RAQs: Recently Asked Questions

Topic: Should Small Public Libraries Carry Bonds? - 10/12/2022
Is bonding recommended for small public library director?   ...
Posted: Wednesday, October 12, 2022 Permalink

MEMBER QUESTION

Is bonding recommended for small public library director?

 

WNYLRC ATTORNEY'S RESPONSE

I won't tease the readers here; generally,[1] the answer is "no."

There are three reasons for this:

Reason 1: a public library director, unlike a library system treasurer and other local "public officers" isn't required by law to carry a bond.

Reason 2: If a public library has the right fiscal controls in place (meaning the director is never solely entrusted with fiscal authority--something that should never happen), there should be little risk of the type "bonding" is designed to mitigate.[2]

Reason 3: the majority of alleged wrong-doing by a public library director should be covered by a library's "Directors and Officers" and "General Liability" Insurance.

For this reason, while "bonding" is not required for most public library directors, a library having adequate insurance is critical.

This is why understanding the scope and costs of a library's "Directors & Officers Insurance," as well as its "General Liability" and "Premises Liability" policies, are critical annual tasks for a library board.

This type of assessment should happen every year with enough time to make sure the library can arrange new coverage if the answers are inadequate or the rates aren’t that competitive (no less than four months before renewal).

Questions to ask the broker should be based on a board's assessment of "what could go wrong?", and can include things such as:

Does our policy cover claims of discrimination, including sexual harassment?

Does our policy cover employee theft?

Does our policy cover alleged copyright and trademark infringement (or "advertising injury")?

Does our policy cover data breach of computers controlled by the library?[3]

What types of claims are excluded?[4]

What is the deductible?[5]

What is the process for reporting possible claims?

Insurance matters are complex and assessing coverage can present a lot of legal and industry jargon.

So, as a primer on the interrelationships and differences in "library world” between 'bonding," "insuring," "indemnifying," "hold harmless" and "Directors and Officers insurance" here is a short poem:

Library bonding, insurance, indemnifications...

What the heck are the differentiations?

Although the distinctions could fill a tome

Here are four rhymes to bring it home:

Director, officer, trustee...

should be insured against liability;

For anyone who with responsibility

The coverage can offer indemnity.

If your library will undertake construction

A performance bond should guarantee completion.

If you need to raise some building money

An approved "bond" can bring the honey.

For a library system treasurer[6]

An "undertaking" you must procure.

For all of these, routine review

Is something that a board should do.

 

 

 

 



[1] There is always an exception to what is "generally" true in the law.  For instance, a large library that puts additional fiscal responsibility on the library's executive director could require such a thing.  But that would be the exception...to find out why, keep reading.

[2] What is "bonding" you ask?  I have a short poem for you (see below).

[3] Many times, it is the cooperative library system's computers that need this coverage...an arrangement that varies from system to system in New York.

[4] This is a critical consideration!

[5] This one is important!  If you have a $75,000.00 deductible, for many claims, you might as well not have coverage.

[6] Actual requirement for a treasurer of a cooperative library system is: "Before entering upon his duties, such treasurer shall execute and file with the trustees an official undertaking in such sum and with such sureties as the board shall direct and approve. The treasurer need not be a member of such board."

 

Tags: Legal Poems, Liability, Public Libraries

Topic: Contract Employees and FOIL - 09/27/2022
Does a contractor have to comply with FOIL request if they are contracted to a county go...
Posted: Tuesday, September 27, 2022 Permalink

MEMBER QUESTION

Does a contractor have to comply with FOIL request if they are contracted to a county government?

We have a [person] requesting information about a Security Guard who is a Contract Employee (employed by another government entity). All I know is the Guard's 1st name- which is on no paperwork we have. I have already told the requestor that the Guard is employed by an outside company. We are [REDACTED] County government and contract through [REDACTED Other Public Agency] - What do we have to do legally?

WNYLRC ATTORNEY'S RESPONSE

New York's Freedom of Information Law, or “FOIL”, applies to government agencies (including public libraries) but cannot be used to compel private companies (or individuals) to allow inspection or copying or records.

So, in the scenario described by the member, the private company employing the guard is not subject to FOIL, but the library is, as is the county, so information about the security company can be accessed.

Of course, that doesn't mean a person gets everything they might want, but it does mean that information about private companies working for public entities can be accessed.

We'll talk about this in more detail, but to illustrate my point, here is a short, one-act play:

CITIZEN (to security guard at public library): Who are you?!?! The Power of FOIL compels you!

SECURITY GUARD: Well, as you can see on my ID, my name is Phil. But I am not subject to FOIL.  Ask my boss.

CITIZEN (to Phil's private employer, whose company name and logo are on the ID): Who is that guy "Phil"?!? What's his last name and his qualifications?!? What does he get paid a year?!? The Power of FOIL compels you!

PRIVATE SECURITY COMPANY:  We're so glad you like Phil! We do, too. Unfortunately, we are not subject to FOIL, and we don't provide information about private employee to third parties.

CITIZEN (to the library): Your private security company is hiding information! Tell me everything about Phil! EVERYTHING!!! The Power of FOIL compels you!

LIBRARY (answering within 5 days): Your request is a bit broad, but we do have records relating to how we arranged the services of a security company through the County. Would you like to inspect those records, or be provided with copies?

CITIZEN (to the county): I don't just want to know "the arrangement," I want to know about Phil, the actual guy providing security at the Library!  Give me all the information you have on him!!! The Power of FOIL compels you!

COUNTY (replying within 5 days, and helping to narrow down the request): We are not quite sure what you're asking for, but we can definitely provide information about the security company. Do you want just the contract, or the complete procurement process, including their proposal?

[End Scene]

Of course, in this (hopefully fictional) scenario, the citizen asking for the information might not be able to get (such as what "Phil" is making per hour, or Phil's address, or Phil's resume). But if the information the person is really hoping to access falls into the accessible materials held by an entity subject to FOIL (like a county or a public library), they will hopefully get what they need.

Unfortunately, we live in a world where many times requests under FOIL can be perceived as aggressive. And sometimes the FOIL request is clearly being made by a person with an axe to grind.[1]

That's one of the many prices, to be cheerfully paid, of living in a democracy. Good government thrives on transparency, and prompt disclosures show respect for the public, as well as competence.

In my experience, the best way for an entity subject to FOIL to de-escalate any hostility accompanying a FOIL request is to:

  • Always require that employees be treated with respect;
  • Have a clearly articulated and easily located FOIL policy;
  • Have clarity within the organization as to who is responsible for requests and appeals under FOIL[2];
  • Maintain records in such a way that FOIL requests are easy and economical to fulfill;
  • Allocate time and budget to train the person responsible for responding to FOIL request, so they know what to do (and when to consult a lawyer).

All of the above-listed bullets can be achieved through a policy that sets out the proper timelines and procedures for following the law.

The great thing about a FOIL request being submitted to a library is that if there is one thing librarians know how to do, it's how to help people find information. So, unlike other "agencies" subject to FOIL, where records management and disclosure can be perceived as a hassle, in some ways, fulfilling a FOIL request is just business as usual: enable access.

The below "Template Public Library FOIL Policy" is based on the model policy supplied by the New York State Committee on Open Government (the COOG), found at https://opengovernment.ny.gov/freedom-information-law.  Since it is right from the COOG (with a few added bells and whistles from me), it checks all the boxes on mandatory reply times, providing copies, and how to reply to a request.

Having a policy, and a posting a summary setting out how to request a library record under FOIL, is a good way to diffuse any tension underlying a FOIL request.

As with any template, before a public library's board passes a version based on this one, it is best to have it reviewed by your library's lawyer.

 

NAME Public Library FOIL Compliance Policy

 

Date adopted: INSERT

To be posted at: INSERT

Position primarily responsible for coordinating compliance: INSERT

 

Records Access Officer: INSERT

 

FOIL Appeal Officer: INSERT

 

Position Responsible for annual check of Subject Matter list: INSERT

 

Review annual at the MONTH meeting by the Trustees to ensure familiarity, compliance, and budget support.

Appendix: Model FOIL Notice for posting

 

Related policies: Record Retention Policy

 

Section 1: Purpose and scope of this FOIL Compliance Policy:

The NAME Library (the "Library") believes in the right of the People to know the process of decision-making and to have access to the documents and information underlying the operations of the Library.  

In addition, a part of the mission of the Library is to enable access to information the public is entitled to.

To that end, the Library shall furnish to the public the information and records required by the Freedom of Information Law, using this policy to enable, effect, and document such compliance.


Section 2: Designation of Library Records Access Officer:

  1. The Library designates the following person(s) as "Records Access Officer(s)":

Job title or name:  _____________________________________________

Business address: _____________________________________________

Email address: ________________________________________________

  1. The Records Access Officer is responsible for ensuring appropriate library response to public requests for access to records, and shall ensure that the Library:
    1. Maintains an up-to-date subject matter list of type of Library records, based on the categories of documents in the LGS-1[3].
    2. Assist persons seeking public library records to identify the records sought, if necessary, and when appropriate, indicate the manner in which the records are filed, retrieved or generated to assist persons in reasonably describing records.
    3. Contact persons seeking records when a request is voluminous or when locating the records involves substantial effort, so that personnel may ascertain the nature of records of primary interest and attempt to reasonably reduce the volume of records requested.
    4. Upon locating the records, take one of the following actions:
      1. Make records available for inspection; OR,
      2. Deny access to the records in whole or in part and explain in writing the reasons therefor.
    5. Upon request for copies of records:
    6. Make a copy available upon payment or offer to pay established fees, if any, in accordance with Section 8 of this Policy; OR,
    7. Permit the requester to copy those records under appropriate supervision to ensure the records' physical integrity.
    8. Upon request, certify that a record is a true copy; and
    9. The NAME Library is not the custodian for such records; OR,
    10. The records of which NAME Library is a custodian cannot be found after diligent search.
    11. Upon failure to locate records, certify that;


Section 3: Location

Records shall be available for public inspection and copying at:

(Location)____________________________________

(Address)____________________________________

____________________________________________

____________________________________________

____________________________________________


Section 4: Hours for public inspection:

Requests for public access to records shall be accepted and records produced during all hours the Library is regularly open for business, however, timing of fulfillment will be impacted by staff capacity.


Section 5: Requests for public access to records

  1. A written request may be required, but oral requests may be accepted when records are readily available.
  2. If records are maintained on the internet, the requester shall be informed that the records are accessible via the internet and in printed form either on paper or other information storage medium.
  3. A response shall be given within five business days of receipt of a request by:
    1. informing a person requesting records that the request or portion of the request does not reasonably describe the records sought, including direction, to the extent possible, that would enable that person to request records reasonably described; OR,
    2. granting or denying access to records in whole or in part; OR,
    3. acknowledging the receipt of a request in writing, including an approximate date when the request will be granted or denied in whole or in part, which shall be reasonable under the circumstances of the request and shall not be more than twenty business days after the date of the acknowledgment, or if it is known that circumstances prevent disclosure within twenty business days from the date of such acknowledgment, providing a statement in writing indicating the reason for inability to grant the request within that time and a date certain, within a reasonable period under the circumstances of the request, when the request will be granted in whole or in part; OR,
    4. if the receipt of request was acknowledged in writing and included an approximate date when the request would be granted in whole or in part within twenty business days of such acknowledgment, but circumstances prevent disclosure within that time, providing a statement in writing within twenty business days of such acknowledgment specifying the reason for the inability to do so and a date certain, within a reasonable period under the circumstances of the request, when the request will be granted in whole or in part.
  4. In determining a reasonable time for granting or denying a request under the circumstances of a request, the Library shall consider the volume of a request, the ease or difficulty in locating, retrieving or generating records, the complexity of the request, the need to review records to determine the extent to which they must be disclosed, the number of requests received by the agency, and similar factors that bear on the ability to grant access to records promptly and within a reasonable time.
  5. A failure to comply with the time limitations described herein shall constitute a denial of a request that may be appealed. Such failure shall include situations in which the Records Access Officer (or other employee):
  6. fails to grant access to the records sought, deny access in writing or acknowledge the receipt of a request within five business days of the receipt of a request; OR,
  7. acknowledges the receipt of a request within five business days but fails to furnish an approximate date when the request will be granted or denied in whole or in part; OR,
  8. furnishes an acknowledgment of the receipt of a request within five business days with an approximate date for granting or denying access in whole or in part that is unreasonable under the circumstances of the request; OR,
  9. fails to respond to a request within a reasonable time after the approximate date given or within twenty business days after the date of the acknowledgment of the receipt of a request; OR,
  10. determines to grant a request in whole or in part within twenty business days of the acknowledgment of the receipt of a request, but fails to do so, unless the agency provides the reason for its inability to do so in writing and a date certain within which the request will be granted in whole or in part; OR,
  11. does not grant a request in whole or in part within twenty business days of the acknowledgment of the receipt of a request and fails to provide the reason in writing explaining the inability to do so and a date certain by which the request will be granted in whole or in part; OR,
  12. responds to a request, stating that more than twenty business days is needed to grant or deny the request in whole or in part and provides a date certain within which that will be accomplished, but such date is unreasonable under the circumstances of the request.


Section 6: Subject matter list

  1. The Library shall maintain a reasonably detailed current list by subject matter of all records in its possession, based on the categories of records set forth in the LGS-1, whether or not records are available pursuant to subdivision two of Section eighty-seven of the Public Officers Law.
  2. The "Subject Matter List shall be sufficiently detailed to permit identification of the category of the record sought; the LGS-1 breakdown and description of record categories is the default system the Library shall use.  Whenever possible, this Subject Matter List shall accord with the categories in the Library's [Document Retention and Destruction Policy OR equivalent].
  3. The Subject Matter List shall be updated annually by POSITION. The most recent update shall appear on the first page of the subject matter list.


Section 7: Denial of access to records

  1. Denial of access to records shall be in writing stating the reason therefor and advising the requester of the right to appeal to the individual or body established to determine appeals, [who or which] shall be identified by name, title, business address and business phone number.
  2. If requested records are not provided promptly, as required in Section 5 of this policy, such failure shall also be deemed a denial of access.
  3. The following "FOIL Appeal Officer" shall determine appeals regarding denial of access to records under the Freedom of Information Law:
    Name: ___________________________________________________


Title or position: ____________________________________________

Address for FOIL purposes:___________________________________

_________________________________________________________

Phone number:____________________________________________
 

  1. Any person denied access to records may appeal within thirty days of a denial.
  2. The time for deciding an appeal by the individual or body designated to determine appeals shall commence upon receipt of a written appeal identifying:
    1. the date and location of requests for records;
    2. a description, to the extent possible, of the records that were denied; and
    3. the name and return address of the person denied access.
  3. A failure to determine an appeal within ten business days of its receipt by granting access to the records sought or fully explaining the reasons for further denial in writing shall constitute a denial of the appeal.
  4. The person or body designated to determine appeals shall transmit to the Committee on Open Government copies of all appeals upon receipt of appeals. Such copies shall be addressed to:

    Committee on Open Government
    Department of State
    One Commerce Plaza
    99 Washington Avenue, Suite 650
    Albany, NY 12231
     
  5. The person or body designated to determine appeals shall inform the appellant and the Committee on Open Government of its determination in writing within ten business days of receipt of an appeal. The determination shall be transmitted to the Committee on Open Government in the same manner as set forth subdivision (f) of this section.


Section 8: Fees

  1. There shall be no fee charged for:
    1. inspection of records;
    2. search for records; or
    3. any certification pursuant to this part.
  2. Copies may be provided without charging a fee.
  3. Fees for copies may be charged, provided that:
  4. the fee for copying records shall not exceed 25 cents per page for photocopies not exceeding 9 by 14 inches. This section shall not be construed to mandate the raising of fees where agencies or municipalities in the past have charged less that 25 cents for such copies;
  5. the fee for photocopies of records in excess of 9 x 14 inches shall not exceed the actual cost of reproduction; or
  6. an agency has the authority to redact portions of a paper record and does so prior to disclosure of the record by making a photocopy from which the proper redactions are made.
  7. an amount equal to the hourly salary attributed to the lowest paid employee who has the necessary skill required to prepare a copy of the requested record, but only when more than two hours of the employee’s time is necessary to do so; and
  8. the actual cost of the storage devices or media provided to the person making the request in complying with such request; or
  9. the actual cost to the agency of engaging an outside professional service to prepare a copy of a record, but only when an agency’s information technology equipment is inadequate to prepare a copy, and if such service is used to prepare the copy.
  10. The fee an agency may charge for a copy of any other record is based on the actual cost of reproduction and may include only the following:
  11. When the Library has the ability to retrieve or extract a record or data maintained in a computer storage system with reasonable effort, or when doing so requires less employee time than engaging in manual retrieval or redactions from non-electronic records, the Library shall retrieve or extract such record or data electronically. In such case, the Library may charge a fee in accordance with Section 8.3 above.
  12. The Library shall inform a person requesting a record of the estimated cost of preparing a copy of the record if more than two hours of an agency employee’s time is needed, or if it is necessary to retain an outside professional service to prepare a copy of the record.
  13. The Library may require that the fee for copying or reproducing a record be paid in advance of the preparation of such copy.


Section 9: Public notice

A notice containing:

  • the title or name and business address of the Library Records Access Officer
  • the title or name and business address of the Library's FOIL Appeal Officer
  • the location where records can be seen or copied

shall be posted in a conspicuous location in the Library, and on the Library website at ADDRESS.


Section 10: Severability

If any provision of these regulations or the application thereof to any person or circumstances is adjudged invalid by a court of competent jurisdiction, such judgment shall not affect or impair the validity of the other provisions of these regulations or the application thereof to other persons and circumstances.

 

NAME Public Library FOIL Compliance Public Notice

 

Date adopted: INSERT

To be posted at: INSERT

Position primarily responsible for coordinating compliance: INSERT

 

Records Access Officer: INSERT

 

FOIL Appeal Officer: INSERT

 

Position Responsible for annual check of Subject Matter list: INSERT

 

Review annual at the MONTH meeting by the Trustees to ensure familiarity, compliance, and budget support.

Appendix: Model FOIL Notice for posting

 

Related policies: Record Retention Policy

 

YOU HAVE A RIGHT TO SEE YOUR LIBRARY'S PUBLIC RECORDS

The amended Freedom of Information Law ("FOIL"), which took effect on January 1, 1978, gives you the right of access to many public records, including many of those related to the operation of your public library.

Records related to the Library, if not considered exempt from FOIL, can be seen and copied at:

(Location)____________________________________

(Address)____________________________________

____________________________________________

____________________________________________

____________________________________________

 

The following Library employee(s) will help you to exercise your right to access:

Library Records Access Officer(s)

(name)_____________________________________________

(job title)____________________________________________

(business address)_____________________________________

____________________________________________________

(phone #)____________________________________________

 

If you are denied access to a record, you may appeal to the following person(s) or body:

(name)_____________________________________________

(job title)____________________________________________

(business address)_____________________________________

____________________________________________________

(phone #)____________________________________________

 



[1] I personally have ground down at least three metaphorical axes, making FOIL requests over the years.

[2] These will be different people/groups.

[3] LGS-1 is the NYS Archives Retention and Disposition Schedule for New York Local Government Records and can be found at: http://www.archives.nysed.gov/records/local-government-record-schedule/lgs-1-title-page

 

Tags: FOIA/FOIL, Policy, Public Libraries, Record Retention, Records Management, Templates

Topic: Libraries and NYS Concealed Firearms Law - 09/26/2022
The NYS law requiring people to demonstrate a reason to conceal carry a weapon has been ...
Posted: Monday, September 26, 2022 Permalink

MEMBER QUESTION

The NYS law requiring people to demonstrate a reason to conceal carry a weapon has been overturned by the Supreme Court. What this means for libraries. Is there anything we can do to prevent guns in the library?

 

WNYLRC ATTORNEY'S RESPONSE

When New York’s "proper-cause requirement" for obtaining an unrestricted license to carry a concealed firearm was struck down by the United States Supreme Court on June 23, 2022[1], the New York State Legislature--in a state still reeling from fatal gun violence in Buffalo just weeks before--swiftly passed laws to replace it.[2]

The law they passed on July 1, 2022 was a different approach than "proper cause". Rather than require someone to prove they had a reason to carry a concealed weapon; it removed that SCOTUS-invalidated section from the Penal law, and added Section 265.01-e of the New York State Penal Law: "Criminal possession of a firearm, rifle or shotgun in a sensitive location".

255.01-e goes into effect on September 1, 2022.   It provides:

1. A person is guilty of criminal possession of a firearm, rifle or shotgun in a sensitive location when such person possesses a firearm, rifle or shotgun in or upon a sensitive location, and such person knows or reasonably should know such location is a sensitive location.

2. For the purposes of this section, a sensitive location shall mean:

(a) any place owned or under the control of federal, state or local government, for the purpose of government administration, including courts;

(b) any location providing health, behavioral health, or chemical dependance care or services;

(c) any place of worship or religious observation;

(d) libraries, public playgrounds, public parks, and zoos; ...

Criminal possession of a firearm, rifle or shotgun in a "sensitive location" is a class E felony.  [emphases added; rest of law is below answer]

So, the very plain answer to the member's question is: libraries that inform visitors that the area is a "sensitive location" per Penal Law 255.01-e can bar firearms, rifles, and shotguns on library property.

There are a few practical considerations for this:

1.  Because enforcement of the law requires people to be aware of it, libraries should maintain a map of their property and use it to develop signage that informs those licensed to carry firearms of the applications of the law.

2.  Libraries should work with their local law enforcement and/or private security to be sure their plan for 255.01-e enforcement is well-thought out, is in a written policy passed by the Board, and is practiced plan for enforcement.

3.  Libraries should not rely solely on 255.01-e for assurance of safety, but rather, should consider it another tool in the box (other tools are: a workplace violence prevention policy, an all-hazards response plan, and customized safety measures).

4.  Libraries with shared spaces should meet with their neighbors to assess the application of the law in common areas (note: many of the entities libraries tend to share spaces with--historical societies, community centers, town buildings, etc.--are "sensitive locations" too; see the rest of the list below).

5.  Libraries in areas where local law already restricts firearms in certain areas should explore how this new "sensitive location" law interacts with the laws in their municipality (a job for the library's lawyer).

6.  Libraries in areas immediately adjacent to places where people go hunting should pay particular attention to the 255.01-e's modifications for hunters, and be ready to enforce the law with suitable refinements.[3]\

7.  Since enforcement of 255.01-e depends on a person being clearly informed of the area being a "sensitive location", signage should be developed carefully, and reviewed by an attorney before posting.

And now, let's talk about the hard part: diplomacy.

The U.S. Supreme Court's decision to strike down the "proper cause" requirement brought dismay to some, and satisfaction to others.  The reaction to New York's swift response in creating new gun control measures will likely be similarly schismatic. Since a good implementation of 255.01-e will require thorough discussion of it, I think it might be helpful to provide some additional information for perspective.

But before we do that, I will share a small story.

In 2021, I attended a pistol permit class.  A colleague of mind had obtained her permit and invited me to target practice, and since I am a relentless seeker of skills, I wanted to give it a try, and getting a permit was the only way onto the range.

While at my pistol permit class, I learned (or re-learned) several things, the most repeated one being: never point a gun at something you don't want to shoot.[4]

As it turned out, I finished the class, but I didn't apply for a pistol permit. Rather than become a casual weekend target shooter, I opted to learn welding[5], instead.  But I do remember something from the class that is relevant to this answer; when the instructor coached us on how to fill in the application for a pistol permit, he explained how if you wanted to conceal-carry, we would need a special reason (a "proper-cause" as discussed by the Supreme Court)...and then assured the females in the room that for us, it was probably enough of a safety risk that we were women--but the men should be ready with a bit more justification.

If you ever meet me out when I am feeling chatty, we can unpack the implications of this assurance.[6] For now, I'll say, when presented with this, my first thought was: this does not seem consistent with the U.S. Constitution.

It's not every day I find myself aligned with Justice Thomas (who wrote the majority opinion scuttling "proper cause") but for this one, I actually get it.

Which brings me to a cool thing about law, and the reason that despite its ups and downs, I cherish my profession.

In ruling that NY's "proper cause" requirement violated the Second and Fourteenth Amendments, Judge Thomas wrote:

After holding that the Second Amendment protected an individual right to armed self-defense, we also relied on the historical understanding of the Amendment to demark the limits on the exercise of that right. We noted that, “[l]ike most rights, the right secured by the Second Amendment is not unlimited.” Id., at 626. “From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”

...

For example, courts can use analogies to “longstanding” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings” to determine whether modern regulations are constitutionally permissible. Id., at 626. That said, respondents’ attempt to characterize New York’s proper-cause requirement as a “sensitive-place” law lacks merit because there is no historical basis for New York to effectively declare the island of Manhattan a “sensitive place” simply because it is crowded and protected generally by the New York City Police Department. Pp. 17–22.

So, the Supreme Court trashed New York's law as unconstitutional, but while doing it, reinforced other elements of Second Amendment jurisprudence related to "sensitive spaces." 

The NY Legislature, taking Hon. Thomas at his word, has now created a lengthy list of "sensitive spaces"...and while it doesn't quite cover the entire "Isle of Manhattan", it is a very comprehensive list.

          In addition to the "sensitive locations" listed above, it includes:

(e) [licensed child care providers];

(f) nursery schools, preschools, and summer camps;

(g) [programs] for people with developmental disabilities;

(h) the location of any program licensed, regulated, certified, operated, or funded by office of addiction services and supports;

(i) the location of any program licensed, regulated, certified, operated, or funded by the office of mental health;

(j) the location of certain disability assistance programs;

(k) homeless shelters, runaway homeless youth shelters, family shelters, shelters for adults, domestic violence shelters, and emergency shelters, and residential programs for victims of domestic violence;

(l) residential settings licensed, certified, regulated, funded, or operated by the department of health;

(m)  educational institutions;

(n) public transportation...airports, train stations, subway and rail stations, and bus terminals;

(o) [any place where you can consume alcohol or cannibis];

(p)  theaters, stadiums, racetracks, museums, amusement parks, performance venues, concerts, exhibits, conference centers, banquet halls, and gaming facilities and video lottery terminal facilities as licensed by the gaming commission;

(q) any location being used as a polling place;

(r) any public sidewalk or other public area restricted from general public access for a limited time or special event that has been issued a permit for such time or event by a governmental entity, or subject to specific, heightened law enforcement protection, or has otherwise had such access restricted by a governmental entity, provided such location is identified as such by clear and conspicuous signage;

(s) any gathering of individuals to collectively express their constitutional rights to protest or assemble;[7]

(t) the area commonly known as Times Square.[8]

Will this list survive a challenge to the law, with people claiming they have a right to bear arms in some of these locations?  Here is the plain-language personal right that the list is up against;

It is undisputed that petitioners Koch and Nash[9]—two ordinary, law-abiding, adult citizens—are part of “the people” whom the Second Amendment protects. See Heller, 554 U. S., at 580. And no party disputes that handguns are weapons “in common use” today for self-defense. See id., at 627. The Court has little difficulty concluding also that the plain text of the Second Amendment protects Koch’s and Nash’s proposed course of conduct—carrying handguns publicly for self-defense. Nothing in the Second Amendment’s text draws a home/public distinction with respect to the right to keep and bear arms, and the definition of “bear” naturally encompasses public carry. Moreover, the Second Amendment guarantees an “individual right to possess and carry weapons in case of confrontation,” id., at 592, and confrontation can surely take place outside the home. Pp. 23–24

Why do I bring this up?  I am from Central NY (raised in a pro-gun rights area) and my adopted hometown is Buffalo.  I know and respect people on both sides of the gun debate.  This issue isn't going away soon...and libraries that want to implement this law will need to discuss it.

So, when your library decides to adopt a 255.01-e policy and put up some signage, it is worth thinking deeply about the local character of your community, and how they will best absorb and honor this message. The law does not prescribe any particular way to designate how an area is posted as a "sensitive location;" your signage can sound as helpful and friendly--or as formal and stern--as you like. It can quote the law, or, so long as the final text is reviewed by an attorney, it can paraphrase it. The choice is yours, and can reflect the character and needs of your particular community.

Just as critical will be discussing with local law enforcement (or contract security) how this law will be enforced in your libraries.  Training staff to understand and speak knowledgeably about the policy will be critical, too.

Writing this from Buffalo, I wish we lived in the world where we didn't have to address this type of question for something so beautiful as a local library. But we do, and I am grateful for the person who submitted the question, and I wish you well as your libraries work with the new legislation.

 



[1] The case name is New York State Rifle & Pistol Association Inc. v. Bruen, and it can be found here: https://www.scotusblog.com/case-files/cases/new-york-state-rifle-pistol-association-inc-v-bruen/

[2] Called "AN ACT to amend the penal law, the general business law, the executive law, the civil practice law and rules and the state finance law, in relation to licensing and other provisions relating to firearms", it can be found here.

[3] Other exceptions or limits to the law pertain to: law enforcement; police officers as defined in subdivision thirty-four of section 1.20 of the criminal procedure law; peace officers; retired police officers; security guards as defined by and registered under article seven-A of the general business law, who have been granted a special armed registration card, while at the location of their employment and during their work hours as such a security guard; active-duty military personnel; a government employee under the express written consent of such employee’s supervising government entity for the purposes of natural resource protection and management; persons lawfully engaged in hunting activity, including hunter education training; persons operating a program in a sensitive location out of their residence, as defined by this section, which is licensed, certified, authorized, or funded by the state or a municipality, so long as such possession is in compliance with any rules or regulations applicable to the operation of such program and use or storage of firearms. THIS LIST IS A SUMMARY; check the law when generating policy.

[4] Or as was recited in one of my favorite "Rumpole of the Bailey" stories:  "Never, never let your gun, pointed be at any one; that it might not loaded be, matters not the least to me."

[5] I now have my D1 pre-certification, which means I spent a lot of time welding in 2021 and 2022.

[6] Words like systemic, and sexism, and stereotyping, and violence, and culture will be bandied about.

[7] Prediction: this one will be the one that gets struck down by the Supreme Court in 2026 or so.  It's a First Amendment/Second Amendment bump-set-spike combo. As of this writing, cases are already being brought to challenge the new law.

[8] Don't use this list for research, I tried to pare it down by removing citations and qualifiers.

[9] The men who brought the case up through to the Supreme Court.

 

Tags: Policy, Public Libraries, Safety, Firearms

Topic: First Amendment Audits on Youtube - 09/26/2022
There are reports of first amendment audits happening in rural towns and villages. Public librarie...
Posted: Monday, September 26, 2022 Permalink

MEMBER QUESTION

There are reports of first amendment audits happening in rural towns and villages. Public libraries are limited public forums - how can we stop the filming, as quietly as possible without causing a social media frenzy.

 

WNYLRC ATTORNEY'S RESPONSE

For a person who hasn't run into this concept yet, a so-called "First Amendment audit" is an increasingly popular trend where people visit government buildings and demand access to information--along with the privilege to film on site--all in the name of the law, democracy and transparency.

As a lawyer and U.S. citizen, I am all for the law, democracy, and transparency.

The concern raised by the member is that so-called "First Amendment auditors" don't just pop by their local town hall to live out a civics lesson.  Most of these folks are "monetized", meaning they post their recordings on YouTube...for money.  And since nothing draws in viewers like controversy, in the quest to get tens of thousands of hits, "First Amendment auditors" often[1] swap law, democracy, and transparency for rhetoric, bullying...and borderline harassment.

How do these YouTubers[2] create this concern?  As can be seen in their videos, they often come out swinging: filming or streaming while walking around as if "casing" a civic building, knowing that for some workers, this will cause concern.  Further, if/when confronted about what they are doing (usually some version of "Can I help you?") the best YouTubers are masters at using standoffish nonchalance, or passive-aggressive behavior, to trigger suspicion and fear.

Sadly, however, it is sometimes the fearful or angry reaction of those being filmed (town clerks, other employees) that tips things into a legal quagmire...and creates "click-worthy" material.

While mainly focused on municipal buildings (town halls, village halls, etc.) a growing sub-set of "First Amendment auditors" are visiting public libraries. I'd put a link in to some of the more egregious examples that have been created in New York in the last year or two, but I don't want to make money for these folks (they are doing just fine without me).  Let's just say that when the YouTuber is able to hit all the right pressure points, they can really tick off a civil servant--including a librarian.

The frustrating thing is that this doesn't have to happen.

Libraries--even those wholly housed within a municipally-owned structure--are, as the member says, "limited public forums" meaning that the library gets to set policy and rules imposing reasonable, operationally-related parameters on speech ("speech" in First Amendment jurisprudence, includes the right to film and access information).

Among other things, this means that libraries can totally bar or limit filming to certain areas of the library.

Of course, such a bar or limit can't be arbitrary--it must be "rationally related" to the operational needs of the library.  But so long as there is a "rational relationship" between the policy and the needs of the library, such a bar can be enforced.[3]

This means that through policy, a library can decide that patron confidentiality, information access, and the library's overall service to the public require limiting recording and/or streaming on site--a rule that can be enforced just like rules to be quiet in certain rooms, to not eat in certain areas, and to not deface any of the books.[4]

This means that the confident swagger many YouTubers bring to their "audit" game can be met, in the field, with a series of rules restricting their behavior--something (from what I've seen) that many YouTubers are not emotionally nor intellectually ready to honor in the moment.  In other words, just because your policy is legal, doesn't mean a YouTuber will magically turn their camera off!

So enforcing such policy requires forethought...especially since most YouTubers know that if they can get in an argument with a librarian, they will double (or triple) their number of hits.

So, as the member asks: "[H]ow can we stop the filming, as quietly as possible without causing a social media frenzy?"

Here are 10 different tactics[5]:

Have a Policy

Have a policy regarding filming in the library, and make sure that any decision to bar filming is rationally related to library priorities such as protecting patron confidentiality, respect for employees, and smooth operations.[6]

Use Good Signage

However your library decides to exercise its rights as a limited public forum, once it is confirmed in a policy, use prominent and effective signage to inform the public about the rules.

Transparency through FOIL

Since claiming the right to film anywhere in a public library is only part of the YouTuber package, make sure your library has a clear policy and process for requesting library records through the New York State Freedom of Information Law (or "FOIL").[7]

Designated Non-Public Areas

All staff rooms, break rooms, and other areas not accessible to the public should be designated as "No Public Access", with appropriate means of securing the area.  Give your employees a place of refuge (and a place for private information to securely reside).

Select Your Library's Response and Non-Escalation Method

As we've discussed, if you argue with a YouTuber, you might as well just hand them money.

So, while there is no one "right" way to resist escalating a situation, each library should pick its own particular brand of how to keep interactions with YouTubers civil, non-confrontational, and above all very, very, very boring.

For those libraries that do allow filming (whether without restriction,[8] or with some limits), but want to be part of the narrative, I like the idea of chatty engagement about the library's mission, services, and budget (and fundraising).  After all, the YouTuber is there to get information...why not provide it?  Think of the YouTuber's visit as a chance to inform the public of the history of the library, to showcase its services, and alert the public as to how they can donate money to support special initiatives (this is a good reason to have a copy of the library's annual report on hand). If YouTube is helping to draw attention to your library, you might as well put your best foot forward!

For those libraries that don't allow filming, or restrict it to certain times/areas, ensuring that a person who is attempting to film in the library is aware of the duly authorized and posted policy is essential.  After that, if a person persists in violating the policy, a response is down to what enforcement method is selected and practiced, which can include a combination of:

  • Policy enforcement in the moment (using practiced security procedures);
  • Policy enforcement after the moment (the recording happens without confrontation, but there is a subsequent action for trespass, or other action under Code of Conduct);
  • Deliberate non-engagement with the YouTuber using pre-determined language ("It is against our policy for you to film in this location"; and/or "You do not have my consent to film me, I consider it harassing; please stop." said once, calmly.[9]);
  • Use of pre-determined, quiet withdrawal of most employees into employee-only areas.

Do not argue. Do not debate. 

And finally, it is important to acknowledge: for some library employees, the visit of a YouTuber can feel threatening (remember, many of these entertainers are trying to get a rise out of people). So as with any other interaction with the public, the clear message to employees must be: Safety First.  If employees are feeling threatened, they should withdraw using the same protocol in place for other safety concerns.[10]

Practice, Practice, Practice

Once there is a policy and clear, engaging signage, set aside time to train employees in the policy, and give them time to practice addressing YouTubers in a non-confrontational manner.  Use role-playing techniques (done right, this can be a fun exercise, even though the actual event might not be so fun).

Coordinate with Security

Not all libraries have private security, but for those that do, make sure they understand what is at stake when dealing with a YouTuber; include security personnel in the practice sessions (if time and budget allow). At the bare minimum, confer with the local police department to know what the response will be if the situation warrants intervention by law enforcement.[11]

Remember: YouTubers are Human, Too

I know it can be hard to recall when someone is pointing a camera in your face and wandering about your library looking like they are creating a map of its security vulnerabilities, but one thing I've learned from working with libraries who have lived through a "First Amendment audit"[12] is that very often the visitor is a member of the community.

In fact, some libraries have received calls from national groups in advance alerting them that a longstanding member of the community will be visiting to film!  (I suspect the "advance warning" was to create an adrenalin rush, but the library was able to use its long-standing relationship with the person to make it a positive interaction.)

So long as a library employee dealing with a YouTuber feels confident about their safety, thinking about the YouTuber as a person who is genuinely curious about your library, and treating them as just another patron on a quest for information, can help cut down on click-bait drama--and serve the mission of the library to provide access to information.

Maintaining that type of perspective is easier if the employee is:

          a) confident that they know the library's policy about filming in the library;

          b) confident that the policy is clearly posted;

          c) confident that the library is on solid legal ground;

          d) confident of how the library as a whole responds to Code of Conduct violations;

          e) confident that the library abides by the law governing access to information; and;

          f) confident about if/how to engage, because they have practiced techniques for positive interactions and non-escalation, and they know leadership will have their back.

And that is how a library can turn YouTube drama into a non-dramatic civics lesson. It is not fool-proof, because if a person is determined to enter a library and create a scene, they will create a scene. But with good policy and practice, a library and its employees won't contribute to it.

Thank you for a great question!

 



[1] I say "often" because there are some people out there who get this right--and if we are now getting our civics lessons on YouTube, I want to give credit when it is due.

[2] I will not call them "auditors". In my world, an "auditor" reviews your financials, and looks for holes in your fiscal controls.  I call them "YouTubers" or "person recording in the library" because that is a more accurate appellation.

[3] For more on that, see the training video and related materials from the Empire State Library Network's presentation, “Libraries and First Amendment Audits,” which are available through the links found here. This resource also spends a lot more time on the legal underpinnings of what I am summarizing in this "Ask the Lawyer"...so if you want more info on this topic, that's the place to go!

[4] In New York, it is also a crime to deface library books...but it can still also just be a violation of policy!

[5] I urge any library considering any of these to view the ESLN materials, and to discuss their selected tactics with their lawyer.

[6] A model policy is included in the ESLN materials.

[7] For more on that, see the Ask the Lawyer response found here.

[8] At the bare minimum, a policy barring filming of: other patrons without written consent, computer screens, the reference desk, and the circulation area(s) is wise.

[9] This can come in handy later, during efforts to remove a video or to pursue other consequences as a result of the behavior.

[10] If the library currently doesn't have protocols for this, a visit with local law enforcement, private security, or a consultant to develop them is a very high priority. This can go hand-and-and with an OSHA-style "Workplace Violence Prevention Policy."

[11] Only your library can determine what the trigger for calling law enforcement is.  This is something to be discussed and (yes) practiced.

[12] To hear from these libraries, check out the ESLN training materials I keep mentioning!

 

Tags: First Amendment, Policy, Privacy, Public Libraries, Safety

Topic: Soliciting Donations for Public Libraries - 08/17/2022
We are beginning our long-range planning process and are asking patrons to fill out a community su...
Posted: Wednesday, August 17, 2022 Permalink

MEMBER QUESTION

We are beginning our long-range planning process and are asking patrons to fill out a community survey to assess what the community wants to see in the library now and in the future. Thinking it was a good idea to raffle off gift cards to encourage participation, I gave my board trustees a letter requesting a donation of gift cards. Another director told me I'm not supposed to have the board ask for donations in any form. This is something our Friends group should do. Please advise. Thanks in advance!

 

WNYLRC ATTORNEY'S RESPONSE

Following our "do not reinvent the wheel" rule for "Ask the Lawyer," prior to diving into this, we checked the "Trustees Handbook" posted at https://www.nysl.nysed.gov/libdev/trustees/handbook/handbook.pdf.  On page 57, it provides an excellent summation of the concern at play in the issue of trustees and fund-raising:

"Public library boards generally take care to separate private fundraising efforts (such as direct personal solicitations, as opposed to seeking grants from foundations or government agencies) from normal library operations and board activities since there are restrictions on the appropriate use of public funds." [emphasis added]

The Handbook then points out that this concern is why many public libraries use "Friends" to personally solicit and raise funds.

To this concern about limits on the use of public funds, I would add that when it comes to raising money, it is very easy for the solicitation to run afoul of charitable regulations, required accounting, and limits on allowed fund-raising activities (such as games of chance).

But does this caution merit a complete bar on such solicitations?

To explore that, let's explore the risks.  And we're also going to talk about "raffles", so hang in there, association libraries...this one's for you, too.

Before a board solicits gifts, it should have a full suite of "fiscal controls" and accounting practices to govern how the solicitation is done.  A policy on soliciting/accepting donations, and policy on fund-raising events, a policy on procurement...if a board ensures that its actions in soliciting gifts are following a legally compliant policy, this mitigates the risk of no-compliance.

Let's take the member's specific situation as an example: Could trustee solicitations of gift cards for a raffle used as an inducement to participate in a survey on library use be done carefully enough to avoid a concern?

Here are the risks in such an endeavor: the library is planning to 1) have trustees ask for donations of gift cards; 2) use the cards as an inducement to fill out a survey; then 3)  "raffle" the donated cards; then 4) use the answers from the survey "to assess what the community wants to see in the library now and in the future."

Of the 4 things listed above, only #1--the solicitation of the cards--doesn't give me pause.  If the library has a good donation acceptance policy, and the cards are donated per that policy, and the library follows the conditions for the donation...then it is just another donation.

#2 poses a risk that is pretty easy to mitigate with a little caution.  In the world of not-for-profits in New York, a "raffle" is a "game of chance".  This means a "raffle" can be considered "charitable gaming" which can require registration and particular accounting (see General Municipal Law of New York (Section 186), and registration).

However, as defined by law, a "raffle" in New York requires the purchase of tickets for payment of money.[1] Since the draw described isn't technically a "raffle" (it's a drawing), to avoid any confusion, it might be good to avoid using that word.[2]

In addition, if you have time, it would be good to call your local County Clerk to make sure they don't regard the use of raffle tickets without payment of money to be a "raffle."[3]

Okay, the "raffle" concern is pretty easy to ameliorate. My concerns about #2 and #4 are a little more subtle and tricky.

As stated, the library is hoping the lisupare[4] will inspire people to fill out a survey to assess what the community wants to.

This means that the library hopes to use the results of the survey to make decisions about such things as programming, collection decisions, and the library facility.  From the sound of it, the input could even be used to develop plans for renovation or new construction funded by a bond or other municipal funding initiative in the future.

I imagine you see where I am going here.  By offering a reward with a defined financial value for participating in the survey, the board would risk the assertion of a direct link between financial compensation and a person filling out the survey a certain way.

I know.  This seems ridiculous.  But complaints have been made about far more innocuous things.

To avoid this, I suggest the library consider a different approach to incentivizing broad community participation in the survey. For instance, each person who completes one gets a leaf ornament or token to hang on a display, so the community can see how many people have taken time out of their day to give their feedback to the library.[5]  In this scenario, the trustees could request donations of the ornaments or display (which can then become part of the library's stock of display materials) can just follow the usual policy for accepting donations.

I am sorry to have to write this; I hate throwing cold water at good ideas.  Further, I am not saying the "raffle" (uh, that's "lisupare") is outright wrong.  But libraries function in large part because of the love and trust they foster in the public.  While the notion of a chance to be selected for a monetary gift for taking the time to complete a library survey is lovely, I think it can be interpreted wrongly--either in the moment, or down the road. 

Thank you for trusting me with this question.[6]

 



[1] Per GML 186 3-b, a "raffle", when conducted by a not-for-profit in NY, is a " game of chance in which a participant pays money in return for a ticket or other receipt and in which a prize is awarded on the basis of a winning number..." etc.

[2] You could go with a made-up word like "lisupare" ["Lie-soo-puh-ray; noun; definition: a randomly given library survey participation reward.]

[3] To address this, I called the NYS Gaming Commission.  Let's just say that unless you are reporting suspected gaming crimes, the Commission doesn't like to get in touch over the phone.  So, then I scoured their materials on "charitable gaming" at https:/www.gaming.ny.gov/charitablegaming/.  While it is clear the law requires "payment" which is defined as "legal tender, check, or credit card", I didn't find anything ruling out a situation like the one described (people "paying" for a raffle ticket by performing a task).  So, getting assurance from your county clerk, who keeps an eye on local charitable gambling, is a good idea.  Hopefully, they will laugh at the very idea that this could be seen as a "raffle."

[4] See footnote #2.

[5] I am a lawyer, not a professional display-maker, so I have no doubt a library employee with experience making displays can come up with a much, much, MUCH better version of this.

[6] Just so readers know, I spoke with the director who submitted this question, who was very cool about all my agita.

 

Tags: Board of Trustees, Donations, Fundraising, Public Libraries

Topic: /Liability Waivers for Library Fitness Programs - 07/26/2022
My hometown library has implemented a fitness waiver for their movement and exercise activity prog...
Posted: Tuesday, July 26, 2022 Permalink

MEMBER QUESTION

My hometown library has implemented a fitness waiver for their movement and exercise activity programs. I am wondering if this is a good idea for my library. We provide some exercise classes including chair yoga, Zumba, nature walks, and are looking into another movement class activity. For reference, please copy and paste the form used by my hometown library [redacted for anonymity] into your browser or refer to the attached screenshot. Are we within our legal/ethical practices to implement such a waiver? Will we need to consult an attorney to draw up the waiver for a fee, or can we borrow the language used by [redacted for anonymity]? Thank you.

 

WNYLRC ATTORNEY'S RESPONSE

I have a lot of fun-loving clients.  Here are some examples of activities I've created liability waivers for:

  • Mechanical bull riding
  • Smashing a car with a sledgehammer for charity
  • A "ToughMudder" event
  • Sword fighting

I have also worked on liability waivers for more commonplace activities like attending a hockey game, horseback riding, and cheerleading.[1]

The purpose of a liability waiver is to limit a person's ability to bring legal action for injuries related to a particular activity.  Therefore, the trick to creating a successful waiver is making sure it is enforceable when a worst-case scenario--an injury related to that particular activity--occurs.

Because of the high stakes--and because the law in New York can have an impact on how much liability can be waived (for instance, a waiver of liability at certain types of pools[2] is invalid, no matter how well-written) -- a waiver should almost always be custom-crafted to the actual activity, at a specific place, and thus not borrowed from another entity.

The waiver for the mechanical bull rider was different from the waiver for the hockey spectator.

The waver for the person venting their rage on a car for charity was different from the waiver for an equestrian.

The waiver for the sword fighter actually had more in common with the waiver for the cheerleader than you might think...but was still different.

Add to this diversity the fact that in New York, the waiver for a municipal library might have to look different from one used by another municipal library, or an association library, and there are a lot of variables to consider.

So, my answer to the question "Will we need to consult an attorney to draw up the waiver for a fee?" is: if your library wants assurance that the waiver actually protects the library from liability, then YES.

But wait, there's more.

I appreciate that for a not-for-profit such as a library, which likely doesn't have a budget to go around hiring lawyers to hand-craft waivers for every separate fitness activity (or if it does, would rather spend that money on materials and programming), bringing in a lawyer every time you want to sponsor a new physical fitness event can be cost-prohibitive.

So here are a few options between commissioning a new waiver for every fitness event, and just scrapping such events in the first place.

Solution 1: Pass the risk of liability on to the instructor

Any physical fitness class being offered by a library should be led by an instructor with the documented qualifications and insurance coverage to limit and cover the risk of injury related to the activity.

For a yoga class, this means the instructor should be able to show they 1) are certified by an acknowledged yoga authority; 2) are willing to accept responsibility for injury caused by their yoga class, and 3) have insurance that will cover such injury (whether the person sues the instructor, or the library, or both).

A contract showing all this will 1) recite the instructor's qualifications; 2) list their insurance (and attach a certificate showing the coverage; and 3) include a "hold harmless" and "indemnification." That means that if there is a claim of liability resulting from the classes, the instructor's insurance coverage will take the heat.

Such an instructor will, usually, have their own waiver that they require participants to sign, tailored to the precise activity.  Further, to most experienced instructors, none of this will be an outlandish requirement.

Does this mean that start-ups and amateur instructors might not be able to offer classes at your library?  Yes...and while it may seem harsh, that is a good thing.  If a person is great at yoga and loves sharing what they've learned, but doesn't have the documented credentials to assure the library that they know how to teach it, or insurance coverage, they should not be selected to offer a fitness class by your library.

The public attending a fitness class will trust that the library has picked the right person; having the ability to demonstrate a bona fide qualification and insurance is a key sign you've made the right selection.

Solution 2: Work with your insurance carrier

Your library likely has some form of general premises liability coverage.[3]  This means that an insurance carrier, on an annual basis, is sending your library a copy of an insurance policy--and the library is paying for it.

Aside from your board and employees, you know who doesn't want your library to get sued for an injury that happens during a fitness activity?  Your insurance carrier.

Now, what I am about to write may, or may not, be helpful.  In my experience, some insurance carriers will bend over backwards to make sure their "insured" doesn't get sued; they will offer training on risk management, they will offer employee screenings, and they will offer to review forms and policies.  Other carriers, on the other hand, will just accept a check for your library's annual premium, and wish you "good luck" with liability.

When your library is contemplating any physical event with a moderate risk (yes, like Zumba), it is a good idea to check in with the insurance carrier for the library.  Do they have waivers they want you to use (even if your instructor has held you harmless)?  Do they have rules they require you to post (even if the rules are pretty obvious)?  Is there an exception in your coverage (does it not cover fitness classes at all)?  All of this is critical to know before your library takes on any risk for a program. 

And who knows...I've actually had clients get the "all clear" from insurance carriers, who confirm "Yes, that is within the scope of your coverage, let the Zumba commence!"  It all depends on what's in the policy.

Solution 3: "One-Waiver-Fits-Most"

With a "one-waiver-fits-most" solution, an organization identifies a suite of low-risk activities, and asks that their lawyer write "one waiver to rule them all,"[4] and only offer that type of activity...saving costly custom waivers for riskier (and likely rarer) activities. 

What is "low risk" activity?  That is up to your lawyer, insurance carrier, and library.  But it in general a "low-risk" activity is one so low-key and mundane, with no heightened or specific risk, that an enforceable waiver covering it wouldn't require any special bells and whistles.[5]

Common examples of such "low risk" activities might include:

  • Nature walks in a town or city park
  • Organized bike ride in public park
  • Local history walking tour
  • Breathing or mindfulness class
  • Croquette, badminton, tennis, Wii[6]

Although they might seem low-risk, I would generally exclude from this list:

  • Yoga (including chair yoga)
  • Dance class
  • Any contact sports
  • Organized bike ride on public streets
  • Anything involving children running

THESE ARE JUST EXAMPLES...each library's list of "low risk" activities to be conducted with a "one-size-fits-most" waiver will change based on the library's type, level of insurance, and tolerance for risk.[7]

While not perfect, the "one-size-fits-most" solution is a cost-effective way to confidently offer programs from a menu of activities, while also protecting the library and not blowing the budget on legal services.

To ask a lawyer to write a "one-size-fits-all" waiver for your library, gather:

  • your insurance policies
  • code of conduct
  • list of typical activities
  • any grants funding the activities
  • Lease (if your library doesn't own the building)

Be ready to meet for maybe half an hour with the lawyer to discuss the fitness events that your library wants to host.  For municipal libraries, be ready to involve the town/village/city attorney at either the beginning, or the end, since depending on building ownership, and some other factors, the municipality may need to have some input on this too.

Mix that all together, and you should get:

  • a list of "low risk" activities,
  • a "one-size-fits-most" waiver;
  • some guidance on when you need an instructor contract;
  • instructions on how low to save signed waivers[8],
  • and a sense of reduced-liability confidence.

Happy Zumba!



[1] Cheerleading may be common, but it is fraught with risk!  P.S. NCAA: it should be considered a sport.

[2] New York Consolidated Laws, General Obligations Law - GOB § 5-326. Agreements exempting pools, gymnasiums, places of public amusement or recreation and similar establishments from liability for negligence void and unenforceable

[3] In my work with libraries, I have found this is not always the case.  One important annual task for trustees is to ensure that the library has adequate insurance.

[4] In writing.  Always confirm legal advice in writing.

[5] An example of a "bell and whistle" would be the specific warning: "horseback riding is inherently dangerous")

[6] Unless played the way my family plays, in which case, there is not enough insurance in the WORLD.

[7] Although I am willing to bet croquette is on the "low-risk" list state-wide.

[8] Yes, they can be signed and/or archived electronically, but confirm the method with the drafting attorney.

 

Tags: Liability, Library Programming and Events, Municipal Libraries, Public Libraries, Safety

Topic: Liability Insurance for Notary Services - 06/30/2022
Should libraries that have Notaries Public on staff have notary liability insurance for those libr...
Posted: Thursday, June 30, 2022 Permalink

MEMBER QUESTION

Should libraries that have Notaries Public on staff have notary liability insurance for those library staff? Or would that be covered by the library's general liability insurance? We don't want our staff who are providing Notary Public services to be putting themselves at risk.

 

WNYLRC ATTORNEY'S RESPONSE

These are very important questions.

Just in case any reader needs a refresher, a "notary public" in New York performs critical services: administering oaths and affirmations, taking affidavits and depositions, certifying acknowledgements or proof of critical documents (such as real property deeds, mortgages, and powers of attorney), and certifying copies of official documents.

Anyone who has ever had to have a document notarized knows how important finding "a notary" can be.

In New York, the power of notaries is summarized in Article 6 of the Executive Law.

Of relevance to the member's question, that law also imposes penalties for mis-applying a notary’s power:

"For any misconduct by a notary public in the performance of any of his[1] powers such notary public shall be liable to the parties injured for all damages sustained by them."

So, what does "misconduct" by a notary, for which they "shall be liable" look like?

Examples found in the case law of New York include:

  • Inattention to authentication of a signature resulting in allegations of a forged real property deed (Chicago Title Insurance Company v. LaPierre, 2013);
  • "Gross negligence" asserted after a notary allegedly authenticated a forged signature, causing a person not on a lease to be sued for its violation (Independence Leasing Corporation v. Acquino, 1986);
  • A bank suing for "notarial misconduct" when a forged signature led them to rely on a document guaranteeing a loan (Marine Midland Bank v. Stanton, 1990).

In each of these cases, the "liability" led to demands for money related to the alleged misconduct...as well as legal fees for having to sue.

Also of relevance to the member's questions, in addition to personal liability of a notary, case law shows that when misconduct is asserted against a notary who performed the service as part of their employment, the employer was also named (which is what happened in the Independence case listed above).

Of course, not all assertions of notarial misconduct will be found to be valid.  But since even a case brought in error requires a timely and effective defense, an assertion of notarial misconduct can cause expense (and stress!) for the notary (and their employer).   Which is why the member is rightly concerned about protecting a library employee serving as a notary.

With all that as background, to answer the member's questions, here are five critical steps before any employee should serve as a notary public as part of their work for a public (including association) library:

1.  Before offering the notary services of an employee, a library should confirm with their insurance carrier that their coverage includes a claim of "notarial misconduct."

In New York (and throughout the country, but we're focusing on New York here), different insurance policies include (and exclude) different coverage for things.

Because of this, there is no one "type" of coverage I can assure readers that will always cover an assertion of notarial misconduct. 

And because of that, a library should work with its insurance broker and/or insurance advisor, or directly with the carrier, to ensure (and then be assured, in writing) that such coverage is included in their policy (and extends to employees).

This is critical not only when insurance is first obtained, but whenever the carrier issues a new policy (or when there is a change of carriers). 

2.  Before offering the notary services of an employee, the library should confirm that offering notary services is in the employee's job description.

An employee who has taken the time to study the requirements, passed the exam, maintained the license, and operates as a notary as part of their work at the library, is taking on risk to offer something of value to the community. Adding that ability and service to an employee's job description accomplishes two important things.

First, it acknowledges the value of the license held by the employee.

Second, by making it clear that the employee is offering notary service as part of their job, it helps ensure that the library's insurance coverage will cover the employee if there is an assertion of notarial misconduct[2].

If the library cannot amend a job description to include this ability, the provision of notary services should not be a part of library services offered.

Further (and this is critical) if the library can't consider the employee to be offering notary services as a service, the employee should not notarize documents when "on the clock" for the library.

3.  Before offering the notary services of an employee, the library should confirm the adequacy of its internal procedures.

A notary public's function requires several things to ensure compliance: time to perform the function properly, good record-keeping to ensure that the function was properly performed, and consideration of how such records will be kept secure and confidential.

An example of this is found in the new guidelines for remote notary posted at dos.ny.gov/notary-public.

Screenshot from the new guidelines for remote notary. Text reads: Is a notary journal required? Yes, the notary public must keep a journal of all remote notarizations performed. Each journal entry must be made contemporaneously with the performance of the notarial act, and each entry must include the date and approximate time of the notarization, the name of the remote signor, the audio-visual technology used to perform the notarization, the number and type of documents officiated and notarial services provided, and the type of identification/credential presented by the remote signor of the document or documents. The journal must be kept by the notary public for as long as they remain a notary and for an additional five years thereafter.

In addition to what is required by law, the library's insurance carrier may also have some requirements, so a solid internal procedure should include their input, at well.

And of course, whatever is needed should be supported in the library's budget.

4.  Before offering the notary services of an employee, the library should confirm how it promotes awareness of the service.

Section 135-b of the Executive Law also sets some rules for how notary services are advertised!  Because of this, libraries should be careful about how the notary services are promoted.  For more on that, see the rules posted by the New York Department of State at:

https://dos.ny.gov/system/files/documents/2022/04/notary.pdf

And finally...

5.  Please don't let the red tape in this answer stop your library from offering notary service.

I know the considerations of this answer have gone a little further than the specific content of the question.

Further, I know that words like "liability" and "misconduct”, and "insurance" can be intimidating, and signal expense.

However, for anyone out there who has ever had to desperately search for a notary public on a time-sensitive basis, you know that assured notary services are a real boon to a community.

I encourage any library who is offering notary public services, who may read this and think "uh-oh," to consider it a critical community service that is very much worth the time and effort to properly support.

In addition, I urge libraries to support and honor the hard work of any employee who has obtained their notary license by ensuring these steps and make sure they have the proper resources to offer the service confidently.

In that spirit...many thanks to the member for an important set of questions!



[1] This is a verbatim quote.  Although the use of the pronoun "he" suggests there could be a loophole for those who use another pronoun, notarizing is a non-gendered sport for anyone who has attained the age of 18, and charges of misconduct are open to all.

[2] Of course, if the alleged misconduct is willful (for instance, aiding with deliberate fraud) the carrier will likely disclaim coverage of the employee...but may still cover the library (a scenario to discuss with the carrier).

 

Tags: Liability, Public Libraries

Topic: Library Employment Contracts - 06/07/2022
Our Board of Trustees is searching for a new director. Our Library has transitioned from a very sm...
Posted: Tuesday, June 7, 2022 Permalink

MEMBER QUESTION

Our Board of Trustees is searching for a new director. Our Library has transitioned from a very small building to a modern, significantly larger building. As a public library, the school district we serve has a population of more than 18,000. Our former director did not have a contract. Some trustees have expressed the desire to make a contract with the candidate selected to serve as the next Library Director. We have received conflicting information about how common such contracts are. We don't want to devote time and energy to drawing up a contract that holds no value in the end. How common and necessary is it to have a Library Director contract for a public library serving a community of our size?

 

WNYLRC ATTORNEY'S RESPONSE

Regular readers of "Ask the Lawyer" know one of the cardinal rules is: "Do not reinvent the wheel."  So, before working on this reply, we[1] checked the "NY Library Trustees Handbook (2018),"[2] which has a whole section on hiring library directors.

The Handbook does not reference how "common" having a contract for a library director is, but on page 46, it does emphasize the importance of using a "hire letter" or "memorandum" or "contract" to confirm the hiring terms. 

This is wise counsel.  So, before we build on it to answer the member (and we will!), let's (briefly) talk about the difference between hire letters, memorandums,[3] and contracts.

As most readers likely know, New York is an "at will" employment state.  This means that, barring illegal[4] factors, an employer is free to terminate an employee as needed--and similarly, an employee is free to resign.  Most "hire letters" confirm "at-will" employment.[5]

An "employment contract," on the other hand, puts more bells and whistles on the relationship. It can address a range of things, including the parties' ability to terminate the relationship, and can alter (for a particular employee) the application of an employer's policies.[6]

Typical clauses in employment contracts for library directors are:

  • A confirmation of the job description;
  • A probationary period;
  • A routine evaluation method;
  • An assured period of employment (for instance, a 1-year or 5-year contract);
  • Relocation costs;
  • A recital of specific expectations beyond what is in the job description--for instance, if the director is being employed at the beginning of a strategic plan with expansion objectives, and part of the reason for the hire is a requirement to help keep the expansions on track;
  • A benefit structure that differs from other job titles;
  • A base compensation and bonus structure based on clearly articulated and quantifiable performance metrics;
  • A commitment to a certain amount of budgeted funds and time out of the library for professional development;
  • Tuition or professional development reimbursement;
  • A consequence for early resignation;
  • A list of specific reasons the contract can be terminated early by the board "for cause";
  • A list of specific reasons the contract can be terminated early by the director;
  • A buy-out or other provision in the event of early termination by the employer "without cause";
  • A confidentiality clause;
  • A clause regarding support in the event a lawsuit or legal complaint is directed at the employee[7] as a result of the employee performing their duties (similar to what protects a trustee).

Of course, the above-listed items are just examples.

So, how does a library board know when to use a contract?

There are too many factors to list, but here is a tool for assessing if a contract is the right approach to locking in employment terms between a library and director:

Factor

Comment

Yes

No

1. Is your library seeking the stability of a long-term commitment from its director?

Sometimes, even the promise of a year's service can lend stability...and a term can be as long as five years (or more...but five is a nice start).

 

 

2. Is the library about to undertake an initiative where the specific candidate’s skills and experience are a necessary asset?

For instance, if the library is overhauling its approach to IT over the next 5 years, and the candidate has specific prior experience with that type of project.

 

 

3. Is the search process unusually challenging for your library? (due to geography, etc.)

If every search costs time, money, and (most importantly) impacts services to the community, finding a way to get added stability may be worthwhile not only financially, but for the sake of the library's mission.

 

 

4. Are you more likely to retain a desirable director if you offer the protection of a contract?

The possibility of a contract can be an aid to recruitment.  If the job advertisement sets out the potential for greater stability, it might attract a more qualified candidate pool.

 

 

5. Will being able to tout having a director under contract help during budget and funding initiatives?

This could be a double-edged sword!  If the contract helps with cost containment, it's a benefit.  If it could be portrayed as excessive or unnecessary, it can backfire.

 

 

6. Will the library be channeling extra resources into professional development for the director, and thus want assurance of a return on investment?

This is a consideration where, if done right, the contract creates a win-win (the library director gets the benefit of development, and the library gets stability of an increasingly qualified director).

 

 

7. Will it help employee morale to know there is stability in the director role?

This can be another double-edged sword, depending on the relationship between the director and the other employees.

 

 

8. Will having the director under contract help with union negotiations? [skip if no union]

This may be a neutral factor, but certainly one to consider if there is an employee union.

 

 

9. Does the board want to be able to link compensation to specific objectives in an enforceable way?

A good contract can also serve as a planning tool.

 

 

10. [If director already employed by library] Has the director been successfully employed by the library for a while, but the library seeks greater assurance of retaining them?

 

Converting a successful at-will employee to a contract employee is another way to ensure stability.  If a system of progressive raises or bonuses is used, it can aid retention.

 

 

 

If your library answered "yes" to one or more of the above factors, it might be worth considering using a contract!  This is true even if no other library you know of is doing so (or if they all are).

 

That said, like all things that create obligations, a contract requires CAUTION.  Here are some factors to consider before a library decides to use a contract:

 

Factor

Comment

Yes

No

1. Does the board have what it takes to conduct a search that meets the objectives of the contract?

If the candidate pool is not robust, a contract cannot make things better.

 

 

2. Does the board have the capacity to pay attention to the compliance factors in the contract?

If the board doesn't follow the contract, it is dangerous to have one!

 

 

3. Does your board have the capacity to engage a lawyer to generate a custom contract?

A lawyer will look at the library's unique features, and the objectives of the board, to draft a contract.  The lawyer should also be ready to help the board negotiate.  Ideally, the first draft of the contract should be ready BEFORE the job is posted.

 

 

4. Does the library's financial position allow it to make the financial commitments the contract would create?

This should be confirmed by the Treasurer and the auditor before any offer is made.

 

 

5. Does Civil Service impact the terms of employment?

If yours is a non-association library, check with your local Civil Service rep to make sure the rules for hiring, discipline, promotion, and compensation are all honored in the contract (the lawyer mentioned in #3, above, can do this for you).

 

 

6. Is there anything in the enabling legislation, charter, bylaws, policies, or current Plan of Service that would deter using a contract?

This question is really one for the lawyer drafting the contract, who should review these documents before preparing the draft, but it is worth considering at the starting point of the process.

 

 

If the answer to any of the above questions is "no," a board should consider if additional steps need to be taken before deciding to offer a director an employment contract.  Employment contracts are like houseplants; although they largely just sit there, they need attention from time-to-time.

And that's my answer to the member's question; not based so much on what is "common", but definitely based on what might be "necessary" for a particular library.

Thanks for a great question, and good luck with your search.

BONUS CONTENT

If there are three take-aways I hope this answer conveys, they are:

1) a contract for a library director can be a positive and helpful thing for both parties;

2) before offering or requesting a contract, a board or director should know what they want, and why (and if a contract can fulfill that); and

3) never, never, NEVER use a generic contract from the internet...always have a draft contract reviewed by a lawyer[8] before it is offered.

To help emphasize these three take-aways, here are three limericks:

A pro-active library board

Over its strategy pored

"We seek a director

who has it together

Should a contract be offered?"

 

The board then decided "Why yes,

Our new person must fix quite the mess

So we'll set some terms

That our contract confirms

To address our points of high stress."

 

The right fit was finally found

A lawyer said the contract was sound

So to the future director,

A contract was sent o'er,

And now they are legally bound!

 

Did this trio of limericks skip the part of the process where the parties negotiate back and forth, and the contract is (hopefully) signed?  Yes.

But hey... the top 3 take-aways are in bold.  That's what's important. Please let us know if they are helpful.[9]


 



[1] Who is "we"?  The staff at the law office, and in this case, a call to the director of the council whose member sent in the question.

[3] The term "memorandum" is not a legal term.  If a "memorandum" of hire only confirms that the position is at will, it is at-will.  If the memorandum adds to the rights and/or obligations of the parties, it is a contract.  For this reason, I discourage use of the term "memorandum" to confirm hiring terms.

[4] Like discrimination, retaliation, and contract violation.

[5] These days, they also fulfill state legal requirements to confirm the date of hire, the rate and frequency of compensation, and the identity of the employer. For more on this, see the state's "wage theft" rules explained here: https://dol.ny.gov/system/files/documents/2022/05/p715.pdf.

[6] Most employee handbooks will have language confirming that the board can change the policy at will and nothing in the manual is to be taken as creating a contract; this is to preserve the "at will" arrangement.  Any employment contract should consider how it works with an existing or future employee handbook.

[7] Assurance of such coverage is not needed for most "Directors and Officers" (or "D&O) insurance to cover a director, but considering the extent of D&O coverage is an important annual task for the board.

[8] Who knows about both employment law and libraries.

[9] Feedback can go to info@losapllc.com.

 

Tags: Board of Trustees, Employment, Legal Poems, Library Employment Contracts , Public Libraries

Topic: Public Vote for Library Capital Project - 05/18/2022
We are a school district public library planning a capital project. The question is whether or not...
Posted: Wednesday, May 18, 2022 Permalink

MEMBER QUESTION

We are a school district public library planning a capital project. The question is whether or not the project has to be approved by a public vote. We have been given money from our assemblyman towards the cost of the construction of one item in the plan. The remainder of the funds will be from the Friends of the Library, a foundation that is raising money in memory of two people and other private donations. We are not asking for tax dollars for the project.

 

WNYLRC ATTORNEY'S RESPONSE

There are a few scenarios where a capital project, such as a renovation, could start with a vote of the electorate of a school district library.[1]  If the project is subject to a bond, requires a tax levy increase, or is somehow tied to a referendum, the voters' go-ahead might be needed before work[2] can begin.  In addition, if a municipality or district was deeding over a gift of real property, that could require a public vote, as well.

However, in the scenario described by the member, the money is "in the bank" and is not conditioned on obtaining further funds from the taxpayers and no additional real property needs to be purchased or funds need to be levied or raised.

With that, while in library law I make it a rule to "never say never" in this case, I don't see a need for a public vote.  Just follow the rules of procurement![3]

 



[1] Which is how the phrase "public vote" is used in the question.

[2] "Work" has a variety of meanings in this context; it could include hiring an architect, or purchasing real property, or putting an actual shovel in the ground.

[3] As with other major purchases by public libraries, compliance with competitive bidding requirements in capital projects is key, even if the library is using donated funds.  For more on this, visit https://www.osc.state.ny.us/files/local-government/publications/pdf/seekingcompetition.pdf.

 

Tags: Donations, Public Libraries, Taxes, Voting

Topic: Updating meeting room policies - 04/27/2022
My library (municipal public library) is working on updating the meeting room policy for a number ...
Posted: Wednesday, April 27, 2022 Permalink

MEMBER QUESTION

My library (municipal public library) is working on updating the meeting room policy for a number of reasons. Two major pieces of focus are what types of groups/organizations are able to request use of the meeting rooms. The other piece is requiring all meetings to be open to the public.

Currently the policy indicates that the primary use of meeting rooms are for library-sponsored activities. Any remaining time may be scheduled by nonprofit organizations for educational, cultural, or civic activities on a first-come basis. Use of this room does not constitute endorsement by the Library and must not interfere with or be disruptive to other library users.

Questions #1 - Is there a legal requirement for public libraries to limit to non-profit organizations? If not, what is the basis for limitations?

I am leaning towards shifting the mindset from limiting meeting room use to the above mentioned non-profit organizations (education, civic, cultural, etc.) and to advance public libraries in supporting local businesses and economic development in our communities.

Question #2 - Is it a legal requirement for all meetings to be open to the public?

Question #3 - Is there any benefit for the different type of meeting rooms to have different policies? Why should Large Study Rooms, Conference Rooms, and/or Meeting Rooms policies differ?

 

WNYLRC ATTORNEY'S RESPONSE

Before I answer this thoughtful array of questions, it is important to establish that aside from law, regulation, and library-specific policy, use of and access to space at public and association libraries can be governed by:

  • Owner-imposed conditions[1]
  • Lease agreements[2]
  • Deed and zoning restrictions[3]
  • Donor conditions[4]
  • Grant agreements[5]
  • Collaboration/affiliation terms[6]

So, before a reader tries to use this answer to tackle issues like those posed by the member, assess if any of those factors are at play in your library.

Okay.  Now, IF NO OTHER CONTRACTUAL OR OTHER RESTRICTIONS IMPACT YOUR LIBRARY, OR A SPACE IN YOUR LIBRARY, here we go:

Questions #1 - Is there a legal requirement for public libraries to limit to non-profit organizations? If not, what is the basis for limitations?

No, there is no legal requirement for public libraries to limit access to space to non-profit organizations.

However, there IS a requirement for any "charitable" entity[7] in New York to not allow any of its assets to “inure” to any one individual, while non-association libraries have to follow an even stricter rule against "aid" to individual people or businesses as set by the NY Constitution (this is why a town library can't use funds to throw a big "bon voyage" party to celebrate a retiring employee, but its not-for-profit "Friends" can).

To avoid tripping over this bar on "inurement" and "aid," many libraries adopted a rule that only charitable entities can use their rooms.[8]  This, however, goes beyond what is required.  Rooms and space can be used by any type of person or organization...but there needs to be a rational basis related to library services and the library's plan of service, and not creating a prohibited benefit, when allowing that access.

How is that done? Examples include:

  • Have a rental policy and use agreement for meeting rooms, with the fee waived for tax-exempt entities, and rental fees channeled back into maintenance of the space[9];
  • Based on the assessed needs of the community, allow card-holding members of the library to reserve and "check out" multi-purpose space on an hourly basis;
  • Create purpose-specific space (telehealth booth, darkroom, soundproof room, etc.) that are "checked out" like other collection assets.

Question #2 - Is it a legal requirement for all meetings to be open to the public?

No, there is no legal requirement for meetings in rented or "borrowed" space in a public library to be open to the public.  However, the library must ensure that renters and borrowers do not restrict access on the basis of any protected category of identity (age, religion, gender, sexual orientation, etc.), or they risk a discrimination claim.

Here is an example of what I mean by "risk a discrimination claim":  If I want to rent a 50-person capacity room at my public library to host a "Women In the Law" monthly meeting, and I publicly advertise the event "For Women Only,"[10] and I let the first 49 people whom I think fit the bill in at the door (while rejecting others), I am creating an exclusionary event that risks a discrimination claim...as well as a PR issue that no library wants to be a part of. [11] In other words: DO NOT DO THIS.

Contrast that with this scenario: I rent the library's 50-person capacity room to stage an event open to the public (no identity-based restrictions), but the topic of the event is a Lincoln-Douglas format "Women Shouldn't Be Lawyers: A Debate."[12] In this example, I risk a similar PR nightmare...but because access to the event is not restricted by a protected category, I do not risk a discrimination complaint based on access.

Question #3 - Is there any benefit for the different type of meeting rooms to have different policies? Why should Large Study Rooms, Conference Rooms, and/or Meeting Rooms policies differ?

Yes, there is a benefit: purpose-built rooms, with purpose-built policies based on identified needs in a library's area of service, justify how the library decides who gets access.  For example, a room with no windows might be designated as the preferred space for a support group for survivor's domestic violence and others that need "discrete" space.  A room with the best wiring might be the space designated for groups gathering to use technology (such as an e-sports club).  A room with the best ventilation might be designated for crafts and chair yoga.  And even though not required, a room could be reserved for only not-for-profit community organizations.

With this approach, a library could have a policy applicable to all rooms (requiring that all attendees follow the library's Code of Conduct), and use room-specific overlays to further set the fair and equally applied terms for access.  This gives the library the flexibility to set different use privileges, while not seeming arbitrary.

Which brings me to the member's comment:

I am leaning towards shifting the mindset from limiting meeting room use to ...non-profit organizations (education, civic, cultural, etc.) and to advance public libraries in supporting local businesses and economic development in our communities.

This is the tricky part.  Remember the bar on "inurement" and "aid"?   It is possible to "support local businesses and economic development" without the benefits accruing specifically to one person--but a library has to be careful.

For instance, say the library wanted to have an "entrepreneur in residence" every week, providing space to new business owners to showcase their products/services, and their story.  

A risky example of this would be: the library provides space in its "Entrepreneur Room," and the entrepreneur charges money for services offered on site for the week.   In that scenario, the library is basically providing free space to a for-profit business, which as we discussed above, is a no-go.

A "go-go" version of this would be: based on a commitment in their plan of service, the library uses data to assess under-served or under-represented members or geographic areas of the business community.

The library then announces to the public that a business owner in the identified zone will be the "Entrepreneur in Residence" in the "Entrepreneur Room" throughout the week, to answer questions about being a business owner in their community.  The library will feature information about the business, as well as its industry.

During their week in the library, the entrepreneur makes connections, showcases their product/service, and gains valuable connections and potential clients...but makes no sales on-site.  However, while sharing their experience with other members of the community, they do get a boost to their business...which the library knows, because it collects follow-up data to show how the program has impacted the local business environment.

This is just one example; there are many ways to do this...and with proper planning, it won't cause issues with either a library's charitable status, or with the New York State Constitution.

Meeting room issues are tough, but a library that bases meeting room[13] access on the commitments in its plan of service, develops space-use programs based on data-derived community needs, and takes care to avoid "inurement" and "aid," can navigate these issues.  Space-specific policies are not required for that, but they can help.

From the care taken by the member in writing this question, it is plain to see: it's worth it.

Thank you for a good set of questions.

 



[1] Many libraries occupy space they don't own, without a lease.  Aside from many other risks, this can lead to the owner imposing restrictions on space without warning.

[2] A common space restriction in a lease for library space will be a bar on the space being used for anything other than "purposes of conducting library business."

[3] "Deed and zoning restriction" is a catch-all for terms the overall property (the building and land) could be subject to. 

[4] For instance, if a donor leaves money to the library to create the "Needlework Room", and the library accepts the money that comes with the restriction, the room could be confined to books about needlework and related activities.

[5] Just like with donor restrictions, a grant can condition an award of money or assets on specific terms that govern a space.

[6] This is another catch-all: for example, if the library has always housed its Town archives in a room, but the terms were never formalized, is there enough in the record to make this a "restriction?"

[7] All chartered libraries in New York are considered "charitable," per State Education Law 216-a.

[8] Confession: I don't actually know for sure if this is the reason, but it's the only reason I can think of.

[9] If your library rents rooms, check with your accountant to ensure the income won't be considered as derived from "unrelated business activity."

[10] For those of you paying attention to these types of issues, you know this example is just the tip of the iceberg.

[11] If I rent the room for a private event for which I happen to personally invite only female lawyers, but I never publicly articulate a gender-based restriction, I could lessen the chance of a claim of discrimination, but in theory, the risk is still there.

[12] To this notion, I say: Belva Lockwood.

[13] All of this can apply to outdoor space, too.

 

Tags: Meeting Room Policy, Policy, Public Libraries

Topic: Contracts for Library Podcasts - 02/14/2022
The library's podcast (Your Friendly Neighborhood Librarians), hosted by two librarians here, ...
Posted: Monday, February 14, 2022 Permalink

MEMBER QUESTION

The library's podcast (Your Friendly Neighborhood Librarians), hosted by two librarians here, recently started interviewing guests from outside the organization. We are concerned about a few things: what the ramifications are if a guest does not like the way their interview was edited and whether the library owns the rights to the interview and recording. We only edit for clarity and length, and haven't done anything in regards to copyright. Additionally, any advice on whether we should be using some sort of contract or agreement with guests would be helpful. We don't have any sort of agreement in place at present, and are mostly interviewing people who are somewhat library-related. Thank you for your help!

WNYLRC ATTORNEY'S RESPONSE

Some days, I just love my job.  The day I subscribed to "Your Friendly Neighborhood Librarians" (2/4/22) to answer this question was one of those days.

For those of you who haven't checked out the Podcast: it's a forum where hosts (and librarians) Jim and Robyn, based in Rochester, NY, conduct deep and lively interviews with quasi-local authors.  [1]

When it comes to running a Podcast, there's a lot of legal to unpack.  I'll use a recent episode of YFNL (Season 2, Episode 4, January 30, 2022), an interview with photographer Quajay Donnell to illustrate.

When the Podcast starts, the first thing you hear is the YFNL's theme song:

[guitar strumming] "Librarians, librarians, when you've got questions, they're the ones, to help you find what you're looking for..." [more].  It sounds vaguely like the theme to "Spiderman" and is clearly a riff; it's super-cute and fun and brings a smile to my face. Then Jim and Robyn introduce the session's guest and launch into the interview.

The rapport is lively and fun, but Jim and Robyn's deeply prepared interview technique gives Quajay Donnell room to make comments, tell stories, and respond to well-informed prompts to talk not only about his work, but the work of others, and his thoughts on public art (I enjoy Mr. Donnell's comment, after a glowing list of his credentials "I sometimes struggle with the title of 'photographer', I sometimes say 'I'm a picture-taker', or 'I capture moments'."  I appreciate when people resist or explore the purpose of labels).  The show then ends with a cut to a recommendation from a circulation desk worker, Sim, who recommends "Field of Blood" by Joanne Friedman, and a tease for the next episode ("banned and challenged books"), some thanks to various show-helpers,[2] and an instrumental of that great theme song.

So with that background, let's answer the questions:

"[W]hat the ramifications are if a guest does not like the way their interview was edited and whether the library owns the rights to the interview and recording.  Additionally, any advice on whether we should be using some sort of contract or agreement with guests would be helpful. We don't have any sort of agreement in place at present, and are mostly interviewing people who are somewhat library-related."

I wish I could give simple answers to these straightforward questions, but this is "Ask the Lawyer," so I cannot.  But to start, I can say there are three variables that inform the answer to these questions:

Variable "1": Who is creating the Podcast?  Is it "officially" the library, or is it being created through the collaboration of independent individuals?[3]

Variable "2": What is the identity of the Podcast?   Is it 100% entertainment, or is it meant to be investigative journalism, oral history, or serve another documentary purpose?[4]

Variable "3": What is the purpose of the Podcast?  In other words, what is it trying to achieve not only now, but 70 years from now, when it is still protected by copyright, and past consideration of such questions will govern what type of access its intended audience should have?

Here’s how these variables impact the member's questions:

If a library is the creator of the Podcast (meaning the library directed its employees to create the Podcast as part of the work they are hired to do), then the library is the entity responsible for addressing (and bearing the liability for) issues of ethics, ownership, and risk (like defamation and image use).  If an individual or individuals are the creator/owner of the podcast,[5] the responsibility falls on them. 

If the identity of the podcast is light entertainment (that theme song!), then the creator does not have to worry about abiding by, or benefiting from, professional codes of ethics and law pertaining to journalism, academic work, oral history/documentary, or political expression.  But if it aspires to fall into any of those categories (and while it's not my call, I'd say YFNL is at the very least a form of journalism), ethics and certain laws may apply.

If the purpose of the Podcast is to ensure that people listening in 2022, as well as 100 years from now, appreciate home-grown artists in and around Rochester, NY, the creator/owner needs to ensure the work is set up to be controlled in such a way that access for that purpose is ensured.  This is true whether the owner is an entity (like a library), or a person or persons.

So with that as background, let's tackle the member's questions:

For the first question ('"[what] if a guest does not like the way their interview was edited?), the answer is: in a worst-case scenario (say the guest claims the interview was edited to make him sound offensive, and claims it caused him to be "cancelled"), there could be some type of legal claim for damages.  While I won't get too technical, this concern relates to a "tort" claim (like a personal injury) and the member is wise to bring it up, since this is a critical issue.[6]

An attorney advising an entity or person on this would: 1) confirm who the creator, publisher and owner of the content is; 2) ensure the party (or parties) makes good use of a speaker agreement that secures a waiver of liability for the producer and all people affiliated with the podcast; 3) if appropriate,[7] advise a step in the production process that gives participants the right to review and approve release of the final version (in writing).

This plays into the second question: "whether the library owns the rights to the interview and recording."

This should not be an ambiguous issue: either the work is "for hire" (meaning the librarians and other credited helpers are doing it as part of the work they are paid to do, or are working per an additional contract) and is owned by the library, OR the work is owned by the individuals creating it.

The leads to the third question (or rather, factor) listed by the member: We only edit for clarity and length.

This plays into the identity of the podcast. If a podcast or other work isn't using a lot of editing to create a specific dramatic or entertaining effect, and is structured to perform a primarily documentary function, it is worth considering using the established ethics of journalism or oral history to guide the project.

Why? 

In the state of New York, journalists' sources are accorded particular protections under the law, while the identity of the speaker and nature of the communications are relevant to claims of defamation. Also under New York law, the further an unauthorized[8] use of someone's name, likeness, or voice, is from a "commercial use," the less likely a person can sue based on "invasion of privacy." And under federal copyright law, material that incorporates copyright-protected work (perhaps reading part of a poem) for journalistic, academic, or documentary functions will get consideration of that factor if a court needs to determine "fair use."

This next variable I listed is purpose, meaning, what is this work supposed to accomplish, and for how long? Consider that variable in light of the member's statement: "[We] haven't done anything in regards to copyright."

If the purpose of the podcast is to ensure as many people as possible access and appreciate it for as long as possible, what might be more important than registering a copyright is to ensure the work is archived on not only a commercial service such as Apple Podcast (where I found it), but in repositories owned by the public, as part of an institution whose structure ensures some type of longevity.

However, if part of the purpose of the podcast is to ensure for as long as possible that it can never be exploited commercially by anyone, and the owner wants to make sure it will be able to claim damages and attorneys' fees in the event the recording is infringed, registering it is a good idea.

So with that, I get to the last, open-ended question from the member: Additionally, any advice on whether we should be using some sort of contract or agreement with guests would be helpful.

It's important to know at this point that while sometimes I reach out to a member who submits a question to "Ask the Lawyer" (to get a bit more information to enable a more helpful answer), in this case, I did not reach out to Robyn and Jim (although because I really like the podcast, I wanted to!). I thought it would be more important, and in the spirit of their question, to present a generic answer to this part of their question with a generic template that could be of use to other libraries and librarians creating a podcast or other type of audio content.

When creating a podcast, here are the "legal" questions to answer to help you (and your lawyer) address the legal considerations:

Question

Reason it's relevant

Your answer

 

What is the purpose of the podcast?

 

 

It's important to answer this question first, because the purpose of the podcast will drive all the answers following this one.

 

 

 

Are there any professional ethics that apply to the podcast?

 

 

This answer is based in part on the "purpose." If the purpose is a type of journalism, the creator may want to consider affirmatively abiding by applicable journalistic ethics. If the purpose is oral history, the ethics of oral historians could apply.

 

 

Who "owns" the podcast?

 

 

This is a question for a lawyer. However, I can broadly say that if a library or educational institution is directing the podcast to be created, and the people creating it are doing so as part of their jobs, then the podcast is owned by the employer. If everyone involved is unambiguously doing it in their free time, then likely, they are the owners together. And in either case, if there is any grant funding that applies to the podcast, the owner(s) should pay close attention to the terms of the grant, because often grants involve a license or transfer of intellectual property.

 

 

 

What is the end product?

 

 

This seems like a pretty straightforward question, it's "podcast recordings," right? However, in just taking a look at "Your Friendly Neighborhood Librarians" I heard a theme song that could be subject to individual copyright, and I see there are really excellent descriptions of each podcast that were authored by somebody. In addition, "Your Friendly Neighborhood Librarians" (a clever brand) could also be subject to trademark. There is also a logo.  And if the content is in its own archive with its own metadata, the metadata could also be proprietary. These are just a few examples, so inventorying the end creation (and if all of the creators are not employees, making sure intellectual property is transferred appropriately) might be bigger than maintaining a list of podcasts.

 

 

 

What are the terms for regular and guest contributors?

 

 

For podcasts being created by people as part of their jobs, the expectations, rules and protections for them should be understood between their job description and the rules by which the podcast is operated.

 

For guests, as the member's question points out, it is best to have a written agreement that sets out the terms, including the right balance of a waiver of liability and the ability to preview the podcast to ensure any editing does not result in a person saying something they didn't intend to say.

 

(As one example of "rules": if a podcast is being produced by a public library or a not-for-profit organization, there should be a firm rule that no endorsements of political candidates are allowed on the show.)

 

 

What other conditions may apply?

 

For podcasts released on Apple Podcast, this means what are the rules you have to follow under the terms of Apple. For those selecting additional or alternate fora, paying attention to the "terms and conditions" on those resources is also important.  And as mentioned above, grants and donations with conditions that support the content creation should also be considered  (if you are lucky enough to be running a grant-funded podcast).

 

 

How do people access the content?

 

 

This is critical for ensuring accessibility in both the short and long-term.   Early consideration of this factor also ensures that any legal releases or agreements an owner needs to enter into (like licensing a logo) can accommodate the full plan for accessibility. 

 

 

How are any risks being addressed?

 

 

I appreciate this is a very open-ended last item. Broadly speaking, if the podcast is being produced by the library, the library's insurance carriers should be consulted to make sure it has insurance coverage for that type of activity. Any aspect of the podcast that is not covered should either be limited or other risk management, such as a waiver of liability, and a process for preview by guests, should be considered.

 

This last item is addressed by Apple's terms of use for podcasts, which I have included below.

 

 

Screenshot of Apple's Terms of Agreement, Section C focusing on "Your Submissions to Our Services." Visit apple.com/legal/internet-services/itunes for more information.

Now, with all that said, I am very aware that some of the answers I have put above may cause more anxiety then resolve curiosity. To help out with that, below is a template for a "podcast guest agreement."

As with any template, a library or podcaster should have their lawyer consider all of the factors I list above before finalizing the template. But hopefully this template can provide a good start.

[Template Podcast Guest Agreement]

RE:  Terms of guest appearance on [PODCAST NAME] on [DATE]

Dear [NAME OF GUEST]:

Thank you for agreeing to be a guest on our show, [NAME] ("the Show") on [DATE TIME] to discuss [TOPIC].

Below are the terms between you and [OWNER NAME] ("Show Publisher") for your appearance on the Show.  Please review the terms, and if you agree, please sign below.

If you have any questions before signing, please contact [NAME] at [CONTACT INFO] to discuss them before sending us the signed copy.

Ownership

You agree that the direct recording (audio and visual) and any subsequent product incorporating it, including but not limited to transcription and any adaptive copies made to enable access by those with a disability, shall be the sole property of Show Owner.

Image Use

You agree that for purposes of promoting, publishing, performing, displaying and making the Show accessible to its audience, Show Owner may use your name, image, and likeness in print and electronic media.  This permission is expressly limited to promoting and publishing the episode of the Show featuring you.  This permission is irrevocable once the Show featuring you has been made available to the public in any medium.

Rules

The rules of participating in the Show are:

Show Owner is committed to creating an experience and show that respects the dignity of all participants and listeners.  If you have any concern at any point regarding your experience working on the Show, please alert [NAME] at [CONTACT INFO].

If at any point during recording you need to take a break, please simply state "I need a break" and we'll stop recording.  This includes if a topic is not one on which you wish to speak.

We edit our show for length and clarity.  You will be given an opportunity to review the edited version prior to it being uploaded to [SITE(s)].  We ask that you write to [NAME] and [EMAIL] with any concerns about edits within [#] days of the final cut being made accessible to you.  If we don't hear anything from you within three days (excluding Saturday and Sunday), we will assume you consent to the publication of the content.

Please refrain from any endorsement of any political candidates during recording.

Please do not accuse any person of a crime, having an STD, or of being incompetent at their job, or marital infidelity, unless such fact is generally known, during recording.  We don't anticipate your appearance will warrant a dip into such a topic, but to avoid claims of defamation, or having to edit out such content, we alert guests to this consideration.

[INSERT CUSTOM RULES]

Hold Harmless

You release and hold harmless Show Owner, its employees, volunteers, and agents from any and all liability, claims of injury, lawsuits, and complaints in association with Show.[9]

Warranties & Representations

You represent and warrant that:

a) No contract or other obligation bars you from appearing on the Show;

b) Any performance on the Show by you will be of your own original work;

c) You are aware that the permission you are granting NAME to use your image, name, and likeness for the limited purposes listed above is irrevocable;

d)  You know the show will be archived by Show Owner and may archived to be available for your lifetime and beyond.

e) You are over the age of 18 and thus able to sign this contract OR your legal guardian has signed below.

Thank you so much for agreeing to be on our show!

Signed on behalf of Show Owner:___________________________

Signed by Guest:______________________________

Guest Date of Birth:_______________________________

Guest preferred pronouns:_____________________________

[if applicable] Signed by Guest's parent or guardian:____________________________

 

Good wishes for your friendly neighborhood podcasts, true-believers!



[1] For any Western New Yorker lamenting the decreasing number of journalists on the local creative beat, this is a nice antidote.  (BTW...Buffalo/Rochester = WNY.  Syracuse/Rome/Utica = Central NY.  I grew up in Central New York and now live in Western New York, and when this distinction gets blurred, it hurts).

[2] Including two people credited for the theme song.

[3] In my experience, librarians can have a tough time with this one, since they often go above and beyond.  For more on this type of issue, see the "Ask the Lawyer" on LibGuides at https://www.wnylrc.org/ask-the-lawyer/raqs/117.

[4] I realize that these categories overlap, especially these days, but we'll talk about why the distinctions are important.

[5] It's official: I am using a lower-case "p" to write "podcast."  Congratulations, podcast, you've been genericized.

[6] It is also very much an "issue de jeur", since the ALA has joined an amicus brief on the rules in the state of New York for suing non-journalists for publishing content in public fora.  For more on that, search "Coleman v. Grand."

[7] This is a major distinction between a cultural or entertainment piece rather than investigative journalism, since professional reporters generally don't give interview subjects the right to approve a final cut.

[8] In this case, "unauthorized" means without written, signed permission.

[9] If you don't have a lawyer look at any other part, have them look at this.  This is a very bare-bones hold harmless intended to not "scare off" guests; a library should have a clause that matches the level of risk it is prepared to take.

Tags: Broadcasting, Copyright, Disclaimers, Policy, Public Libraries, Templates

Topic: Libraries Open to the Public Template for Copiers - 02/11/2022
We were asked about signage to post over the public copier at a libraries open to the public. Belo...
Posted: Friday, February 11, 2022 Permalink

MEMBER QUESTION

We were asked about signage to post over the public copier at a libraries open to the public. Below is some template language with footnotes explaining why they say what they do.  Of course, before posting in your school or library, check with your lawyer!

WNYLRC ATTORNEY'S RESPONSE

MAKING A COPY ON THIS MACHINE

MAY BE SUBJECT TO THE COPYRIGHT LAW OF THE UNITED STATES[1]

This means 4 important things:

1.  Copying a copyright-protected work here could be a copyright violation.[2]

2.  Copying protected works is sometimes allowed under "fair use."[3]  We can't give you legal advice, but if you want to learn more about "fair use," go to https://www.copyright.gov/circs/circ21.pdf or see the [INSTITUTION NAME] Fair Use policy at [LINK].

3.  Copying a copyrighted work to accommodate a disability under the ADA is allowed.   However, to do that, please see the library staff, since adaptive copies have special rules,[4] and we want to help you (or a person you are assisting) exercise your rights.

4. As a library open to the public, there are special circumstances under which we get to make copies (libraries are special).  However, to qualify for that protection, this notice (which we have, by law, placed over the copier right in front of you), has to say what it says in bold at the very top, and we have to operate by this rule:

Any person or group is forbidden to use this machine to engage in the related or concerted reproduction or distribution of multiple copies of the same material, whether made on one occasion or over a period of time, and whether intended for aggregate use by one or more individuals or for separate use by the individual members of a group.

What does that mean? Entire classes should not come here and copy the whole text book for a course![5]  Please don't do that.[6]

The copy machines are here for your use, and we appreciate your consideration of these laws.

Thanks!



[1] This precise language is required by 17 U.S.C. 108 for the library and its employees to be protected against allegations of secondary infringement.

[2] 17 U.S.C. 106 reserves the making of copies to the copyright owner.

[3] 17. U.S.C. 107 allows copying under certain circumstances, but simply "educational" or "not-for-profit" use is not enough.  Read the guide at the link!

[5] This is covered by 17 U.S.C. Section 108(f).  Section 108 also lets libraries make copies for other uses...but that is for libraries, not regular people or students using a copier in a library.

[6] Seriously, if we see you doing that, we have to ask you to stop.

 

Tags: Academic Libraries, ADA, Fair Use, Policy, Public Libraries, Section 108, TEACH Act, Templates

Topic: Transfer of Funds in School District Public Libraries - 08/11/2021
What law, regulation, or regulatory authority governs the budget transfer policy at a school distr...
Posted: Wednesday, August 11, 2021 Permalink

MEMBER QUESTION

What law, regulation, or regulatory authority governs the budget transfer policy at a school district public library?  Is there any case law or authority on that?

WNYLRC ATTORNEY'S RESPONSE

Quite a few laws, regulations, and regulatory authorities will impact the budget transfer policy of a school district public library.  Here are the biggies:

  • NY State Constitution
  • NY Education Law
  • NY General Municipal Law; and
  • GAGAS[1]

The trick to this question is that New York's school districts, which often (but not always) act as treasurer for an affiliated school district public library, must follow not only the above-listed laws and standards, but also must follow school district-specific rules for managing budgets.

What do those school district-specific rules say about budget transfers? As can be seen in the below excerpt from the "School Districts' Accounting and Reporting Manual," a school district can only transfer funds into the budget line of a contingent fund.[2]

Screenshot from pg 25 of the School DIstricts Accounting and Reporting Manual regarding Budget Transfers.

Other public entities, however, follow different rules...rules that are a bit more liberal about transfers between budgeted lines, since for inter-line transfers, "only" board approval is required...as seen below in the[3] Comptroller's "Accounting and Reporting Manual" for towns, villages, and other local government entities:[4]

Screenshot from pg 22 of the Accounting and Reporting Manual for Counties, Cities, Towns

SO: does a school district public library in New York have to follow the rules of its sponsoring district? 

Here is what the Comptroller has to say:[5]

Public Libraries — Sponsored by counties, cities, towns, villages or school districts in most circumstances [are included in a local government's accounting] because of the existence of financial accountability as evidenced by funding of operations, approval of and responsibility for issuance and payment of debt and the ownership of real property. While this is the norm, situations do exist where the library is virtually autonomous and could be considered a special purpose government.

...

Final determination must be made at the local level after considering ... the appropriate criteria as they may apply to both governmental and non-governmental units.... [emphasis added]

In other words--while I hate to punt on this question-- IT DEPENDS.  There can be no one answer; the determination must be made at the local level--and by a person professionally qualified to make the determination.

That said, as a professional, I will go out on a limb and say that every Comptroller audit of a school district public library I have ever read emphasized the difference between the library and the district they are affiliated with.[6]  Further, the Comptroller, in those audits, has stated that independent board authority and oversight by the trustees must be exercised, even when the school district functions as treasurer. 

For this reason, I would comfortably suggest the presumption should be that the requirement to transfer only into a contingent fund, per the excerpt first pasted above, applies solely to a school district, and not to a school district's separate public library, even if the school district is the custodian of the funds, unless the two entities are so integrated that the library operates as a "component unit"[7] of the district.

That said, for school district public libraries who must develop policy based on this distinction, the person to answer this question is the accountant finalizing your audits and financial statements, since they are the one with the professional duty here.  That said, once they have determined that answer at the local level, ALL parties (the school district, the library, their accountants, and their lawyers) should be in agreement as to the reason for the decision.

Thank you for a good question, and for this reminder of why I became a lawyer, not an accountant![8]

 



[1] Not a gathering of meat-clad divas, but rather: "Generally Accepted Government Accounting Standards".

[2] From https://www.osc.state.ny.us/files/local-government/publications/pdf/arm_schools.pdf, page 25.  If you read the excerpt deeply, you will see I am oversimplifying...and if you want to see how much I am over-simplifying, read the whole manual!  School district budgeting is an art.

[3] riveting

[6] A good example of this emphasis on autonomy can be found in the 2014 audit of the Fairport Public Library, found at https://www.osc.state.ny.us/local-government/audits/library/2015/06/12/fairport-public-library-financial-management-2014m-354.

[7] A good flow chart on how to assess of a library is a component unit is on page 35 of this manual: https://www.osc.state.ny.us/files/local-government/publications/pdf/arm.pdf.

[8] Full disclosure: I am married to an accountant...a CPA, no less.  This of course gives me no professional cred when it comes to accounting, but it does lead to some good conversation on chilly Buffalo nights (he also has an MLS, which makes him all the more alluring, of course).

Tags: Budget, Public Libraries, Audits, School Districts

Topic: NY Hero Act and libraries - 07/14/2021
How does the NY HERO Act https://dol.ny.gov/ny-hero-act apply to the different types of libraries?...
Posted: Wednesday, July 14, 2021 Permalink

MEMBER QUESTION

How does the NY HERO Act https://dol.ny.gov/ny-hero-act apply to the different types of libraries? Are Association Libraries included?

WNYLRC ATTORNEY'S RESPONSE

The letters in the "NY HERO Act" stand for "Health and Essential Rights."[1]

What "essential rights" does it protect? 

  • Section one of the HERO Act amends the New York Labor Law to create an "airborne infectious disease standard" covering all private employers.  The standard requires many things that will sound familiar: health checks, sanitization practices, and other preventative measure when there is a declared risk of airborne disease.
  • Section two of the HERO Act amends the New York Labor Law to create joint employer-employee "workplace health and safety committees" (where there are 10 or more employees), so workers can collaborate and be involved in safety initiatives.

The new laws are activated only when an "infectious disease" is declared by the NY Commissioner of Health.  This means that right now, while the law is in effect, but no disease is designated, there is no need to have an active plan...but entities have to be ready to spring into action.[2]

Which brings us to the question: What types of libraries must comply?

We'll tackle the easy part first: without question, association libraries, which are private education corporations, must comply. 

For non-association libraries ("public" libraries), the language of the Act is much less clear, since the Act specifically exempts "...the state, any political subdivision of the state, a public authority, or any other governmental agency or instrumentality."

That sounds simple, right?  They should be exempt.  After all, libraries are considered, in some contexts, nigh-governmental entities.

But as many know, a public library's status as "governmental" ebbs and flows.

Here are just two recent examples:

Example #1: 2020 brought an interesting development when, after months of anxious curiosity, the NY Forward "powers that be" confirmed that public libraries were always considered to be exempt from the Executive Orders shutting down private businesses (and instead, were to follow the mandates governing local municipalities).  So: a governmental entity.

Example #2: A noteworthy new case[3] from NY's second-highest court has found that for purposes of the Prevailing Wage Act (Section 230 of the NY Labor Law), a public library is NOT "the state, any of its political subdivisions, a public benefit corporation, a public authority or commission or special purpose district board appointed pursuant to law, and a board of education."[4]  In other works:  not a governmental entity.

So, when it comes to this new law, I can't point to any definite authority either way; just because one part of the Labor Law excludes libraries, doesn't mean another does.  And certainly, we have no case law yet.  That said, if I HAD to pick, I would err on the side of caution and say that public libraries, which are education corporations with their own governance structures (just as the Court commented in "Executive Cleaning"), have to comply with the HERO Act.

Since the stakes are high for non-compliance, any public library that decides the HERO Act doesn't apply to them (and that's fine to reach a different conclusion; I am not omniscient, nor do I have a crystal ball) should:

1) Get that opinion, in writing, from an attorney retained to give advice to that library specifically, and considering its unique position under the law;

AND

2) Confirm the library is in compliance with New York Labor Law 27-a, which covers workplace safety in "the state, any political subdivision of the state, a public authority or any other governmental agency or instrumentality thereof."

The bottom line on this: when it comes to occupational safety, a public library can't fall into a hole between the mandates governing public and private entities: it either has to follow the rules of a "governmental instrumentality" employing people as government employees (and giving them all the protections government employees get under the law) OR it is following the rules of a private education corporation (and giving them all the protections private employees get under the law).

Since the HERO Act is really about taking all the protocols the State of New York developed in response to COVID, and ensuring they are on hand and ready for the next pandemic,[5] a library can't go wrong by having "an exposure prevention plan available, upon request, to all employees, employee representatives, collective bargaining representatives, independent contractors, the department of labor, and the department of health."[6]  By making a clear decision about what safety rules apply to your library, and developing a plan to follow them, you can not only comply with the law, but show that the library is working to keep employees safe.

 

Thank you for an important question.

 



[1] What about the "O?"  I double-checked the bills in both the State Senate and Assembly and apparently, it's just a bonus letter (I guess the "HER" act would imply only women get clean air).

[2] The NYS Department of Labor, as of July 12, 2021, states: "Currently, while employers must adopt plans as required by the law, as of the date of this writing no designation has been made and plans are not required to be in effect."

[3]  (Matter of Exec. Cleaning Servs. Corp. v NY State Dept. of Labor, 193 AD3d 13 [3d Dept 2021])

[4] Contrast this with the definition of who’s in/excluded from the HERO Act: "'Employer' shall mean any person, entity, business, corporation, partnership, limited liability company, or association employing, hiring, or paying for the labor of any individual in any occupation, industry, trade, business, or service. The term shall not include the state, any political subdivision of the state, a public authority, or any other governmental agency or instrumentality."

[5] I know, my stomach turned a bit when I typed the phrase "next pandemic."  But no point putting our heads in the sand.

[6] From the requirements summarized in the NYS Department of Health guidance here: https://dol.ny.gov/system/files/documents/2021/07/p764-the-airborne-infectious-disease-exposure-prevention-standard-v4.pdf.

Tags: Association Libraries, COVID-19, Emergency Response, Public Libraries, HERO Act, NY Labor Law

Topic: Parking Lot Safety and Signage - 06/23/2021
Kids have been playing in our parking lot and my board is concerned that they will hurt themselves...
Posted: Wednesday, June 23, 2021 Permalink

MEMBER QUESTION

Kids have been playing in our parking lot and my board is concerned that they will hurt themselves and we will be liable. We have a very vague policy about our parking lot being for patrons to park at only and a couple signs that say patron parking only. We can update our policy to be more specific if need be but their thoughts are no policy on our end will protect us if someone gets hurt and says they didn't know our policy so we need a sign posted that makes it clear we don't expect kids to be riding bikes, go carts, etc in our parking lot.

Our treasurer thought maybe just a "no trespassing" sign would work.
 

Another Library Director I know said they have a sign that reads:
         

          "Please No...

          Bicycling
          Loitering
          Roller Blading
          Skate Boarding

          On Library Property"

Would something more specific like that be a benefit or would it be worse because if they hurt themselves doing an activity other than those listed they can say they were in their right?


The kids are often waiting until the library is closed and I'm no longer there before they start riding around on it so simply being vigilant telling them to leave is not going to work.

Thanks so much for any guidance you can offer.

WNYLRC ATTORNEY'S RESPONSE

Behold, the humble skateboarder: wheels spinning, scabby knees, and (if they have gotten over the fact that even when worn by Tony Hawk, it looks dorky) brain carefully protected by helmet, ready for action.  Never has a humble sport posed more of a challenge to local governments, park designers, architects, and urban planners; lay down a relatively smooth surface, and there they are, ready to challenge both gravity and the rules governing property.

As a lawyer who studies[1] how the law impacts what people do--and how we do it--I find skateboarding fascinating.[2]  Since at least the late 80's,[3] in town meeting after town meeting, legal case after legal case,[4] site design after site design, public authorities and property owners have attempted to control when and where people can skate (and bike, and rollerblade, and hang out while watching others do those things).

That we as a society often fail at such prohibitions and dissuasions is shown by the magnitude of letters-to-the-editor and news reporting regarding parking lot/ramp/sidewalk incident and injury.[5]  It has also spawned an array of dangerous and off-putting site design, such as metal rivets on walkways and spikes on hardscaping.[6]

Of course, this question is not about skateboards, but rather, about signage effective enough to reduce risky activity and to avoid liability while keeping library premises welcoming to everybody.[7]

For any library, museum, or other public cultural institution wrestling with this issue, this poses a conundrum.  The mission of your institution is to be accessible, inclusive, and to serve your community.  Yet at the same time, the promotion of a safe parking lot and grounds during open hours is critical...while after-hours promotion of safety is just as important (especially if you offer 24-hour Wi-Fi that is accessible in the parking lot and grounds). 

How can an institution achieve this balance?

For an institution confronted by this issue, there is a five-step process that must be conducted:

STEP ONE: Confirm who legally owns and/or controls the parking lot and grounds.[8]  Does your library own the lot, or is it rented and subject to the terms of a lease?  What you learn during this step will show who has to solve this issue (with a landlord, collaboration will be required).

STEP TWO:  What insurance covers the lot, and what types of incidents are covered?  This step will provide insight into how your institution is set up to manage the risks you've identified.

STEP THREE:  What is the purpose of the parking lot and grounds?  What functions do those resources serve?  Hopefully, the uses are already limited to only things that serve the mission and plan of service of the library.  However, in the case of a lease or shared premises, that might not be the case.

STEP FOUR:  Confirm and harmonize everything from the first three steps. 

This fourth step sounds simple, but it can take many forms. 

For instance:

  • If the land is owned by the library, it will require verifying that no one else is using the lot (unless there is a lease and insurance covering the non-library use);
  • If a private party owns the lot but leases it to the library, it will require checking the terms of the lease; 
  • If a supporting municipality owns the lot, it will require confirming who truly controls the space;
  • If the property is insured for general liability, it will require contrasting what the insurance covers, with what it is being used for, and what it is intended for, and how it is being controlled;
  • If the property is not insured for general liability, it will involve assessing if/how the library is protected from liability.  

NOTE: For these reasons (and more), whenever, possible, "Step Four" should be done with a lawyer.

STEP FIVE: Only after completing Steps "One" through "FOUR" should a library board approve a signage plan.

Why these steps?  Because the details they draw out will help your library determine the final text of the signage, whittling it down from many permutations.  For instance:

  • A suburban library that leases its property within a strip mall will want to put most of the onus for liability back on their landlord (especially if parking facilities are shared with other tenants). 
  • A rural library with lots of its own land, but near a public park, has the luxury to post signage that says "Parking lot and grounds are for library activities only; please use ABC Park for recreational activities."
  • A city library located within a city-owned building may need to coordinate signage with a city department (or might not).
  • A library (in any location) that is neither designed nor insured to safely host any type of unsupervised recreational activity[9] on its grounds (whether in the parking lot, or the front yard, or on the roof) can post exterior signage that says: "No recreational activity on the grounds unless authorized by the Library."[10]

In addition to helping your library check all the boxes (ownership, risk management, mission, messaging), I advise this approach because it will position your library to give your signage some personality...something that projects the library’s values and mission out into the community.

For instance, there is nothing wrong, after your property/purpose/insurance analysis, with posting a friendly sign like this:

"Our parking lot is for the safety and convenience of

our Library's diverse and wonderful community.

Please limit your use of our lot to parking your bike or car

while using the services of the library."

Or, if the "personality" of your library is a bit less celebratory, and there has been collaboration with local law enforcement on the issue, and it has been determined that it is safest to employ some forceful messaging, the signage can say:

"Parking lot use limited to parking for

library patrons, employees, and vendors.

POLICE ENFORCED."[11]

Which brings me to the member's actual question:

"Would something more specific like [listing barred activities] be a benefit or would it be worse because if they hurt themselves doing an activity other than those listed they can say they were in their right?"

As you can see, I do not recommend barring a list of activities--partly for the reason in the question, but more fundamentally, because a list of “forbidden” activities only invites quibbling during enforcement (see footnote 9), which creates a needless headache. 

In my experience, those who actually have to enforce a policy (a director, a security officer, a police officer, a municipal employee), should be meaningfully consulted during its development, and are better served by a final product that positions them to quote a broad definition of purpose, together with a bar on unrelated activity, such as:

"This parking lot is for parking only.

No recreational use allowed at any time."

And finally, let's talk about that all-important STEP SIX: Dealing with the Human Factor.

We all know this: an institution can install signage six feet high, in flaming letters, and if someone wants to trespass on it after hours, that signage will not stop them.

If that is true, what is the purpose of the signage?

The purpose of the signage is 1) to promote safety; 2) to reinforce mission; and 3) to be able to show that, if injury occurs, the library in no way encouraged, condoned, or sanctioned the activity that caused it (and in fact, forbid it).

Now, while that is important, there is one other thing I must get out there while we're talking about limiting premises liability: just as critical as clear, enforceable signage is ensuring that the library is not maintaining a hazardous condition.

Why?  If the injury a trespasser experiences on property is related to a known defective condition (a pothole, for instance, or a heaved sidewalk) the owner/controller of the parking lot could still face liability.  To truly promote safety and guard against liability, an owner who invites the public onto their land must be able to show it was not "on notice" about the defect, or that if it was, it had taken adequate steps to protect the public from the hazard (surrounding the pothole by cones, or getting it temporarily filled with cold patch, for instance).

This is why a vigorous facility maintenance plan and deferred maintenance/contingency repair budget is just as--if not more--critical as proper parking lot signage.

In closing, I have to say: writing effective property signage is a tricky thing.[12]   Since there is no perfect way to do it, I advise aiming for something that clearly limits the use of the restricted property to its core function (in this case, parking), while also reinforcing the identity of the library as a community resource.  Here is a model to consider (after your library follows all the steps):

"To promote a safe and welcoming environment,

this parking lot is for parking and library-approved events only.

All other uses must be approved in writing by the library.

To inquire about using our lot for a community event, call ###-###-####."

...with shorter, smaller, punchier signs at key areas to reinforce the core message:

"No playing in our parking lot at any time.

Safety first!"

I wish all libraries reading this a reduced-risk, injury-free parking lot.



[1] In the field.

[2] I had a board in the 80's, but I only ever attained the level of skill shown in Tom Petty's "Free Fallin'" video (which is to say: not very much).

[3] And maybe earlier?

[4] I like this one: People v Smith, 160 Misc 2d 1070 [Just Ct 1993]

[5] I am not going to cite a study here.  Rather, I will cite NY Insurance regulation 11 NYCRR 27.3, which includes in a list of specially elevated risks: "Asbestos, Fungi and Water Damage Remediation ... Amusement Parks and Carnivals Property...Amusement Rides and Devices ...including bumper cars, go-carts and go-cart tracks, giant slides, skateboard tracks, roller-blade tracks...."

When you want to know if something is statistically risky, ask an insurance carrier.

[6] These measures are also used to "dissuade" people from sleeping and getting comfortable in public spaces, an overlap worth contemplating.

[7] A skateboarder or roller-blader on a sidewalk or in a parking lot can pose a risk to a person walking with a small child or stroller, using a walker or wheelchair, or walking an animal.

[8] Although the question was confined to the "parking lot" I am adding "and grounds" since this issue doesn't just involve parking lot concerns.

[9] BMX bikes, skateboards, and roller-blades take the brunt of this type of issue, but frankly, does your director want to quibble over policy when a group of rogue folk-dancers hosts an event in the parking lot after-hours? 

[10] I like this last bullet because it reserves the right of a library to host a planned recreational event, but to otherwise bar them on the property.  Further, by avoiding the term "loitering," it reduces the risk of confusion for those who need to park or sit on the grounds after-hours to use a library's 24/7 free Wi-Fi.

[11] If you go with this one, confirm with your local PD that they will do this in a way that is consistent with the mission and role of the library.  NOTE: I appreciate that in some places, this will not be viewed as a viable option.  The mission of your library should be the guiding factor in deciding whether or not to involve law enforcement or private security in this type of policy.

[12] Whenever possible, it is good to use a licensed architect or credentialed municipal planner to design signage; they will pay attention to things like reflectivity, placement, font choice, and ADA accessibility.

Tags: Property, Public Libraries, Safety, Signage

Topic: Paying Director for Trustee Meeting Attendance - 05/28/2021
Our Library Director was hired 5 years ago and has always been paid for her attendance at monthly ...
Posted: Friday, May 28, 2021 Permalink

MEMBER QUESTION

Our Library Director was hired 5 years ago and has always been paid for her attendance at monthly Trustee meetings. In 2021 the Town Supervisor stopped this long-standing practice. Our Town pays our Library Director.
 

Is this legal without letting the Trustees and Director prior to stopping the practice?

WNYLRC ATTORNEY'S RESPONSE

"Is this legal?"  Not likely.

But before I say more, I just want to offer a quick primer on how things work at "Ask the Lawyer."

Since the situation depicted in the question could result in legal claims by the Director, the board, and/or even the Town--or be relevant to an audit by the State Comptroller--this is the type of "Ask the Lawyer" question that can only be answered--really answered--under attorney-client privilege.

Why is that?  Because of how "Ask the Lawyer” works.  When questions like this are submitted (questions that ask for advice and guidance for the requesting member and their council, as joint clients[1]), our typical approach is to a) contact the member, b) get any additional information needed to assess the question, and then c) send an attorney-client privileged answer. [2]

After that, if the member consents to it, we create a "generic" answer, channeling the research gathered into general advice that may be useful for a broad audience (of libraries, museums, historical societies, and other regional council members).

This question, of course, presents an issue mostly relevant to public libraries.  And here is the "generic" answer to the scenario presented:

There are a number of factors an attorney needs to dig into in order to answer this question.

First: is the director an hourly employee, or salaried?  If salaried, this question doesn't make much sense,[3] so we'll go with hourly.

Second: Is the director required as part of their job to attend the meeting?  Since they are mostly there in their professional capacity, let's say "yes."

Third:  Did the director, in the past, report the hours into the payroll system, and receive compensation for them?  Let's again say "yes."

Fourth: Has the board consistently performed the aspects of board authority over the position (making the decision to hire, signing the hiring letter, performing annual reviews, working with Civil Service to amend the job description when needed, effecting disciplinary action and plans of improvement if needed, approving payroll,[4] approving scheduled vacation times, overseeing time off for disability, effecting termination)?  Again, from the scenario, we'll say "yes," which means the board has not laid a foundation for the lines of employment to be blurred (they are undisputedly in charge).

Fifth: Has the previous payroll, which included compensation for attending the meetings, been approved per the requirements of the Civil Service law?[5]  While that may be something happening subtly behind the scenes, based on the scenario, again it is probably "yes."

If we added those details to the scenario, I would see no basis for a town official to be able to unilaterally decide what tasks may or may not be compensated.

In fact, the only way I could see a town official being able to (legitimately) do such a thing is if the library board had expressly delegated all authority for supervision and payroll oversight to the town...something that would be a dangerous practice, since it would seriously undercut the library board's autonomy and authority.

The courts in New York, the State Comptroller,[6] the State Attorney General, and local Civil Service agencies all grasp the nuances of public library boards' authority, but it can be a struggle for newer public officers.  The autonomy and authority of a library board can often feel like a square peg to a public official used to only round holes.  That is why it is important to nurture the relationship routinely, deliberately, and carefully.[7]

What can be done in this case?  To avoid a claim of unpaid wages, a library board would need to develop a plan to put things right.  There are a number of ways to approach this, but I'd start out by enlisting the help of the local Civil Service, who can confirm that the library is a separate employer, with an obligation to confirm their employees' hours.[8] In the alternative, a good resource who may take a similar technical approach could be the municipality's attorney.

Since all that could take some time, if the board wants to vote to adjust the payroll (ensuring the payment is properly subject to taxes and withholding, etc.), the board may also want to enlist the help of the State Comptroller (the authority that audits public library payroll from time-to-time).  How would a library do that?  Prior to any adjustment, it would be a good idea to confirm the basis for the correcting payment in writing with the Comptroller, after which the board could resolve to make the adjusting payment (since the minutes of the meeting, and the meeting itself, are a public record, this is a good exercise in transparency).

Because of the risks involved in compensation-related matters, if at all possible, this type of challenge is a good one to work through with an attorney.[9]

 



[1] More on this approach, piloted in consultation with Sheryl Knab at WNYLRC (who was very patient as I unpacked all the nuances about attorney ethics and retainer agreements), is described in Hope Dunbar’s excellent article: https://www.tandfonline.com/doi/abs/10.1080/15332748.2018.1443572

[2] Sometimes, if the issue is sensitive enough (and there is no reason to involve them) the answer doesn't even go to the council.

[3] It could be relevant in the sense that the salaried employee was using the meeting time to hit a minimum amount of service for the work-week (say, 37.5 hours).  But that nuance doesn't quite fit the scenario.

[4] Note this says "approving," not "effecting."  A municipality can process the payroll and provide the employment benefits, and the library board of trustees remains the actual employer.

[5] Two great primers on how Civil Service Law impacts hiring library directors in New York are found at: http://www.nysl.nysed.gov/libdev/trustees/handbook/cs101.htm, and https://www.nyla.org/a-librarians-guide-to-civil-service-in-nys-2018/.

[6] The New York State Comptroller has understood the nuances of the library board-municipality relationship for decades.  See 1972 Op St Compt File #402.

[7] See the "Ask the Lawyer" on developing an MOU with your sponsoring municipality: https://www.wnylrc.org/ask-the-lawyer/raqs/166

[8] I realize that might not be the case in some localities.  If that is the case for your library, you may want to skip this step, and head to the Comptroller.

[9] The case at this link, Beers v. Incorporation City of Floral Park, from 1999, shows why! https://casetext.com/case/beers-v-incorporated-village-of-floral-park

 

Tags: Board of Trustees, Public Libraries, Salary, Library Directors

Topic: Proof of vaccination from employees - 03/01/2021
We are a large (100-employee) school district public library. We are currently encouraging and edu...
Posted: Monday, March 1, 2021 Permalink

MEMBER QUESTION

We are a large (100-employee) school district public library. We are currently encouraging and educating employees on getting vaccinated, but not (yet) *requiring* vaccinations. We are providing employees with up to 4 hours of paid time off to obtain the vaccine voluntarily--if their vaccine appointment occurs during hours/days when they would otherwise be scheduled and working for us--and requiring proof of vaccination if this paid time off is used.

My question has to do with requiring or requesting proof of vaccination for employees who get vaccinated during their "off hours" and opt not to use this specific paid time off type. Can or should be asking for proof of vaccination from *all* employees, so that we can have some sense of how many employees have been vaccinated, if that is to somehow figure into any decisions we might need to make re: staffing and proximity to others, or any considerations for the possible liability of "direct threat" to others by those who either choose not to get vaccinated, or are awaiting vaccination eligibility?

If it is desirable or permissible for us to obtain proof of vaccination universally, should compliance by the employee be optional/voluntary or compulsory?

If we can obtain proof from everyone, I assume that this should be handled by HR (me) in the typical manner of any confidential medical information. But how do (or can) I share specifics on who has been vaccinated (versus who has not) with others, such as supervisors and managers? They might wish to know details in order to schedule staff accordingly. But at the same time, I would be leery of divulging such information, out of concerns for maintaining employee confidentiality, possible discrimination by unwitting supervisors, etc. I might be more inclined to/comfortable with reporting general numbers--i.e., of 100 employees, 29 have been vaccinated to date--than to share employee-specific details, but am not sure if that would be helpful, or really what information *is* helpful for employers to track and report on internally where vaccination status of staff is concerned.

This is an invaluable service. Thank you for your consideration of my questions and for any guidance you can give!

WNYLRC ATTORNEY'S RESPONSE

Over and over again, I am floored by the care, tenacity, and creativity of the libraries determined to provide services in a time of pandemic.  New York's libraries just don't give up.  This question shows the mechanics of that fighting spirit.

So much of what we do in this pandemic comes back to why we are doing things in this pandemic.  For many libraries, the "why" of offering services is making sure their communities have lifelines to professionally curated information.

For this question, the "why" of asking for proof of vaccination is right there in the submission's core:

... so that we can have some sense of how many employees have been vaccinated, if that is to somehow figure into any decisions we might need to make re: staffing and proximity to others, or any considerations for the possible liability of "direct threat" to others by those who either choose not to get vaccinated, or are awaiting vaccination eligibility?

Let's take that "direct threat" part first.

Back on March 19, 2020, we addressed a question about employer (library) liability due to Coronavirus exposure.  Although much has changed since that time (we have vaccines), the basic recipe for liability has not changed: liability happens when a person/entity owes a duty of care to a person, does not perform that duty, and the failure results in damage.

Because if this recipe, it is essential for libraries to always know what "duty of care" they owe their workers, and their community.

In a pandemic, evolving data and resulting best practices can change the "duty of care" rapidly (No masks? One mask? Two?).

While many resources are aggregating and pushing out up-to-the-minute guidance on "best practices," there are only three places libraries in the State of New York should be drawing their duty of care practices directly from: the New York State Department of Health ("NYSDOH"), the Centers for Disease Control ("CDC"), and the Occupational Hazard and Safety Administration ("OSHA").

Right now, as of this writing, OSHA's 1/29/2021 workplace guidance[1] for mitigating the impact of COVID-19 lists 16 "elements" of an effective COVID protection program.  Here is what OSHA recommends about using awareness of vaccination status of employees:

Not distinguishing between workers who are vaccinated and those who are not: Workers who are vaccinated must continue to follow protective measures, such as wearing a face covering and remaining physically distant, because at this time, there is not evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person. The CDC explains that experts need to understand more about the protection that COVID-19 vaccines provide before deciding to change recommendations on steps everyone should take to slow the spread of the virus that causes COVID-19.

So right now, the "duty of care" set out by OSHA expressly excludes relying on vaccination status to reduce the spread of the virus.  Rather, it focuses on providing and insisting on appropriate PPE.

That said, in the same guidance, OSHA continues to recommend allowing employees who self-identify as medically vulnerable to swap tasks to limit risk:

Offer vulnerable workers duties that minimize their contact with customers and other workers (e.g., restocking shelves rather than working as a cashier), if the worker agrees to this.

This means if a person, relying on their vaccination status, decides to not self-identify as medically vulnerable, the employer is not advised to offer them contact-minimizing duties.

There are other steps on the current OSHA list that the member is already doing.  By enabling the use of PTO for vaccination, they are following the guidance in element "14":

Making a COVID-19 vaccine or vaccination series available at no cost to all eligible employees. Provide information and training on the benefits and safety of vaccinations.

This guidance, I imagine, will evolve.  That evolution should be reflected in revised Safety Plans.

And with that said, let's answer the member's specific questions:

Can or should be asking for proof of vaccination from *all* employees, so that we can have some sense of how many employees have been vaccinated, if that is to somehow figure into any decisions we might need to make re: staffing and proximity to others, or any considerations for the possible liability of "direct threat" to others by those who either choose not to get vaccinated, or are awaiting vaccination eligibility?
 

Based on the current OSHA guidance, along with guidance from the EEOC, the answer to this is "yes," and then "no."  Yes, an employer can ask for proof of vaccination (whether acquired on PTO or off-hours).[2]  No, right now, it should not be used for assignment of duties[3] or with the idea of reducing possible liability.

Here is the member's follow-up question:

If it is desirable or permissible for us to obtain proof of vaccination universally, should compliance by the employee be optional/voluntary or compulsory?

Based on the current OSHA guidance, along with guidance from the EEOC, right now does not seem like the time to rely on vaccination status and data to make determinations about workplace risk management and safety.  So while requiring a notification of vaccination status may be permissible, it does not appear desirable if its purpose is to mitigate concerns about liability.

If, however, the motivation is to verify that the library is effectively encouraging the most employees possible to get vaccinated—simply for the employees' own personal health and safety—then yes, tracking those metrics (and any non-disability factors barring vaccinations) might not only be permissible, but desirable. In that case, the question is: does the information need to be tied directly to a particular employee, or is it just as meaningful if anonymous?

Which brings us to the member's last question:

But how do (or can) I share specifics on who has been vaccinated (versus who has not) with others, such as supervisors and managers?...I would be leery of divulging such information, out of concerns for maintaining employee confidentiality...

This HR manager knows their stuff!

First, yes: no matter what, never create a risk of trampling on employees' privacy.

Second: Right now, it appears that sharing such information is unnecessary.

In a December 18th, 2020 "Ask the Lawyer," I stated that a vaccine requirement should only be implemented if it is part of a well-thought-out, board-approved Safety Plan.  Right now, it appears that no Safety Plan should rely on a vaccine requirement to reduce transmission of the virus.  With that in mind, right now, it appears the safest course of action –both COVID-wise, and legally—is to encourage vaccination, but not require it, and if a library tracks it, only do it for purposes of encouraging more employee vaccinations (or finding out you've hit close to 100%).

Of course, here we are on February 26, 2021.  If you are reading this in March, or April, or that sunny, warmer time in the future, May and beyond[4], this answer might no longer apply.

Keep checking with NYSDOH, with the CDC, and of course, with OSHA.  At some point, requiring vaccination—or allocating duties by vaccination status—could become something expected of an employer.  If that happens, a library's "duty of care" could change, altering the threshold for liability, and the answer to these questions could shift—some subtly, some not-so-subtly. 

But we have had a lot of twists and turns in the Pandemic.  That "shift" may or may not happen.[5]  As I often say at my office, "the only plan we can make is that the plan will change."  And how do you plan for that?  By doing what this member has done: keeping employees' well-being and safety at the forefront, and adapting every time the data and guidance change. 

If your library does that, you'll be as safe as you can be.  And mitigate your liability.

 

Thank you for a thoughtful question.

 



[1] Posted as of February 26, 2021 at https://www.osha.gov/coronavirus/safework.

[2] This answer is found on the EEOC site at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws as of 2/26/2021.  "K.3. Is asking or requiring an employee to show proof of receipt of a COVID-19 vaccination a disability-related inquiry? (12/16/20) No.  There are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related.  Simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry.  ...  If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA."

[3] Remember, if the employee uses vaccination status to self-identify as vulnerable, such information can be considered by the library reactively (and confidentially).  For more on that, see the "Ask the Lawyer" from January 19, 2021.

[4] Garden time!  Can you tell I can't wait to get into the dirt?  It always feels so distant, this time of year.

[5] As OSHA says, more research is required.

Tags: COVID-19, COVID-19 Vaccine, Emergency Response, Employee Rights, Policy, Public Health, Public Libraries

Topic: Follow-up question to heavy smells in library policy - 02/10/2021
In reviewing your response to a question on Nov 17, 2020 from an adjunct library science professor...
Posted: Wednesday, February 10, 2021 Permalink

MEMBER QUESTION

In reviewing your response to a question on Nov 17, 2020 from an adjunct library science professor, your advice is to create a "smell free zone" in the library for those patrons bothered by another person's odor. Your reply, however, does not address staff who are complaining as well about a patron's body odor. Often, the staff take the complaining patron's side. Often, the odiferous patron is a regular patron who spends hours at the library often on the Internet where PC workstations are relatively close to each other. Yes, I can tell staff it is part of their job to deal with it but often that results in a demoralized angry staff- not something I want to cultivate.
Thank you in advance! This column is very helpful!

WNYLRC ATTORNEY'S RESPONSE

I am glad the column is helpful, but this issue really shows the limits of the law!

Before I say what I mean, I need to emphasize three things:

1. State and federal law often protects employees who complain about "working conditions."[1] Since an odor is a "working condition," no matter what position a library takes on "bad" smell (barring it as a disturbance, allowing it as a matter of mission, or a solution somewhere in between), leadership should carefully listen to employees' concerns.

2. While my November 17th answer mused there are several compelling reasons to opt for a more inclusive solution (like use of a "scent free" zone), I want to re-emphasize: that is not what the law requires.  Rather, the law requires that people not be barred from library access on the basis of disability or protected characteristics.  Since that is a slippery slope, not barring people on the basis of smell (or using a "scent free zone") is a good way to stay in a legally safe zone. 

But barring disturbing odors, if done carefully, is still allowed by law.

3.  Although I imagine that the member submitting the question didn't mean "taking sides" literally, because it is so critical, I have to say: library employees should never perceptibly "take sides" with one patron against another patron, even if they privately agree that a patron's odor is off-putting.[2]  This is because if access is going to be limited, the library must be able to show fair and equitable treatment.  An employee with a concern, of course, can take it directly (and discretely) to their supervisor.

 

So with all that said...

From the legal perspective, the key on the employee side of the "smell" issue is to listen to employees' bona fide concerns about their working conditions.  This is true whether your library decides to bar certain smells as "distractions," or to find creative ways that, ultimately, might expose an employee to an unwelcome smell.  Above all, whatever approach is taken, it should be clearly set out in a written policy, and decisions under that policy should be well-documented.  And to address concerns like the one raised by the member, to the greatest extent possible, the policy should be written with the input of employees, who should also be trained on how to work with it.

But that said...

Does this mean some employees, believing their library should have a more inclusive policy, might have to enforce a restrictive policy?  Yes.

Does this mean some employees, not liking their library's more inclusive policy, may have to work near a person whose smell they do not like?  Yes.

This is what I mean by "the limits of the law."  The law can help libraries foster positive working conditions and employee morale—to a point.  After that, it is down to leadership, well-developed polices, and good employee relations.

This is why people often like their HR director more than their lawyer!



[1] I don't mean employees are entitled to complain all day every day; an employer can require complaints to be conveyed in a way that does not unduly burden productivity.  But if an employee is expressing a bona fide concern (it's too cold/it smells/these computers don't work) the National Labor Relations Board has found such expressions to be protected activity.

[2] This is a tough one.  It is not "taking sides" to contribute to a report or Code of Conduct enforcement; my concern is that at all times library employees have to model fairness, so when they take action under a policy, the process looks as fair as possible.

Tags: Policy, Public Libraries

Topic: Bequest of Property for Libraries - 02/05/2021
A municipal public library has accepted a gift of real property and is selling the property. Ho...
Posted: Friday, February 5, 2021 Permalink

MEMBER QUESTION

A municipal public library has accepted a gift of real property and is selling the property.

How much autonomy does the Library have in accepting and selling this property? The sponsoring municipality feels that perhaps it is their responsibility to handle the sale according to their regular procedures, including a permissive referendum (as required by law).

Finally, who controls the proceeds from the sale?

WNYLRC ATTORNEY'S RESPONSE

In law school, one of the first classes you take is "real property."
 

I remember thinking, back in that first semester before my brain got converted into that of a lawyer: "Real" property?  What...is there something called UNreal property?

Of course, nowadays when I see questions like this—about land, and land rights, and the laws impacting them—I think "Oooh...a question about real property!"

Warn your kids: this is what three years of law school will do to you.

I appreciate questions about real property, because I really enjoy working on issues involving land, and land rights, and the laws impacting them.  Whether it's roads, old buildings, or construction matters, some of my favorite work requires reviewing surveys, obsessing over title abstracts,[1] and poring over inspection reports.  And don't get me started about design-build contracts.

In this case, many of the fundamental considerations of this submission were addressed in a previous "Ask the Lawyer" from 12/13/2019.  So as a primer, readers may want to take a look at that previous answer, where we discuss some of the fundamental things a library has to consider when selling real property.

This background allows me to jump right into the specific concerns of the member's questions:

Question 1: "How much autonomy does the Library have in accepting and selling this property?"

Answer: unless there is a specific provision in the library's charter, bylaws, or contract with its sponsoring municipality that expressly creates some type of co-ownership, the library, as the sole owner, has ALL the autonomy.

Question 2: The sponsoring municipality feels that perhaps it is their responsibility to handle the sale according to their regular procedures, including a permissive referendum.

Answer: unless there is a clear legal claim that puts title entirely or partly into the municipality, the various state laws governing sale of municipal property do not apply; rather, the sale is governed by Education Law Section 226.

Question 3: Finally, who controls the proceeds from the sale?

Answer: the board of the library, and no one else.

 

To the member's brief, pithy questions, I will add a question of my own:

Question 4: Why am I so confident about the answers to questions 1 through 3?

Answer: because I have researched the following:

  • The relevant state laws and regulations of the State of New York
  • Case law regarding cases involving public library sale of property
  • Relevant guidance from the State Comptroller
  • Relevant guidance from the NY Attorney General
  • Relevant guidance from the State Education Department

These materials span over sixty years of library law-making, and I am not going to summarize them all here.  But for those who wish to dive a little deeper into this topic (buckle up, unless you, too, are interested in real property, I've been told this is pretty boring), here is a brief overview:

Education Laws 260 and 226, together, confirm that the trustees of every library chartered in New York,[2] may "[b]uy, sell, mortgage, let and otherwise use and dispose of its property as they shall deem for the best interests of the institution..."

Here are some examples showing how this legal structure has been applied:

In 1953, the NY State Comptroller opined that when a village and a library jointly acquired property, they were co-owners.[3]  This means a library can co-own a library building along with its sponsor (much as two individuals can co-own a parking lot).  If that is the case, the law and regulations applicable to both entities would govern a sale.  However, that same year, the Education Department confirmed that a chartered library is a separate entity from its municipal sponsor.[4]  

Flash forward to 1976, when the Comptroller stated that a school district library[5] could acquire a building on its own.[6]   Since that time, there hasn't been a lot of case law over who owns library buildings:[7] like any other stand-alone, not-for-profit education corporation, a library can own its own building.

That said, while the New York Education Law empowers public libraries to buy, sell, mortgage, and otherwise dispose of their real property, there are other laws and regulations controlling how the resulting assets can be used.[8]  This is why a public library (or any library) should not buy, sell, lease, or arrange for capital improvements without its lawyer involved (that goes double for accepting a bequest or a restricted donation of land or a building, which has not only legal/regulatory considerations, but could also be fraught with the drama that can accompany wills and transfers of land).

Now, in the midst of all this ownership/autonomy, it is good to remember: not all public libraries own their buildings.[9]  Some libraries are tenants of their sponsoring municipality (to check the ownership of the building, check the deed or the real property tax records for your county).  But even a library that is a tenant of their municipality buildings can own a separate building—if some nice person or entity decides to give them one.

So in a case like the one described by the member, the most useful thing would be to 1) check the library's charter; 2) check the documents giving title of the property to the library; and 3) make sure the lawyers for both the municipality and the library (and the buyer!) are on the same page about ownership and salability.  As the lawyers do their "real property" thing, so long as the title is "clear" and solely in the name of the library, it is the library who owns the property, and the board of the library who decides if/how to sell it (in a way consistent with its charter, bylaws, and charitable status....on that, see the "Ask the Lawyer" from 12/13/2019).

Thank you for a great question.



[1] A "title abstract" is a summary of everyone who has owned a parcel of property since it was first regarded as something to be owned.  It can contain all sorts of historically salacious details, like when a house was foreclosed on, or what it sold for in 1935.

[2] Which all Regents-chartered "municipal" libraries are.

[3] Opinion of the State Comptroller #142 (1953).

[4] Opinion of Counsel for the NY Education Department No. 61 (also 1953).

[5] Another type of "public" library.

[6] Opinion of the State Comptroller #771 (1976).

[7] There is a lot of case law involving the planning and construction of library buildings, but no squabbles about who actually owns them.  For a good example of a case involving construction of a library, see Matter of Rimler v City of NY, 53 Misc 3d 1212[A], 2016 NY Slip Op 51627[U] [Sup Ct, Kings County 2016].

[8] Martin v Board of Education, 39 Misc. 2d 519, 241 N.Y.S.2d 396, 1963 N.Y. Misc. LEXIS 1971 (N.Y. Sup. Ct. 1963).

[9] It is important to know who owns the building!  If your library is a tenant rather than an owner, it impacts things like personal injury cases (an example of this is found in Deinzer v Middle Country Public Library, 2013 NY Slip Op 33823[U] [Sup Ct, Suffolk County 2013].

Tags: , Municipal Libraries, Property, Public Libraries

Topic: Paid time-off for COVID-19 vaccinations - 01-21-2021
Are public or private libraries obligated to give paid time off for eligible employees to get the ...
Posted: Thursday, January 21, 2021 Permalink

MEMBER QUESTION

Are public or private libraries obligated to give paid time off for eligible employees to get the vaccine during work time? A staffer is planning to go upstate for it on a work day and the question came up if they have to use sick time or just "get the day" to take care of this. Thank you!

WNYLRC ATTORNEY'S RESPONSE

Non-governmental employers

Recent changes to the Labor Law make the "private" part of this question easy to answer: since all employers must now offer all employees sick leave (unpaid if the employer has under four employees, paid if five or more), an employee may use that sick leave for the purpose of obtaining medical care, including to get vaccinated.

If a non-government-agency employer would like to go one step further and not require an employee to use accrued sick leave, but instead, give them a day (or two half-days, for the vaccine that requires two shots) for the specific purpose of being vaccinated, that's fine, too, so long as the library considers vaccination of employees to be part of its Safety Plan (making the vaccination a work activity, and not a prohibited gratuity from a charitable entity to a private person).[1]  But there is no obligation to do so.

Small but critically important exception to this rule: if your library employees are in a union and their time off is subject to a collective bargaining agreement, you must check and abide by that agreement, or develop a special provision with the union.

 

Public libraries

Okay, this is where it gets tricky.  For public libraries that consider their employees to be employees of a "government agency," hang on one second, we'll address what you can do in the paragraph below.  For all other public libraries, who must follow the new sick leave law, the section above applies.

 

Public Libraries Who are "Government Agencies"

For public libraries whose employees are considered employees of their sponsoring municipalities,[2]  there is no obligation to "give" paid time out of the library to get vaccinated unless it is in a collective bargaining agreement or your government subdivision's response plan.  However, if your library is allotted vaccine as part of a rollout to public employers, and the entity you are getting it through (sponsoring municipality or school district) is encouraging vaccination by allowing it to be done on work time, that is an option to consider.  Further, if your library develops an employee vaccination rollout plan as an addendum to its Safety Plan[3] and would like to offer up to a certain number of hours of paid time out of the office to encourage vaccination, if part of a plan, that can be allowed (but is not required).[4]

Small but very important exception to this rule, just like with "private" libraries: if your library employees are in a union and their time off is subject to a collective bargaining agreement, you must check and abide by that agreement, or develop a special provision with the union.

 

For All

Issues like this a) affect mission and morale, b) relate deeply to employee and public safety, c) can impact a library's budget, and d) are fraught with compliance concerns, so any decision is best to tie to your library's Safety Plan,[5] and to have trustee approval (confirmed by a vote).

I continue to admire the care for others, tenacity, and attention to detail members of the library community bring to their questions as we get through this pandemic together.

 

 



[1] Just to be clear: to avoid a forbidden benefit to an individual, NO charitable entity should "give" a paid day off for vaccination without linking the enhanced safety of workers to its charitable operations (i.e., making it a part of their Safety Plan).

[2] Note: even when this is the case, the library's board of trustees, and only the board of trustees, determines who is hired, how they are compensated, and any matters related to development, discipline, and termination.

[3] This "Ask the Lawyer" addresses how to prioritize vaccine allotments and roll them out through policy: https://www.wnylrc.org/ask-the-lawyer/raqs/193.

[4] At least, it is not required as of 1/21/21.  As with all things COVID, check for updates on this.

[5] And be reviewed by a lawyer, whenever possible.

Tags: Association Libraries, COVID-19, COVID-19 Vaccine, Emergency Response, Municipal Libraries, PTO, Vacation, and Leave, Public Libraries, Safety Plan

Topic: Vaccine priorities for staff - 01/19/2021
The governor announced that the vaccine rollout to public employees would be through our unions an...
Posted: Tuesday, January 19, 2021 Permalink

MEMBER QUESTION

The governor announced that the vaccine rollout to public employees would be through our unions and health groups, but also said that WE need to prioritize who receives the vaccine first (based upon risk factors/comorbidities) since the supply is limited (as the governor mentioned in Friday's press conference) --it will probably take a few months to vaccinate every staff member who wants one.

How can we organize our internal "prioritization?"  Should we prioritize those with underlying health conditions, or use other criteria? What about HIPAA? I want to do this fairly, but I am also concerned about the ethics.

WNYLRC ATTORNEY'S RESPONSE

The member's caution shows how important it is to get this one right.

Before delving into it, I want to say: for public libraries with a union, this is one to confer with union leadership on. 

For public libraries without a union, it will be good to think about not only your internal prioritization, but the messaging around it. 

And for all libraries connecting their employees to vaccine, this is one to plan in careful coordination with a board committee, your lawyer, and your local health department.

With the right participants at the table[1] and careful consideration of ethics and privacy, finding the right plan for you won't be easy, but you will get it right.

This question is about the "ethics and privacy" part of the process. For a public institution that will be part of this rollout, the State of New York's own ethical statement and guidelines for prioritization are a good place to start.  Here they are:

New York State based its COVID-19 vaccine distribution and administration process on ten guiding principles.

  1. Safety: New York State will only endorse and distribute a COVID-19 vaccine if it is determined to be safe and will only be used according to the indication under which it received its authorization or license. This includes continued monitoring and reporting of adverse events after the vaccine is licensed and administered.
  2. Effectiveness: New York State will only endorse and distribute a COVID-19 vaccine if it is demonstrated to be appropriately effective in the populations intended for use.
  3. Expert approved: New York State will rely on the advice and counsel of recognized clinical experts and scientists to review and approve the safety and effectiveness of every vaccine that is authorized by the federal government for distribution.
  4. Equitable & clinically driven distribution: New York State’s COVID-19 vaccine distribution plan will be based on standards that prioritize people at higher risk of exposure, illness and/or poor outcome. Unrelated factors, such as wealth or status, will not influence distribution.
  5. Transparency: Throughout the COVID-19 crisis, the state’s daily public presentation of facts and reliance on science and medical expertise helped build public trust and confidence in government action. New York State will continue to be transparent regarding all aspects of the COVID-19 vaccine distribution, administration, and monitoring process to ensure New Yorkers are fully informed.
  6. Use of Data: Coordination of a successful vaccination program will require robust tracking, data and analytics capabilities. New York State will use powerful data and information technology platforms to guide all parts of the COVID-19 vaccine distribution and administration process to maximize safety, accuracy, and efficiency and meet all federal reporting requirements — all while maintaining patient privacy.
  7. Privacy and Patient Safety: New York State will ensure all vaccination processes prioritize patient safety, and all information systems guarantee patient privacy. Vaccination does not take away the importance of other public health measures that have served us well in the fight against COVID-19. New Yorkers will be urged to continue to practice social distancing, mask wearing, hand washing, and other measures.
  8. Partnership, Coordination & Public Outreach: New York State recognizes that coordination with local organizations and community providers is essential to the safe and successful distribution and administration of COVID-19 vaccines. The state’s outreach efforts will especially focus on reaching underserved, hard to reach, and vaccine-hesitant populations, as well as those at highest risk for COVID-19 infection and poor outcomes.
  9. State Leadership: New York State expects federal engagement on vaccine vetting, distribution, administration, and funding. However, regardless of the level of federal engagement, New York State will take all necessary steps and require local coordination with the state’s centralized approach to ensure an efficient and organized vaccine distribution.
  10. NEW YORK TOUGH: Throughout this COVID-19 crisis, New Yorkers have shown that there is nothing we cannot do if we work together as one community. Our approach to the COVID-19 vaccine will be tough, strong, united, disciplined, and loving.

 

Informed by these guiding principles, each library can consider its unique policies, Safety Plan, and if relevant, collective bargaining agreement (union contract), and confirm its own internal method of prioritizing.

While these variables will make each library's position unique, the best way to confirm and follow the method of prioritization they decide on is to:

            1) Adopt a written policy;

            2) Document that it is being followed consistently;

            3) Notify the employees and the public as to how the process will be implemented.

Here are an "example policy" and "example notice" drawn from the State's approach:

[**START EXAMPLE POLICY**]

[NAME] Library Vaccine Distribution Policy [Employees Only]

[**EXAMPLE ONLY**]

Policy

In step with the method of prioritization being applied by the State of New York, [NAME] Library's COVID-19 vaccine employee distribution plan will be based on "levels" that prioritize people at higher risk of exposure, illness and/or poor outcome.

Definitions and Levels

"Higher risk of illness and/or poor outcome" means that a medical condition makes it potentially more likely the employee could become ill, or, if they do become ill, are statistically more likely to experience a poor outcome; such need shall be considered "Level 1(d)." 

"Higher risk of exposure" means those who, working within the parameters of the Library's current safety plan, PPE requirements, and operations:

  • Perform any function or share any criteria required for vaccination during the New York Department of Health's Vaccine Distribution Phases 1a and 1b (including those 65 and older), but did not obtain the vaccine; such need shall be considered "Level 1(a/b)".
  • Must report to work on site and physically interact with the public as part of their routine job duties, and/or handle circulating materials; such need shall also be considered "Level 1".
  • Must report to work on site as part of their job duties; such need shall be considered "Level 2".
  • Performing all work duties 100% remotely; such need shall be considered "Level 3".

Procedure for 1(d) requests

Any Level 1(d) requests for vaccination shall be confidentialWhen supplies are available to the Library, employees who self-identify as at "higher risk of illness and/or poor outcome" may request COVID vaccination through the same confidential process used to request and arrange disability accommodations, with the understanding that during this time of extra burden on medical providers, documentation of the condition creating the need may be supplied after vaccination (please supply a note from your physician when you are able).

A request for vaccination may be considered separately or together with accommodations based on disability.


Procedure

Any employee may request vaccination. 

When supply and demand require prioritization, the order of priority shall be:

          Levels 1 (any type): highest priority

          Level 2 and with a member of their immediate household with higher risk of illness and/or poor outcome: second highest priority

          Level 2: third highest priority

          Level 3 and with a member of their immediate household with higher risk of illness and/or poor outcome: fourth highest priority

          Level 3: fifth highest priority

          All others: lowest level of priority

 

If further prioritization is required to prioritize between Level 1 employees, the order of priority shall be:

          Level 1 (a/b)

          Level 1(d)

          Level 1 (any type) and with a member of their immediate household with higher risk of illness and/or poor outcome

          Level 1

 

If an employee is selected for vaccination through the library, the employee will be expected to follow all the rules and procedures for vaccination. 

Employees not selected will be placed on a wait list in order of priority.[2]

The Director, or their designee, shall be responsible for compliance with this policy.

         [**END EXAMPLE POLICY**]

 

[**START EXAMPLE NOTICE**]

[NAME] Library Vaccine Opportunity Notice

[**EXAMPLE ONLY**]

DATE: [INSERT]

The Library has been issued # doses of COVID-19 vaccine.  We expect to be able to initiate vaccinations on DATE.

As determined by the attached policy, the Library will be offering vaccination through our allotment to as many employees as possible. 

Vaccination is voluntary.

Please transmit your interest in being vaccinated and your assessment as to the level of priority you fall into (see the policy) to name@address by DATE.

For example: "I am voluntarily requesting vaccination through the library's allotted doses.  I believe my priority level is "1."

Requests that include medical disclosures will be treated confidentially.

If the library is able to grant your request, we will send you information regarding next steps, and you will be expected to follow all the rules and procedures for vaccination.  Employees not selected will be placed on a wait list in order of priority. 

Supplies are limited.  If you have the opportunity to be vaccinated through another supplier, we encourage you to do so.  Employees may use up to a day of sick leave for each vaccination session.[3]  The library places the highest priority on the health of our employees.

[**END EXAMPLE NOTICE**]

 

Final notes from the lawyer:

These are early days for the vaccine and vaccination rollout.  While being prepared with a policy is the right move, prior to announcing any prioritization, after adopting a policy, be ready to be flexible, since the situation is changing rapidly. 

As with all major policies, this is one that ideally will be adopted via a vote by your board.[4] Here is a sample resolution for you:

BE IT RESOLVED, that after due consideration of the "guiding principles" of the State of New York and the library's own code of ethics, that the Library adopt the attached "Library Vaccine Distribution Policy" and "Notice;" and

BE IT FURTHER RESOLVED, that the [insert] committee shall work with the Director to monitor the need to revise this policy, based on any new guidance, knowledge, or operational needs.

 

I wish you good health, strength, and fortitude as we move into this next phase of overcoming the pandemic.

 



[1] This does not mean your library's (online) meetings about your rollout should have a cast of thousands—or even 5.  A good approach is like a series of waves: a small core group of policy makers (director and one or two board members) reach out to the identified parties to alert them and get initial input, set a time to check in on a final draft, set a tight deadline for final input and final approval by the board.  With the right planning, this can be done in 3-5 business days, and no one should be allowed to sandbag it.

[2] Care should be taken that any Level 1(d) designation is not set forth on a list that can be accessible per FOIL.  Once created, a wait list should simply set forth the names or employee ID numbers in order of priority.

[3] Drafting note: for libraries that must follow the new sick leave law (Labor Law Section 196-b, effective in September 2020), time off for vaccination does qualify as sick leave.  Libraries that regard themselves as being exempt government agencies, and thus not subject to 196-b, should check with their municipal attorney or HR professional to confirm if this meets the requirements for sick leave under municipal policies.

[4] While it is critical that a library board of trustees entrust the day-to-day management of the library to the director, policies are always ideally adopted at the level of highest accountability.  This will also position a board to have a director's back if there is a legal or operational challenge to the vaccine distribution policy.

 

Tags: COVID-19, Emergency Response, Health Management, Public Health, Public Libraries, COVID-19 Vaccine, HIPAA, PTO, Vacation, and Leave

Topic: Staff COVID vaccinations - 12/18/2020
Can a public library compel staff members to get vaccinations for COVID-19, when they are availabl...
Posted: Friday, December 18, 2020 Permalink

MEMBER QUESTION

Can a public library compel staff members to get vaccinations for COVID-19, when they are available? If so, can an employee request an exemption? Do we need waivers of library liability if a staff member chooses not to get vaccinated?

WNYLRC ATTORNEY'S RESPONSE

This is an incredibly sensitive, important, and complex set of questions.  I know a lot of people out there in "library land" are waiting on the answer—from many different perspectives.

So we're going to take it slow, break it down, and unpack the components of the answers one step at a time.

Step 1: Considering requiring immunization to COVID-19 as part of a library's evolving Safety Plan

As I have emphasized in numerous pandemic-related answers, any library operating in any capacity right now should have a trustee-approved Safety Plan tailored to its unique operations.  The plan should evolve as new safety-related information emerges, and as library operations change.

As of this writing,[1] some libraries are open to visit.  Some are doing only curbside.  Some are offering more remote programming.  Some have used their information management and lending capacity to distribute PPE, food, and living supplies.  Because of this diversity of service, they all should have different Safety Plans.

The Safety Plan of a library closed to the public for everything but curbside will be different from the Safety Plan of a library open for socially distant use of computers and lending.  The Safety Plan of a library distributing fresh produce will be different from a library streaming programming from its community room to an audience within its area of service (and beyond).  The Safety Plan of a library operating with ten on-site staff in December should be different from the one they used when there was only one employee on-site in June.

Just like the decision to use a particular mode of sanitization, as a library undertakes and changes its unique services, the decision to require immunization of employees should start with vaccination's role not as a stand-alone solution, but as part of an overall approach to limiting the impact of the pandemic on your library, its employees, and your community.  Do the services your library needs to provide the community warrant immunization of employees?  If so, keep reading.

 

Step 2:  Wait, so does what you said in "Step 1" mean a public library can go ahead and require employees to be vaccinated?

Yes...and NO.

I say "yes," because under the right conditions, the law does allow employers to impose conditions for safety, and that can include mandatory vaccination.[2]  However, I also say "NO," because the phrase "the right conditions" carries a lot of complexity for three little words.  To be safe, the default assumption of a library[3] should always be that it can't require immunization of its employees...and then work to find the way, if well-informed risk management and an updated Safety Plan warrants it, it can require immunizations (and just as critically, if it should).

 

Step 3: Assessing if a library can require vaccination of employees

Before a library gets too far into an internal debate about if it should amend its Safety Plan to require vaccination of employees, it should assess if it is in a position to do so.  This means having an experienced HR administrator or attorney look at the organization's bylaws, policies, and employment relationships to see if there are any steps or bars to the requirement.

What could such a bar look like?  The most common impediment a library will run into on this is an employment contract—either for individual employees, or with an entire employee union (a "collective bargaining agreement").  The bottom line on this type of impediment: if there is a contract in play, a library must be very tactical, collaborative, and strategic prior to creating—or even considering—immunization as an employment condition.[4]

Another bar might be language in an employee handbook or a pre-pandemic policy.  Still another might be that "gray area" when library employees are considered employees of a school district, village, or town.

The best overall guidance I can offer on this Step is: assessing if your library is positioned to require immunization is a critical step to using vaccination as a tool in your Safety Plan.  Bring in a ringer to help your library assess the extent of what it can do.

 

Step 4:  Assessing if a library should require vaccination of employees

Okay, let's say you consulted with the best employment lawyer in your village/town/district, they took a close look at whatever relevant contracts and policies your library has, and they have said: "No problem, you can require this."[5]

The next important thing to consider is: should your library require this?

Compelled immunization[6] is an incredibly sensitive area of policy and law.  Since the time Ben Franklin started insisting on smallpox immunizations,[7] this public health issue has had passionate rhetoric on both sides of the debate. 

I have worked with families whose children have documented contraindications for certain vaccines, and it is not a simple issue.  And right now, a public discussion is happening about why people who are African-American might not trust being offered a first round of vaccination.[8]  These are life-and-death issues.

That said, those on the front lines of public service, during a time of pandemic, are at higher risk of both getting infected, and spreading disease.  Science shows vaccination will mitigate that risk.  Thus, under the right circumstances, encouraging such employees to be vaccinated is the right thing to do, and in some cases, employers have made the decision that requiring vaccination is the right thing to do.

The consideration of this question is classic risk management.  What critical services is your library providing to the community?  What exposure to possible infection do those services create?  Does social distancing, PPE, and sanitization mitigate those risks within acceptable tolerances, or would requiring vaccination of employees demonstrably make those employees and the community safer?  Are there certain duties that merit requiring immunization, and other duties (jobs performed 100% remotely, for instance) that do not?  And critical: is mass employee immunization in step with the approach of your local health department?[9]

There is no cookie-cutter answer to these questions, but a responsible decision to require immunization of employees as part of a well-developed and evolving Safety Plan should answer them all.

 

Step 5:  Developing a robust policy that includes consideration of civil rights, the ADA[10] and privacy

So, let's say your library has followed Steps "1" through "4" and has decided it can, and should, update its Safety Plan to encourage or require immunization of employees.

The next step is developing a policy that:

  • Demonstrably does not discriminate or have an unintentional disparate impact on any protected class of people (race, religion, sex, etc.);
  • Has appropriate measures for people to opt-out based on a disability accommodation under the ADA or the New York Human Rights Law;
  • Protects the privacy of those who either meet the requirement, are granted an accommodation to not meet the requirement, or who must be terminated due to refusal to meet the requirement.[11]
  • Manages liability through good planning and the transmission of accurate information, not (just) waivers of liability.[12]

I also suggest that the library strongly consider ensuring, well in advance, that: 1) the vaccine is available to employees, and 2) that employees don’t have to pay for it.  This is because 1) once the library has identified that there are risks in its operations that would be best mitigated through immunization, those activities should be limited until the mitigation is in place, and 2) there can be legal complications if the vaccination requires personal expense.  While this advance planning and cost containment is not precisely a legal compliance concern, they are close first cousins, and should be addressed as part of the Safety Plan. 

 

Step 6: If a library decides to require immunization, develop a PR Plan (optional, but a very good idea)

I don't need to tell a library audience that what a public library does on this topic will be scrutinized, criticized, and eventually, also a model for the rest of your community.[13]  Since any decision on this point will have its critics, and also (hopefully) its fans, be ready to let your public know, simply and straightforwardly, the basis for your library's decision.

I like the classic "FAQ" approach.  Here are two model FAQ's for two libraries that did the legal analysis and safety assessment, and come to the following decisions:

FAQ: I was told the library board is requiring all the employees to be vaccinated for COVID, is that true?

FAQ ANSWER: Since re-opening on DATE, the NAME Library has had a Safety Plan.  Now our Safety Plan does include supporting voluntary immunization of employees.

FAQ:  Voluntary?  So you are not requiring it?

FAQ ANSWER:  Our risk analysis and still-limited operations showed that we could meet the community's needs by requiring masks, social distancing, and routine sanitization.  We have now added supporting employees in getting vaccinated on a voluntary basis.

FAQ:  Will you ever require it?

FAQ ANSWER:  Only if our operations change and an updated risk analysis shows us that it is best for our employees and for the community.

Another "FAQ" example, for a library that came to a different conclusion, is:

FAQ: I was told the board is requiring all the employees to be vaccinated for COVID, is that true?

FAQ ANSWER: Since re-opening on DATE, the NAME Library has had a Safety Plan.  Now our Safety Plan does include mandatory immunization of employees who are able to be vaccinated.

FAQ:  Why is the library requiring employees to get vaccinated?

FAQ ANSWER:  Feedback shows that the community needs us providing critical services right now.  Our risk analysis showed that in addition to requiring masks, social distancing, and sanitizations, immunization by employees would protect their health, and the community's, while we provide those services.

FAQ:  The vaccine is not 100% available yet.  Did your employees have to do this on their own?

FAQ ANSWER:  Our library worked with [INSTITUTION] to make sure our employees had access to this safety measure, without cost to them.

And that's it.[14]

The important take-away I want to emphasize here is that for individual libraries, there are no quick answers to these questions.

Libraries of all types will be assessing their unique legal and risk positions, and will need to make carefully documented and executed decisions.  Libraries within larger institutions may need to fight for consideration separate from other operations.  Public libraries will need to consider the heightened transparency and public accountability they operate under.  Library systems will be thinking about how they can protect their employees while also supporting their members.  And for the employee on the ground, they'll be thinking about keeping themselves, their families, and their communities safe.

By taking careful, deliberate, and well-informed steps, the answers to the member's questions can be found.

Thank you for a vital question.



[1] December 18, 2020.   For many of you, that means you've been shoveling lots of snow (we're looking at you, Binghamton).

[2] See the case Norman v. NYU Health Systems (2020) (SDNY), 2020 U.S. Dist. LEXIS 180990 *; 19 Accom. Disabilities Dec. (CCH) P19-109

[3] And in this case, I use "library" in its broadest sense: public, association, and even libraries operating as part of a larger institution (such as a college, hospital, or museum).  School libraries, in particular, may both fall under the policies of the institution they are within, but might also have different operations, activities, and exposure that warrant independent risk analysis.

[4] I can't be more specific than that, since in some cases, there may be "emergency" management clauses that could easily allow the requirement of further safety measures, while in other cases, there could be language that makes it clear such a requirement will have to be a point of discussion.  The important take-away here is: if there is a contract in play, don't wing it.  Bring in your lawyer.

[5] The actual answer will of course be in writing and will likely be much more extensive than "No problem!"   It should also be included in the records of library leadership to document the appropriate level of risk analysis.

[6] When I say "controversial," I mean legally.  The science is solid: immunization saves lives.

[7] Ironically, Franklin's young son would die of smallpox before he could be immunized, in part because Franklin's wife Deborah was wary of the new treatment.  Franklin was devastated by the loss of his small, precocious son, and some scholars say it caused a rift in his marriage that was never healed.

[8] If you know your history, you know these fears are based in reality.  If you want to learn more, a good place to start is this New York Times article: https://www.nytimes.com/2020/12/06/opinion/blacks-vaccinations-health.html?searchResultPosition=4

[9] Whenever possible, confirming Safety Plans, and significant revisions of Safety Plans, with the local health department is a very good idea.

[10] The ADA is a critical consideration here.  A good place to start for further information on this is the EEOC, at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.  However, this is just a starting place; as you can see by the linked guidance, this part of your policy cannot be a simple cut-and-paste job.

[11] I know, this sounds cold; and it is.  Considering if a library is actually prepared to terminate employees for refusing to meet the requirements should be part of your library's analysis here, too...because once you develop the policy and start requiring it, granting exceptions without justification can create serious legal complications.

[12] The member asks about waivers for employees who decide not to be immunized.  A waiver of liability should only be used if it is part of a well-developed Safety Plan, and customized for the purpose by an attorney.

[13] Although I just did.  Ah, rhetoric.

[14] I could go on with a few more FAQ's to illustrate the diversity of approaches available (they are kind of fun to write), but I trust you get it.

 

Tags: COVID-19, Health Management, Management, Policy, Public Libraries, ADA, Safety, COVID-19 Vaccine

Topic: Heavy smells in public library policy - 11/17/2020
I am an adjunct instructor in a library science program. We were having a discussion regarding ...
Posted: Tuesday, November 17, 2020 Permalink

MEMBER QUESTION

I am an adjunct instructor in a library science program.

We were having a discussion regarding patrons with body odor or heavy smells (such as perfume or cigarette smoke). What really surprised me…. several of my students who work in public libraries said they have an official policy that patrons who smell are not allowed to stay and are to be asked to leave the library. This really surprised me. Legally is this allowed? Who is to decide what an acceptable/unacceptable level of smell.

Overall, I found the notion of kicking out patrons because of smells to be repulsive, disgusting, and a completely against WHY we exist. If this is legal, I want to know how a library could, in good conscience, do this…

WNYLRC ATTORNEY'S RESPONSE

There is a large array of case law,[1] academic articles, industry guidance, and news coverage on the subject of regulating smells in libraries (specifically, the smells of people and/or their belongings in libraries).[2]

Based on those materials—and in particular, the case law—my answer to the question "legally is this allowed?" has to be: YES.  With a carefully considered policy, carefully followed, barring library patrons based on their "disturbing" odor has been ruled to be legal, just like barring other factors that disturb the operations of the library (noise, eating, running) can be.

But just because a library can bar "disturbing odor" doesn't mean I always advise my clients to do it.

Why?  Because this is 2020.

In 2020, we know that the impact of barring people based solely on them being "disturbing" is fraught with risk,[3] both for legal reasons (claims based on the First Amendment, equal protection, due process, disability, etc.) and for reasons related to a library's mission (concerns related to the type of existential considerations raised by the member). [4]

Of course, in 2020, we also know that regardless of where you land on the question of "disturbing odor," this issue poses concerns from the other side, as well; a patron or employee trying to access or work in a library may find a smell (whether caused by another person, or by a condition of the building) to present an actual risk to their health (allergies, chemical sensitivities).  So one person's access to the library may pose a risk to the access of another.

Finally, in 2020, while nothing is a sure bet, it is reasonable to expect that one of these days, one of the legal cases challenging a library's bar to access based on a "disturbing odor" is going to result in a policy or ejection being overturned.  And while that currently-hypothetical case may turn on circumstances unique enough[5] to not bar all such policies, such a ruling could throw the current legal footing into question.

Which is why I offer this: rather than barring people due to "disturbing odor"[6] (which as the member points out, is a conclusion rooted in subjectivity) a library might be wise to consider planning, policies and action to:

  • Create "Scent-free zones" in your library where any perceptible odors, mold, dust, and use of substances associated with chemical sensitivities, are as minimized as possible.  This can address the needs of people who are more sensitive to perfumes, chemical cleaners, and air fresheners...reducing the likelihood of complaints and concerns under the ADA.
  • When planning capital improvements, invest in an HVAC system that circulates fresh air into library spaces (with all due consideration to humidity control for your collection), reducing the accumulation/proliferation of all odors, and in general creating a healthier breathing environment.
  • Place seating near areas with more effective ventilation, and configure spaces to deter concentrations of patrons in less ventilated zones.
  • And most critically: Develop policies to address objective, quantifiable health hazards that might be signaled by smell, rather than barring subjective and hard-to-measure "disturbing odors."

It is this last bullet—related to safety—that I would like to dwell on.

Some smells are just that—smells.  They may be perceived negatively, and perhaps even as a disruption, but to most people, they pose no risk. 

Some smells are not just smells, but "tells"—byproducts indicative of conditions that are experienced by the individual carrying them (like it or not, we all have these).  Some may be linked to a medical condition or disability, but in no way do they pose a safety threat to others.    Many people who are perceived as "smelly" have "tells".

And finally, some smells are indicative of a potential health hazard to those in their proximity; for example: sulfur added to otherwise odorless natural gas, the odor of certain paints as they dry...or the smell of a staph infection in an open wound.  These "evidence of danger" smells are the ones that libraries, who are legally obligated[7] to provide their patrons and employees with a safe environment, need to be concerned about, and should develop policies to address.

Need an anecdote to distinguish the smells from the tells from the hazards?  Here's a scenario:

A man walks to the library.  While walking, he treads in dog poop.

Because decades of smoking cigarettes have dulled the man's sense of smell, he does not notice that his shoe is coated in poop.  However, as soon as he enters the library, a page smells the poop, and points out to the patron that not only is his shoe smelly, but it is leaving fecal residue on the floor.[8]

Because there are many health-related reasons why the library doesn't want dog poop on its floor, the man is asked to leave until his shoe is poop-free.  The man leaves the library and visits his buddy across the street,[9] who lets him hose off his shoe in the back yard.

When the man returns to the library, he shows the page the clean shoe, and it is clear that the dog poop has been eliminated.  However, dog poop being what it is, the smell lingers on the shoe.  But insofar as the library is concerned, it no longer poses an active hazard to toddlers crawling on the Children's Room floor.  The man is allowed to walk into the library, selects the latest John Grisham novel, and leaves, the odor of dog poop lingering in the Circulation Desk breeze.

And that is the difference between using a smell to mitigate a health hazard, and tolerating a potentially disturbing odor in a library.  It is also how a library focuses on providing access and a safe environment for patrons and employees—while avoiding judgments rooted in subjectivity.

In posing this question, it is clear that the instructor is thinking about mission, about a library's role in its community, and about optimizing access to resources for all.  But the instructor has also honed in on this "subjectivity" concern, by asking: "Who is to decide what an acceptable/unacceptable level of smell"?

It is that very subjectivity that brings legal peril to the current scheme of things.  Sooner or later, the right combination of circumstances will arise, and a judge will rule that simply barring someone from a library based on nothing more than a bad stink is a legal violation.

Therefore, as we move past 2020, and into an era that will, all signs show, be more in need of information access and authentication than any era previously, I offer this template policy to "flip the script" on how libraries address the issue of odor. 

The ABC library is committed to access for all.  With regard to odors in the library, this means:

  • We provide a designated scent-free area for patrons with chemical or scent sensitivities;
  • We require any odor that is a sign of a possible health risk (hazardous chemical, fecal matter, rotting food, smoke, communicable infection or any substance that can damage the library or pose a risk to those in it) be addressed, and if a risk is likely to be present, mitigated immediately;
  • We work to find people who may be bothered by certain non-harmful odors, such as perfume, cologne, or "body odor" of other patrons, space in our scent-free area, or near windows or well-ventilated areas.

We appreciate that as humans, our patrons bring a wide array of odors into our space, and not everyone appreciates that smell of others. If you need a scent-free area or well-ventilated area, please let us know.  If you notice any odor or other factor that could be indicative of a health hazard, please immediately alert staff so it can be addressed per our policies.

Meanwhile, the library's Code of Conduct should state some version of: Any activity or substance posing a health hazard to patrons and employees is prohibited.

And finally, internally, I suggest this protocol[10] for addressing reports of smells indicative of potential hazards:

Receive the report.  Note the date, time, person reporting it, and what is reported.  Ensure a qualified person immediately assesses the report.  If there is a possible health hazard, involve the appropriate personnel or outside resources to develop an immediate response/mitigation plan, with all due respect for safety, privacy, access, and due process.

And that's it.  From where I see it, while the status quo is legal, the future of "The Great Library Smell Debate" can shift to focus on two things: access, and safety.[11]  Factors that are subjective or based on personal preference ("bad smells" causing "disruption") are currently legally valid, but there is the possibility of a successful legal challenge.  If a library is concerned about the impact of such policies on mission, and wants to avoid subjective value judgments about smell, developing policies that focus on access and safety might be a more appropriate approach.

That said, to reiterate my honest answer to the question: right now, based on case law, "subjective" policies about "disturbing" odor, if narrowly tailored to serve a valid purpose[12], and executed properly, remain enforceable.  But as I have outlined, they can pose a risk. 

Make no mistake—sometimes odor needs to be addressed, and from many perspectives.  But the law provides many options, and using a focus on access and safety is one of them.

Thank you for a thoughtful question.

 



[1] The most authoritative and influential are: Lu v. Hulme (2015), Kreimer v. Bureau of Police for the Town of Morristown (1992).

[2] Trusting that an audience of libraries knows how to find research material, I'll simply say that the materials cited in the guide posted here (http://www.homelesslibrary.com/uploads/1/3/0/1/13014906/body_odor_handout.pdf) show the range of coverage and thought on this topic (at "Ask the Lawyer," we don't reinvent the wheel).

[3] This risk springs from the fact that, objectively speaking, every human being "stinks." Of course, for a variety of reasons, sometimes our personal odor is more overtly and broadly perceptible than at other times, and depending on an array of cultural or physiological factors, may or may not be welcome by them.  

[4] For a thorough discussion of the mission-related considerations of imposing odor bans, I recommend the article "It is a Non-Negotiable Order": Public Libraries' Body Odor Bans and the Ableist Politics of Purity."  By no means an unbiased academic exercise, you can easily tell where this author is coming from (they find odor bans antithetical to the purpose of libraries).

 

[5] These cases turn not only on precise wording, but on how the policy was applied, and the law in that precise locality.

[6] "Disruptive smell" while real, is, of course, subjective, since as I mentioned in footnote 3, all humans, to some degree, "stink," but "stink" is a relative term.  In that regard, I am reminded of the classic scene in Frank Herbert's "Dune," when young Paul Atreides first arrives at the home of his future allies, the Fremen.  Paul perceives their cavernous home, called a "seitch" as having a wretched stink, but just as he is about to show his disgust, his mother says "How rich the odors of your seitch..." saving her son from a fatal social blunder.  Of course, they go on to not only get used to the smell, but to conquer the planet.

[7] By a variety of laws, which can include local health codes, OSHA regulations, labor law, union contracts, local law.

[8] What he actually says is "Um...sir?  Hi, good to see you again. Hey, it looks like maybe you stepped in some dog poop?"  Thank goodness, not all people talk like lawyers.

[9] I bet people who live near libraries collect stories like this.

[10] Some larger libraries, or libraries that operate in close relationship with municipalities, will have well-developed hazard response plans, which this protocol should fit right into.  Others will not have that level of planning, or the resources to involve "qualified" internal personnel in assessing a reported hazard.  For that, it is good to have a relationship with the local county health department.

[11] Can a person bring in a smell so foul and pervasive that, even if it doesn't cause permanent injury, can be considered a "hazard"?  Anything that causes eyes to tear up/swell, retching, headaches, or violent coughing/sneezing in the general population can be considered a "hazard" (which is a term whose definition changes from law to law, but is used in its more generic sense here).  But getting some back-up from the health department is a good way to ensure that you get solid confirmation of this.

[12] Have your lawyer review this policy no less than annually!

 

Tags: Policy, Public Libraries

Topic: NY's paid sick leave law - 11/05/2020
The state's new paid sick leave law recently went into effect on September 30th. According to ...
Posted: Thursday, November 5, 2020 Permalink

MEMBER QUESTION

The state's new paid sick leave law recently went into effect on September 30th. According to the state's website, eligibility requirements are as follows:

"All private-sector employees in New York State are covered, regardless of industry, occupation, part-time status, and overtime exempt status. Federal, state, and local government employees are NOT covered, but employees of charter schools, private schools, and not-for-profit corporations are covered."

As a school district public library, I'm curious to know if we fall into this local government category and so are not covered by the law.  According to the state comptroller's table summary of local government entities [
https://www.osc.state.ny.us/local-government/data/local-government-entities], public libraries are listed as "Miscellaneous Local Public Organizations".

However, in regards to page 33 of the State's Local Government handbook,

"Local government in New York State comprises counties, cities, towns and villages, which are corporate entities known as municipal corporations. These units of local government provide most local government services. Special purpose governmental units also furnish some basic services, such as sewer and water services. School districts, although defined as municipal corporations, are single-purpose units concerned basically with education in the primary and secondary grades. Fire districts, also considered local governments in New York State, are single-purpose units that provide fire protection in areas of towns. Fire districts are classified as district corporations. There are other governmental entities which have attributes of local governments but which are not local governments. These miscellaneous units or entities are generally special-purpose or administrative units normally providing a single service for a specific geographic area."

I wonder if a school district public library, such as ourselves, doesn't fall under this last category of governmental entity: one which has attributes of local governments but which is not a local government. If this is so, then this new law would seem to apply to us as well.

It's all a little confusing. Maybe you can help!

WNYLRC ATTORNEY'S RESPONSE

I wish I could reply to this excellent question with a plain "yes" or "no." But I cannot.

Why not?  Because, while as the member points out, a public library's "type" is relevant to this question, what may also be relevant is how the employees are being paid.  So answering this question requires a two-factor analysis:

Factor 1: Is the library in question considered a "type" of "governmental agency[1]?"

AND/OR

Factor 2: are the employees of that library compensated as if they were employees of a governmental agency?

If the answer to either question is "yes," Labor Law 196-b (which is the new "sick leave" law) doesn't apply.  If the answer to both is "no," then it may be time for the non-exempt library to draft a new Sick Leave Policy.

 

Now let's talk about the factors in this "two-factor test."

Factor 1: Is the library in question considered a "type" of "governmental agency?

Most libraries in the state of New York are NOT "governmental agencies" as that term is used in Labor Law Article 6 [2].

Sure, the library has to account for taxpayer money as required by the "General Municipal Law."  And yes, it is subject to parts of the "Public Officers Law."  And yep—it may even have to disclose certain records under the Freedom of Information Law. 

But none of that means they are performing a function of a "governmental agency" as defined under the Labor Law, which is where the new "sick leave" rules come from.  Under the Labor Law, a public library is far more likely to be considered a not-for-profit education corporation required to offer sick leave (and provide Workers' Compensation Insurance, and follow the NY Minimum wage laws...), than an exempt entity like a school district.

Now that being said, even if a library is not a "governmental agency," they may also be exempt from 196-b if their employees are....

 

Factor 2: "Compensated as if they were employees of a governmental agency"

How can this type of "compensation" happen, if the library itself isn't a "governmental agency?"

In New York, many libraries use their sponsoring municipalities and sponsoring school districts[3] as the "employer" of their employees—even though the library board retains the legal autonomy to hire, discipline, set compensation, promote, or terminate the employees. 

In this type of scenario, the library employees are a) paid directly by the municipality[4], b) are covered by the municipality's insurance[5],  c) get the municipality's benefits, and (most tellingly) are d) eligible for "comp time"[6] otherwise barred by rules requiring mandatory overtime.  In short, under much of the Labor Law,[7] they are treated as municipal/district employees.[8]

 

So does my public library have to give employees sick leave under the new law, or what?

Sadly, there is no "bright-line" rule.  But!  I have created a handy "Library-Municipality Relationship Type" chart to help you figure it out if it's something your library needs to worry about:

Library-municipality Relationship Type

 

Hallmarks

Legal impact with regard to employees and labor law

What this means with regard to the new "Sick Leave" law ("196-b").

1. "Total Coupling" Type

The library never separated any functions from the sponsoring entity; all finances, employee compensation, employee benefits, procurements, and property are owned/controlled by the municipal entity.

 

Ideally, the relationship is confirmed in writing.

In "total coupling," employees of the library, for Labor Law 196-b purposes, are considered municipal/district employees, even though the library board retains the authority to hire, discipline, set compensation, promote, or terminate the employees.

Employees are totally covered by the policies and benefits of the municipality/district, including the sick leave policy, and 196-b does not apply. 

2. "Select support: determinative" Type

The library has separated some functions from the sponsoring entity, but some functions determinative of legal status remain controlled by the municipal entity; for example, if a town still owns the library's building, or payroll and benefits are through a city.

 

Ideally, the relationship is confirmed in writing.

In a "Select support: determinative" scenario, if "employment" is a determinative factor, employees of the library  are paid by the municipality/district, so for legal purposes the employees might be considered municipal employees, even though the board retains the authority to hire, discipline, set compensation, promote, collectively bargain with, or terminate the employees, and even though the library has de-coupled from the entity in other ways.

IF employees are totally paid by and covered by the benefits of the municipality/district, including their sick leave policy, 196-b does not apply. 

Otherwise, the library must develop a policy under Labor Law 196-b, OR consider itself a separate "governmental agency" to be exempt.

 

 

3. "Select support: non-determinative" Type

The library has separated from the sponsoring entity to the degree that any slight collaboration between the library and the municipality does not determine legal status.  For example, the Town may plow the parking lot as a courtesy, but does not own the building, hold the money, or provide payroll/benefits.

 

Ideally, the relationship is confirmed in writing.

In a "Select support: non-determinative" scenario, the select support related to employees would not risk creating employer-employee status, or influence compensation and benefits, but could still be helpful assistance.  For example: if library employees were allowed to attend town employee trainings and professional development to save money for the library.

 

Library employees are not paid through the town/district, so the library must develop a policy under Labor Law 196-b, OR consider itself a separate "governmental agency" exempt from the law (which should be confirmed by a lawyer in writing for that specific library).

4. "Totally De-coupled" Type

The library has completely separated functions from any sponsoring entity.  The library owns the building, does all its own procurement and contracting, is the sole administrator of employee-related matters, and takes no extras or freebies from its municipalities/district.

 

No need to confirm the lack of relationship in writing, but you can exchange New Year's cards.

In a "total de-coupling," there is no select support related to employees. Librarians and municipal/district employees might say "hi," but they don't attend regular trainings or joint work sessions, and they are not in any way co-workers.

Library employees are not paid through the town/district, so the library must develop a policy under Labor Law 196-b[9], OR consider itself a separate "governmental agency" exempt from the law (which should be confirmed by a lawyer in writing for that specific library).

 

And there you have it.  From what I have seen, every public library in New York State handles its coupling/de-coupling in a different way.  Charter documents, bylaws, MOU's, and political/diplomatic relations can influence this just as much (if not more than) that law.  If you know where your library stands, you can not only assess its obligations under the Labor Law, but many other critical compliance obligations, as well.[10]

The bottom line here is: library employees shouldn't be left in a lurch, especially when it comes to sick leave, family medical leave, short-term disability, workers' compensation, and paid family medical leave—all of which are rooted in the question of "who" their employer is.  This means library trustees should periodically confirm, with certainty and clarity, what policies apply to their workforce.[11]  Regardless of where a library falls on the above chart, this can be accomplished with a confirmed, clear set of policies.

As employment law gets more and more intricate, and as we continue to live with a pandemic, this need for clarity will only get more critical.

I want to say a big "THANK YOU" to  Ben Gocker at Tupper Lake Public Library for submitting this excellent question and bearing with me while I talked through the answer with him.[12] Like all librarians I get to work with on "Ask the Lawyer," Ben is a critical thinker who brought a lot of research and practical experience to his question.  He also exhibited incredible patience as I tried to explain the mutable legal status of bodies defined by the Education Law, operating under the Not-for-Profit Corporation Law, subject to the General Municipal Law, living with the Civil Service law, and of debatable status under the Labor Law.  Thanks again, Ben!

I hope this approach and chart come in handy for public libraries out there struggling with this question. 



[1] I know this sounds like a re-hash of the member's point in the question, but in this case, I mean as that term is defined in Article 6 of the Labor Law, which is the section 196-b is part of. 

[2] Section 190 of the Labor Law, whose definitions apply to 196-b, states: “Employer” includes any person, corporation, limited liability company, or association employing any individual in any occupation, industry, trade, business or service. The term “employer” shall not include a governmental agency."

[3] How this is accomplished will vary, BUT there should always be a written document that sets forth how it is accomplished, and what compensation structure, benefits, and laws apply to the employee.  If there uncertainly about how an employee gets worker's comp, unemployment, or paid family leave, that is a sign the library and entity have to examine things a bit further.

[4] Or school district.

[5] Worker's compensation, unemployment, paid family leave, etc.

[6] "Comp time" is when employees can "bank" time off, rather than get paid time-and-a-half for overtime.  Only municipalities who are exempt from the Fair Labor Standards Act can do that.  For more on that, see "Ask the Lawyer" https://www.wnylrc.org/ask-the-lawyer/raqs/59.

[7] Except the Taylor Law.

[8] I can't emphasize this enough: even when this is the case, the library board retains the authority to hire, discipline, set compensation, promote, collectively bargain with, or terminate the employees.

[9] Just in case you read this and think "Oops—we may need to develop a policy!" A good breakdown and resources for compliance can be found at https://www.ny.gov/programs/new-york-paid-sick-leave

[10] That said, this chart only considers the application of Labor Law 196-b.  If it tackled everything, it would be...very, very long.  For a good case that shows how tricky these “what is a library” issues can be when it comes to employment, check out this case.

[11] It will vary from place to place, but for public libraries, your civil service rep should be a great resource for this.

[12] And another big thank-you for agreeing to be publicly thanked.

Tags: Employee Rights, , Public Libraries, Sick Leave, FOIA/FOIL, Health Management, Public Health, Records Management, PTO, Vacation, and Leave

Topic: Does NYS plastic bag ban apply to libraries? - 10/22/2020
[NOTE: This question relates 6 NYCRR Part 351, which implements the requirements of Titles 27 and ...
Posted: Thursday, October 22, 2020 Permalink

MEMBER QUESTION

[NOTE: This question relates 6 NYCRR Part 351, which implements the requirements of Titles 27 and 28 of Article 27 of the Environmental Conservation Law, aka "the plastic bag ban" which went into effect March 1, 2020, but was suspended for a variety of reasons until October 19, 2020.  For more information on that, see the graphic at the bottom of this answer.[1]]

Does the NYS plastic ban law apply to libraries using plastic bags for curbside pickup?

We purchased plastic bags to hold library items that patrons request, label the outside with their name and leave the bags on pick up carts in the foyer of the building. This is for patron privacy-others cannot see what a patron has requested. As well as a COVID-19 measure-others are not touching items for pick up to search for their materials.

We are tax-exempt and not selling anything. When our supply is exhausted I will explore other possibilities in order to support less plastic waste, even if the ban does not apply to us. But in the meantime, are we in violation of the plastic bag ban if we continue to distribute materials in plastic bags?



[1] Found on October 21, 2020 at https://www.dec.ny.gov/chemical/50034.html

WNYLRC ATTORNEY'S RESPONSE

The answer for this member is: NO.

Why?

The NYS plastic bag ban does NOT apply to libraries using plastic bags for storage of items pending curbside pick-up, unless the libraries are required to collect sales tax.

So while this member's library can choose to phase out plastic bags[1], since it is not required to collect sales tax ("we're not selling anything"), it is not compelled to do so.

Here is what the new regulations prohibit:

351-2.1 Prohibitions. A person required to collect tax shall not:

(a) distribute any plastic carryout bag to its customers unless the bag is an exempt bag;

...   [emphasis added]

"A person required to collect tax" (as if the term really needs clarification!) is defined as:

(l) ‘Person required to collect tax’ means any vendor of tangible personal property required to collect New York State sales tax pursuant to subdivision (a) of Section 1105 of the New York State Tax Law, “Imposition of sales tax.”

The trick is that the application of the law is not based on the taxability of the sale, but rather, the status of the bag distributor as a "person" required to collect tax. 

This is further borne out by commentary from the NY Department of Environmental Conservation, which states[2]:

As of March 1, 2020, all plastic carryout bags (other than an exempt bag) became banned from distribution by anyone required to collect New York State sales tax. For sales that are tax exempt, plastic carry out bags are still not allowed to be distributed by anyone required to collect New York State sales tax (unless it is an exempt bag). [emphasis added]

So, while the vendors at your library's annual craft fair (if you're able to have a craft fair, sigh), who have to collect sales tax, can no longer use plastic bags, a non-sales tax-collecting library's curbside delivery service can.

Extra credit:

At "Ask the Lawyer," we are not used to being the bearers of good news.  So just to be sure—I mean really, really sure—that we could give the above answer, I also checked the " REVISED REGULATORY FLEXIBILITY ANALYSIS FOR SMALL BUSINESSES AND LOCAL GOVERNMENTS" found on the NY Department of Environmental Conservation's web page at https://www.dec.ny.gov/docs/materials_minerals_pdf/part351rfafinal.pdf.

The "ANALYSIS" is one of the documents that drills a little more into the law, and how it will impact those it covers.  It states:

In 2019, a new Title 28, “Bag Waste Reduction” was added to Article 27 of the ECL. This law bans the distribution of plastic carryout bags to customers, effective March 1, 2020, by any person required to collect tax. (“Person required to collect tax” means any vendor of tangible personal property subject to the tax imposed by New York State Tax Law section 1105(a), “Imposition of sales tax.”)

So, really: unless your library is collecting sales tax (for sales of food, or sales of items like t-shirts, office supplies, or other retail[3]), these new requirements do not apply.  But if your institution is registered to collect sales tax (for anything): beware, and "ban the bag."

 

Thank you for a great and timely question.

Screenshot of NY DEC page detailing plastic bag ban.

 



[1] Which, as the member states, they intend to do.

[2] On https://www.dec.ny.gov/chemical/50034.html, as of 10/21/2020.

[3] Yes, not-for-profit and education corporations that sell retail items have to collect sales tax (they don't have to pay it, but they have to collect it). For more info on that, see https://www.tax.ny.gov/pdf/publications/sales/pub750.pdf.

Tags: COVID-19, , Public Libraries

Topic: Can a public library set up a separate LLC? - 10/21/2020
A public library is looking at the possibility of taking over the running of a medical loan closet...
Posted: Wednesday, October 21, 2020 Permalink

MEMBER QUESTION

A public library is looking at the possibility of taking over the running of a medical loan closet that has been previously run by a church.

The library would find a space through a partner, so it would not be on library property.

The library would be responsible for cataloging the items, tracking their circulation, and applying for grants to help with funding.

The local visiting nurses have volunteered to handle the distribution of equipment, and are willing to continue if the library takes it over from the church.

The library's director and trustees are concerned about insuring the library to protect it in the event that someone gets hurt using a piece of equipment and there is the possibility of a lawsuit. They talked to their insurance agent and the company they use would not cover this.

A discussion came up about starting a separate LLC for the medical loan closet that the library would be openly affiliated with.

Would it be possible for a public library to set up a separate LLC to do this?

WNYLRC ATTORNEY'S RESPONSE

Before I answer, let's talk about why a person or business might create an LLC ("limited liability company").

A primary function of an “LLC”[1] is to do exactly what the member has proposed—to create a separate entity designed to hold the liability associated with a particular venture.

Examples of how an LLC can be used to take on liability (and keep it from flowing to its owner/s) include: ownership of rental properties, operation of restaurants, and yes, collaborative formation of charitable initiatives, like a medical closet operated in affiliation with a library.[2]

This is because, when set up properly, an LLC allows its "members"[3] to have an ownership stake in the company, while minimizing the risk of liability associated with the LLC adhering to other parties (like the members).

For this reason, a lot of property owners and participants in risky ventures[4] use an LLC to contain the liability that could result from the risks of the venture.  This helps with insurance, critical decision-making, and keeping unrelated assets separate from the liabilities of a venture.

Aside from this primary “separation of risk” function, the LLC model also allows creative arrangements for financial operations and tax considerations.  Among many other things that relate to ownership of family businesses, and complex corporate structures, this includes allowing one or multiple 501(c)(3)[5] not-for-profit charitable entities to form an LLC that will have a similar tax status. 

So the "short answer"[6] to the member's question is: YES.

That said, I do have a "long answer" composed of several considerations and caveats, which I hope will be helpful.

Consideration 1: Audit.

While the laws governing public libraries[7] do not forbid--and arguably expressly allow--an education corporation like a public library to own, or partially own, the asset of an LLC[8], a review of various New York State Comptroller audits[9] shows that any assets flowing between the two entities will be considered subject to all the requirements that must be followed by the library.

In other words, if the State Comptroller conducts a fiscal audit of the library (as State Comptrollers are randomly wont to do), the Comptroller will not only look at the books of the library, but also the books of the LLC—subjecting them to the same scrutiny as the library. 

So, to the extent money and resources flow from the library to the LLC, the same constraints on procurement, investment, and other use of assets will be imposed on the LLC.  This could bar or limit the activities of the LLC, so should be a primary consideration when it is formed.

Consideration 2: Operations

By "operations," I mean: who is helping the LLC get the work done?

In the scenario submitted by the member, it is the library who will "be responsible for cataloging the items, tracking their circulation, and applying for grants to help with funding."  Meanwhile "local visiting nurses have volunteered to handle the distribution of equipment."  And finally, as described by the member, the storage/pick-up (the "Closet") will be off-site (not on library property).

This means that the LLC would rent/borrow the space for the Closet, volunteer nurses would work there helping to distribute equipment, and the library would use its personnel to track the lending and equipment.

And although the member doesn't specify, let's say the library doesn't use its own circulation system for this, but instead, buys or builds a custom system—maybe even something as simple as an Excel spreadsheet.[10]

So the library would supply the "time and talent" of its people on an ongoing basis to the LLC, perhaps tracking it as an in-kind support to the charitable venture,[11] and also separately purchase assets that would be solely owned and used by the LLC.

This "time and talent," is where "risk and liability" for the library—even with an LLC housing the operations—truly enter the picture.  Even with a separate entity designed to take the hit, when an entity supplies its own people to staff a venture, there is always some risk that the direct involvement of a third party can lead to an assertion of liability (when people sue, they often look for not only deep, but multiple pockets).

How do you solve that?  It takes two things:

Consideration 3: The Operating Agreement

By law, every LLC must have an "Operating Agreement" that specifies how the "members" run the company.  For small, simple LLC's, an "OA" can be a fairly short document.  For complex ventures with detailed financial goals and complex management structures, an OA can be hundreds of pages.

In the case of a "Medical Loan Closet" LLC meeting the criteria in the member's scenario, the operating agreement would have to address, head-on:

  • The precise responsibilities of each member[12]; and
  • The in-kind services being supplied by each member; and
  • The precise terms under which individuals would contribute their services, including volunteers; and
  • The precise way assets of the LLC are purchased, loaned, and de-accessioned (this is the part the Comptroller would look at); and
  • How the premises of the Closet is managed and insured; and
  • Most critically, the way the LLC would hold harmless and indemnify the participating parties for any assertion of liability against them based on LLC operations.

Which brings us back to...

Consideration 4:  Insurance

At the end of the day, this question is about two things: 1) how to do a good thing for a community; and 2) how to make sure the organizations doing that "good thing" properly manage the risks of doing it.

While much of this can be addressed via good planning, rigorous equipment maintenance,[13] and proper paperwork, as can be seen in "Consideration 3,” and as the member clearly knows, a venture that will be so closely connected to people's physical health must have some form of insurance. The coverage should extend to every person with either a fiduciary, employment, agency, or volunteer relationship with the Closet.

While precise coverage amounts should be determined by the participating parties, my instinct is that there should be at least $1 million of coverage per incident, with no less than $3 million/year aggregate.[14]  But it will depend on many factors.

So, what to do?

Many times, there is a very solid reason to start an LLC.  If the Closet described by the member was going to own real property, have its own employees, apply for grants, and in general, take care of most of its operations in-house, with the support—but not the direct service—of the members, I'd say that was the right solution for this scenario.

However, if the Closet is to be a collaborative effort that will rely on the direct services and assets of the member organization/s (in this case, services by library employees, on library time), in my experience[15], a tightly structured plan that properly establishes the responsibilities of the collaborating parties—and ensures there is proper insurance coverage for all involved—might be the most practical way to move forward. 

This will also position the library to do the right type and amount of "volunteer vetting" and to properly confirm the conditions of (and insurance coverage for) the volunteers.

So, on a practical level, what am I saying?  A library can spend thousands to set up a charitable LLC to run a Medical Loan Closet[16], and then about a thousand or so a year to ensure the proper administration of that LLC--or it can develop the Closet as a program of the library (either stand-alone, or in collaboration with others) and spend the money on additional risk management and insurance. 

After all, we're not talking small engine repair, here.  Lending things—even if it is health-related equipment—is part of any library's core mission.

At the end of the day, many factors will play into the decision to use 1) an LLC, 2) a collaboration agreement[17], or 3) to simply operate the Closet as a new program of the library (with some volunteer agreements for the nurses). 

To get to the part where the library can make the decision, I advise developing an "Operational Plan"[18] for the program, and getting quotes from several insurance carriers as to what the coverage would costs for your library and/or for a new entity to conduct the activities in the Operational Plan.

Since there will be a lot of detail to review, a small ad hoc committee[19] consisting of a board member or two, the library director, any other person whose input will be helpful, and the library's attorney, can then review this information, and come up with a solution to pitch to the board. 

And when that pitch is made, everyone should be confident that there is no "wrong" way to develop a new, life-saving lending initiative—so long as the way selected clearly defines everyone's responsibilities, establishes that clarity in writing, assures legal and fiscal compliance, and ensures everyone helping out is covered by insurance.  With the right attention to detail, this could be an LLC—or another solution.

I wish this venture luck and stout hearts for getting it over the finish line; it sounds like a great asset to any community!



[1] When I write about LLC's, I really struggle with putting "an" before an acronym that begins with a consonant ("LLC").  But the rules on "indefinite articles" assure me it is proper.

[2] There are some questions about the operation of a collaborative 501(c)(3) LLC in New York, but they happen, and haven't been shot down yet.

[3] "Members" is what the New York State Limited Liability Company Law calls owners.

[4] I don’t mean “risky” as in “Don’t drive that Pinto!” In in this context, “risky” applies to any venture that has a risk of exposure to legal claims due to having premises, employees, contractual obligations, or providing goods/services.  In that context, even my own law office (which is a type of LLC) is “risky.”

[5] "501(c)(3)" is a designation from the IRS that allows a library or other charitable organization to accept donations while the donor takes a deduction.

[6] Trust me, this WAS that short answer!  Another business lawyer who reads this will find it pretty skimpy.

[7] The Education Law, the Not-for-Profit Corporation law, the General Municipal Law, the Public Officer's Law.

[8] This is NOT to say that the local library could engage in a hostile takeover of the LLC-operated laundromat next door to ensure the very loud HVAC system is turned off during children's story hour.  A not-for-profit, and a public library, both have extensive rules regarding what assets and investments they can own, and how they can benefit from them.  But it could be done (in my hypothetical, it could be done if either: a portion of the laundromat income was a directed donation used to purchase special collections OR if use of the machines to clean clothes while reading or using library Wi-Fi was a free service to the community tied into the library's Plan of Service.  Which, by the way, would be AWESOME).

[9] When I want to relax, I just pop on over to the Comptroller's "library audits" page at https://www.osc.state.ny.us/local-government/audits/library, and have a jolly good read.

[10] My apologies if my assumption that such a project could be tracked via Excel is laughable.  While I can script out workflow and compliance protocols like a pro, my database programming skills stop with a 4-column chart in "Microsoft Word."

[11] Remember, the assets of both a not-for-profit and a public library come with heavy restrictions.  This includes the "asset" of the workforce.  In this scenario, we're assuming all the right paperwork for "lending" employees to a venture is properly in place...not something to assume lightly in the Real World.

[12] Operating a charitable LLC is fairly simple after the start-up phase, but there are routine tasks that must be kept up with: book-keeping, audit, routine IRS and Charities Bureau filings, compliant procurement, de-accession.  Consider who will be responsible for all these things.

[13] This consideration—about properly maintaining loaned health-related equipment—is addressed in the RAQ response to a question we got back in April 2020 about lending a Telehealth kit, which is found here: https://www.wnylrc.org/ask-the-lawyer/raqs/132.

[14] A great short cut on this would be to find some other medical loan closet programs in New York and ask who their carrier is.  Establish your credentials and tell them why you need the information first, though...places get VERY nervous when you ask who their insurance carrier is!

[15] At this point, I have worked on joint ventures for educational purposes, arts purposes, community gardens, the development of apps for civic transparency, community murals, and just about every feel-good thing you can think of.  I will never be rich, but I love my job.

[16] A word of caution: the phrase "Medical Loan Closet" is part of a name protected by a trademark, the "Wichita Medical Loan Closet" which can be seen here: http://tmsearch.uspto.gov/bin/showfield?f=doc&state=4806:g09zye.2.1. When developing a "closet" program here in New York, take care to distinguish your brand so there is no risk of getting a cease-and-desist.

[17] Remember, a “collaboration agreement” is different than an LLC’s “operating agreement.”  A “collaboration agreement” unites the efforts of two or more entities creating the venture, and manages risk WITHOUT creating an LLC. 

[18] The "operational plan" will evolve once you make the decision about the entity type, but to start it is just a description that sets out how the Closet will run.  If the idea is largely to use the same model used by the current operator, that is a fairly simple task, but make sure to include every role and responsibility, simply noting "TBD" is you don't yet have an answer.  An inventory of equipment will be an essential component of this exercise.

[19] Since I have hit you with a lot of detail that could be daunting, I will add this gratuitous advice: if possible, have a meal or fun snack at your planning meetings (even if they have to be via Zoom right now).  I have been working on a charitable planning committee, and by turning it into a convivial experience, we are getting through some fairly obscure stuff while staying in touch with basic human joy.

Tags: COVID-19, Policy, Public Libraries, Liability, LLCs, Loaning programs

Topic: Children's Library Cards - 10/14/2020
COVID has made online library card registration essential in many areas. What do we need to consid...
Posted: Wednesday, October 14, 2020 Permalink

MEMBER QUESTION

COVID has made online library card registration essential in many areas. What do we need to consider when dispensing online (temporary cards that allow access to e-resources) and physical library cards to children? At what age, and under what circumstances do we need to get a guardian's signature? Can we require some form of ID for children?

WNYLRC ATTORNEY'S RESPONSE

I remember getting my first library card at the Utica Public Library with my Dad, circa 1985.  It was a right of passage: something "official" before I could drive, or work, or vote; a stepping-stone to adult life.

Of course, back then, we didn't have the Child Online Privacy Protection Act, the SHIELD Act, or the GDPR.  We did have CPLR 4509[1], but if that was part of the application, I probably assumed it was what the library would use to revive me if I had a heart attack in the stacks.

But enough of Memory Lane: this question is rooted in 2020, a time of pandemic, of online ecosystems, and of growing awareness about personal privacy and data security.  During this time, a library putting in place direct access to services for children in the ways listed by the member is a critical service, and as the member points out, introduces a lot of legal factors to think about.

To answer the member's questions, let's dive into them.

Contracts and Kids

Since the relationship of a library to a patron is (among other things) contractual, and in New York a person (generally) cannot be held to a contract until they are 18[2], any terms a library wants to be able to enforce on a minor must require legal consent of a parent or guardian...and in some cases, the contract really is just with the parent or guardian (who I will call "P/G" for the sake of efficiency going forward).

This, by the way, doesn't mean a library can't let minors have a card and borrow books (or have online access, or be in the library) without the signature of a parent or guardian—it just means if you want to enforce any contractual terms against those minors (like the requirement to return borrowed books), it's best to have a P/G's consent along for the ride.

 

Contracts and the Internet

Most contracts—including those signed by P/Gs binding minors—can be entered into electronically,[3] and a contract signified by a library card is no exception.  So yes, a patron, including a child, can get a library card or access to services through an electronic signature. 

(Just in case you want the nation-wide definition, an "electronic signature" is "an electronic sound,[4] symbol, or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record."[5])

 

What about COPPA?

When a website specifically provides services to children, we often have to consider the Children's Online Privacy Protection Act, or "COPPA."  But not today, since COPPA expressly states that the law applies to "commercial" websites and online services and generally not to nonprofit entities like a library.[6]

Although nonprofit entities are generally not subject to COPPA, the FTC "encourages[7] such entities to post privacy policies online and to provide COPPA’s protections to their child visitors."  Since libraries are sticklers for privacy, this makes sense, but if your library does this when setting up online resources for minors, don't call it "compliance with COPPA," call it "doing it the right thing because we want to."[8]

 

Should we require a parent?

COPPA, by the way, is one of the laws that uses the age of thirteen as the cut-off age for children being able to sign up for things (commercial or otherwise) on their own.  In my experience, 13 is also the age when insurance carriers decide children transition from "vulnerable" to simply "minors."  For this reason, many content providers and services (including libraries) bar access without a parent to those under 13.

All of which is to say: while there might not be a legal requirement to involve a P/G, in general, I'd say this is a good practice.  Good—but not required.  Remember, to legally enforce any conditions[9] (collect fines), you need a P/G's signature, but if you just want to let a kid borrow a book without consequences enforceable in court, you don't.

 

Let's see some ID?

Okay: you're set with electronic signatures.  You know you need to get P/G into the mix for patrons under 18.  You're "Doing The Right Thing Because You Want To" when it comes to soliciting information from minors under 13.  Do you need to see identification to make things official?

That depends.

If the privileges the library card or access grants come with conditions you will need to enforce in a court of law (fines, damages), it is ALWAYS better to get some form of identification or proof of address.  I say this, because when lawyers sue, proper ID and proof of address is how they know they are suing the right person.

Similarly, if there is an age or residency requirement, or a financial element (for instance, loading money onto an account), or if a person is to have access to another's account, you might need to require ID. 

Because the need for it will vary, when to require ID is a good question for your local attorney.  From my perspective, if a person is allowed to take out more than $10,000.00 worth of library assets at a time, or a library wants to be able to collect fines, I'd want to know how to enforce a return of those items.  Similarly, if patrons are allowed to access services from third-party vendors through their library card (software programs, audio books, anything governed by a third-party license), and there are consequences for a violation, it is good to have solid information about who your patron really is.

The problem is, if you are going to require ID, you must have a solid policies and procedures that address:

  • Requiring ID in a manner that does not disproportionately impact those who live in poverty, or other categories of people[10]
  • Requesting ID
  • Evaluating ID
  • Securely retaining and routinely destroying hard copies of ID
  • Securely retaining and routinely purging electronic copies of ID
  • Have a plan for data breach impacting retained ID

Basically: the reason a library would require ID—aside from verifying that a person lives in the relevant area of service, or is who they say they are—is to collect damages or to legally enforce conditions the patron has agreed to as a condition of a card.  Since that is an unpleasant business, its best to avoid it whenever you can...but when it's important, it's important to do it right.

I enjoyed writing this answer, because as part of it, I got to poke around and see how different libraries are solving this issue.  I saw some great stuff, including a temporary e-access system that let the technology do all the work (requesting verification of age via click-thru, using location services to confirm location in NY, imposing conditions on digital content via function without the need for legal enforcement mechanisms).

It is good to see when the law inspires, rather than quashes, creativity and information access.  I hope your library and library system finds this helpful as you imagine new ways to connect people to vital services!

 



[1] Requiring libraries to not release an individual's library records to a third party.

[2] There ARE some exceptions, but unless your library is hiring a minor to act in their movie, or selling a married couple of 17-year-olds a house, they shouldn't apply here (see General Obligations Law § 3-101).

[3] (15 USCS § 7001) states: "a signature, contract, or other record relating to such transaction may not be denied legal effect, validity, or enforceability solely because it is in electronic form."

[4] This definition's use of "electronic sound" created a rabbit hole where I envisioned a series of "auditory" contract signature proceedings where a person uses their Spotify Playlist to accept contracts.

[5] 15 USCS § 7006

[6] Entities that otherwise would be exempt from coverage under Section 5 of the Fair Trade Commission Act, which most if not all libraries are.

[7] You can find this "encouragement" at https://www.ftc.gov/tips-advice/business-center/guidance/complying-coppa-frequently-asked-questions-0

[8] A great guide for "doing the right thing" is here: https://www.ftc.gov/tips-advice/business-center/guidance/complying-coppa-frequently-asked-questions-0#A.%20General%20Questions

[9] By "enforce conditions," I mean contractually, in a court of law.  A library can always ask a 12-year-old to pipe down, and enforce its Code of Conduct if they do not.  But to collect fees, get a P/G signature!

[10] This question is critical to a library's mission.  While there is no "right" answer, I can say that even facially neutral things such as asking for utility bills, pay stubs, or non-driver ID can alienate people within a library's area of service.  I advise maintaining a list of ID types that includes "the usual" types of ID (driver's license, ss card, birth certificate, non-driver ID), and some other types, as well (report card, lease, or any correspondence from a government agency (with private information redacted)).  The list maintained by NYPL, who clearly gets this issue, made me smile: https://www.nypl.org/help/library-card/terms-conditions.

Tags: COVID-19, Policy, Public Libraries, Children in the Library, Library Card Policy, Library Cards

Topic: Friends and Library Cooperation Agreement
There are so many ways the relationship between a library and their Friends can get "complica...
Posted: Wednesday, September 30, 2020 Permalink

MEMBER QUESTION

There are so many ways the relationship between a library and their Friends can get "complicated."

Can you provide a template for an agreement between a library and their Friends?

WNYLRC ATTORNEY'S RESPONSE

NOTE: As a primer to this answer, which mostly consists of the requested template, I suggest reviewing the materials in the ever-excellent "NYLA Handbook for Library Trustees,"[1] particularly the guidance and links on page 85.

"Ask the Lawyer" has addressed the issue of "Friends" relationships before.[2] This question presents a chance to address some common areas of concern pro-actively.

Of course, since an agreement is only as good as the lines of communication between the parties who are in it, aside from reviewing this template in advance of discussing it with your Friends, get ready to spend some time on this.  A good agreement is the product of a lot of discussion, back-and forth, and work for clarity—not the other way around.  And if you can, invite your lawyer to the table.

That said, a simple template can be a handy way to frame the discussion.  So with that, here it is:

 

TEMPLATE Cooperation Agreement

_____________ Library

and the

Friends of the ______________ Library

 

This agreement (the "Agreement") between the _________________ Library (the "Library") and the Friends of the  _____________ Library, Inc. (the "Friends") is intended to further the mission of the Library and the mission of the Friends by clarifying the mission-driven collaboration, shared commitments, and terms for collaboration between the two institutions ("Collaboration").

Mission-driven Collaboration

In all matters involving the Collaboration, the Library and the Friends shall be guided by their missions.

The mission of the Library is:

INSERT

 

The mission of the Friends is:

INSERT

 

In furtherance of their missions, the Parties set forth the below "Shared Commitments."

Shared Commitments of the Library and the Friends

Shared Commitment to Ethics

In all matters involving the Collaboration, the Library and the Friends shall be guided by the ethics of their institutions, including the American Library Code of Ethics, the Library Board's Code of Ethics, the oaths of office of the Library Board Members, and the Friends Board's Code of Ethics, and each parties' Conflict of Interest policy.

Shared Commitment to Legal Compliance and Transparency

As not-for-profit institutions governed by a variety of federal and state laws and regulations, the Parties operate under an array of legal obligations, and hereby commit to model compliance and all appropriate transparency in their stewardship of Library and Friend's resources.

Shared Commitment to the Success of the Library

The Parties agree that the very purpose of the creation of the Friends is the continued viability and growth of the Library, and all their Collaboration shall be to that end.

 

In furtherance of their shared commitments, the Parties set forth the below "Collaboration Terms."

Collaboration Terms

Use of Name

In consideration of the support enabled by this Agreement, the _________________ Library consents to the use of the Library's name in the name of the Friends.

Distinguishing the Entities

Although the Friends are allowed, by this Agreement, to incorporate the name of the Library into their name, each party agrees to exert extreme care to consistently distinguish one entity from the other, and to use their respective EIN's, proper corporate names, when relevant proper Charities Bureau number and corporate identification number, at all times to distinguish one from the other.   

This obligation shall be especially critical during any marketing, contracting, fund-raising, event-planning, and when either party communicates with the public or any oversight authority.

Inter-organizational Familiarity

To ensure mutual awareness of each other, the boards shall maintain a shared record of the current information for both parties, as it is available:

  • Charter (Library); Certificate of Incorporation (Friends)
  • Bylaws
  • Fiscal policies
  • Conflict of Interest policy
  • Current list of Board members and officers
  • Plan of Service (Library); Strategic Plan (Friends)
  • Social networking addresses
  • Meeting Schedule
  • Event Schedule

Board Participation

By no later than DATE, the Library and the Friends shall create and maintain a "Library-Friends Collaboration Committee," with at least three board members from each organization, for the coordination of any aspect of the Collaboration, and shall invite no less than three Library board members to serve on the committee in a voting capacity. The committee itself may also appoint three additional members, by majority vote, but the total membership shall not exceed nine. 

The Library-Friends Collaboration Committee shall have no authority to bind either the Friends or the Library.

Committee members shall serve one-year, renewable terms, which run from January to December (the Friend’s fiscal year).  The Committee shall be co-chaired by one appointee from each board, as named by the President of that board.

The stated purpose and authority of the committee shall be "To maintain a strong and routine collaboration between the Library and the Friends, to facilitate planning in furtherance of the mission of the Friends, and to ensure clarity in matters of fund-raising, fiscal goals, and specific donations."

The Library-Friends Collaboration Committee shall meet no less than quarterly, in furtherance of the commitments of this Agreement.

Annual Contribution Ratio

The Friends shall aspire to direct no less than INSERT% of their total annual income to the Library.  Any departure from this percentage shall be subject to a vote by both parties, based on the planned need to temporarily direct resources in another way, for the benefit of the library (for example, the Friends contracting with registered fund-raising counsel for a capital campaign).

Annual Planning Sheet

As part of the operations of "Library-Friends Collaboration Committee" the committee shall create for each fiscal year an "Annual Planning Sheet."  This sheet will list the special asks the library has (including but not limited to funding for acquisitions, equipment, programming, board discretionary funds, or a capital campaign), and will be used by the Committee and the Friends to determine fund-raising objectives for the year, and to pre-identify any departure from the annual contribution ratio.

Donations

The Friends will encourage donors to make "unrestricted" donations (donations without conditions).

If a restricted donation is accepted (for instance, a donation that requires a naming right, or a certain work of art be placed in the Library) the conditions of the donations must first be reviewed for consistency with the Library's controlling documents and strategic plan, and then accepted via a majority vote by the Library's board.

It is expected that at all times the Friends shall maintain appropriate records of donations and donor-restricted donations and shall issue, in a timely manner, letters of acknowledgement in furtherance of any tax credit the donor may qualify for.

Grants

The Friends may apply for grants from government and private entities for the benefit of the Library, but prior to applying for the grant, the conditions of the grant must first be reviewed for consistency with the Library's controlling documents and strategic plan, and then accepted via a majority vote by the Library's board.  This is to ensure that the time and resources used to apply for the grant are not wasted.

If the Friends apply for grants from government and private entities for the benefit of the Friends (for instance, to purchase donor management software, or to buy equipment the Friends will use for events), the Library does not need to be consulted.  However, the Friends and the Library will, through the Collaboration Committee, maintain awareness of grant applications, to ensure there are no redundant requests.

Annual Accounting

In MONTH of each year, the Treasurer of the Library, and the Treasurer of the Friends, shall meet to exchange financial reports, and to independently and/or jointly develop any observations or advice they as Treasurers may have for the Committee or their respective boards.

No Library Resources for Fund-Raising

It is understood between the Library and the Friends that no library employees shall staff a Friends' fund-raising event, and no Library resources whatsoever shall be used in furtherance of such event.[3]

Appropriate Boundaries

To avoid any concerns regarding authority and responsibility, no members of the Friends Board shall volunteer at the Library.

Dispute Resolution

To avoid any concerns to the detriment of the Friends or the Library, in the event either party believes the other has violated its mission, formation documents, charitable purpose, applicable laws and regulations, or this Agreement, the concerned party shall notify the other in writing.

If the dispute is not resolved within ten days, the parties shall agree to retain a New York Bar Association-listed mediator to resolve the dispute.  To select the mediator, the Library shall supply a list of 5 qualified candidates, and the Friends shall select the mediator from the list.  As part of their service as a neutral party, the Mediator shall certify that they may serve without a conflict of interest.

If one full-day session of mediation does not resolve the dispute, the concerned party may seek such other relief as appropriate.

Bi-annual Agreement Review and Amendment

This agreement shall continue for so long as the Friends continue activities for the benefit of the ______________ Library.

Every two years, the officers of the Friends and the Library, shall meet to review this Agreement, or refine their practices that are governed by it, as needed.

This Agreement may be amended through a two-thirds vote by both boards within the same two-month period.

Effective Date and Term

The Agreement is effective upon the date of incorporation of the Friends, and shall continue for so long as both parties are in existence.

With this understanding, on ________, the Board of the ___________________ Library passed a resolution to enter this Agreement effective as of _________________, and the Board of the Friends of the  _____________ Library, Inc. passed a resolution to enter this Agreement effective as of ____________, as signified by the signatures below.

[insert signatures, etc.]



[1] Found at: http://www.nysl.nysed.gov/libdev/trustees/handbook/handbook.pdf

[2] Specifically, here: https://www.wnylrc.org/ask-the-lawyer/raqs/113

[3] This is to avoid any risk of library resources being used in furtherance of a private organization.

Tags: Friends of the Library, Public Libraries, Templates

Topic: Template Facility Use Agreemnet - 9/29/2020
Can you provide a template facility use agreement for renting or allowing community groups to regu...
Posted: Tuesday, September 29, 2020 Permalink

MEMBER QUESTION

Can you provide a template facility use agreement for renting or allowing community groups to regularly use space in a public or association library?

WNYLRC ATTORNEY'S RESPONSE

Yes, I can!  But first, a few caveats:

  • Any template contract is just a starting point.  Use a lawyer to generate a version of this document customized to your library. 
  • For any Organization that wants to use your library for a high-risk event (sports, concert with stage or sound equipment, large event open to the public, routine presence of children), whenever possible, additional review for insurance concerns and premises liability is wise.
  • When filling this out, always make sure the nature of the Organization is confirmed (individual, DBA, LLC, NFP, corporation, etc.), and you have confirmed they exist as stated. 
  • If the form shows that an activity requiring a professional license is going to happen (haircuts, massage, tax prep, legal clinic) obtain a copy of the insurance coverage for the professional activity and make sure it names your Library.
  • No political events should occur unless it is confirmed the arrangements conform to IRS and NYS Charities guidance.
  • A copy of the signed contract should be kept for 7 years (because the statute of limitations to sue on a contract is 6 years). 

 

ABC Library

FACILITY USE CONTRACT

This contract for facility use is between the ABC Library (the "Library") and INSERT NAME ("Organization") an [insert type organization/individual] ("Organization") with an address of [INSERT], for temporary use of [INSERT ROOM# or Description] in the Library (the "Space").

Details of Temporary Use

 

Date(s) and time(s) of use

 

 

NOTE:  If use is routine ("Every Monday in 2020") note the routine

 

 

 

Purpose of use (the "Event/s").  Please describe the activity to be conducted while you are using the Space.

 

 

 

 

 

Estimated maximum attendees

 

 

 

Will you bring in any contractors or third parties under contract for this event?

 

If so, you must provide the Library with a copy of the contract and they must name the Library on their certificate of insurance.

 

 

 

Please list any special details

 

 

 

Person from Organization who will oversee Organization's use of the Space (must be present at all times) and their back-up person

 

Name:

Cell number:

E-mail:

 

Name:

Cell number:

E-mail:

 

[If applicable]

 

Rental Fee on a per-use basis

 

NOTE:  If the use is charitable and the fee is to be waived, the use must not involve any political activity as defined by the IRS.

 

 

 

[If applicable]

 

Fee is payable to [INSERT] and shall be paid by:

 

 

 

Will minors unaccompanied by parents/guardians be attending the event at the Space?

 

If yes: does Organization have a policy barring abuse of minors, and requiring instances of abuse of minors in connection with Organization's programs to be reported to law enforcement within 24 hours?

 

 

 

Is Organization a chapter or affiliate of a larger organization?

 

If so, include larger organization's name.

 

 

 

Will the event involve food or the creation of materials to dispose of?

 

If yes, what time will clean-up, including removal of all trash and recycling generated by the event, be completed?

 

 

 

Organization's Library Contact (the person who will help them with any questions and address any concerns)

 

 

Name:

Email:

Cell:


Library Mission and Terms of Use


The ABC Library's mission is [INSERT].

As part of its mission, the Library requires that all people on Library property abide by all the Library's policies.  In addition, while using the Space, Organization and any person at the Space in affiliation with Organization must at all times follow the below rules, and any reasonable request of any Library representative.

Rules include:

No harassing, abusive, or demeaning activity directed at any person or the Space.

No contact that violates any applicable law or regulation.

In the event of an emergency at the Library, Organization shall abide not only by the reasonable request of any Library representative, but also any first responder assisting with the emergency.

In the event of any injury to any person, or incident of property damage while the Space is in use, Organization will immediately notify the Library Contact listed in the chart above immediately.  In the event of a crime or medical emergency, call 911.

Aside from those attending the event(s) in the Space sponsored by Organization, no filming or taking pictures of any individual in the library (visitor or employee) is allowed, without their express permission.

After use, the Space will be restored to the condition it was in prior to Organization's use, by the Organization, unless otherwise specifically confirmed with the Library Contact.

Organization will not promote the event using the Library/Space as the location until this contract is fully signed and (if applicable) Organization has paid the applicable Rental Fee.

Drafting note: if the Library does not own the building, add any other rules based on requirements in the lease.

Violation of any rules may result in the termination of this Contract with no refund, and denial of future use.

Emergency Cancellation

This Contract guarantees that Library will reserve the Space for Organization as set forth in the "Details" section, above. However, in the event the Library or a related entity experiences an emergency which, in the sole determination of the Library, requires the cancellation of the use (including but not limited to condition at the facility, weather emergency, or event requiring Library's emergency use of the space), Library shall notify Organization as soon as possible, and work with Organization to refund the fee or determine a new date, whichever is preferable.

Indemnification
To the greatest extent allowed by law, Organization hereby agrees to indemnify and defend and hold harmless the Library, its Board of Trustees, employees, agents, and volunteers, from any and all causes of action, complaints, violations, and penalties, and shall pay the cost of defending same, as well as any related fines, penalties, and fees, including reasonable attorneys' fees, related to Organization's use of the Space, including conduct by any third party or contractor present at the Space as part of the Event/s.

Insurance
Organization shall provide insurance meeting the requirements shown in exhibit "A."

Drafting Note/Instruction: the person at the Library organizing the contract will either select the default insurance requirement, which is the conventional insurance demand, or it shall be determined that no insurance is required.  For organizations conducting routine meetings, and especially if children are served by the Organization, the library's lawyer, and/or your insurance carrier will almost always advise insurance be required. 

Person signing for Organization
The person signing on the line below on behalf of organization is at least 18 years of age and has the power to sign for the Organization.
 

Venue for Dispute
This contract and any related action shall be governed according to the laws of the state of New York, and Venue for any dispute shall be INSERT county, New York.

Accepted on behalf of the Library:___________________     on:___________

                              Print name:__________________

 

 

Accepted on behalf of the Organization:___________________          on:___________

                              Print name:________________________
 

Tags: Association Libraries, COVID-19, Emergency Response, Meeting Room Policy, Policy, Public Libraries, Templates

Topic: Memorandum of Understanding for Municipal Libraries - 09/25/2020
I work with a number of municipal public libraries - some are village, others are town. Some libra...
Posted: Friday, September 25, 2020 Permalink

MEMBER QUESTION

I work with a number of municipal public libraries - some are village, others are town. Some libraries use their municipality's employee handbooks, payroll, services like snow blowing and building maintenance, and have the municipalities cut the checks.

It would be helpful to have a clear understanding that the libraries are not a department of the municipality and that the board of trustees is in charge of the library, hiring staff, evaluating staff, approving expenses, and have complete control of the budget.

It would also be helpful if there was a sample MOU that spells out the division of responsibilities clearly.

WNYLRC ATTORNEY'S RESPONSE

Many of the questions we get at "Ask the Lawyer"[1] relate to this concern.  As the priorities cited by the member suggest, the library-municipality relationship is a Big Issue.

I have worked with city, town, and village attorneys, in one way or another,[2] for most of my professional life. So I can understand why sometimes, if they are focusing on reducing liability or overhauling operations, a town board or a city mayor might be tempted to think of the library as "just another department."

But we know that is not the case.

With all that in mind, I am very grateful to have this opportunity to craft a pro-active answer to this issue.

I am going to let the requested sample Memorandum of Understanding—or "MOU"—do most of the talking on this topic.  For comments on why I have included certain things, you'll see footnotes and items in italics that should be removed from any final version (unless you have a really fun-loving and tolerant town attorney).

Caveats

Of course, with all things "template," this MOU should only serve as a boilerplate.

Further, libraries with very sensitive or less-than-ideal relationships with their municipalities might want to use this only as an internal guide for discussion.  It's not a fun fact, but it remains a fact that some municipal leaders could take a "request for clarity" as an act of aggression.

And as noted throughout, to the greatest degree possible, your library should consult their own attorney about the different considerations in this template.[3]  With that in mind, I hope this document is a useful starting place for that attorney, and I welcome calls from lawyers working with this document.[4]

And here we go:

USING THIS TEMPLATE:  Any guidance in italics, and the footnotes, should be removed before an MOU using this template is finalized.  If at all possible, the MOU and attachments should be reviewed by an attorney before signature.  Items in bold are non-negotiable; they are based on the law and are not subject to change.[5]

 

[PROPOSED] MEMORANDUM OF UNDERSTANDING

Between the [NAME] Library and the [MUNICIALITY]

This memorandum of understanding is between the [NAME] Library (the "Library") and the [INSERT NAME OF MUNICIPALITY] (["GOVERNMENT ENTITY" or "GE"][6]), which both serve the community of [INSERT NAME OF MUNICIPALITY] (the "Community").

This memorandum of understanding ("MOU") is entered into by the Library's Board of Trustees (the "Library Board") and the [AUTHORITY OF THE ENTITY[7]] ("[GE AUTHORITY]"[8]) and is intended to ensure clarity and unified purpose with regard to critical interdependencies between the Library and the GE.  Together, the Library and the [GE] are the "Parties" to this MOU.

As a living document this [first] version of the MOU sets forward both items of clarity, will be revisited by the Parties in the month of [INSERT] every [TIME SPAN[9]].  

Mission and Shared Purpose

The mission of the Library is [INSERT MISSION].

The mission of the [GE] is to [INSERT MISSION].

The Library and the [GE] share the mission-oriented purpose of serving the Community within the [GE] by [compose and insert "shared purpose"[10]]; this is their "Shared Purpose." 

 

The Parties

The Library is a public library chartered by the Regents of the New York State Education Department on [DATE], as shown in the most recent version of the Charter attached as "A" (the "Charter").[11]

As required by law, the Library is governed by a board whose authority is set by sections 255, 256, 260, and 226 of the New York Education Law, the Not-for-Profit Education Law, the Charter, and the bylaws of the library.  A copy of the most current bylaws of the Library is attached as "B."  

The [GE] is a Municipal Corporation incorporated under the laws of New York State in [YEAR]. 

As required by law, the [GE] is governed by [INSERT][12].

A copy of the [GE] Code (the "Code") may be found at [insert code link[13]]. 

[IF RELEVANT] The provision[s] of the Code pertaining to the Library are attached as "C."

 

The Relationship of the Parties

As a Regents- chartered entity, the Library is an independent corporation with the ability to own property, enter into contracts, employ a workforce, and maintain its own bank account for the management of library funds. 

Further, the Library is required by state law and regulation to employ adequate employees to staff the Library in fulfillment of its Plan of Service, which is attached as "D."[14]

Since the [GE] and the Library are two distinct entities, many of their operations occur independently of the other.  However, for the sake of their Shared Purpose, the leadership of the parties have determined that certain "Critical Interdependencies" are in the best interests of the Community.

These "Independent Operations" and "Critical Interdependencies" are itemized below, with comments or additional information in column 3.[15]

Operational item

 

Independent Operation or Critical Interdependency?

When possible, check your conclusion with your lawyer before making a final determination.

Important information or attachment

 

Ownership of Library Building

 

This should specify if the library or the municipality owns the structure housing the library. 

 

If the GE owns the structure but charges no rent (or $1), it is a "critical interdependency." 

If the library owns its premises, it is an "independent operation."

 

 

Attach a survey or schematic of the library's complete property as "F".[16]

 

Maintenance of Library: capital improvements

 

This should specify who takes the lead on capital projects and how the parties will work together for remodeling or building a new library.

 

 

 

By "take the lead," I mean: who signs the contracts for the work and manages the different factors in the capital project?

 

If the GE "takes the lead" on capital improvements, it is a "critical interdependency."  If the library takes the lead, it is an "independent operation."

 

 

 

 

The library should always have copies of warrantees and contracts related to capital improvements.

 

Maintenance of Library: emergency repair

 

This should specify what happens when a pipe bursts and you need to stop the water and fix the pipe, or who makes sure the elevator gets fixed promptly (we'll handle damage to library assets in another section).

 

 

If the GE is responsible for arranging emergency repair, it is a "critical interdependency." 

 

If the library does, it is an "independent operation."

 

 

 

This is a great place to list who to call in the event of a facilities emergency.

 

Maintenance of Library: landscaping and snow removal

 

This should specify if the library or the municipality does the work or contracts for it.

 

 

If the GE is responsible for external routine maintenance, it is a "critical interdependency." 

 

If the library does, it is an "independent operation."

 

 

This should establish not only the party responsible, but set the expectations for service (for instance, should the driveway be plowed before the employees arrive on a snowy day?  That sounds good to me).

 

If performed by a third party, the library should always have copies of contracts related to grounds maintenance, even if the contract is with the GE.

 

Maintenance of Library: routine cleaning

 

This should clarify the line between "routine" cleaning (like weekly vacuuming) and "non-routine cleaning" (like cleaning up when a printer cartridge breaks open near the rare book room), and specify if the library or the municipality does or contracts for the work.

 

 

If the GE is responsible for routine cleaning, it is a "critical interdependency." 

 

If the library does, it is an "independent operation."

 

 

If performed by a third party, the library should always have copies of contracts related to routine cleaning, even if the contract is with the GE.

 

Details such as when the cleaning is, and the levels of access of workers, are important to clarify.

 

Damage to library structure: insurance coverage

 

This should specify what insurance covers damage to library structure.

 

 

 

If the GE coverage applies, it is a "critical interdependency." 

 

If the library supplies its own coverage, it is an "independent operation."

 

 

The board should always have a copy of the policy covering the library structure, and the copy should be in the cloud, not just in the library.

 

Always.  This should not be left to chance.

 

Current insurance policy or amount determined for "self-insurance" by municipality is attached as "F."

 

Library Security Personnel

 

This should specify if the library or the municipality supplies any security personnel. 

 

 

If the GE is responsible for security personnel, it is a "critical interdependency." 

 

If the library employs or contracts for its own security, it is an "independent operation."

 

 

Any discussion of this or contracts relating to security should emphasize rights of access and patron confidentiality, and clearly establish who is "in charge" of the security personnel (who tells them what to do).

 

 

Library Security System, including any cameras

 

This should establish who pays for, monitors, and owns the system and any content on it.

 

 

If the GE is responsible for security personnel, it is a "critical interdependency." 

 

If the library employs or contracts for its own security, it is an "independent operation."

 

 

Any discussion of this or contracts relating to security should emphasize rights of access and patron confidentiality![17]

 

 

Insurance coverage for damage to library assets (collection, furniture, equipment)

 

This should specify what insurance covers damage to library assets (not the structure).  The type and amount of coverage should be assessed on an annual basis by the board of trustees.

 

 

If the GE coverage applies, it is a "critical interdependency." 

 

If the library supplies its own coverage, it is an "independent operation."

 

To help with this item, a library should have an inventory of its assets. 

 

 

The board should always have a copy of the insurance policy covering the library assets, and the copy should be in the cloud, not just in the library.

 

Always.  This should not be left to chance.

 

 

Current insurance policy is attached as "G."

 

Employees: who is the employer

 

 

The employer of the employees is the library, not the [GE].

 

 

 

This is not negotiable.

 

Employees: who processes payroll and tracks leave accruals[18]

 

 

If the GE issues the paychecks, it is a "critical interdependency." 

 

If the library runs its own payroll, it is an "independent operation."

 

 

Whatever entity (or third-party contractor) is doing this, it must be done properly and with proper retention of payroll records and paid time off accruals.

 

Employees: who administers benefits

 

 

If the library employees get benefits (health insurance, retirement) through the GE this is a "critical interdependency." 

 

If the library arranges its own benefits, it is an "independent operation."

 

 

Copies of Summary Plan Documents ("SPD's") or other benefit descriptions are attached as "H"

 

Employees: what coverage applies for workers' compensation, paid family medical leave, and disability?

 

 

If the library employees are covered through the GE, this is a "critical interdependency." 

 

If the library arranges its own coverage, it is an "independent operation."

 

 

This is another one to have absolute clarity on! 

 

Your library should have the most recent mandatory postings[19] up in an area accessible to employees, confirming this clarity.

 

Employees: what employee policies apply, and who is responsible for determining them

 

 

The employer of the employees is the library, not the municipal entity.  While the library may "borrow" some or all municipal policies, within the constraints of applicable law and regulation, the board of trustees determines the employment policies.

 

 

 

Sexual harassment/civil rights complaints, whistleblower complaints, resolving conflict of interest matters

 

 

These complaints must always be managed by the Library Board per the relevant library policy.

 

 

 

Library Emergency Response Plan(s)

 

Optional but encouraged

 

 

The entity responsible for the library's response in an emergency is the Library Board, not the municipal entity.  While the library may "borrow" some or all municipal policies, within the constraints of applicable law and regulation, the Library Board determines any emergency response-related policies.

 

 

 

Facility use policies

 

 

 

Regardless of whether the library owns the building, or is a "tenant," only the Library Board determines facility use policies of the library (for example, rental or free use of rooms and other library space).

 

 

A good facility use agreement establishes the rules of use, confirms if/how liability for the use is transferred (hold harmless, indemnification), and addresses if insurance is necessary.

 

Banking

 

Who hangs onto the money?[20]

 

 

 

Library funds are solely controlled by the library, regardless of where the funds are kept.

 

Even if the operational funds of the library are held by the GE, this "critical interdependency" should be confirmed as being in aid of separate and distinct library finances solely controlled by the Library Board.

 

 

Money can be a HUGE source of dysfunction between a library and its municipality.  Before picking any battles, the Treasurer, director, and board should have clarity about their expectations and goals for stewarding the funds of the library.  This is a good topic to stay in touch with your system, Library Development, and your lawyer on.

 

Fiscal controls (petty cash, cash handling policy, book-keeping, accounts receivable and payable, use of credit card, tracking restricted funds, tracking capital funds)

 

 

To the extent needed, and consistent with a public library boards autonomy over library finances, these policies are to be adopted by the Library Board.

 

 

Audit

 

Different libraries will have different audit obligations, but all are subject to audit by the New York State Comptroller.

 

Any audit of the library should be done with the awareness of the library board.

 

 

The last 10 years of audits should be accessible for review by the parties.

Procurement and disposal of library assets[21]

Although controlled to a certain extent by law, procurement and disposal of library assets are solely controlled by the Library Board.

 

 

 

Budget

 

 

The library budget is passed by the board.

 

 

 

Library System

 

 

The library board is the entity that decides to sign any Library System membership agreement.

 

 

A library facing a determination based on any of the factors in this chart should reach out to their System as soon as possible for assistance.  Although every system is different, they will be a critical ally in navigating these items.  Remember, you are not alone!

 

 

Custom factors special for your library

 

 

Every library is different.  Use this section to track custom factors that impact your library-municipality relationship.

 

There are so many cool, odd, special things out there in library world, I am only surprised when a day goes by and I haven't learned about a new one.

Directors and Officers insurance and/or indemnification of library trustees

If the GE provides coverage and/or indemnification[22], this is a "critical interdependency." 

 

If the library has its own policy, it is an "independent operation."

 

 

The board should always have a copy of the policy covering the library trustees and directors against assertions of liability in the course of their library duties.

 

Always.  This should not be left to chance.

 

Current insurance policy is attached as "I."

 

Acknowledged on behalf of the [NAME]Library on _______:

BY: _______________________________________________

 

Acknowledged on behalf of the [NAME of ENTITY] on _______:

BY:______________________________________________

 

 

Attachments:

A: Library Charter

B:  Library Bylaws

C:  Section of municipal code pertaining to library

D:  Library Plan of Service

E:  Survey or schematic of library property

F:  Current Insurance Policy (premises)

G:  Current Insurance Policy (assets)

H:  Benefit documents

I:   Current Insurance Policy ("Directors and Officers Insurance")



[2] My first experience with municipal law was when I worked for attorney Dan Seaman, who has served as the town attorney for many towns and villages in Niagara County, New York.  My former partner Daniel Shonn was the town attorney for Akron, NY, and I covered town meetings from time to time.  I worked closely with the Town of Lewiston and the City of Niagara Falls attorneys when I was the in-house counsel at Niagara University.  And lately, even though I love my city very much, I just can't stop suing Buffalo (on behalf of clients), so they are really getting to know me at the city law department.

[3] Critical difference between an "MOU" and a contract: an "MOU" is, by design, not intended to be enforceable-although it may recite items that are enforceable via other means (for instance, if they simply recite something that is mandatory under the Education Law, which this one will).  For libraries seeking to elevate an MOU to an enforceable agreement, it is best to work with a lawyer from the get-go.

[4] (716) 464-3386, or adams@losapllc.com.

[5] Any NY library system that wants a fillable version of this MOU Template can write to Jill@stephaniecoleadams.com

[6] For this item, you will select whatever type of entity you are working with: city, town, or village.  For this template, we're going to call it the "GE" (for "government entity"), although that will make it sound like you are trying to make them turn right in the 1800's.

[7] The authority entering into the MOU will vary depending on the entity type.

[8] This name will also be modified to reflect what applies to your municipality: Town Supervisor, Village Board, City Common Council, etc.

[9] This "time span" should be selected to ensure you never have a fresh board of trustees and municipal leaders who don't know how things need to function.

[10] A nice "shared purpose" might be "the service and betterment of those living in our community."  It's nice to revisit the "shared purpose" every now and again so leadership is invested in it and it doesn't get stale. 

[11] Make sure you use the most recent version of the Charter.  An updated copy can be obtained via a request to New York State Education Department, Division of Library Development.  If there is enabling legislation, attach that, too, since the legislation can impact some of the variables in the chart.

[12] This is whatever combination of leadership calls the shots for the municipality: town supervisor and board, etc.

[13] I am sure I don't need to tell a library audience that most municipalities have their codes online, but I just love footnotes.

[14] Yes!  This MOU will need a binder or a routinely updated database to hold all the attachments!  Don't you love it?

[15] From what I have seen—and at this point, it's a lot—every library working with a municipality handles this differently.  It's like a Myers-Briggs personality test...endless permutations, even within similar types.

[16] Knowing the exact physical footprint of the library is critical!  Among many other things, this is how you set the boundaries for the limit on things such as, for example, smoking near the property.

[17] This is critical for compliance and clarity about patron records under the New York Civil Procedure Laws and Rules (CPLR) 4509.

[18] A not-so-fun, but instructive, read on this topic is found in the NY State Comptroller Audit found here: https://www.osc.state.ny.us/sites/default/files/local-government/audits/2018-09/lgsa-audit-library-2018-brentwood.pdf

[19] A list and copies of most postings is here: https://labor.ny.gov/workerprotection/laborstandards/employer/posters.shtm

[20] Extensive information on this topic is found here: http://www.nysl.nysed.gov/libdev/trustees/handbook/pltreasurer.htm

[21] A good example of this is in Ask the Lawyer https://www.wnylrc.org/ask-the-lawyer/raqs/68

[22] "Indemnification" is when an organization defends a director, officer, or employee in a lawsuit (like a discrimination claim).

Tags: COVID-19, Emergency Response, Public Libraries, Memorandum of Understanding, Municipal Libraries

Topic: Public restroom availability in reopening - 9/16/2020
A small, rural public library, we have public restrooms. In pre-pandemic times, our restrooms were...
Posted: Wednesday, September 16, 2020 Permalink

MEMBER QUESTION

A small, rural public library, we have public restrooms. In pre-pandemic times, our restrooms were not kept locked, and were cleaned once a day by our building's maintenance person.

Both restrooms are ADA-compliant and include a changing table. We have already installed motion sensors on the toilets and sink and replaced the hot air dryer with paper towels. Currently, our building is only open to staff and they wipe down touched surfaces with cleaner after use, and initial that they have done so on a bathroom cleaning log as required by our Safety Plan.

As we edge toward reopening to the public, we have many questions around these restrooms. Should we lock the restrooms and require the public to ask for a key? Should we lock the restrooms to the public entirely? Should we return to our pre-pandemic practice of completely open restrooms cleaned once a day? Should we require non-janitorial staff to clean the restrooms during open hours, and, if yes, how often, and do they require training on the products and methods required to clean a public restroom during a pandemic--and what kind of PPE does that require?

Any guidance on how to handle ostensibly public restrooms in an ostensibly public building is appreciated.

WNYLRC ATTORNEY'S RESPONSE

Like many of you, I have had to tackle a lot of previously unaddressed conundrums since March of 2020.  Especially when it involved developing a Safety Plan, this "tackling" has required research, patience, a good sense of humor, and lots of flexibility.[1]

The issue of how to handle 1) newfound concerns regarding the sanitary conditions of workplace toilets; and 2) newfound concerns about sanitary conditions of toilets in public spaces, is one of the most high-stakes and complex.  It can cause a lot of anxiety.

When a matter makes me anxious, I resort to either exercise, or exacting linguistic specificity.  Since you don't come to "Ask the Lawyer" for workout tips[2], I will address this anxiety-provoking issue with exacting linguistic specificity, starting with the Occupational Safety and Health Administration (OSHA)'s definitions of the different terminology used for bathrooms[3]:


Personal service room, means a room used for activities not directly connected with the production or service function performed by the establishment. Such activities include, but are not limited to, first-aid, medical services, dressing, showering, toilet use, washing, and eating.

Toilet facility, means a fixture maintained within a toilet room for the purpose of defecation or urination, or both.

Toilet room, means a room maintained within or on the premises of any place of employment, containing toilet facilities for use by employees.

Urinal means a toilet facility maintained within a toilet room for the sole purpose of urination.

Water closet means a toilet facility maintained within a toilet room for the purpose of both defecation and urination and which is flushed with water.
 

Now, before we go further: a few words about OSHA.  Based on size, location, type, and a dozen other factors, there is no one-size-fits-all for OSHA compliance. But public employers (like many libraries) in NY are required to follow OSHA's standards for employee toilets[4], and non-public employers, whose bathroom-supplying obligations will change by site and size of the organization, can refer to those standards for inspiration.[5] And OSHA (along with the Center for Disease Control, or "CDC") is currently a New York State Department of Health (NYSDOH) go-to for COVID-related sanitization information. 

So with those three resources in mind (NYSDOH, CDC, and OSHA), let's address the member's questions:

QUESTION 1: Should we lock the restrooms to the public entirely?

The first question to address in this is not "should" the library lock the restrooms to the public entirely, but can it?

Any library considered a place of "public assembly,"[6] by state regulation, must have a bathroom open to the public.[7]  However, the definition of a "place of public assembly" expressly excludes public association and free libraries, so yes, and while a municipal library will have a few more hoops to jump through, an association library can decide to limit access by the public.

If your library isn't required to have a "toilet facility" accessible by the public[8], and the capacity of your library means the toilet facility can't be routinely cleaned per the NYSDOH's recommendations, it is worth considering reducing or shutting access down.[9]

 

QUESTION 2: Should we lock the restrooms and require the public to ask for a key?

If this would help monitor use so the bathroom can be cleaned on an as-needed basis per NYSDOH/CDC/OSHA recommendations, yes, that is a viable option, and can be included as part of a Safety Plan. 

Should we return to our pre-pandemic practice of completely open restrooms cleaned once a day?

OSHA states: "Employers operating workplaces during the COVID-19 pandemic should continue routine cleaning and other housekeeping practices in any facilities that remain open to workers or others. Employers who need to clean and disinfect environments potentially contaminated with SARS-CoV-2 should use EPA-registered disinfectants with label claims to be effective against SARS-CoV-2."

Meanwhile, the Phase II Safety Plan template from New York State requires any library to: "Conduct regular cleaning and disinfection at least after every shift, daily, or more frequently as needed, and frequent cleaning and disinfection of shared objects (e.g. tools, machinery) and surfaces, as well as high transit areas, such as restrooms and common areas, must be completed."

So, although there is no mathematically determined heightened standard, these requirements show that routine disinfection should be based on frequency of use, and at a bare minimum, bathrooms should be disinfected at least "once per shift," and there should be a log to register each cleaning (just as the member described they are already doing).

 

QUESTION 3: Should we require non-janitorial staff to clean the restrooms during open hours, and, if yes, how often, and do they require training on the products and methods required to clean a public restroom during a pandemic--and what kind of PPE does that require?

This is a tricky question.  "Requiring" non-janitorial staff to do a task not in their job description risks concerns with morale, operational consistency, and if there is a contract involved, compliance (this will vary from library to library, of course).  And if the cleaning supplies trip a person's health conditions, there might also be concerns with ADA. 

Because of this, like all aspects of the Safety Plan, the requirement to sanitize surfaces in the bathroom(s) must be planned carefully. 

That should start with an analysis of the toilet facility, just as the member asking this question has done.  Does it have one toilet or many?  Does it have touchless sinks or sinks with handles?  Is the tile in good condition, or is the grout failing?  In short, what does it take to sanitize your library's unique space effectively?

One you've done the analysis, select the right products from the EPA's list of products known to effectively combat COVID-19, and based on the instructions on the product, select the method of disinfection that meets the needs of your operation, including the frequency.  And once you have established the method and the frequency, the requirements for employee PPE and training are here: https://www.cdc.gov/coronavirus/2019-ncov/community/disinfecting-building-facility.html and they include a link to a pdf poster about safe disinfection of the work site: https://www.epa.gov/sites/production/files/2020-04/documents/disinfectants-onepager.pdf.

 

And finally, the last part of the member's submission: Any guidance on how to handle ostensibly public restrooms in an ostensibly public building is appreciated.

This is a great summarizing statement, because as it hints, and as this answer reviews, not all "public" restrooms are actually required to be open to the public at all.  Once you have confirmed the requirements for your particular library, it's time to assess what you can do—and what your mission demands that you do.  If that means reducing toilet facility access to minimum required levels, so employee energy and your library's budget can focus on service to the public, make it so.  If that means re-allocating part of the budget to hire a contractor specifically to clean the bathrooms every four hours since your library knows public access is either required or essential, and your library isn't situated to add that to employees' job descriptions, do that.  And if that means employees are expected to take on new duties to effect routine sanitization, develop a well-thought-out rollout plan[10] before implementing that as an express job duty.[11]

But whatever you do with the restrooms, the key is to consistently document that your library is following the NYDSOH, CDC, and OSHA guidelines suited to its unique site, location, and identity.

Thank you for a great question and a great example of the care libraries are taking to stay open and safe for the public.

 

 



[1] One of my co-workers rejected my first idea for managing our narrow hallway in the office.  "I will not announcement my presence by yelling "Gang Way!", Cole."  We settled on a protocol of visual inspection, first.   Even when your name is over the door, a Safety Plan is a matter of give and take.

[2] That said, if you suffer from carpel tunnel or sore forearms from too much typing, put your hands down flat (palm side up), stand on your fingers/palms, and pull upwards for 1minute 3xday.  Changed my life. 

[3] The OSHA-specific information is aggregated at this link: https://www.osha.gov/SLTC/covid-19/covid-19-faq.html#restrooms

[4]  This standard is enforced by the New York State Department of Labor Public Employees Safety and Health Bureau (NYSDOL PES) for public employees.

[5] Further information on required numbers of toilets can be found here, but for the sake of brevity, I am not going to go there: https://www.dos.ny.gov/DCEA/pdf/TB-2011-BCNYS%20-%20Minimum%20Required%20Toilet%20Facilities%20Based%20on%20Occupancy.pdf

[6] Per New York State Labor Law, §2, a “Place of public assembly” shall include (1) a theatre, (2) moving picture house, (3) assembly halls maintained or leased for pecuniary gain where one hundred or more persons may assemble for amusement or recreation, except (a) halls owned by churches, religious organizations, granges, and public association and free libraries as defined by section two hundred fifty-three of the education law, and (b) hotels having fifty or more rooms. [emphasis added, note the exclusionary language].

[7] 12 NYCRR 36-2.8

[8] Be careful in this analysis; if possible, confirm any conclusion that you don't have to have a public bathroom with your local attorney, or the municipal building inspector.

[9] Just be mindful that General Business Law Section 492 requires any place of business with an employee bathroom to let a visitor use that bathroom if it is a medical necessity.  While your library might not be a "place of business" under that law, people with medical needs may have an expectation of access.  Be ready to be flexible if there is a medical need for a toilet facility.

[10] This could simply mean thinking the Safety Plan through, meeting with employees to make sure they are on board with it, and making sure every employee has clarity about safety.  It can also mean working with your civil service agency or local attorney, so any contractual aspects are properly considered.  Since these are tense times for employees, good planning and communication about job duties is essential.

[11] In many library environments, it will be fine to add sanitization as a "duty as assigned," but in other places (with detailed job descriptions, a union contract, or contracts or policies that could impact the "assignment") it will not.  This concern cannot be answered generally; it will vary from library to library.

Tags: COVID-19, Emergency Response, Public Libraries, Reopening policies

Topic: Working from home during reopening - 8/18/2020
I work at a public library that is gradually reopening to the public. We employ quite a few librar...
Posted: Tuesday, August 18, 2020 Permalink

MEMBER QUESTION

I work at a public library that is gradually reopening to the public. We employ quite a few librarians who trend older and have underlying health conditions. Many of these staff have been working remotely for the past few months, but not necessarily on tasks essential to their positions. As we begin to recall employees to the physical worksite, some are requesting to continue working from home, and/or for indefinite relief from working directly with the public, because of their vulnerability to Covid-19 complications.

While we are working to accommodate our employees, we also realize that working directly with the public is an essential part of being a *public librarian*. So how can we effectively accommodate public librarians who are asking to *not* work with the public?

We have done this during our work-from-home phase, when our Library was required to remain closed. But I don't believe that we can sustain this over the longer term. At some point, we may have to hire people to fill the in-person needs of the Library, and won't have enough "at-home" work for existing staff to do.

Thank you for your guidance.

WNYLRC ATTORNEY'S RESPONSE

This is a heart-breaking question, and I am sure it has been a hard process to get to this phase in your operations and planning.

In the state of New York, it can be a violation of both state and federal law to deny a person an employment opportunity on the basis of age or disability.  However, when a person cannot perform their essential duties due to a health concern, and no reasonable accommodation can help them do so, that person may have to leave the position.

Which brings us to the member's question: "So how can we effectively accommodate public librarians who are asking to *not* work with the public?"
There is a lot of wiggle room in this type of question, because the answer will change from library to library, but that also makes it hard to answer generically. 

Since I can't give an answer, I can do the next best thing: an array of questions to help members assess their own library's response to this type of disability accommodation[1] request:

Consideration

Why this is important

Your answer:

 

Are the impacted employees Civil Service?

 

 

Any assessment of job duties, changes, and consideration of alternation of essential duties should be done with your Civil Service agency's input.

 

 

Does your library have to abide by the Americans with Disabilities Act, and if so, what are its precise obligations?

 

 

Precise ADA obligations change based on library type, size, location, and funding. 

 

This is a factor that should already be known and addressed in the library's policies or employee manual, or with input from your Civil Service agency.

 

 

Does your library have to abide by the New York State Human Rights Law?

 

 

Precise NYHRL obligations change based on library type, size, location, and funding.

 

This is a factor that should be known and addressed in the library's policies or employee manual or with input from your Civil Service agency.

 

 

Are the impacted employees governed by a collective bargaining agreement ("union contract")?

 

 

The union contract may control how employees’ duties may be assigned/re-assigned and offer additional protections and considerations.

 

 

Do you have a copy of each job description involved, and are those job descriptions current and accurate?

 

 

Before assessing if an employee can be granted a reasonable accommodation, or must leave their job due to disability, make sure their job duties and reporting structure are accurately set forth in their job description.

 

 

Looking at the job description, what are the elements that the employee is stating that they cannot perform due to medical factors?

 

 

This should be confirmed in writing between the library and the employee (and as needed, review with Civil Service).

 

 

What accommodations can allow the employee to still perform their essential function?  Can those accommodations be implemented by the library?

 

 

Isolating these factors, and confirming them with Civil Service when they impact job duties, will position the library to assess if accommodations (like not coming into close proximity with the public) is possible, and if so, if they are reasonable.

 

 

After considering its legal obligations, operational needs, and the specific request, can the library reasonably accommodate the request?

 

 

The answer may be "yes," or "no."  In the member's scenario, if an essential duty requires activity that, even with all applicable safety provisions, cannot be done by the employee due to a medical concern, the key question is: can the library accomplish the essential element?  As the member writes, that might be hard.

 

This is the part to review with your library's attorney, prior to acting on any determinations.

 

Look at the big picture, and plan accordingly. 

 

When the assessment/s is/are done, look at the overall impact.  How will this impact the Plan of Service?  Or employee morale?

Develop a plan to get any messaging right, while respecting employee privacy.

 

This is the part where you review the big picture with the board personnel committee, civil service agency, and/or attorney.  The goal is for directors to be empowered to make decisions about workforce matters, with appropriate support for the plans.

 

Effect decision-making.

 

Plan out any accommodations to ensure they are supported by your COVID-19 Safety Plan, and create a schedule for implementing any necessary workforce changes.  Make sure the plan makes room for communicating changes to employees, in a way that will build team cohesion.[2]

 

Generate documentation to show compliance with the plans.

I know no chart can take the place of a solid plan that considers the needs and resources of your library, the well-being and privacy of your employees, but hopefully this chart can help you develop one. Together with the more general guidance in an earlier answer, these are the fundamental steps to consider.

Thank you for being willing to pose a difficult question.  I wish your library well at this difficult time.



[1] The employee can call it whatever they want, but a request to change job duties on the basis of a medical condition (including the condition of having heightened vulnerability to infection) will generally be considered an accommodation request under the ADA or the New York State Human Rights Law.  Therefore, any library entertaining such a request should evaluate is as they would a disability accommodations request, which as stated in this answer, will vary from library to library, based on their policy (which should be based on the precise way the laws apply to that specific institution).

[2] Yes: It can be very tough to acknowledge someone is leaving, and then try to focus on "team cohesion."  And it can be doubly tough when a medical concern, and inability to offer an accommodation, leads someone to leave on disability (which of course is confidential, and cannot be shared by the library).  But at the same time, the right message can help with employee morale.  This is why strategizing with an HR professional or Personnel Committee Chair, to organize some talking points on those things, can be so important.

Tags: COVID-19, Emergency Response, Employee Rights, Public Libraries, Reopening policies

Topic: Trustees and First Amendment - 7/27/2020
Our municipal library recently revised its by-laws, and the revisions were approved by four of our...
Posted: Tuesday, July 28, 2020 Permalink

MEMBER QUESTION

Our municipal library recently revised its by-laws, and the revisions were approved by four of our five elected trustees. The fifth trustee abstained, and a month later sent the other board members an email saying he thought some of the language was in violation of First Amendment rights. He said three lawyers he talked with concurred.

The language in question were sentences that were copied verbatim from United For Libraries of the American Library Association's Code of Ethics. The same language was found in the New York State Library Trustees Manual, published by the New York Board of Regents.

Specifically, this is the language in the revised by-laws the trustee objected to:

"Trustees must distinguish clearly in their actions and statements between their personal philosophies and attitudes of those of the library, acknowledging and supporting the formal position of the Board even if they disagree."

"When any trustee acts in a manner that is not in the best interests of the library or in a cooperative nature of the Board, the Board Chair shall discuss the issue with the trustee in a direct and constructive manner. Specifically, if a trustee is negligent in attending meetings to an extent that affects the operation of the Board, if a trustee is actively working against the interest of the library or Board decisions, if a trustee acts or speaks on behalf of the Board on any matter without prior approval of the Board, or if a trustee or his/her family benefits personally from any library matters, that trustee may be asked to resign from the Board by majority vote of the trustees. The trustee will be asked to resign from the Board by letter from the Board Chair, and the trustee will be asked to send a letter of resignation to the Board Chair."

The trustee stated, "A public library, with publicly elected trustees cannot in any manner restrict the opinions or comments of any board member, whether in executive session or public meeting, nor can they be compelled to support the decisions of the majority. Such action is a direct infringement on the First Amendment to the Constitution."

QUESTION: Do the passages in quotes[1] from United for Libraries of the library's new by-laws infringe on First Amendment rights?



[1] NOTE:  The quoted language in the question does not exactly track the language in the 2018 NY Trustee Handbook, nor the United for Libraries Public Library Trustee Ethics Statement.  This reply addresses the language as quoted in the question and does not address the Handbook nor the United for Libraries Public Library Trustee Ethics Statement.

WNYLRC ATTORNEY'S RESPONSE

OPENING NOTE: Before I answer this question, I must stress: while some of it is identical, the quoted language in the question does not exactly track the language in the “2018 Handbook for Library Trustees in New York State,” nor the “United for Libraries Public Library Trustee Ethics Statement.”  This reply addresses the language as quoted in the question and does not address the precise language of the Handbook or the Ethics Statement.

Here are the words of the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

I have been thinking a lot about these words, lately.  Business restrictions, social distancing, mask-wearing, protesting…2020 has evoked them, again and again.[1]

For this question, these strong, simple words are contrasted against the laws, regulations, and documents setting the terms of service of a public library board member. 

Let’s review those terms of service:

  • In the State of New York, public and private libraries are chartered by the NY State Education Department, as authorized by Education Law Section 255.
  • Whatever “type”[2] a Regents-chartered library is, it is always considered an “education corporation,”[3] to be governed, in part, by the Not-for-Profit Corporation Law.[4]
  • Although they are “education corporations,” public libraries bear some hallmarks of government entities: trustees must take oaths of office, most employees are part of the Civil Service, and there are significant, government-aligned requirements for procurement, audit, and accounting.
  • And of course, public libraries are subject to the Freedom of Information Law, the Open Meetings Law, the laws of their host municipalities, and the requirements of their own charters, bylaws, and policies.

This elaborate grid of law, regulation, and governance creates not only a public library--it creates the conditions for service by the public library trustee. 

Overarching all of this is the First Amendment, with its shifting assurances of unfettered freedom of speech and association. These shifting assurances include (but are not limited to): the right to say something (“free speech”), the right to not say something (no “compelled speech”), the freedom to attend meetings and gatherings (“association”), and the right to protest and advocate for your point of view (to “peaceably petition the government for redress of grievances”).

I say “shifting assurances,” because as is widely known, the tests for violations of the First Amendment depend on the context of the speech.[5]  Depending on the government interest to be advanced, or the nature of the speech impacted, the Supreme Court has created various tests to assess the Constitutionality of governmental actions impacting expression.[6]  One of those “contexts” is the voluntary acceptance of public library trustee service, which means agreeing to serve in alignment with certain laws. 

Here are just a few examples of how, even though every person on a public library board has First Amendment rights, speech and association of a trustee may be “limited” by law:

  • Trustees must take an Oath of Office,[7] which is arguably “compelled speech” required by the Education Law and the Public Officers Law;
  • Trustees must agree to follow the library’s “Conflict of Interest” policy, which is arguably “compelled speech” required by both the Not-for-Profit Corporation Law and the mandated Oath of Office;
  • Trustees must meet at least quarterly and if individual members do not attend, they may be removed, which is arguably “compelled association” required by the Education Law;
  • Trustees must not divulge communications designated by statute as confidential (whether or not they were discussed at executive session)[8] which is arguably “restricted speech” but is a condition confirmed in a number of judicial and Education Commissioner decisions;
  • Board members must abide by a library board’s code of ethics or risk being removed for misconduct.

Each of these examples is an instance where library trustees must curb or engage in behavior due to their special status as a public library trustee.  Each is a well-established condition, limiting or prescribing actions and expression, voluntarily undertaken as part of a valuable public service.

So, it is clear that library trustees must accept some conditions impacting their First Amendment rights, as a condition of board service.  But what about the language cited by the member’s question?

Most of the language in the question, as presented, does not lend itself to any concerns about the First Amendment; in fact, most of it does just the opposite.  By requiring a board member who is expressing a personal opinion to clarify that they do not speak for the full board or the institution, the language allows a trustee to express their personal position without jeopardizing their duty as a fiduciary who must act solely in the best interests of the institution.  Further, citing “the best interests of the library” and “the cooperative nature of the Board” emphasizes how a board must collaborate in good faith to achieve board decisions based solely in the trustees’ role as fiduciaries, which is consistent with both the Not-for-Profit Corporation law, and the cases construing duties of boards. 

In short, most of the language allows a trustee to perform their duties while exercising their First Amendment rights.

All that said, I have First Amendment concerns about the following phrases:

“…supporting the formal position of the Board even if they disagree.”

“…if a trustee is actively working against the interest of the library or Board decisions …”

 

What are my concerns with these phrases?

I have concerns because the meaning of these phrases, while evocative of a trustee’s “duty of loyalty”[9] to the library they serve, is ambiguous.   Ambiguity—by which I mean uncertainty about what exactly is being required--does not work well when free speech is implicated; and the uncertainty caused by a term being vague or overbroad creates risk. 

Here is how that risk plays out:

The following are some examples [10] of behavior that could be characterized as a trustee “actively working against the interest of the library or Board decisions…” that would violate the trustee’s duty of loyalty, and thus if punished with removal or censure, would NOT create First Amendment concerns:

  • A trustee knows it is in the best interest of the library to fix the roof in 2020, but publicly advocates waiting until a roofer they personally like (a neighbor or a drinking buddy) is free to perform the work in 2021;
  • A trustee knows that Candidate #1 has the best qualifications for the job, and therefore hiring Candidate #1 is in the best interest of the library, but thinks Candidate #2 will make their friends happier, so publicly endorses and votes for #2;
  • After appropriate due diligence and discussion with legal counsel during executive session, the board votes to buy the lot next door and to roll out news of the decision in a particular way.  A trustee, by virtue of information learned during the process, knows that the decision complies with all applicable laws and regulations, but still organizes a petition asserting the purchase is “illegal.”

Any of these, if proved, could be grounds for removing a trustee for “misconduct” and removal with no First Amendment defense to fight the removal. 

HOWEVER, as I said, the ambiguity of the quoted phrases, and some of their possible implications, concerns me.  To flip my examples around, here are some examples of behavior that could be characterized as a “trustee is actively working against the interest of the library or Board decisions…” that would NOT violate the duty of loyalty, and if punished with removal or censure, COULD create concerns under the First Amendment:

  • A trustee knows it is in the best interest of the library to fix the roof in 2020, but the only roofer to bid on the contract as authorized by the board has an established track record of defective work which is not being considered in the procurement process. In the days before the scheduled vote on the contract, the trustee publicly—and clearly only speaking for themselves—advocates a new procurement process and project timing that will attract roofers with a better record of performance;
  • A trustee sees that the new director, while excellent in many ways, does not have experience organizing a move to a new building, so despite a previous decision by the board to not hire a consultant to assist with the move, re-introduces a resolution to hire a consultant, and publicly (but respectfully) shares their reasons for the procurement;
  • A trustee, by virtue of information learned at executive session, has a genuine concern that a planned land purchase will not comply with all applicable laws and regulations, and reaches out to a private attorney to confidentially share their concerns.  Once those concerns are confirmed, the trustee shares the concerns in another executive session.  The board ignores the concerns, so the trustee—taking care to state that they are speaking personally and not for the board--THEN (without divulging attorney-client privileged information from the sessions) writes to the state Comptroller and the Attorney General for guidance, and writes a letter to the town paper stating simply that they hope to have time to gather further information.

If this seems complicated: it is.[11]  This is why there is a 132-page Handbook for library trustees, why there is currently a state-wide discussion about mandated training for library trustees, and why libraries have lawyers. 

Serving as a public library trustee is truly a role like no other.  To support the people in that role, if I were to word-smith the phrasing I have expressed concerns with, it would read (shown here with tracked changes):

"Trustees must distinguish clearly in their actions and statements between their personal philosophies and attitudes of those of the library, acknowledging and supporting as legitimate the formal actions position of the Board even if they disagree."

"When any trustee acts in a manner that is not in the best interests of the library or is inconsistent with thein a cooperative nature of the Board, the Board Chair shall discuss the issue with the trustee in a direct and constructive manner. Specifically, if a trustee is negligent in attending meetings to an extent that affects the operation of the Board, if a trustee is  engaging in misconduct or neglect of dutyactively working against the interest of the library or Board decisions, if a trustee acts or speaks on behalf of the Board on any matter without prior approval of the Board, or if a trustee or his/her family benefits personally from any library matters, that trustee may be asked to resign from the Board by majority vote of the trustees. The trustee will be asked to resign from the Board by letter from the Board Chair, and the trustee will be asked to send a letter of resignation to the Board Chair."


I suggest adding the words “misconduct” and “neglect of duty” because they come straight from Education Law 226(8), and as such, they are less prone to mis-interpretation.  On the flip side, I suggest removing the phrase, “actively working against,” because that phrase has no basis in law, regulation, or case law;[12] therefore, it risks mis-interpretation.  Since First Amendment decisions often turn on a phrase’s precise meaning (through definition or usage), these are more reliable choices.

To put this plainly: I am concerned that the language, as presented by the member’s question, creates the possibility of a public library chair thinking it is appropriate to tell a public library trustee: “The majority of the board voted to fix the roof this year, it’s a done deal, and now you have to keep quiet about it, or be removed from the board.”  This might not only violate the First Amendment, but could result in a course of action where the trustees are not acting in the best interests of the library.  That is a result to avoid.

At the same time, boards MUST feel empowered to remove members who are disruptive, who refuse to engage in the processes of deliberation and voting, who are disrespectful if they don’t get their own way, who improperly disclose confidential information, who have inappropriate relations with patrons or staff, or who violate board policy...so language emphasizing trustees’ responsibilities should be retained, and should be revisited often. 

Clarity about trustee rights and obligations, board training, and procedures creating a high-functioning board are always in the best interests of a library.

Thank you for a great question.  I hope this answer is helpful. 

CLOSING NOTE: At this closing section of the answer, I would like to re-iterate what was established in the first footnote: Although similar, the quoted language in the question does not exactly track the language in the “2018 Handbook for Library Trustees in New York State” nor the “United for Libraries Public Library Trustee Ethics Statement”.  This reply addresses the language as quoted in the question and does not address the precise language in the Handbook nor the Ethics Statement.



[1] And the year is only half over.

[2] Indian, free association, special district, school district, municipal.

[3] This governance is established through a daisy chain of Education Law sections: 255, 260, 226, and 216-a.

[4] The Education Law carves out several areas where the NFP law does not apply, including provisions related to trustee removal.

[7] By taking the Oath, a public library trustee has made the sworn commitment to “support the constitution of the United States, and the constitution of the State of New York, and … faithfully discharge the duties of the office of” serving on the board. 

[8] This is a tricky one.  A good “Committee on Open Government” opinion discussing the nuances of this can be found at https://docs.dos.ny.gov/coog/otext/o4258.htm.  Another illustration of the shifting conditions of board service is the discussion in a 2017 NY Commissioner of Education’s decision to not overturn the removal of a school board member who admittedly shared confidential information from an executive session, found here: http://www.counsel.nysed.gov/Decisions/volume57/d17147.

[9] It is worth noting that the phrase “duty of loyalty” does not appear in the Not-for-Profit Corporation Law, but is a creature of case law.

[10] All of these examples were picked to not otherwise be covered by required policies such as Sexual Harassment, Conflict of Interest, Whistleblower, confidentiality of topics duly discussed during Executive Session.

[11] These distinctions may be counter-intuitive to some people used to the operations of not-for-profit boards, which come with a high expectation of service with confidentiality.  A key distinction between library board work and the work of other entities governed by the Not-for-Profit corporation law is that library board work, by law, takes place before the scrutiny of the public.  So, while the “duty of loyalty” held by a typical not-for-profit board member would include not divulging board discussions and board votes, for chartered libraries, this activity takes place with an expectation of disclosure.

[12] To make this assertion, I checked for the phrase “actively working against” in all laws and regulations of New York, and the decisions of the NYS Commissioner of education.  The phrase has no application in any of those contexts, and appears in only six judicial decisions in New York (state and federal), none of which deal with libraries or not-for-profit board service.

Tags: Public Libraries, Board of Trustees, COVID-19, Education Law Section 225, First Amendment, Public Officers Law

Topic: [2020 Pandemic Date Specific] Policies for employees returning to work during COVID-19 - 5/21/2020
Public and Association libraries have questions about making policies creating conditions that mus...
Posted: Thursday, May 21, 2020 Permalink

MEMBER QUESTION

Public and Association libraries have questions about making policies creating conditions that must be met for library staff to return to work. Can they set policies that exclude vulnerable employees from being able to return to work? Can they set policies requiring non-vulnerable employees to return to work?

WNYLRC ATTORNEY'S RESPONSE

I had initially considered bundling this question with another submission about temporary actions or policies during COVID-19.  After all, both questions relate to policy, and a big goal of “Ask the Lawyer” is to provide legal information efficiently.

But after drafting that answer, and considering this question further, I did away with that notion.  The member has isolated an incredibly critical concern about employee/employer safety and authority.  It is a question that demands—and deserves—its own consideration.

But before we dive into the legalities, let's consider the practical implications of the member’s question.  Why would an employer want to “exclude vulnerable employees” from the work site? On the flip side, why would an employer want to set policies “requiring” a class of employee termed “non-vulnerable” to return to work?

Near as I can figure, the employer would want to do this to promote safety; a laudable goal.

However, that is not precisely the approach an employer in New York State is empowered to take.

Under both the Americans with Disabilities Act (“ADA”) and the New York Human Rights Law (“HRL”), employers are barred from discriminating against employees on the basis of real or perceived disability. This means that a NY employer who knows—or suspects—an employee might be particularly “vulnerable” (in this case, to COVID-19, but in other cases, due to pregnancy, or other medical conditions), is barred from simply labeling that employee “vulnerable” and taking steps to limit or change the terms of their employment on the basis of that conclusion. 

Rather, disability law is set up to empower employees to identify their needs, and then—under the most confidential circumstances possible—work with their employer to receive reasonable accommodations in consideration of those needs.

For example, a person whose medical history means that they might be more vulnerable to COVID-19 would work with their medical provider to provide documentation setting forth the risks and requesting a reasonable accommodation on the basis of those risks.

Employers are always welcome to let employees know the ways in which they may request accommodations. For instance, as libraries, museums, and archives consider limited or full reopening, employers can transmit those plans to their employees, and invite them to submit any request for accommodations based on the anticipated additional exposure to on-site visitors.

Think of it in the same way your institution might think of planning a large event that would invite the maximum number of people possible to your library or a rented venue. When planning for an event that will attract a large number of people, almost every institution will consider the need to accommodate people who use mobility devices. They might not contact those people in advance, even if they know they're coming…rather, the event will be planned with those accommodations in mind.

A good example of this, of relevance to the current COVID-19 crisis, is an employee with a respiratory disability.  As we know, people who have had respiratory illnesses in the past may be especially vulnerable to COVID-19 now.  These are people who may request accommodations—potentially including the ability to work off-site—based on a disability (a good list of accommodations for respiratory issues can be found here, on the Job Accommodation Network).

So, with all that being said, the answer to the member’s questions (Can they set policies that exclude vulnerable employees from being able to return to work? Can they set policies requiring non-vulnerable employees to return to work?) is: NOT AS SUCH.

However.

Employers can most certainly, when otherwise allowed by law, policy, contract, and Executive Order, require employees to return to work.  After that…

Once an employer is able/decides to re-open, in addition to any re-opening conditions, the employer must consider any requests for reasonable accommodations.  This could absolutely include modifications for those whose disabilities render them vulnerable to COVID-19.  The employer can even generally pre-plan to offer those modifications.  Or they can make working from home, or working on-site, optional (if the work can, in the sole determination of the employer, still be done).  But what they can’t do is pre-sort their employees by “vulnerability.”

There is one final critical point to make here, at this time (May 19, 2020).

Institutions re-opening as part of “NY Forward,” may be required to monitor the health of their employees in a way that typically would seem intrusive, and in some contexts, would even be illegal.

For example, here is a sample of the monitoring required under NY Forward, taken from a sample safety plan.  NOTE: this is taken from the NYForward’s Phase One Retail Summary, and is provided as an example, only:

Employees who are sick should stay home or return home, if they become ill at work.

[Employers must] [i]mplement mandatory health screening assessment (e.g. questionnaire, temperature check) before employees begin work each day and for essential visitors (but not customers), asking about (1) COVID-19 symptoms in past 14 days, (2) positive COVID-19 test in past 14 days, and/or (3) close contact with confirmed or suspected COVID-19 case in past 14 days.

Assessment responses must be reviewed every day and such review must be documented.

Employees who present with COVID-19 symptoms should be sent home to contact their health care provider for medical assessment and COVID-19 testing. If tested positive, employee may only return completing a 14-day quarantine. Employees who present with no symptoms but have tested positive in past 14 days may only return to work after completing a 14-day quarantine.

As stated, this is the procedure for Phase 1 re-opening of limited retail operations.  When will libraries subject to closure in NY be able to re-open under NY Forward, and under what terms?  As I write this, the New York Library Association, NYLA, has this on their COVID-19 page, which states[1]:

With input from our partners from the Public Library System Directors Organization (PULISDO), NYLA has been advocating for libraries to be permissively included in phase two.  This would allow libraries to be a phased re-opening processed, to be determined at the local level, as early as when their region enters Phase Two.  The decision on when, as well as the steps and procedures for re-opening, are best determined locally, and in conjunction with the local library system and county Department of Health.

This is a critical service to association and public libraries by NYLA, and every board and director should be monitoring this site for updates.

Of course, some libraries may have determined that the current workforce restrictions don’t apply to them at all (that they are exempt right along with school districts and local governments).  And it is possible some libraries and museums, affiliated with larger institutions, will not be able to open until their region hits “Phase Four” (covering educational institutions).  And it may be that by the point libraries are given the go-ahead, the emergency has abated to the point where monitoring of employees won’t be required. 

But any library contemplating opening, in addition to being ready to consider ADA accommodations for those more vulnerable to COVID-19, needs to be considering these possible employee monitoring requirements, as well as the need to adopt any NY Forward-required Safety Plan, or similar documentation showing they are taking defined, affirmative steps to protect employee and public safety.

Public and association libraries developing the policies they need to re-open have a large, complex task before them.  Thank you for a question that explores a critical consideration of that work.



[1] Just to emphasize: NYLA is a critical resource at this time and all libraries should be monitoring this page daily for updates.

Tags: COVID-19, Emergency Response, Employee Rights, Public Libraries, Reopening policies, Safety, ADA, HRL

Topic: [2020 Pandemic Date Specific] Elections and Executive Order 202.13 - 4/22/2020
[Note; the text of this question was edited to remove the precise dates of scheduled election and ...
Posted: Wednesday, April 22, 2020 Permalink

MEMBER QUESTION

[Note; the text of this question was edited to remove the precise dates of scheduled election and notice.]

Executive Order 202.13 states:

"Circulation, filing, and collection of any designating petitions, or independent nominating petitions for any office that would otherwise be circulated or filed pursuant to the Election Law, Education Law or any other consolidated law for any office commencing March 31, 2020 are hereby postponed.

Any school board, library board, or village election scheduled to take place in April or May of 2020 is hereby postponed until at least June 1, 2020, and subject to further directive as to the timing, location or manner of voting for such elections."


My question is: our legal notices had been published indicating an open trustee position and petition deadlines were due March XX (none were filed) and the budget vote is April XX. The question is do we have to do a legal notice that the vote is postponed and do new legal notices once we have a date? At the same time can we reopen the opportunity for people to file a petition to run for the board?

WNYLRC ATTORNEY'S RESPONSE

This question is from a school district public library.  Before answering it, I called the library director who sent it in.

Why?  Well, first, I wanted to introduce myself.  When a question has a lot of nuance and potential long-term ramifications, I like the member to know the answer comes from a real human being, not just a faceless attorney in Buffalo, NY.

Second, I wanted to check in on some details.  As other school district public libraries can attest to, the minutia of elections and budget votes can get very technical—as well as personal (and sometimes passionate). Getting those details right is both an art and a science.

And finally...I'm not gonna lie. Sitting alone in my office, with my treasured staff working from home, cut off from our normal busy but generally cheery atmosphere, I might have been a tad lonely.  Although anyone who works with me will tell you that half the time I am working in an introverted and ADD-infused cloud, four weeks of pandemic isolation have taken their toll. It was nice to call the member and connect at a human level.

How did the conversation go? I'll keep that part confidential.

Let’s take a brief aside to review the “Ask the Lawyer” model.

For members who use “Ask the Lawyer,” there are often two concrete results from the submission of the question:

The most common result is a post to the “Recently Asked Questions” (“RAQ”) site, which will contain generic guidance with no identifying details, so a general assessment of the legal issue can be shared with the largest possible impacted library community.

The second result, which doesn't occur for every question (but it's still pretty frequent) is a “confidential memo” just for the member and their council.  This “confidential memo” supplements the general input with confidential legal advice, and lets us address any unique details that pertain to only that member.

This is how the 3R’s maximize the resources (legal fees) used to get the legal guidance and advice, while also enabling timely services to their members.  And as I’ve reviewed, it is also how lonely attorneys can occasionally arrange a phone call to socialize about a legal need during pandemic-imposed isolation.

So, again…how did the conversation with the member go?  As I said, it’s confidential. But let's just say, when I call a librarian, I expect some good conversation, and this member did not disappoint.

And with that, here is my generic “Recently Asked Questions” input on this situation:

The first priority in assessing any matter related to an election or budget vote is to consider any past extraordinary details—such as a previous controversy or contested procedures.  As they say in the “Music Man”: You gotta know the territory.[1]  If there has been any past issue or hostility, planning to navigate a postponed election with those sensitivities in mind is wise.

Next (and this is essential), is setting up to ensure consistent and well-communicated support about the election from leaders and stakeholders: in this case, the board, the staff, the library’s system, the local school district, and (even if the election is not in their purview) the county Board of Elections.  This includes communication about the postponement, and the re-set proceedings.

Why is this a critical step? When you're sailing into uncharted waters, it's good to sail with a fleet, and to cross-check each other’s navigation.

And finally (but critically), before making any announcements or plans, check your charter, bylaws, and date of formation.  Some libraries will have provisions in them relevant to this situation, and per sub-section 8 of Section 260 of the NY Education Law (controlling school district public library elections), a library chartered before April 30, 1971 may have a bit more leeway in these matters, as a matter of law.  Further, your library may have its own notice requirements or procedures, on top of the base-line legal requirements.

Now, as to the present circumstances, let’s parse the relevant content of Executive Order 202.12:

Circulation, filing, and collection of any designating petitions, or independent nominating petitions for any office that would otherwise be circulated or filed pursuant to the Election Law, Education Law or any other consolidated law for any office commencing March 31, 2020 are hereby postponed.

Any school board, library board, or village election scheduled to take place in April or May of 2020 is hereby postponed until at least June 1, 2020, and subject to further directive as to the timing, location or manner of voting for such elections.

As if this whole exercise isn’t going to be complicated enough, the first thing I need to note is that, under Education Law Section 260 (sub-section 7), school district public libraries have between April 1 to the end of June to hold their elections.  So just be aware: EO 202.13 did not delay all scheduled elections (only those set for “April or May).  So, for this answer, we’ll only address elections set for April or May.

Next, we need to check in not only with Education Law Section 260, but its companion Section 2018, which addresses the filing of petitions:

Each petition shall be filed in the office of the clerk of the district between the hours of nine a.m. and five p.m., not later than the thirtieth day preceding the school meeting or election at which the candidates nominated are to be elected. [emphasis added]

And of course, Education law Section 2004, which requires notice be given:

“…at least forty-five days before said meeting, in two newspapers if there shall be two, or in one newspaper if there shall be but one, having general circulation within such district. But if no newspaper shall then have general circulation therein, the said notice shall be posted in at least twenty of the most public places in said district forty-five days before the time of such meeting.”

So, with all that, what are the answers to the member’s questions?

First question: Do we have to do a legal notice that the vote is postponed and do new legal notices once we have a date?

My assessment is that the Executive Order is sufficient notice that the vote is postposed.  However, once the proceedings can be re-scheduled, a library will need to publish new notices. Further, it is important to note that the EO hints there will be “further directive as to the timing, location or manner of voting for such elections” coming from the Governor (or perhaps guidance from NYSED, upon direction of the Governor).

I imagine such “further directive” will take into account that typically, libraries must give at least 45 days’ notice.  But in any event, right now, school district public library elections are in a holding pattern, and the boards and leadership need to stay alert for further directions on next steps.

That said, a discussion with stakeholders, to ensure your library is ready to set its proceeding when the time comes, might be wise.  This could include a notice about the postponed proceedings, and direction as to where to look for next steps.

Here is a template:

Consistent with Executive Order 202.13, the [NAME] Library’s elections and budget vote are postponed, and the library is awaiting further direction from the state regarding rescheduling.  The Library will publish further notice and information to the public regarding the election as soon as we are able.  Questions about elections in [COUNTY] County can be directed to the [COUNTY] County Board of Elections at (###)###-####.

Second question: Can we reopen the opportunity for people to file a petition to run for the board?

This is fascinating.

The way I see it, 202.13’s “postponement” of elections means the thirty-day deadline for filing a designating petition will automatically be re-set to thirty days before whatever the new election will be.  This is because under Education Law Sections 260(8) and 2018, the deadline for filing is not a fixed date, but a deadline calculated based on the date of the election.  So, I think being ready to ask people to step up and get designated so you have sufficient nominees—especially if there were none duly submitted by the last deadline—is a good idea.

Of course, right now all collection and filing of designating petitions are also “postponed” (see the first excerpted paragraph of the Executive Order).   And the deadlines for petitions are going to be tough to hit before the July 1 statutory deadline. And at some point, there may be a decision that previous submissions will not be re-opened.

The next “directive” on this issue will have to tackle the issue of meeting the notification and petition filing deadlines, as well as the implications for those libraries that were in the notice period, and those that were not.

This is where conferring with the local Board of Elections officials, and the school district, even if they do not oversee your library’s elections, will be so critical.  They will have the insight and probably some inside information to share about how this will be configured.  And for those libraries with a lawyer, this is the time to involve them (before final decisions are made).

To put this in context, right now although critical, the election is probably only one of the numerous high priority issues your library board is considering. First and foremost is likely the on-going well-being of the library and its role in the anticipated recovery of your community.

With that in mind, I suggest any board facing this situation also review the guidance on using a crisis management for public libraries, and factor the monitoring and messaging around this issue into their response plan.

If and when we get an update or “further directives,” we’ll post any update to this answer.



[1] Has anyone ever done a poll to see how many librarians have been serenaded with the “Marion,” song?  And taken a further poll to see if it is now regarded as harassment?

 

Tags: COVID-19, Emergency Response, Executive Order, Public Libraries, Elections

Topic: Emergency contact information for children attending library programs - 11/12/2019
My question is: do public libraries have any legal obligation to collect emergency contact informa...
Posted: Tuesday, November 12, 2019 Permalink

MEMBER QUESTION

My question is: do public libraries have any legal obligation to collect emergency contact information for children (age 17 and under) attending library programs without a parent or caregiver present/on the premises? Our library is located on the campus of a school district, and we have access to the school district's library automation system, in addition to our own, so we could easily and quickly locate contact information for the parents/caregivers of children who attend our programs in the event of a medical or other type of emergency situation. We already have an unattended minor policy as well. Our Library Board wants to make sure that we are in compliance with both Federal and New York State law on this issue. Thank you.

WNYLRC ATTORNEY'S RESPONSE

This question is rather like asking an astronautical engineer: When on a spacewalk, are there any safety procedures specifically related to securing my helmet as I exit the airlock? 

Such a question could inspire an initial reaction like:  Safety concerns?  In SPACE???  Blazing comets,[1] the safety concerns start the moment you blast off!

But upon reflecting on the actual question, the calm, composed answer might be: “To ensure integrity of the pressure garment assembly, double-check the neck-dam’s connection to the helmet’s attaching ring.”[2]

Lawyers get this way addressing questions related to children and liability.  Our first reaction is to think about everything that can go wrong.  But then we calm down and focus on the specific issue at hand.

So, here is my calm, composed answer to the member’s very specific question:

There are two potential instances where a public library offering a program for unaccompanied minors might be obligated by law to collect emergency contact information.

FIRST INSTANCE

If the program the library is hosting is a camp required by law to have a “Safety Plan,” applicable regulations arguably require that the library gather the child’s emergency medical treatment and contact information.[3]

SECOND INSTANCE

If the library is paying a child performer as part of an event, the law requires that the library must collect the child performer’s parent/guardian information before the performance.[4]

Other than the above instances, while such a practice may be required by an insurance carrier,[5] a landlord, or event sponsor, there is no state law or regulation that makes collecting emergency contact information a specific requirement of a public library.

I do have two additional considerations, though.

FIRST CONSIDERATION

 “Emergency contact” information provided by the parents/guardians, in a signed document drafted expressly for your library, is generally the best course of action when welcoming groups of unaccompanied minors for events not covered by your library’s usual policies. 

I write this because Murphy’s Law (which is not on the bar exam, but remains a potent force in the world) will ensure the one time there is an incident at your youth program, the district’s automation system will be down.

Which brings us to the….

SECOND CONSIDERATION

Libraries and educational institutions sharing automation systems must make sure that such data exchange does not violate either FERPA (which bars educational institutions from sharing certain student information), or CPLR 4509 (which bars libraries from sharing user information).

Emergency contact information maintained by a school is potentially a FERPA-protected education record.[6]  If FERPA-protected, it is illegal for any third party—such as a public library—to access it unless there is an agreement in place with certain required language AND the library’s use of the information is in the students’ “legitimate educational interests.” [7]

Of course, given the right circumstances, meeting these criteria is perfectly possible.  In fact, such agreements can be a routine part of a school’s operations.   But just like with a space helmet before leaving the airlock, its best to confirm that everything is in place before you take the next step.[8]

Thanks for a thought-provoking question.

 

 



[1] I imagine aeronautical engineers swear like the rest of us, but I like to image they sound like characters Golden Age comic books.

[2] Thanks, NASA.gov!

[3] I know this question isn’t really about camps, but libraries do host them.  And since the NY State Health Department’s template for a licensed camp’s “Safety Plan” includes eliciting emergency contact/treatment info, I have to include this consideration. For a breakdown of what types of camps requires licenses, visit https://www.health.ny.gov/publications/3603/

[4] This is a requirement of Title 12 NYCRR § 186-4.4. Since the library would also need said child performer’s license to perform, this requirement would not likely be missed!  I also appreciate that this example is on the far side of what this question is actually about.

[5] Call your carrier to check.  They may even have preferred language for your library to use when crafting registration documents.

[6] The definition of “education records” under FERPA (and its many exceptions) is here: https://www.ecfr.gov/cgi-bin/text-idx?rgn=div5&node=34:1.1.1.1.33#se34.1.99_13.  Interestingly, a student’s name, phone number, and address—three critical components of an emergency contact form—are potentially not FERPA-protected “education records” as they may be considered “directory information” if specifically listed in a public notice from the school, as required by FERPA Section 99.37. FERPA violations can turn on these small details!

[7] What language is that? Under FERPA Section 99.31, an educational agency or institution may disclose such information to another party (like a library on its campus) if that party is: 1) performing a function for which the school would otherwise use employees; 2) the library directly controls the contractor’s use and maintenance of the records; and 3) the contractor is required to not further disclose the records.  This formula can also be found in the link in footnote 4.

[8] Who says that simile can’t make a second appearance?!

Tags: FERPA, Policy, Privacy, CPLR 4509, Public Libraries

Topic: Creating A Bankruptcy Discharge Policy - 2/20/2019
We are a school district public library, and a governmental entity, considering crafting a policy ...
Posted: Wednesday, February 20, 2019 Permalink

MEMBER QUESTION

We are a school district public library, and a governmental entity, considering crafting a policy relating to debts discharged in bankruptcy, if the library is named as a creditor. 

Are replacement costs for library materials exempt from or subject to discharge of debt? Overdue fines? 
Fees levied in an attempt to recover materials (i.e. collection agency fees)? (We do not submit overdue fines to collection agencies, only the replacement costs of materials, in an attempt to recover them)

Are we allowed to impose restrictions on borrowers whose debt has been discharged, if they have not returned materials owned by the library? For example, can we deny loans to a borrower until they return library materials, or pay for them, if the debt has been discharged; or can we limit the number of items loaned for a period of time?

The following is an example of a such a policy. Is it problematic?

The Library will comply with Discharge of Debtor decrees by bankruptcy courts. Once the library is notified that a bankruptcy has been filed, collection activity is suspended on the customer’s account and on the accounts of any minor children (to the extent that the charges existed prior to the date of the bankruptcy filing) until the library is notified of the outcome.
Cardholders who have: 

  • Filed for bankruptcy,
  • Named The Library as a creditor,
  • Received a discharge, and
  • Presented the appropriate documents to the library
  • Shall have outstanding balances for fines, fees, and collection agency charges removed from their accounts. However, all Library materials borrowed on any account covered by the bankruptcy decision must be returned in order to have a Library card in good standing. 

Only charges owed to The Library as of the date of the decree will be waived. Fines and fees incurred after the period of time covered by the bankruptcy proceedings are not covered by the discharge document and will remain on the borrower’s account and those of any minor children. 

Thanks for any guidance!

WNYLRC ATTORNEY'S RESPONSE

Before we get to the nitty-gritty on this question (and we will), let’s reflect on why libraries charge fines and replacement costs in the first place:

  • To encourage timely return of materials
  • To offset staff time and resources consumed by retrieval efforts
  • To replace items when retrieval efforts are ineffective

And always, lurking in the background, is the notion that fines and replacement costs are an alternative to the most under-utilized section of the NYS Education law, the criminal provision in Section 265:

Whoever wilfully detains any book…belonging to any public or incorporated library…shall be punished by a fine of not less than one nor more than twenty-five dollars, or by imprisonment in jail not exceeding six months…..

So far, I have not had a client use their “one phone call” to let me know they have been arrested on an “265,” but the possibility is never far from my mind.

Of course, no one picks a library career to pursue their dream of arresting people who love (and lose) books.  And, although less draconian, I bet no one picks a library career for the joy of assessing late fees.  That said, library materials costs money, and people can be irresponsible about returning items to the library.  So what’s an institution to do?

Some libraries are experimenting with no-fine models[1], since fines can have a disproportionate impact on those in poverty.  Others have great success with routine “amnesty” days and other creative ways to take the sting out of returning books late. And still others want to make sure that the traditional model is as streamlined and legally compliant as possible.  That is what the member’s question is about.

A “bankruptcy discharge policy” is a logical component of a library’s approach to fines, replacement costs, and efforts to collect them.  It addresses the potential “dischargeability” (wiping out) of library fines when a person seeks the protection and “fresh start” created by bankruptcy.  It can also help libraries (and their collection agencies) follow the law, which gives people seeking bankruptcy very specific protections.

Before we address the member’s specific questions about adopting such a policy, it is important to take a moment to reflect on (legal) language.  This is because there is a basis to argue that overdue fines and replacement costs, while valid conditions of having a library card, might not qualify as typical commercial “debts;” this could mean that in many cases, libraries owed fines and replacement moneys might not be precisely “creditors.” This is pointed out in the 1997 case Riebe v. Jeurgensmeyer[2], where the judge writes:

The origin of this federal case is a minor's failure to return a library book. In 1995, Elizabeth Riebe, a minor, borrowed a library book from the St. Charles Public Library ("the Library"). The due date came and went without Ms. Riebe returning it. The Library waited. After Ms. Riebe failed to return the book for six months, the Library retained Defendants [a collection firm] to write to her parents ("Plaintiffs") requesting payment of $ 29.95. 

Addressed to Plaintiffs, the letter, as Plaintiffs see it, implied that they, or their daughter, could be arrested and imprisoned for intentional theft of public library property. Attached to the letter was a copy of the provisions of the Illinois Criminal Code. Rather than paying the $ 29.95 or at least returning the book, and thereby putting the matter to rest, Plaintiffs filed a complaint in federal court, alleging that Defendants' letter violated the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, et seq.(1996).

In ruling that the FDCPA doesn’t apply to attempts collect library fines (and thus that the library could not be liable for the zeal of their collection agency under the FDCPA) federal Judge Charles R. Norgle (who clearly esteems libraries) wrote:

Here, there was no initial "business dealing" creating an obligation to pay, only an obligation to return a library book. In theory, this may have created some type of contract, but not in the context of a "business dealing" as contemplated by the FDCPA, e.g, the purchase of consumer goods or services. … Rather, the borrowing of a library book is a public privilege that largely depends on trust and the integrity of the borrower. [emphasis added]

Now, the FDCPA is not the Bankruptcy Code, and it is possible that a person seeking relief from debt under the Code and might be able to reduce or completely discharge their fines and replacement charges from a library.  But for over twenty years, Riebe has been cited as good law, so it is possible that this view of library fines and replacement costs as something more fundamental that a business debt could carry over. 

I emphasize this because it means some types of library fines and costs might be dischargeable, but others, since they are not consumer “debt” in the traditional sense, might not.[3]

So, with all that, let’s get to the nitty-gritty:

Are replacement costs for library materials exempt from or subject to discharge of debt? Overdue fines?

Because of the factors cited above, there can be no one-size-fits all answer to this!  It will depend on a few factors.  Under certain circumstances (replacement costs, fines connected to vandalism or wanton theft) the court might rule that what’s owed to the library is not a “dischargeable” debt.  But that might not be the case for the average family declaring bankruptcy because they got swept at the knees due to illness or job loss, and who might have additional hardships to show to the court.  As with many things in bankruptcy, it will depend on the circumstances.

Fees levied in an attempt to recover materials (i.e. collection agency fees)?

I would argue that imposing additional administrative costs for retaining a collection agent risks transforming the library-patron relationship described so well by Judge Norgle in Riebe.  In doing this, the likelihood of the costs being dischargeable increases.  But again, it will depend on the underlying nature of the fine or cost.  Someone who checked out 10 DVD’s on their first week as a cardholder and never returned them might have a tough time proving that the costs aren’t the result of theft (and thus non-dischargeable).

Are we allowed to impose restrictions on borrowers whose debt has been discharged, if they have not returned materials owned by the library? For example, can we deny loans to a borrower until they return library materials, or pay for them, if the debt has been discharged; or can we limit the number of items loaned for a period of time?

Regardless of where your board may fall on its philosophical approach to fines and collections, any time a cardholder declares bankruptcy, all efforts to collect fines or replacement costs should cease.  Critically, this means if borrowing privileges are only suspended due to unpaid fines, borrowing privileges should immediately be reinstated.  On the flip side, suspension due to unreturned materials (for which no replacement cost is being charged) can continue. 

The most important thing, as the member suggests, is to respect the process when your library is notified of it. Any library, or agent of a library, who gets a notice that a cardholder is filing bankruptcy should cease all financially-related sanctions.  If there are extenuating circumstances (let’s say the amount owed is related to an act of vandalism, or failure to return 50 full-color art books) refer the matter to library’s attorney, or alert the bankruptcy trustee, who might contest discharge under the precise factors of the bankruptcy code.

With all that in mind, I suggest some alternative language for a policy, which would addresses both the human aspect of bankruptcy, and some of these subtleties:

Bankruptcy Discharge Policy

The Library understands that sometimes people must seek relief from debt in bankruptcy and are entitled to a “fresh start” after such relief is obtained.

Procedure

Cardholders seeking a discharge in bankruptcy of moneys owed to the library should notify the library of having filed for bankruptcy.

Once the library is properly notified that a bankruptcy has been filed, the library and/or its agent will immediately cease contacting the cardholder about the financial amount(s) owed. 

The library shall then evaluate its response to the notice.  In making such an evaluation, the nature of the conduct leading to any fines, costs, and suspended privileges will be considered.  In particular, but not exclusively, the discharge of any costs related to wanton destruction or significant failure to return borrowed items may be contested.

After notice of filing, but prior to discharge, if borrowing privileges are suspended solely on the basis of unpaid fines and replacement costs, borrowing privileges will be immediately reinstated; borrowing privileges suspended on the basis of unreturned items, for which no replacement cost is sought, will remain suspended.

To ensure all charges are listed on the bankruptcy schedule, the cardholder or their attorney may contact the library to request a statement of account at any time; such contact must be in writing so there is no risk of the library appearing to have violated the bar on collection activity.  An attorney or trustee requesting this information on behalf of the cardholder must include permission from the cardholder as required by CPLR 4509.

The library supports that people seeking relief in bankruptcy are entitled to a “fresh start” after the discharge of debt(s).  Upon presentation of a “Discharge of Debtor” listing the library, all moneys owing shall be removed from the cardholder’s record, up to the date of discharge, for the cardholder and any minor children in the family. 

Further, if replacement costs are discharged, the library will not regard the failure to return the corresponding item as a basis to bar reinstatement of borrowing privileges.

Late returns or losses after the date of discharge will be subject to routine policies, including fines and suspension of borrowing privileges.

This approach both maximizes the potential for a bankruptcy discharge to be the compassionate re-set of the cardholder’s account it is intended to be…while taking into consideration that not all charges might be worthy of discharge (which is up to the bankruptcy court to decide).

Thank you for this careful question.

 


[1] A topic discussed in an interesting TED talk by librarian Dawn Wacek.

[2] United States District Court for the Northern District of Illinois, Eastern Division, October 31, 1997.

[3] The member’s question states that the library is a “government entity,” an assertion that is potentially relevant under the Bankruptcy code.  Without making this response pages longer, I will simply state that I don’t believe a public library has quite the same status governmental entities do under the Bankruptcy Code; however, as shown in Riebe, libraries can occupy a unique position that should inform their approach to this issue.

 

Tags: Fees and Fines, Policy, Templates, Public Libraries

Topic: Email Retention - 7/11/2017
We are looking to determine if there is a specific time frame for which email must be held. C...
Posted: Tuesday, July 11, 2017 Permalink

MEMBER QUESTION

We are looking to determine if there is a specific time frame for which email must be held. Can we designate in a policy that email will not be considered original documents - that all original documents must be in print format?  AND if this is possible, how long then are we required to hold onto archived e-mail? 

Please also comment on how, for state institutions, this issue is impacted by the NYS Archives Schedule MI-1 Schedule, which states:

Generally, records transmitted through e-mail systems have the same retention periods as records in other formats that are related to the same program function or activity. E-mail records should be scheduled for disposition in conjunction with any other records related to the program function. Local governments may delete, purge, or destroy e-mail records provided that the records have been retained for the minimum retention established in this Schedule and are not being used for a legal action or audit.”

 

WNYLRC ATTORNEY'S RESPONSE

WNYLRC ATTORNEY’S RESPONSE

This has been a tough question to mull over!  That is because the answer is superficially “yes,” but in reality: “no.”

How do we get to this disjointed conclusion?  Schedule MI-1, as the member did, is a great place to start.

From there, although it is a bit older (in Internet years), the 2010 guidance from the New York State Archives, “Developing a Policy for Managing E-mail” (to which the Schedule MI-1 refers), speaks to this issue.  On page 7, it states:

“Another management strategy has been to rely on the “low­tech” method of printing out important emails to integrate them into a paper recordkeeping system. Printing emails is still a viable option for a small organization with limited technology support and finances, provided that individuals across the organization consistently apply records retention requirements to the printed emails, capture all essential metadata, and file the emails with their respective attachments.” [emphasis added]

This would suggest that, for certain institutions, under certain circumstances, e-mail does not need to be retained in its original form to be an “original document.”

However, while it would be elegant, I cannot endorse this approach.  As the guidance further states on page 13:

“The concept of “official copy” is problematic when dealing with email because of the volume of emails, the difficulty of controlling all copies, and the occasional need to prove an email was received as well as sent.” [emphasis added]

Since 2010, even more concerns make this a dubious solution. For a private institution, the requirements of accreditors, insurance carriers, and other stakeholders must be considered…while for libraries and archives that are part of local governments, per NYS regulation, the conversion of archival electronic records must be conducted in consultation with the State Archives, who may or may not endorse such a policy, based on the categories of documentation it would impact.

That said, for certain categories of documentation transmitted or received as e-mail (as defined by MI-1 or private policy), the “print approach” may work.  As a wholesale solution, however, it is not legally viable.

Tags: Policy, Record Retention, Public Libraries

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