donating the item to us, but is currently consulting with his attorneys to decide if he should gift the item to us (a non-profit museum) for tax deduction benefits or ask us to return it to sell the item elsewhere.
He is basing this decision on appraisals done by a company that has not seen the object in question in person for nearly 20 years (the length of time it has been on loan to us), and only has photographs to go by. These appraisals were paid for by the potential donor.
Our museum does not do appraisals, nor can we afford one of our own, so we have no way of knowing if the item is worth what he says it is. Is there any potential legal ramification to us if we decide to accept the item into our collection as a donation with the value he has listed (around $20,000)- i.e. in a situation like a tax audit?
This question had me on the edge of my seat until the very end.
WHAT is this 200-year-old document?
WHO is this mysterious lender?
WHAT does the original loan agreement look like?
WHO took the 20-year-old photos?
Sadly, it's possible I'll never know the answers to these questions since none of that information is required to answer the member's question.
Is there any potential legal ramification to us if we decide to accept the item into our collection as a donation with the value he has listed (around $20,000)- i.e. in a situation like a tax audit?
The answer is: maybe, but no big deal.
Uh...
"No big deal"?
Yep. Here's why:
For a donor to claim a federal income tax deduction based on the fair market value of a donated object, the donor must back up the claimed amount with a recent[1] appraisal. But the form the donee must sign to acknowledge the gift expressly says:
This acknowledgment does not represent agreement with the claimed fair market value.
So, unless there are enough circumstances to suggest that things are fishy or outright fraudulent, a donee accepting a gift and signing a tax form to enable a donor to claim a deduction puts the risk of inaccuracy on the donor.
That said...
There are other reasons, aside from concerns from the IRS audit, that merit caution in a scenario like the one described by the member.
When a museum that relies solely on the representation of a donor as to the value of a donated object in their collection, the insurance coverage on that object, which should be based on the value of a collection, is based on third-party information. In a worst-case scenario, that could mean an insurance claim is based on what turns out to be inaccurate information. And of course, clear eyes and scrutiny are warranted when part of a donation's value is because of history and/or provenance.
Assessing value might also be part of a museum’s overall evaluation of whether an object fits within the institution's mission and collection management policy. So even if an independent appraisal isn't possible, having a policy of insisting on one for donations in excess of a certain value might be a good policy...and one that, for special circumstances, could be waived.[2]
As with any transaction, there absolutely could be "legal ramifications" for accepting a document[3] worth $20k+, but in and of themselves, those factors shouldn't pose an impediment to accepting such a gift.
Thanks for a great question.
For more information on gift acceptance, income tax deductions, and appraisals, visit the IRS at: https://www.irs.gov/instructions/i8283#en_US_202112_publink62730rd0e827
[1] The appraisal should be done within 6 months of the donation.
[2] Or a donor could be sought to cover the costs
[3] Art and a few other things require the appraisal to be attached. For more on that, see the IRS guidance linked above.
Tags: Archives, Donations, Historical societies and museums, IRS, Taxes
[NOTE: Since they authorized a public reply, we're keeping the name of the member organization submitting the question in this RAQ. Usually, we genericize, but in this case, we trust you see why we kept the member's name in the question.]
QUESTION
Our organization has voted to change its name in an effort to re-brand to a more contemporary audience. Our original charter, granted in 1909, will not change, nor our legal name (Ticonderoga Historical Society).
What steps do we need to take to register our new name? Is this what is called a "DBA" and are there other steps we must take?
I am continually fascinated by the evolution and impact of names.
For instance, when I read the name of the member submitting the question, I immediately thought:
Given that the Ticonderoga Historical Society has a fairly recognizable name[1], it is interesting to see what their "next act", name-wise, will be.
To answer their question about re-branding without legally changing a name, we'll take it in order of recommended operations:
Step 1: Name Inventory
Before deciding to change a name--or officially adopt a nickname to operate under--an organization should take stock of all the areas where its name is "official." [2]
While this "inventory" will be different for each organization, there are some standard places this will appear:
Charter (or certificate of incorporation)
Bylaws
Policies
501(c)(3) registration
New York Charities Bureau Registration
Department of Education Annual Reports
Annual Reports to your community/membership
Real property documents (deeds, mortgages, leases)
Intellectual property documents (trademarks, copyrights, trade secrets, social media accounts)
Restricted assets (trusts, endowment, etc.)
Bank accounts (Important! --ask the bank/s what they need if you effect a name change, and what they need if checks are written to an assumed name)
Official posted signage
Branded physical items (stationary, business cards, membership cards, etc.)
Cultural guides published by 3rd parties (hard copy and online)
Charitable giving documents (such as being listed in a will)
Cooperation agreements
Contracts
Grant documents (which are often contracts, but in their own special category)
This should be a rolling list that is updated as needed as people come up with more and more places that feature the corporate name.
Why is this? When your re-brand is complete, all of these will need to be updated. Some of them, however, will require not only updating, but are also of legal consequence.
Step 2: Critical Review
Once the "name inventory" is done (although as I say, it will be updated...probably over the next few years, as instances of the "old" name come out of the woodwork), it is time for a critical review.
The "critical review" is based on just a few questions:
1. What is the current name?
2. What is the future name?
3. What is/are the reason/s for the new name?
4. Based on the "inventory", does the new name, and the organization's reason for adopting it, require a legal change, or can it operate "D/B/A"?
This is the stage the member is at. What does the review--ideally conducted with an attorney, but also a good task for a thoughtful group used to non-profit strategic planning--look like?
Current name: Ticonderoga Historical Society
Future name: We don't know the new name, but let's say it's "Ticonderoga H2.0"[3]
Reason for new name: In this case, the Society has decided they would like a new name to help them reach out to a more contemporary audience.
Legal change or "DBA”? This is the part you want the lawyer or experienced group for. It will be important to make sure the new name is available, to make sure it isn't prohibited by law, that the change isn't prohibited or complicated by considerations in the inventory, and that it won't cause trouble in accessing library assets. This final assessment should be in writing, since it will be used to inform the remaining steps.
Step 3: No matter what, check in with the Education Department
Once a library, museum or historical society decides to re-brand--whether with an actual name change, or as the member describes, using an assumed name (or "DBA”) --it is best to check in with the "Mother Ship" of each and every education corporation in New York: State Ed.
One of the great pleasures of my work with members of the 3R councils is that from time to time I get to check with the folks at the Archives, Library Development, and the State Museum--and their legal department--on issues like the one described by the member.
While, in my experience, the different reps at Ed will not tell an entity what to do (because that is not their job), they are very willing to provide options and cautions to help inform board decisions about assumed names, name changes, and charter revisions.
This includes pointing you to the right forms and giving a timeline for the process.
So call, and be ready to get information, not instructions, to plan the next steps for the re-brand.
Step 4: Make plan, THEN make a decision
Based on the above steps, an organization can develop a plan for a re-brand--whether it's going to be a full name change, or an assumed name/"DBA".
Once the plan is in hand (although it will surely continue to evolve throughout the process), a board can vote on what to do.
But wait, isn't that backwards? Shouldn't a board make a decision, and then approve the plan?
No.
While there is not one right way to do this, I have found that developing the plan is the best way to reach a decision on a re-brand. It makes sure things that can cause frustrating expenses and roadblocks (like a selected name being denied, a legal issue blocking approval, or a new name being a trademark violation), are instead assessed as factors in decision-making.
Step 5: Get it Done
Once the plan is finalized and the decision is made, there are three paths:
Path 1. Stick with the old name.
Sometimes, a museum or historical society will do a thorough review (steps 1-4) and find out they really don't want to change, after all.
That's fine. Sometimes doing nothing is actually the result of informed decision-making.
Path 2. Move ahead with a legal name change.
Very often, step 1 ("name inventory") will reveal factors that warrant not just a new brand, but an actual, official name change...which will require official amendment of your certificate of incorporation or charter.
What factors could that be? It could be anything, but examples are:
In this "name change" option, the organization passes the proper resolution and files with State Ed to amend its founding documents, lines up the process to immediately update critical documents the minute the change is official, and makes sure someone is responsible for getting it all done.
The checklist for this includes (but is not limited to):
...et cetera.
NOTE: Many of the items on an institution's "update immediately!" list will be taken from the "name inventory", which is why it is so handy to start that inventory early.
CAUTION: The above steps for re-naming are NOT the steps if your organization has "re-chartered" and dissolved the former entity! Re-chartering means you have ended the old organization and created a NEW entity; when this is done, assets must be moved to the new entity, not just tagged with a new name (think of a name change as putting a new label on a box, but re-chartering requires moving things from one box to another).
Path 3. Stick with the old name officially, but register an assumed name to operate under.
This is handy when an organization has many assets, has restricted funds in the old name, and doesn't want to run the risk that could be caused by an official name change (like donor confusion), but knows it needs a new identity to remain relevant.
In this case, there are some filings that need to be performed, but the process is not as extensive as an official name change.
While the considerations on the "name inventory" will still be critical, the legal steps for an education corporation filing to use an assumed name are:
a. Contact State Ed to let them know you are sending in the form for an assumed name; the forms for that are here.[4]
b. Once State Ed grants permission, assess if you must also file with the NY Department of State (I'd err on the side of caution and assume this is a must); the forms for that are here.[5]
c. Review any critical considerations on the Name Inventory (like what your bank needs to accept payment in the assumed name) to make sure they can be timely addressed.
...and that's it. With an assumed name, the "official" (old) name on all tax numbers, registrations, real property deeds, etc., will be unchanged. Some filings, going forward, will have places to note assumed names, and you'll want to properly list them, but the change is much simpler.
I can't wait to see the re-brand!
[1] As I wrote this comment about the recognizability of the name, I realized that I am likely NOT part of the "contemporary audience" the re-brand is supposed to attract! Ah, age...at least it comes with wisdom.
[2] An organization that has already decided to change its name has likely already done this
[3] I have tested this name with my kids, 17 and 8, and it's a hit.
[4] As of June 22, 2022, the form is posted at: http://www.counsel.nysed.gov/common/counsel/files/certassumname1.pdf
[5] As of June 22, 2022, the form is posted at: https://dos.ny.gov/system/files/documents/2019/01/1338-f_0.pdf
Tags: Historical societies and museums, Trademarks and Branding
As part of a town bicentennial celebration, the committee wants to create a map of historic properties. There would be a description of the property noting its historic significance, the address, and ideally a photo. Many of the properties are privately owned. Do owners need to give permission for their property to be included? We would publish the address and describe the history of the property, but current owners' names would not be disclosed. We want to share history, but respect privacy. What legalities should we be aware of?
In addition to being something of a historic preservationist, I am also a design fan, and a booster for my adopted hometown of Buffalo NY. This means I am on several social media groups that discuss:
On these groups, there is regularly a debate about the legalities, ethics, and diplomacy of taking pictures, providing information, and commenting in a public forum about privately owned property.
Issues that are frequently raised include:
The issue can also take on tension if a person lives in a home they prefer to not have considered "historic," which can place added pressure and actual legal restrictions on the owner of the home.
On the flip side, many who proudly own "historic" or otherwise noteworthy properties glory in their building's appearance and history. These are people who not only want their structure listed in print and online resources, but carry a jump drive they can distribute easily to make sure the building is described properly.[1]
When it comes to the risks of listing historic properties in a printed or online resource, there are very few direct legal issues. With the exception of certain high-security locations, it is not illegal in any way to publish information related to real property, its ownership, and its historic nature (or other significant factors). In fact, although not everybody realizes it, such information is generally available to the public in the form of tax maps, real property deeds, and other information housed by a county clerk.
That said, and in answer to the member's question, legal concerns can arise if a resident or owner can attribute negative consequences directly to the listing. For instance, if a listing suggests that a property is open to the public, when in fact it is not open, a property owner could have legal recourse. Similarly, if a write-up is directly connected to resulting harassment or vandalism, there could be an allegation of legal responsibility[2]--although such allegations would not lead to liability unless a precise set of factors were present.[3]
The stakes can also be higher when the listing is the result of a formal publication by an actual entity, such as a local library, historical society, religious corporation, or not-for-profit corporation. This is because such organizations typically have a larger platform to communicate from, and are also perceived as having "deep pockets,"[4] as well as insurance. They are also more vulnerable to public criticism, since they depend on public good will.
How can an organization mitigate such risk? Here are three steps:
Step 1. If your organization is going to publish a guide, check with the organization's insurance carrier to see if its insurance includes coverage for "advertising injury" and other claims related to publication. While not every "general liability policy" has this feature, it is a fairly common type of coverage, and any group that is regularly publishing brochures or pamphlets--or even listing information on its website--should consider getting coverage for allegations of defamation and copyright infringement.
2. Early in the initiative, decide what the precise criteria is for inclusion in your directory[5], and if your directory of local historic properties will have an "opt out" for people who don't wish their property to be listed or depicted.
3. Once the criteria and any option for "opt out" is determined, consider using a form to notify people of the directory, and to allow people to supply information about their property or to opt out. For instance:
Dear NAME:
[Info about your organization, upcoming event, pleasantries, etc.]
The NAME is preparing a directory of local historic properties, including your historic property at ADDRESS.
The criteria for the listing in the directory are INSERT. The listing will include the address, a photo taken from the street, and a brief history of the property. We will ensure there is no automobile with a legible license plate or people in the image.
To personalize this initiative and add depth to our information, we would like to provide you with an opportunity to send us information about the property, including any work you have done to steward it over the years, and any photos or legacy information you may have. You can send anything you like to INSERT ADDRESS. By sending information, you are giving the NAME a license to adapt it for use in the directory (both print and online), only.
In addition, because we appreciate that not everyone will want to supply information or have a picture of their property included in the directory, we are providing an "opt out" of the photo depiction. If you do not want a photo of your property included in the directory, please check the box below:
Please do NOT include a photo of my property at ________________ in the directory. I understand this "opt out" is a courtesy and information regarding my property is part of the public record.
The directory text will be finalized by DATE and we anticipate publication by DATE. Therefore, to be able to include your materials or remove a photo, we appreciate your reply by DATE.
[nice things, etc.]
[signature]
If at all possible, the organization's attorney should review the final letter before it goes out, which will allow the organization to address any concerns specific to the project or the particular locality.
Thank you for submitting an interesting and sensitive question. Respect for those who steward historic structures is important...as is celebrating the legacy they preserve.
Happy bicentennial!
[1] Woe betide your guide if a "coppice" is mistakenly called a "cornice."
[2] I have never heard of a directory of historic properties being used to "dox" (harass via release of private information) somebody, but I can imagine it happening.
[3] For example, if the write up said "This is the historic Bailey mansion. Legend has it if you throw a rock through a window, your wish comes true. Bring a rock and have at it!"
[4] As in, money to pay for damages.
[5] Is it on the state registry, federal registry, or considered "historic" due to a local designation? Or are the criteria simply that the structure was built before a certain year, hosted a significant event, or was once owned by a noteworthy person?
Tags: Historical societies and museums, Privacy, Safety, Templates
"Ask the Lawyer" got a question from a member: "Can you review our deed of gift and loan forms?" We helped them out on a confidential basis, but we're using their question to inspire this guidance on implementing or updating a suite of policies for accepting and managing gifts into your collections.
The State of New York has very strong feelings about collecting cultural assets and information. So strong, that such collections are governed by a host of laws, regulations, and policy.
Precisely which laws, regulations and policy apply to a collection depends on the type of entity doing the collecting. Museums, historical societies, archives, and libraries all fall under their different (but overlapping) conditions. And before the law takes the wheel, the formation documents of an entity control what items fall within their mission, and what items don't make the cut.
So, for a simple question like: "Can you review our deed of gift and loan forms?" be ready for this response:
Yes! We can review your deed of gift and loan forms. To make sure the review supports your mission, is consistent with your governing documents, and ensures compliance with relevant law and regulation, can you send us:
Now, if your institution needs your forms reviewed, and you can't find these things, don't worry, we can help you find them. Also be prepared for a quick phone call asking if there are any current disputes involving collection items, and to discuss any specific goals you have for the forms.
When reviewing gift forms, the goal is always to ensure that the contract terms created by the form are consistent with the law and foundation documents that will govern the institution's receipt of the gift. The makes a form more likely to withstand a challenge from an angry relative, or during an internal dispute.
So, no matter what lawyer reviews your forms, be ready to give them a dossier of documents!
Thanks to the member out there who put up with me while I kept asking questions!
Tags: Archives, Collection Management, Donations, Historical societies and museums
We have a couple of questions relating to Section 233-A of NYS Education Law, the "Museum Property Law". The law as written seems to only address totally undocumented objects and recent loans, but it also seems to have clear implications for the many partially documented objects and very old loans we have to deal with. As we all have slightly different ideas of how to stretch the law to fit our situation, I thought it would be best to get a legal opinion rather than trusting our common sense.
1) Regarding “undocumented property”: How much documentation is required for a donation to have sufficient written proof of legal transfer of ownership?
In the collections, we have a significant number of donated items which do not appear to have deeds of gift clearly transferring title from the original owner to the museum. They do appear in our ledgers along with the names of their donors, and sometimes have information confirming the link between donor and object on a vintage card cataloguing system – however, these forms of documentation are not a contract like the deed of gift, or even a piece of correspondence that shows an intent to donate.
In your reading of the Museum Property Law, should we consider such property to be undocumented, and to require similar measures to gain title? (That is, advertisement in local papers, followed by a period of advertisement on the state comptroller’s website.) Should we follow a similar procedure as with unclaimed property, despite these items not having been intended as loans? Or can we consider them to be documented, since we know the donors, and treat them like any other object when it comes to deaccessioning.
2) Regarding “unclaimed property”: How much of an effort is considered “good faith” in seeking lenders of very old loans?
The vast majority of the items we would consider unclaimed property were lent in the 1940s-1960s. From the research we’ve done into the lenders, they appear to be deceased, and in many cases their children are also deceased.
The law is written in such a way that it seems to presume all unclaimed property is the result of a recent loan that is still technically the property of a living person, which causes us some difficulties. It presumes that sending the lender a certified letter to their last known address will notify the person who currently owns the object. However, in our situation, as the original lenders are deceased someone else would have inherited their property – and in some cases, that heir would have left it to someone else in their own will.
If we know that a lender is deceased, are we still required to send them certified letters? Are we required to seek out their next of kin, and if so, are we required to continue seeking next of kin until we find a living relative? Is seeking permission from next of kin actually counterproductive, in that it could open us up to a lawsuit from a non-next-of-kin heir?
Thank you for any assistance you can give.
[NOTE: For some initial background on New York's law governing museums and loaned/donated items, see https://www.wnylrc.org/ask-the-lawyer/filter/159]
On its face, NY Education Law 233-aa seems straightforward, but as the member's questions point out, it requires the consideration of a lot of details.
To answer the question while addressing those details, I'm going to use a story to give my answers some focus.
The Story
When I was in third grade,[1] a schoolmate brought her grandfather's shillelagh,[2] a family heirloom from Ireland, into school for "Show & Tell."
Before and after our "Show and Tell," the shillelagh was kept in my classmate's locker.
You probably know where this story is going. At some point after "Show and Tell," the shillelagh went missing.
I can still remember my teacher making the announcement, casting a discerning eye at my fellow third-graders, trying to pick out the criminal.[3]
To the best of my knowledge, that family heirloom has never been found.[4] But because I am the sort of person who is very into both heirlooms and true crime mysteries, every few years, I find myself wondering where it is.[5]
But let's pretend that sometime in 1981, whoever took it that day held onto it for a bit, and then-- realizing they had no need for a hot shillelagh--hastily left it on a museum's doorstep with a note reading: "I thought you could use this, so here you go. Sincerely, I.M. Purloiner."
And to make my scenario work, let's further pretend the museum, finding an antique shillelagh to be within the scope of its mission,[6] accessions the item into its collection, and never hears from "I.M. Purloiner" again.
And with that scenario to work with, let's answer these questions.
How much documentation is required for a donation to have sufficient written proof of legal transfer of ownership?
If a museum has any contemporaneous records showing that an item, when dropped off, was a "donation," unless there are circumstances to the contrary, I am comfortable saying the museum can regard the item as its own property.
In the member's scenario, that record would be a routine practice of recording items as either loans or donations. In my scenario, there isn't quite enough (nothing shows an intent to transfer the ownership).
Of course, nowadays, there are very precise requirements for ensuring donors are aware of the terms of a gift to a museum. For example, Education Law 233-aa (3) requires:
Prior to the acquisition of property by gift, a museum shall inform a donor or prospective donor of the provisions of this section and shall provide a donor or prospective donor with a written copy of its mission statement and collections policy, which shall include policies and procedures of the museum related to deaccessioning.
But what about, as the member writes, documentation of items from before the law was in effect?[7] Again: if a museum can show a customary practice of accepting donations by recording them in a particular way, I believe it can make a compelling case that the title (ownership) of the piece was transferred to the museum at the time of the intake.
I base this conclusion, in part, on the law's definition of a "loan" and a "lender":
The term “loan” means a deposit of property with a museum not accompanied by a transfer to such museum of title to the property.
The term “lender” means a person legally entitled to, or claiming to be legally entitled to, property held by the museum or, if such person is deceased, the legal heirs of such person.
That said, if there is no record of how an item was accepted (as either a donation or loan), the only presumption I can endorse is that the item was a loan.
Which brings us to the member’s next question: In the collections, we have a significant number of donated items which do not appear to have deeds of gift clearly transferring title from the original owner to the museum. ... In your reading of the Museum Property Law, should we consider such property to be undocumented, and to require similar measures to gain title?
Building on the idea that if there is clear evidence that the property was accepted as a gift--even if not through a "deed of gift" or other typical instrument--I would regard it not as "undocumented" (which means there is no reliable information as to the lender or donor), but as a donation. On the flip side, if accepted as a loan, I would again not regard it as "undocumented," but rather, as "unclaimed" property, as contemplated by Section 7 of the Education Law 233-aa:
Unless there is a written loan agreement to the contrary, and notwithstanding any other provision of law regarding abandoned or lost property, a museum that has made a good faith and reasonable search for the identity and last known address of the lender from the museum records and other records reasonably available to museum staff may terminate a loan for unclaimed property in its possession in accordance with the provisions of this subdivision. [emphasis added]
Which brings us to the member's next question: Regarding “unclaimed property”: How much of an effort is considered “good faith” in seeking lenders of very old loans?
There is no magic formula for "good faith" (in this context), but in general, if a museum feels it can show it has used all available resources, without undo time and expense, it should be able to demonstrate it.
The trick to "good faith" is being able to show a meaningful, genuine effort. Does it mean a museum has to hire a private investigator to establish the identity of a person who left a shillelagh on its porch in 1981? No. But if a known lender with a known address is recently deceased, and a list of heirs can be obtained from the Surrogate’s Court in their county (for free or a nominal copying fee), should that be done? Yes.
This brings us to these final questions:
If we know that a lender is deceased, are we still required to send them certified letters?
If it is known that the lender is deceased, the letter should be addressed to their heir, if possible.
Are we required to seek out their next of kin, and if so, are we required to continue seeking next of kin until we find a living relative?
It is not the next-of-kin, but the "heir" who should be sought (the terms are not synonymous[8]).
How does a museum identify a deceased lender’s heir? That information can "reasonably" be sought in the Surrogate's Court in the county of the lenders' last known residence. And if the information isn't there, I feel comfortable saying that a documented attempt to locate it there is all that is needed to show "good faith."
Is seeking permission from next of kin actually counterproductive, in that it could open us up to a lawsuit from a non-next-of-kin heir?
As I say, because of how 233-aa defines "lender," it is not the next-of-kin who should be sought, but the "heir." Of course, doing the right thing is never a guarantee that a museum won't be sued...but if there is a legal action, or threat of one, efforts to find the "heir" will establish a "good faith" attempt to follow the law, which will position a museum to legally defend its actions.
All of which brings me back to my classmate's missing shillelagh. If the museum in my scenario decided it wasn't comfortable with the manner in which it was acquired, and wanted to firm up its claim to the item (or return it to its owner), that is when a museum can follow the process for "undocumented property" and publish a notice meeting the requirements of 233-aa.
I hope this walk through the details (with a shillelagh), has been helpful.
[1] Circa 1981.
[2] What's a shillelagh (pronounced "shill-lay-lee")? It's an Irish walking stick; for more info, see https://en.wikipedia.org/wiki/Shillelagh_(club).
[3] It was not me.
[4] I resisted the urge to jump on Facebook and find my former classmate to ask. What a random, creepy question to ask after 30 years of silence.
[5] If by any chance you are reading this in the Central New York area and happen to know, please send me a note at adams@losapllc.com.
[6] The Museum of Wooden Tools? The Museum of Walking Sticks? The Museum of Irish Implements?
[7] 2008.
[8] This is why it is important to try and get the information from the Surrogate's Court. A person may die and deliberately disinherit their next-of-kin, while designating other heirs.
Tags: Archives, Donations, Historical societies and museums, Special collections
The New York Archives Conference recently posted a formal Code of Conduct (https://www.nyarchivists.org/nyac/code). While discussing our procedures for implementing this code, we began to wonder about the legal implications for enforcement. Are there any considerations for the standards we use in evaluating a complaint? What should we use for the burden of proof? To what extent are we empowered to investigate claims? What happens if someone challenges any resulting board action? Can we be sued for taking action and besmirching someone’s professional reputation? To summarize, we're wondering what legal ground we can stand on while enforcing our code of conduct.
It would be great to have a response before our conference on June 11. Thank you
Before I dive into this meaty and spectacular[1] question, here is a necessary disclaimer: this answer does not apply to chartered libraries.
Who does it apply to? The following:
Specifically excluded from this answer are municipal, school district, and special district libraries, because their rules of conduct must accord with state and federal requirements of due process. Indian[2] and association libraries must also be cautious about this issue, since the law and practices that form those libraries may have express and at times unique provisions about access.[3]
So, to be clear: NO PUBLIC LIBRARIES should rely on this answer (unless you are using it to help a private museum answer questions about enforcing its code of conduct). [4]
Okay, with that established, here is the answer:
At the heart of this question is the charter (or certificate of incorporation) and bylaws of an organization. Close to the beating heart are its policies.
In New York, most not-for-profit organizations are made "official" through a filing with the NY Department of State. However, many cultural not-for-profit organizations (including the New York Archives Conference) are made "official" via "chartering" or "incorporating" through the State Department of Ed.
Both types of entities--"chartered" organizations, and "not-for-profit corporations"--are "real" entities, created by law.
It is this act of creation--through charter, or incorporation--that sets the stage for how an organization gathers its participants and conducts its business...which is exactly the member's question.
So, before anything else, to determine "what legal ground we can stand on while enforcing our code of conduct" one must look at those documents, which are the key to the identity of the entity.
In this case, the Conference's certificate of incorporation[5] says nothing about membership criteria, but the Conference's Constitutions and bylaws[6] say:
3.1 Membership. Membership shall be open to all persons interested in the purposes of the Corporation. The Members and Board may establish such other criteria for membership, including a schedule of dues, as they deem appropriate.
Meanwhile the Conference's membership terms on its website[7] state:
The constitution and by-laws reflect as much as possible the traditional informality of NYAC. Traditionally, membership in NYAC has been based on attendance at an annual meeting. A single attendance put a person’s name on NYAC’s mailing list for a long time, resulting in a cumbersome list with many out-of-date addresses.
The membership year will coincide with the fiscal year of NYAC, from July through June. The annual meeting registration fee will include the membership dues (currently $15.00). For people unable to attend the annual meeting, membership dues should be sent to the NYAC treasurer to ensure receipt of the following year’s program. If, by some strange chance, a member pays the annual dues prior to conference registration in a given year, his or her registration will be reduced accordingly.
The authority of the Conference's board to adopt the criterial for membership, including adherence to a "Code of Conduct" that can apply to members (and guests), is found back in the bylaws, which state:
4.2 General Powers. In addition to specific powers delineated in the By-Laws, the Board may adopt such rules and regulations, not inconsistent with the Certificate of Incorporation, the By-Laws, or applicable laws, as it may deem proper for the conduct of its meetings and the management of the Corporation.
The "Code of Conduct" the member's question links to is one of the "rules and regulations" mentioned in Bylaws section 4.2.
Looking at the Code, you can see that it encourages certain (welcome) behavior, and bars certain (unwelcome) behavior, with the following being used to enforce the requirements:
All participants are expected to observe these guidelines during the conference or any NYAC proceedings, including virtual settings. If you may witness or experience any inappropriate or harassing behavior please report this concern using the form below.
Dial 911 for immediate medical emergencies or to report a crime. All reports to NYAC will be followed up and taken seriously in order to protect our participants from further abuse.
The policy then sets out multiple options for reporting, including an online form, which states:
We can't follow up on an anonymous report with you directly, but we will fully investigate it and take whatever action is necessary to prevent a recurrence.
...all of which brings us to the member's question: how can this be enforced?
First, it is important to consider just what is being prohibited. Here is the list from the Code (as stated at the bottom of the Code, this policy is inspired by Codes adopted by other archival organizations):
Unacceptable Behavior:
NYAC does not tolerate harassment of any shape. If any participant engages in any demeaning, abusive, coercive, discriminatory, or harassing behavior, appropriate consequences will be taken against such individuals. This could result in something as minimal as a warning or more serious as being handled by the authorities. Harassers may lose privileges to the conference(s).
Second, it is important to establish: as a not-for-profit corporation operating in New York, the New York Archives Conference already has to follow the below-listed laws:
So even without such a policy, there is not only authority, but could be an obligation, to receive reports of certain behavior, and deal with them as required by law.
A good example of this, from the Code, would be derogatory comments based on sexual orientation (which could be a violation of New York's bar of sexual harassment).
Third, it is important to consider that some of the conduct listed in the Code is criminal. Examples of that include:
For instances involving the alleged commission of a crime, a report and investigation could quickly become complicated by questions such as: will the reporter want to contact law enforcement? Does the venue have an obligation with regard to the incident?[9] Does the Conference have evidence that could later become relevant in a criminal proceeding?
And finally, it is important to see that this Code requires conduct that "rises above" the bare minimum set by various laws.
For instance, the Code bars interruptions, rudeness, and demeaning conduct. While sometimes such conduct can be a part of illegal "harassment" or even "coercion," barring even one minor instance of such conduct is more about setting the professional atmosphere for the Conference, rather than simply obeying the law.
"Setting the professional atmosphere" for an organization might also be called "setting the norm." By adopting this Code, the Conference is setting a norm of courtesy and respect, ensuring members are not interrupted or jeered when participating in Conference activities.
So how does the board enforce this "professional atmosphere"?
I could go on and on about the law,[10] but I have 5 tips:
Tip #1: Model the behavior you require.
The best way to enforce a Code of Conduct is to ensure the leadership within the group visibly complies with it (this will also ensure compliance by directors and officers, which will help avoid legal complications).
Tip #2: Repeat the rules often.
It may leave leadership feeling like a broken record,[11] but when it comes to new norms of behavior, repetition is your friend. It is great that the Code has its own sub-page on the Conference web site; for an event or meeting invitation, a link should be on all materials. Conference event leaders and speakers should get at least a 15-minute orientation on how to comply with and benefit from the Code during events, meetings, and online discussion (I am a fan of training through role-play). The board should revisit the Code at least once a year to discuss specific incidents and assess if the institution's response requires refinement.
By repeatedly describing and addressing the norms, they will be built into the foundations of the organization.
Tip #3: Follow through on enforcement.
The Conference's Code says "All reports to NYAC will be followed up and taken seriously in order to protect our participants from further abuse." What does that mean? That each report must result in a final summary as to how the incident was handled.
Unfortunately, there is no one way to ensure this level of follow-through. Some instances may be resolved simply by a discrete chat with a person to let them know that their romantic overtures are inappropriate. Other incidents may warrant an announcement to all attendees at an event ("We received reports of numerous interruptions. We want to emphasize that this is a violation of our Code of Conduct."), as well as more private action directed to specific individuals (a letter or warning). Still other incidents (hopefully very rare) could result in ejection from an event and/or a report to law enforcement.
The trick is that for every report received, there be a good summary of the reported conduct, and a thorough "final summary" as to how the incident was investigated and resolved. Again, there is no one-size-fits-all for this: some instances might be resolved with a paragraph ("The attendee was told that for the remainder of the Conference, no interruptions would be tolerated, and she agreed"), others could result in multiple pages and coordination with other organizations (for instance, if two co-workers get into a screaming match and call each other discriminatory names, be ready for lots of paperwork).
Tip #4: Have an established team, and a back-up team, to handle reports.
A reported incident under a Code of Conduct is not a trip for a part-time volunteer to fly solo.
Even if a report seems straightforward ("I sat down after presenting and PERSON gave me a long hug that made me very uncomfortable"), handling reports under this Code is not a one-person job. There are too many variables[12] that can trip up even the most diplomatic and well-intentioned individual.
If you are a designated report recipient, you need calm, steady back-up. This is why having a pool of at least six people who know the Code, and are ready to respond to a report, is critical, and using no less than two people to respond to each report is also important.
Tip #5: Know when to bring in a pro.
The member has asked:
Are there any considerations for the standards we use in evaluating a complaint? What should we use for the burden of proof? To what extent are we empowered to investigate claims? What happens if someone challenges any resulting board action? Can we be sued for taking action and besmirching someone’s professional reputation?
These are excellent questions fueled by perceptive concerns; even the most professionally handled investigation with maximum due process can lead to distrust, the forming of factions, destabilization, and even (as the last question alludes) claims of liability.
How does an organization avoid that?
For a policy such as this Code of Conduct, at an all-volunteer organization, it is good to have a sense of what things can be handled in-house, and when it is time to call in an expert.
Here are some broad guidelines for when to bring in a ringer:
Now, when I say "bring in a ringer," I don't mean a person to take over the whole investigation (although they may). And I don't necessarily mean a lawyer. I simply mean a person with the professional skills and past experience to help the organization consider issues beyond the Code, but critical to the organization: risk of personal harm, liability, legal compliance, insurance, and (a distant fifth, but still important) public relations.
For issues that are going to result in a "soft" correction ("Hi, we know people hug here on occasion, but please know that unless a person has told you it is okay to hug them, it's a Conference rule that you refrain"), there is no need to consult a pro.
But for "hard" corrections ("After repeated warnings regarding physical contact, you continue to impose unwelcome physical contact, and we must ask you to leave the Conference immediately") it is good to quickly check in with a pro.
For example, if I was consulted on the above "inappropriate hugging leading to a ban" scenario, I would ask:
I would then work with the client to craft a swift but thorough response that ensured clear documentation of the occurrences, ruled in or out any allegation of injury or illegality (a very prolonged hug can be a criminal act, or just a very welcome gesture, depending on the details), used a risk analysis to adopt an immediate response, and developed a clear path forward to effect a resolution.
The good thing is, with the power of leadership modeling, repetition, and training, most complaints will be in the "soft consequences" zone ("I was speaking and PERSON interrupted me to tell me our approach was 'junk' and say how much better their database would handle the content; I just want to know that you have let them know that is unacceptable.").[13]
If a serious complaint does come along, there is no "catch-all" due process I can recommend for responding. However, I can say that for each report, each response should follow this pattern:
In my experience, where all-volunteer organizations get in trouble is when a serious complaint (such as a complaint with injuries, or extreme rancor, or challenging harmful norms in the organization) is sat on (meaning: no action is taken, because they just don't know what to do). This, along with early identification of risks and planning to avoid liability, is why I advise bringing in a pro for "serious" matters.
Other than the "serious" matters, having a group of board members or a volunteer committee trained and ready to nimbly and promptly address concerns under the Code will be a tremendous service to your organization. I applaud the Conference for adopting a Code, and for thinking about the details of enforcing it.
I wish you many challenging-but-polite, innovative-but-patient, and rigorous-but-respectful events.
Thanks for a great question.
[1] I say "spectacular" because for me, questions like this are why I was first interested in studying law. My whole career is based on a 30-year fascination with how the law impacts what we can do and say. When a question stands at the apex of your life's work, that is "spectacular."
[2] I know "Indian" can be a controversial term, but that is the term in the law. In New York, the chartered Indian Libraries are The Akwesasne Library and Cultural Center the Seneca Nation Library, and the Tonawanda Indian Community Library.
[3] New York Education Law Section 253, which enables the creation of chartered libraries in New York, requires that all such libraries be "free" to their areas of service, and of course there are regulatory requirements about access, and system rules about services throughout a system, so caution is warranted when it comes to items that could curtail access to a chartered library.
[4] Shoo. Go away. This answer is dangerous to you!! (Ok, you can stay...but don't use this answer).
[5] Nerd note: The Conference is not a chartered entity, but rather a corporation formed through an application to the Regents. This means there is no charter, but rather, articles of incorporation that bring it into "life."
[6] Found on May 24, 2021 at http://www.nyarchivists.org/nyac/wp-content/uploads/2011/03/NYAC_bylaws_rev2010_final.pdf.
[7] Found on May 24, 2021 at https://www.nyarchivists.org/nyac/membership-information/.
[8] Since the Conference has no employees, their obligations will not flow from employer status, but there are still contexts where the civil rights laws will apply.
[9] For instance, if stalking takes place on a college campus--even if the Conference just rented the venue--the incident requires a very precise response by the college or university.
[10] And often do.
[11] Is "broken record" still a thing? Perhaps we should start saying "repetition code."
[12] Gender, cultural, class, language, power balance, race, religion, and perceived bias issues, to name just a few.
[13] Just a small note: when a policy like this is first enacted, it may feel like you are getting a lot of complaints. Actually, this will be the very normal process of a group adjusting to newly established norms.
[14] The standard choices are "preponderance of the evidence" and of course "beyond a reasonable doubt." Either is fine, it just should be uniformly applied.
Tags: Archives, By-laws, Historical societies and museums, Non-profits, Policy, Code of Conduct, Conferences and Events
We received some questions from a chartered museum about weeding from the museum's internal research library:
Put your sneakers on. These questions require us to jump through several analytical hoops.
Hoop 1
First, a library that is part[1] of a chartered museum or historical society in the state of New York, when weeding materials, must figure out which, if any, of the materials within the library are part of the museum's official collection, and thus controlled by the museum's "collection management policy."
Most museums and historical societies maintain good records of this, and it's a yes-or-no question, so this first hoop is fairly simple.
Hoop 2
With collection status determined, any materials within the library that were "accessioned" (brought into the museum's official collection) under the collection management policy must also be "de-accessioned" per that policy,[2] before they can be weeded from the library's collection and thrown out,[3] donated or sold.
Any materials that were not accessioned into the museum's official collection are still assets of the chartered entity, but do not have to go through the de-accession ritual prior to what comes next.
Hoop 3
Next, the museum or historical society must determine if there are any conditions or restrictions on the materials, such as a donor agreement, a grant, or other contractual terms. If there are any restrictions, those must be addressed.
Hoop 4
Next is to confirm ownership. If the museum doesn't have a clear record of how the materials were acquired (either by purchase or donation), or if they were loaned to the museum and never picked up, the museum must follow the procedure in Education Law 233-aa to assert its ownership before it can consider any removal.[4]
Hoop 5
After doing what's needed to establish the materials' status, the museum can then--as governed by its own charter, bylaws, and policies--either 1) donate the materials to another charitable organization (transfer for free to an individual or for-profit organization could cause problems), or 2) sell[5] them for fair market value[6] to any organization it wishes (profit, non-profit, or individual).[7]
Contingent Hoop 6 (the "de-accession hoop")
Of course, sale or donation of any items that started out in the collection will be governed by the factors in the regulations governing de-accession (8 NYCRR 3.27). This consideration was already raised in Hoops 1 and 2, but is so critical, it is worth mentioning again.
Contingent Hoop 7 (the "233-aa contingency hoop")
If the materials were "undocumented property" or "unclaimed property" under 233-aa, and the materials are to be sold, there is an extra consideration: any proceeds derived from the sale of the materials can only be use for "the acquisition of property for the museum’s collection or for the preservation, protection, and care of the collection and shall not be used to defray ongoing operating expenses of the museum."
And with all those hoops complete, there you have it: a full cardio workout, based on assessing a museum's library's property's[8] status under the law.
I hope this analysis and advice are helpful (and good exercise).
[1] A museum or historical society cannot operate a library with circulation to the public without provisions in its charter. However, a museum or historical society can operate an internal library for purposes of supporting the collection, and that's what we're talking about here. 8 NYCRR 3.27(f)(3).
[2] Which should follow the regulations set out in 8 NYCRR 3.27
[3] I have been told that most librarians do not have the same gut-wrenching aversion to the idea of throwing out books that I do. Typing "thrown out" actually made me wince.
[4] This is one of my favorite laws on the books, because it contains the magic formula for transforming an object of unknown origin, or an abandoned object, into the property of the museum. That said, in practice, it can be a bit of a pain, because the formula contains multiple steps and a publications requirement.
[5] The last question, thankfully, requires no hoops: "sale" could certainly include an auction, or any other legitimate method of transferring title for consideration (money, or assets in-kind).
[6] A sale for a nominal amount, or for less than fair market value, to a for-profit or individual can impact charitable and 501(c)(3) status.
[7] Since the library within the museum is not a chartered library, it does not have to follow the requirements of Education Law 226.6(b), requiring that materials be offered to a local charity or political subdivision.
[8] Could I sneak another apostrophe in there? How about: "museum's library's property's boxes' cardboard's strength?" Oh, yeah.
Tags: Deaccessioning, Historical societies and museums, Special collections, Weeding
