David Haberstich's curious and lengthy defense of Mr. Small bypasses a
number of issues.

At best, Small did not exercise due diligence in regard to his
collecting activities. He ought to have been aware of both the
statutory and the ethical requirements.

(That he may have collected some or all of these objects before
accepting appointment to the SI does not obviate the fact that he
was/is a collector and should have seen the relationship between being
a collector and accepting appointment as the chief steward of the
largest collection in the US.)

Lawyers vet issues regarding legal conformance and obligation. I am
confident that Mr. Small has substantial experience working with
lawyers at Citicorp and elsewhere. I am sure his lawyers stipulated
their findings carefully. He is not a minor. He has his own obligation
to follow the law.

The AAM has a code of ethics, to which the SI subscribes. Most major
museums have specific personnel policies about employee collections,
conflict of interest issues, and criminal activity -- in terms of
proscribing specific activities and in terms of specifying the penalty
for violating policy in regard to same. How HR policy is applied, of
course, is variable; one-time incidents are of different weight than
egregious and recidivist behavior.

But certainly, as his supervisors, the regents must 'get into the act'
now. The fact that the situation was known and possibly ignored for a
few years is unfortunate. But overlooking questionable behavior 'at the
top' is not, unfortunately, unusual, especially in government circles.
What is unusual here is that this incident was reported in the
Washington Post.

And despite Small's elevated position, receiving stolen property is not
defensible by claiming ignorance, or punishable by public embarrassment.

Lastly, I hope David is being facetious with his question about
culpability of the native artist who made the artwork. I will venture
that the artist is probably unaware that his/her work is being
discussed in the Washington Post or that someone paid an amazing
fortune to acquire it.

-L. Dewey



On Tuesday, January 27, 2004, at 12:04 AM, Automatic digest processor
wrote:

>
> Date:    Mon, 26 Jan 2004 03:12:04 EST
> From:    "David E. Haberstich" <[log in to unmask]>
> Subject: Re: Scandal at the Smithsonian
>
> A number of the messages in this thread have provoked me into airing
> my own
> views.  Most importantly, I think the statements to the effect that
> ignorance
> of the law is no excuse were rather beside the point.  As far as I can
> tell,
> Small never suggested that he was unaware of the laws governing the
> importation,
> sale, or purchase of feathers from endangered bird species.  He
> claimed that
> he cleared his purchases with his lawyers, indicating that he knew
> there were
> potential legal issues.  The problem seemed to be that neither he nor
> his
> lawyers were able to identify the problematic feathers as being from
> endangered
> species.  They weren't ornithologists qualified to make such a
> judgment,
> apparently.  Although he supposedly had some collecting experience
> with such
> material, he was unable to differentiate the illegal feathers among
> the legal ones.
> Nor, it seems, were a lot of other people--at first.
>
> I think the insinuations of several people to the effect that anyone
> other
> than a person in a position of power such as Small would end up going
> to jail
> over this infraction are unwarranted.  Despite the jail time
> prescribed for
> breaking this law, it is a misdemeanor, and in my experience, very few
> first-time
> offenders, whoever they are, go to jail for misdemeanors.  Very few,
> for that
> matter, have to suffer the public embarrassment Small has incurred.
> Part of
> that embarrassment arises from the revelation that he was not as
> knowledgeable
> about feathers as he should have been before sinking $400,000 of his
> own money
> into such a purchase.  Caveat emptor.
>
> As far as culpability is concerned, we are left to wonder why the
> seller of
> Small's collection, Rosita Heredia, was not similarly charged.  This
> is the
> real issue that I'd like to see the Washington Post research.  For
> that matter,
> what about the Brazilian artists who plucked the feathers in the first
> place?
> We are also left to wonder why the Fish & Wildlife Service concluded
> its
> initial investigation of Small without charging him, only to revive it
> and spend
> another three years before deciding that a crime had been committed?
> It would
> seem that there were a lot of knowledgeable people who weren't certain
> for a
> long time that there was a problem.
>
> That leads me to question Patricia McDougal's complaint that the Post,
> i.e.,
> the reporter Jacqueline Trescott, was somehow negligent in her
> research.  She
> disapproved of Trescott's statement that Small's salary is paid out of
> "trust"
> or "private" funds.  "Private" may be an unsatisfactory term, but it
> is used
> all the time to denote non-federal funds.  What's the issue here,
> Trish?
>
> Then there were the suggestions that Small's ownership of a personal
> collection somehow violated ethical standards.  We've been down this
> road before on
> this list, with people claiming that a museum employee cannot have a
> collection
> of any type that his/her institution also collects, which, if followed
> to its
> logical conclusion, results in absurdities.  Since the Smithsonian has
> a
> costume and clothing collection which includes contemporary apparel,
> does this mean
> Small would not be allowed to own a suit?  I think that's a
> misinterpretation
> of the dictum that a museum employee should not compete with the
> institution
> and should divulge personal collections so that any unethical behavior
> can be
> detected.  Audra Oliver's sensible rebuttal was on the mark.
>
> I'm not aware that any of Small's collection was exhibited at the
> Smithsonian.  It was shown in his personal gallery.  But even if it
> had been displayed at
> the Smithsonian, what would the "serious ethical concerns" be that
> Kristen
> Watts mentioned?
>
> Finally, I thought Indigo Nights' notion that other Smithsonian staff
> might
> be "accomplices after the fact" in not reporting illegal items in
> Small's
> collection was over the top.  This was Small's personal collection and
> staff
> apparently had no opportunity to test, or perhaps even to examine
> closely, the
> artifacts.  If the collection had been donated or sold to the
> Smithsonian and
> incorporated into its collections, knowledgeable staff would have the
> obligation to
> report anything illegal, but otherwise...?  While this "scandal" has
> ramifications for the Smithsonian, at bottom it's about a private
> citizen's brush with
> the law.  I think that the Smithsonian regents getting into the act,
> while
> perhaps necessary from a PR standpoint, rather muddies the waters and
> confuses
> the public.
>
> In any event, I think the real moral here is, as I said, caveat emptor.
>
> David Haberstich
>
> =========================================================

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