Any day that a museum is handed a seven-figure gift is a very good day. But for the Orlando Museum of Art, which recently received a $1.8 million bequest from the estate of Margaret Young, that gift couldn’t have come at a better time.
Last December, the museum’s executive director, Cathryn Mattson, had warned trustees and influential donors of “a severe financial crisis” with a projected deficit of nearly $1 million in the museum’s $4 million budget by the end of June 2024.
The deficit was fallout from what a former museum trustee, Winifred Sharp, called “the Basquiat fiasco”: a 2022 exhibition of paintings said to have been created by the art-world legend Jean-Michel Basquiat, but which the F.B.I. later seized as fakes. A Los Angeles auctioneer subsequently admitted to the F.B.I. that he and an associate had forged the paintings, some in as little as five minutes.
The $1.8 million bequest could go a long way toward easing the museum’s financial woes. But Ms. Young, who was an artist herself, said her bequest could only be used to buy artwork for the museum’s permanent collection, not for operating expenses like employee salaries or the museum’s growing legal bills.
So now, as is sometimes done by nonprofits, the museum has asked a court to lift Ms. Young’s restrictions so the money can be spent more broadly.
On April 24 the museum, with a letter of support from Ashley Moody, the attorney general of Florida, petitioned the Orange County Circuit Court to remove restrictions. No hearing date has been set.
Young died in 2005, and her bequest is the remainder of money she left in a trust for her daughter Kit Knotts, who died last fall. The trust directs that upon Ms. Knotts’s death, the remainder should go to the museum’s “Permanent Collection Fund and used to add to their permanent collection.”
The museum in its court filing is asking to use the $1.8 million for “OMA’s general purposes related to, and in service of, its existing permanent collection,” including “curatorial staff, vault maintenance/repair, security devoted to the permanent collection, etc.”
The museum said in the filing that it could not use the bequest only to buy artwork because it does not have a ‘Permanent Collection Fund,’” which “makes it impossible for the OMA to achieve the donor’s purpose.”
The museum says its financial condition is improving and the modification request is not an effort to address its financial shortfall. But some critics say the modification, if granted, would have that effect, since it would appear to allow bequest funds to be put toward what are typically viewed as operating expenses.
The Friends of American Art, an OMA “collecting circle” whose members donate money to buy art for the permanent collection, has recently expressed concerns that their own contributions might be diverted to address the museum’s cash crunch.
Ms. Mattson and the museum’s board chair, Mark Elliott, responded in a letter that reassured the Friends group that their donations were “restricted and can only be used to purchase art.”
“So which is it?” asked Fiorella Escalon, a donor who heads a public “Save OMA” campaign that has criticized the museum’s transparency. Cathryn Mattson, she said, “has told us there is an account restricted to buying artwork for the permanent collection, and she said to a judge that we don’t have an account like that.”
The critics have also questioned whether it would be so difficult to establish another fund designed to add artworks to the permanent collection, even if there is no current fund with that precise name.
But opening a new account for the Young bequest was not an option, Ginnette Childs, a lawyer for the museum, said in response to questions. She said creating such an account would have been redundant since the museum already has the Friends group and another collecting circle, the Acquisition Trust. Moreover, she said, such a move would have required additional legal expenses (“significantly more than modifying the restriction”) and the creation of entirely new museum rules about buying artwork.
The New York Times contacted several lawyers who focus on the art world who said they did not see the process of setting up a new fund to house donated acquisition money funds to be that complicated or expensive.
The hurdle the museum has left itself to clear, the lawyers said, is convincing a court that they are abiding by the Florida statute overseeing restricted charitable gifts. It states that “any modification must be made in accordance with the donor’s probable intention” and only if the restriction has become “unlawful, impracticable, impossible to achieve, or wasteful.”
In Pennsylvania, where the laws overseeing charitable assets are similar, the Barnes Foundation convinced a judge in 2004 that the museum’s near-bankrupt financial condition warranted lifting its founder’s restrictions that declared it must stay in its original home in suburban Merion. It is now in downtown Philadelphia.
Similarly, several lawyers said the Orlando museum’s more compelling argument for a modification would have been its financial distress, not the hassle of creating a new “permanent collection fund.”
“Are they being cheeky with the court?” said Clarissa Rodriguez, a partner with Miami’s Harper Meyer firm, who specializes in art law. “Because they do have a fund for acquiring permanent collection art, but it’s not called a ‘permanent collection fund.’”
Ms. Rodriguez said that to propose using the bequest “in service of” the existing permanent collection, with expanded “purposes that end in ‘et cetera’,” could raise concerns of violating the donor’s intent. “The intention is exactly what the restriction says, for the permanent collection and acquisition budget of the museum,” she said. “Not for other uses, not for a new roof, not for paying legal fees, not for employee salaries, which are all things that could have been spelled out.”
Some of the expenses the museum is asking to put the bequest toward — “security” and “curatorial staff” — are regular operating expenses.
But Ms. Childs denied that the expanded list of acceptable uses for the funds was designed to address the financial shortfall. The museum, she said, “is trying to honor the donor’s intent by using the funds in support of the permanent collection of art that the museum owns.”
As a result, she said, the museum does not anticipate that donors will be upset by its request for the modification.
“We expect current and future donors to the Museum to appreciate OMA’s approach here,” she said. “It is public, we sought consent from the Florida attorney general prior to filing the motion, and are now seeking court approval.”
But one unhappy potential donor is Margaret Young’s surviving daughter, Dee Miller, 77. She also has a trust set up by her mother that would, at Ms. Miller’s death, donate the remainder of its assets to the museum for its “Permanent Collection Fund.”
She said she was unaware that her mother had listed the museum as the sole beneficiary when she structured her two daughter’s trusts. But she wasn’t surprised.
“My mother was an artist herself,” Miller said. “She lived just a couple blocks from the museum, and she started taking art classes there when it was called the Loch Haven Art Center,” as the museum was originally named, in the 1960s. “She loved that place.”
She said she is disappointed that her mother’s wishes may be modified by the court action. “My thoughts are that the museum should do with the money what my mother wanted them to do,” she said. “She wanted it used for a specific purpose. I would like to see her wishes followed.”
And what about the remainder in her own trust? It is also currently valued at about $1.8 million. Would she have a problem if the museum again challenged her mother’s request that it be used for the purchase of art?
“Well,” Miller considered with a chuckle, “I won’t be around to object.” She paused and then turned serious: “Should I be calling a lawyer?
