RAQs: Recently Asked Questions

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: Conflict of interest from legal proceedings - 06/23/2021
I serve on the board of an association library. My family has to consider legal proceedings aga...
Posted: Wednesday, June 23, 2021 Permalink

MEMBER QUESTION

I serve on the board of an association library.

My family has to consider legal proceedings against a school district that provides funds to the library through a public vote (as required by law, when the District puts the ballot out, the amount for the library is separate). Would my personal legal proceedings pose a "conflict of interest" with my position as a trustee? Is there any foreseeable conflict?

WNYLRC ATTORNEY'S RESPONSE

Before I answer, I would like to thank this unnamed trustee for bringing forward this important issue.  Dealing with personal legal matters is rarely easy; remembering to factor in consideration of one's volunteer obligations at the same time is impressive.

On its surface, this question is a fairly simple exercise:[1] does the status of a library trustee as a plaintiff against the district supporting the library create a "conflict of interest" that would violate the library's bylaws, ethics, or the Not-for-Profit Corporation Law ("NFPCL")?

To address that question, one must first understand what is meant by a "conflict of interest."

The concept “conflict of interest” sounds simple, but often quickly gets, as they say these days, “complicated.”

Why is that?  For a library,[2]  the concept of a "conflict of interest" could consist of layered elements like the petals of one, single (but complex) rose...or it could be a complex, multi-variety bouquet.

What can comprise this bouquet?

Let's start with the rose.

Section 715-a of the NFPCL requires every charitable corporation in New York (a category that includes most libraries), to adopt and enforce a policy "to ensure that its directors, officers and key persons act in the corporation's best interest and comply with applicable legal requirements, including but not limited to the requirements set forth in section seven hundred fifteen of [the NFPCL]."

Let's peel back the petals on this first thorny flower.  In one sentence, 715-a lists a broad expectation (acting in "the corporation's best interest"), a broad mandate ("comply with legal requirements"), and one very specific law to follow (NPFCL 715, which bars "related party transactions").[3]

Let's take that last petal first.  What is a "related party transaction?"

According to the NFPCL's "Definitions" section, a "related party transaction" means "any transaction, agreement or any other arrangement in which a related party[4] has a financial interest and in which the corporation or any affiliate of the corporation[5] is a participant..."

Based on the information provided, the trustee submitting the question is not in a "related party transaction".  The suit is not against the library, and in this scenario, the district who will be named in the suit is not an "affiliate" of the library.  Since the district is required to put the tax vote on the ballot (the school board has no control over this; it has to put the ballot up as proposed by the library board), the act of using the district to float the vote to the public does not create a relationship that could serve as the basis of a conflict.

Let's take the middle petal: "legal requirements?"  Is there any "legal requirement" that a trustee not bring an unrelated legal action against a school district who facilitates a library budget vote?  No.[6]

And finally, that first, most fraught petal: "the corporation's best interest?" --We're going to leave that for last.

What other “blooms” could join, and affect, this "conflict of interest" bouquet?

  • The library' bylaws
  • The library's customized "Conflict of Interest" policy[7]
  • An association library's trustee oath of office[8]
  • A grant or other contractual obligation that creates a temporary definition of a conflict
  • The library's strategic plan, or other planning document that would create a conflict as defined by law, bylaw, or policy.[9]

Fortunately, no matter how many blossoms in the "conflict of interest" bouquet, the law requires that when the possibility of a conflict arises, it is the board--not the individual trustee--who must assess it.

The NFPCL does that by requiring a board to pass a conflict of interest policy that:

 ...include[s], at a minimum, the following provisions:

  (1) a definition of the circumstances that constitute a conflict of interest;

  (2) procedures for disclosing a conflict of interest or possible conflict of interest to the board or to a committee of the board, and procedures for the board or committee to determine whether a conflict exists;

  (3) a requirement that the person with the conflict of interest not be present at or participate in board or committee deliberation or vote on the matter giving rise to such conflict, provided that nothing in this section shall prohibit the board or a committee from requesting that the person with the conflict of interest present information as background or answer questions at a committee or board meeting prior to the commencement of deliberations or voting relating thereto;

  (4) a prohibition against any attempt by the person with the conflict to influence improperly the deliberation or voting on the matter giving rise to such conflict;

  (5) a requirement that the existence and resolution of the conflict be documented in the corporation's records, including in the minutes of any meeting at which the conflict was discussed or voted upon....
  

So, at the end of the day, no matter how large the "conflict of Interest" bouquet, it is the board, as a whole, who has to sniff out a problem.[10]

In this case, the rub is in that first petal: the requirement that a trustee always act "in the corporation's best interest."

At the surface, there is no conflict whatsoever in this scenario: the school district is not a partner or contractor with the library, and the school board has no discretion about whether or not to put the library's budget on the ballot (they must put it exactly as the library board requests it).[11] Therefore, even if the contemplated lawsuit by the trustee is not taken kindly by the school district's board, there can be no direct negative impact.

Now, however, for a pragmatic answer: in a world where everything is political, and library budgets all the more so, could an adversarial relationship between an individual library trustee and a school district board be in something other than "in the best interest" of the library?

That consideration--and its answer--is not a legal issue.  In this scenario, there is nothing that violates the law, and I have never seen an oath of office, nor a bylaws provision, that would bar trustee service under such circumstances.  Further, as discussed above, even if the school board takes umbrage, they would be powerless to block the requested ballot item.

However, there is a "soft" consideration here that goes beyond the law.  I categorize these types of concerns not as "legal" issues, but that dreaded concept: "diplomacy."

When it comes to "diplomacy"...could members of a community, including an individual school board member in their individual capacity, decide to take a dim view of a library trustee who is suing their district, and try to punish the library?  They shouldn't, but as individuals, speaking just for themselves, they could...they absolutely could.  And even though their negative actions couldn't block the budget vote, it could influence a vote in non-official ways.

That said, the possibility of such personal vengeance in no way creates a legal conflict of interest.  So, for the reasons set forth above, a board doing an assessment of this situation--unless their policy specifically includes a unique definition or example that bars trustees sowing bad PR, even incidentally--would likely not determine that it constitutes a forbidden conflict.

Of course, a trustee may decide that they have enough on their plate, just being a plaintiff in a stressful lawsuit, and resign to avoid the (real or possible) stress of the situation.  Or the board and trustee may engage in some practical "risk management" and mutually agree that, given a high likelihood it could impact the board-to-board relationship, it is best if the trustee steps down for a time.  But such an option would not be required by law and would be based on pragmatism...and it could only be effected with the consent of the trustee.

And THAT is my answer to this very important question. 

I wish the trustee who posed it both 1) a thoughtful and supportive library board, and 2) a school board with the ability to maturely and completely compartmentalize legal issues from diplomatic ones.

Thank you.

  

 



[1] For purposes of this question, we'll assume that the only "support" the district provides to the library is the budget ballot (there is no MOU or even informal agreement for other assistance, like overflow parking, or hosting the annual fund-raiser).

[2] Public or association, in this case.

[3] There is no case law that picks apart how the commas in the sentence impact the interpretation and inter-relation of its required elements; that would be a dream case of mine (not that I wish the need to make that argument on any client of mine).

[4] "Related party" means (i) any director, officer or key person of the corporation or any affiliate of the corporation; (ii) any relative of any individual described in clause (i) of this subparagraph; or (iii) any entity in which any individual described in clauses (i) and (ii) of this subparagraph has a thirty-five percent or greater ownership or beneficial interest or, in the case of a partnership or professional corporation, a direct or indirect ownership interest in excess of five percent. "Relative" of an individual means (i) his or her spouse or domestic partner as defined in section twenty-nine hundred ninety-four-a of the public health law; (ii) his or her ancestors, brothers and sisters (whether whole or half blood), children (whether natural or adopted), grandchildren, great-grandchildren; or (iii) the spouse or domestic partner of his or her brothers, sisters, children, grandchildren, and great-grandchildren.

[5] In this case, the "corporation" is the library.

[6] I have not read every law passed in New York State, but I am willing to go out on a limb for this one.

[7] As you can see in the NFPCL, not-for-profit corporations have the right to define their own notion of "conflict," so long as the policy meets the requirements of the law.

[8] Only an association library might need to consider this, since the oath required of public libraries does not add to the obligation to be free of conflicts of interest (although it does undergird it).

[9] For instance, if the strategic plan called for the library to enter into a contract with the district in the future.

[10] That's right. The next time your board has to assess if the board chair's cousin getting the winning bid to the parking lot resurfacing job is a conflict, just envision being handed a fragrant mass of lilies and roses!

[11] Education law Section 259, found at https://www.nysenate.gov/legislation/laws/EDN/259.

Tags: Association Libraries, Board of Trustees, Ethics, Policy

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: Patron refusing to wear mask (private association library) - 01/13/2021
We are a private association library. There is a "difficult" patron who sits on a bench ...
Posted: Wednesday, January 13, 2021 Permalink

MEMBER QUESTION

We are a private association library. There is a "difficult" patron who sits on a bench (almost everyday doing nothing but trying to talk to anyone nearby) which is immediately next to our front doors on library property. We are doing curbside pick-up so the staff places the library items immediately outside the front doors on a table. The patrons come to the table to pick them up. The "difficult" patron refuses to wear a mask no matter who asks and how many times he is asked. We recently found out that he was exposed to someone who has COVID. The police tried to offer a mask to this patron and he still refused. We were told to call the police if he returns. When he did, the police never came. This patron is a health hazard to the staff and our patrons. What else can we do?

WNYLRC ATTORNEY'S RESPONSE

***THIS ANSWER IS NOT FOR PUBLIC LIBRARIES***[1]

Here is what else you can do:

Any private association library currently[2] operating in the State of New York is required[3] to have a pandemic Safety Plan.

A library’s pandemic Safety Plan is not set in stone; it should be a living document that evolves as the library’s operations and our overall knowledge about COVID transmission change.

With that in mind, revising its Safety Plan to ensure the physical layout of its curbside operations could be a good solution to this member’s situation.[4]

Here are some possible revisions to accomplish this:

  • Modify the Safety Plan so external seating in close proximity to all entrances/exits and curbside sites is removed or roped off for all but emergency or ADA use; or
  • Modify the safety plan so the bench is within a perimeter that is barred for use by the public during business hours; or
  • Modify the Safety Plan to enhance the size of pick-up zones where only employees and those quickly picking up curbside service may enter, and set up barriers (tables, Plexiglass, cones, bollards) to emphasize the increased size of the zone; and
  • For any solution: use new signage with clear language and graphics to emphasize any changes or updates to the Plan, so people can adhere to the new rules.

NOTE: As with any adoption or revision of a Safety Plan, to the greatest extent possible, check in with your local Department of Health (I appreciate that in some places, the Department of Health may be so overwhelmed that this "check-in" is impossible).

Since it is best to have your library board "on board" with the library's Safety Plan, and any changes to it, below is a proposed resolution for adopting such a change:[5]

BE IT RESOLVED, that to ensure the Library's Safety Plan is evolving as our information, operations, and needs evolve, the board adopts the attached [date] version of the Safety Plan, effective [date/immediately].

Now, all that said, I know there could still be a few hiccups (plans on paper often get shredded by reality).  Here is the obvious “hiccup” I see, and a proposed way to address it:

If the "difficult" patron suddenly discovers that the bench they like to use and socialize from is suddenly not there/unavailable, and they have a strongly negative reaction—yelling abuse, or even being physically violent—that is when to call law enforcement, and of course to invoke your Code of Conduct and consider barring or suspending them from the library, as circumstances warrant. 

But hopefully, with some modifications to the Safety Plan, and good communication of the changes, this concern can be resolved in a way that not only addresses this specific issue, but deters any other visitor who could pose such a threat.

Please let us know[6] if this approach proves effective.

 



[1] I trust public libraries know why this guidance is not for them, but since it is an important reason, I'll footnote it: adjustments to practices that can be demonstrably tied to a concern caused by one individual need to be carefully developed to ensure they cause no constitution-based due process or disparate treatment concerns.  Basically, a public library can take the exact same measures I propose in here for this private association library, but must be even more cautious to ensure their actions are not—and cannot reasonably be perceived as—discriminatory or unfair.

[2] This answer is being composed on January 11, 2021.

[4] Although the current Safety Plan templates posted on the NY Forward site set out a requirement of six feet, there is nothing saying that an established safety perimeter can't be more (I was at a hotel that used 15 feet, and gave us our room key-cards via a system that felt like I was at a drive-up teller).

[5] Per Education Law 226(2), the executive committee of your board may have the power to adopt this change without a full meeting, but CHECK YOUR ASSOCATION LIBRARY'S BYLAWS to make sure you can use this approach; if there is no executive committee, your library can follow its procedures for a special meeting or an e-mail vote of the full board.

[6] adams@losapllc.com (Stephanie "Cole" Adams) and jill@losapllc.com (paralegal Jill Aures), thanks.

 

Tags: Association Libraries, COVID-19, Emergency Response, Public Health, Safety, Safety Plan, Masks

Topic: Stock investments - 12/30/2020
[An association library asks...] A local bank that we have an account with has gone public. They...
Posted: Wednesday, December 30, 2020 Permalink

MEMBER QUESTION

[An association library asks...]

A local bank that we have an account with has gone public. They sent information to invest in shares or stocks of the company. The opportunity to invest in our community was intriguing but we were not sure it would be legal since we are a non-profit. It would be affordable even as a small minimum amount and we had the funds to invest. We would not use money that was levied by taxes only unrestricted donations. Could we have invested in a bank, or a stock, share of a public company? We were not given much time so we are not investing at this point but would like to know for future reference. I contacted our investor that we have in other funds and they did not feel comfortable advising without legal input.
Thank you

WNYLRC ATTORNEY'S RESPONSE

This "Ask the Lawyer" answer is being composed on December 28...that cold, snowy time between Christmas and New Year's, when the courts (even during non-COVID times) are slow, staff are on holiday, and lawyers sit around thinking about catching up on filing, or even (gasp) leaving the office early to shovel, or take their kids sledding.

This quiet, contemplative "winter lull" is the perfect time to consider questions about investments held by not-for-profits.  Why it that?  Because the answer must—no matter how carefully edited, designed, and written for clarity—be extensive, and therefore long.

But that's okay, because the deep mid-winter is the time for stories.  So, grab a mug of cocoa, snuggle into a blanket, and get ready to read:

Prudence: Tale of Library Investments

Chapter 1: Extra Money

It was a cold day, but then again, in New York, most winter days are.  The Library checked its old boiler system and found that, despite certain pangs, it was going to keep the heat running that day.  This was good, since even with the staff offering only services curbside, the Library's inhabitants would be happier if they didn't have to wear fingerless gloves while using the computers.

Assured that its occupants would be warm, the Library thought about an exciting new development: money.  Based on what it heard during the Zoom board meeting last night, due to some donations, the Library had some to spare.

This notion of "spare" money was new to the Library.  From its founding in 1885 through to the present, it couldn't recall having too much extra.  And even when the bank account got ahead, the Library found a way to spend it down: a new wing, a ramp, and one memorable year, a completely new roof.

The Library sat on its strong, stone foundation and recalled the discussion of the board.  "We can start an endowment!" said one.  "No, we can just set it aside," said another.  "We must invest it," said a third.  "Can we do that?" asked another. And finally: "We must research what to do," said the board chair, sounding prudent and wise and thoughtful. 

And everyone had nodded or put their thumb up in agreement, as people in Zoom meetings are wont to do, before putting up their thumbs again to adjourn.

Chapter 2: Research

The Library was still recalling the ins-and-outs of the meeting (no new carpet this year; but a slight raise for the Director, who had been "a rock," according to the chair of the board), when it recalled what the board had committed to do about the "spare" money: research. 

Hey, the Library thought, I can do that.  And, firing up the internet on a computer in the corner,[1] it accessed Lexis-Nexis to see what it could do.

When the Senior Clerk showed up for work the next day, she found this, sitting on the printer:

To the Board:

I am so pleased the library has acquired some spare money at a time when I do not need repairs, new shelving, or capital improvements!

While you might want to think about having the boiler replaced, I have taken the liberty to research some options for investing this windfall.

First, it appears that a not-for-profit corporation like this library should have an "investment committee."  Information on that is here: https://www.charitiesnys.com/pdfs/sympguidance.pdf

Second, it seems that if the library is to have any endowment or investments, it should have a policy about the "prudent" management of them.  The New York Attorney General's guidance on that is found here: https://www.charitiesnys.com/pdfs/mifa-funds.pdf

Third, I can confirm that while an association library like me doesn't have to follow the "rules" (which are actually laws) regarding investments that public libraries do, those rules are regarded as a nice model to follow.  The Comptroller's guidance on those rules is here: https://www.osc.state.ny.us/files/local-government/publications/pdf/investingpublicfunds.pdf

Fourth, since the Comptroller's restrictions on certain investments don't apply to us, if we are "prudent," adopt a solid investment policy, and follow it, we can invest in local initiatives, publicly held companies, and even "socially responsible investing."  Some good commentary on that is here: http://www.nysl.nysed.gov/libdev/trustees/handbook/chapter11.htm

Fifth, if a contemplated investment is local, we must take particular care to document that all decisions regarding it comply with our "Conflict of Interest" policy (you know how things are in a small town).

Finally, we have to consider how this looks on our annual fiscal reporting, since we are a recognized charity under the Internal Revenue Code (what we refer to as our "501(c)(3)" status), and must file a form "990" disclosing how much we have in our investments.  What that boils down to is: if people look us up at https://www.irs.gov/charities-non-profits/tax-exempt-organization-search, will we look like responsible investors?

And that's it.  I was happy to help with the research.  In return, it would be great if you would consider creating an ad hoc committee to investigate some preventative maintenance on my boiler.  Oh, and when you re-point my masonry, be sure you use a contractor who will select the right mortar.[2]

Thanks and good wishes,

Your Library (Building)

Chapter 3: Finding a New Senior Clerk

They've dealt with Safety Plans.  They've risen to the occasion with curbside.  They've found a way to do readings and workshops and community events online.  But they might draw the line at working in a sentient (some would say haunted) building that does its own not-for-profit management research.

THE END

Thank you for indulging my taste for a little end-of-2020 fiction!  Hopefully, the Library's research guides you to the right places for legal compliance when making investment decisions. 

My final guidance on this?  To be safe,[3] turn off the computers at night.  Then, to move forward with creating an endowment[4] or making an investment like the one described in the question:

  • amend your library's bylaws to create an investment committee;
  • have the investment committee use the linked guidance (along with a lawyer) to develop an investment policy;
  • confirm the details of the policy and method of accounting for investment revenue with your library's accountant;
  • if your library places a high priority on “socially responsible investment,”[5] make sure those parameters are in the policy;
  • apply the standards in the policy to make a decision;
  • when an investment is local, pay close attention to the parameters for investing and your library's policy for managing conflicts of interest; and
  • Record every step in the board minutes.

And that is how your association library can invest in a "bank, or a stock, share of a public company."

I wish you many happy returns on your investments! 



[1] Yes, in addition to being a boring, prudent and thorough discussion of how an association library must manage funds dedicated to endowment and/or investment, this IS a story of a sentient library encased within a historic sandstone structure.  2020 has been a long year!  It's time to be fanciful!

[2] This is just me channeling my worst fears about old buildings into the story; if you undertake to "re-point" (fix the mortar between stones or bricks) make sure your contractor picks the right mortar.  If they use something like Portland Cement, the mortar won't move with the stones/bricks, and it can cause horrific damage. 

[3] And to be green.

[4] "Endowment fund" is often used as a catch-all term for a stockpile of money held by a charity, but in New York’s Not-for-Profit Corporation Law, it is defined as “an institutional fund or part thereof that, under the terms of a gift instrument, is not wholly expendable by the institution on a current basis..." [emphasis added].  Meaning: the use is limited to the income generated by the core amount (over-reliance on endowment income, by the way, is why 2008 was such a nightmare for many well-endowed not-for-profits, when investments tanked and interest was next to nothing).

[5] For example: seeking out funds that limit use of fossil fuels, and avoiding investment in companies with a record of abusive labor practices.  For libraries, taking care the fund does not support regimes that suppress academic freedom/media, or otherwise limit access to information, might also be a key criterion.

Tags: Association Libraries, COVID-19, Investments/Stocks, Non-profits, Endowments

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: Tax Assessment Changes - 1/3/2020
We are an association Library that uses a school ballot to levy funding. We have received a bill f...
Posted: Friday, January 3, 2020 Permalink

MEMBER QUESTION

We are an association Library that uses a school ballot to levy funding. We have received a bill from the school for 2 years now that a landowner has had their taxes re-accessed back 3 years and now we owe the school money. Last year we paid it because it seemed like bad luck and there weas court documents saying the back money was owed. It seems to becoming a trend as another large land owner/company has done the same and now we owe again this year, and it's increasing. How do we continue to handle this trend and do we owe them?

WNYLRC ATTORNEY'S RESPONSE

Imagine walking through a metal maze, wearing magnet shoes, trying to solve a Rubik's Cube coated in honey.

Visualizing that? Metal floor.  Magnet shoes.  Lots of honey.

Okay.

This…is an even stickier problem.

Why is it sticky?  Because for any library but a school district library, there is no definitive answer.

To show you why, let me extract you from the metal maze and bring you into the weeds of New York's Real Property Tax Law ("RPTL") Section 726.[1]

Specifically, let's look at Section 726, sub-section 1(c), which controls a school district's refund of taxes paid by those who have successfully fought to reduce their property assessment.

Since 2014, this portion of the RPTL has given tax-levying school districts the following authority:

"A school district which levies taxes on behalf of a school district public library [that must be refunded to a taxpayer] may charge back to such public library the portion of such refund attributable to library purposes."

Prior to 2014, school districts had no such express authority.  The law was silent on this topic. This lead the New York State Comptroller to write three decisive opinions (in 1975, 1979, and 1995) stating that school districts who levied funds for public libraries did NOT have that authority.[2]  In other words, if a refund was owed: the district was stuck.

So stalwart was the Comptroller's stance on this ("Comptroller" just sounds like someone in charge, right?) that in 2007, it was cited by the NY Commissioner of Education when they decided that a school district's attempt to "charge back" an association library's portion of a refund--by withholding an equivalent amount from the following year's levy--was forbidden.[3]

So, there we were until 2014: a Comptroller-confirmed approached that was a great deal for libraries.

But not such a great deal for New York's school districts, right? When a refund came a-knocking, they were left holding the bag.

By 2014, the complaints had gotten so loud, the Assembly added the above-quoted section to RPTL 726, while commenting:

Existing law is silent on whether a school district may charge back court ordered refunds. Opinions of the State Comptroller (95-15, 79-103, 75-1210) have consistently, held that school districts are lacking in the necessary statutory authority. This legislation corrects an apparent oversight in Real Property Tax Low [sic]. It was never the intent of the Legislature to prohibit school districts %% inch[sic] levy taxes on behalf of a school district public library from apportioning the library portion of certiorata and small claims assessment review refunds to such libraries. The inequity of requiring a school district to refund a library's share of tax certiorari debt from the school district's own resources is clear.[4]

From a certain point of view, legislation to correct this "inequity" makes a lot of sense.  If you're running a school district, you're probably already struggling to get new orchestra instruments.  Now out of the blue you have to issue a tax refund to the local over-assessed big box store?  The last thing you want to do is also eat the portion owed by the local library.  Good thing the legislature fixed that, right?

But a sharp reader has probably noticed: in trying to clear up one problem, the legislature created another.

What does that language in 726 (c)1 say, exactly?

"A school district which levies taxes on behalf of a school district public library [that must be refunded to a taxpayer] may charge back to such public library the portion of such refund attributable to library purposes."

What's the problem here?  The black letter law of the new section of 726(c)1 only names school district public libraries.  Association libraries, special district, municipal libraries--these are all left out. And even though there are sections of the Education Law where "all types of libraries [are] treated equally,"[5]  and school districts can levy taxes for any kind of library,[6] without clear authority to indicate anything different, I would not be comfortable stating that the new section of 726(c)(1) has positioned school districts to charge back any taxes from anything other than a school district public library.  The language is just too specific.

So, when a non-school district public library gets a charge-back bill from a school district,[7] what's a public library do? 

First, as they say in the intergalactic travel biz: DON'T PANIC.  You'll figure something out.

Second: Gather your paperwork (the charge back bill, the court papers related to the Article 7 assessment challenge if you got them, and the most recent correspondence with the district).

Third: Assemble your team. Who is "your team"?  In New York, it should (at least) be: your Treasurer, your board chair (or other designated member/s), a rep from your system,[8] and a lawyer.[9]

Fourth: After an initial meeting, someone from your team might want chat with the assessor, and maintain some routine contact--you'll want some intel on how much more of this could happen. 

Fifth:  After gathering all the intel you can, your team should formulate a recommended "Response," to be authorized by the library's board. 

What will the Response authorized by the board provide?  I can't say.  Looking at the diversity of library-related legal cases, it is clear that New York's libraries are very diverse in their approach to taxes and risk.  Some, after assessing the validity of the back charge (and the resources needed to fight it), might just eat the cost.  Others might ask the Comptroller for an opinion about the 2014 change to the law, holding off on paying up until they get a reply.  And still others might attack the validity of the adjustment, or band together with other entities to formulate a broader strategy.

What is important is that whatever is done is based on good information, and a well-informed decision of the board.  Whatever strategy your library adopts, it should consider the relationship with the school district as a whole.  Remember, they didn't cause this mess.

Thank you for submitting this sticky question.  I wish my answer was simpler, but right now, the law does not allow for an easy response. 

Someday we'll take off the magnets and put down the honey.



[1] Yes, you're still holding the Rubik's Cube.  Don't worry, there are no bees in these weeds to be attracted by the honey.

[2] Opinions number 95-15, 79-103, and 75-1210.

[3] Decision No. 15,662.

[4] New York State Assembly Bill Search and Legislative Information for Bill Number A05310 (2014).

[5] Section 259, for instance, (which as commented by the Education Commissioner in the Croton Free Library decision), "provides that moneys received by a municipality or school district from taxes or other public sources are to be paid over to the treasurers" of all kinds of libraries just the same.

[6] A function of convention, more so than law; see the "Ask the Lawyer" on school tax levies: https://www.wnylrc.org/ask-the-lawyer/filter/52

[7] Do not confuse a charge-back bill from a school district with a charge-back bill from a municipality or other entity!  This commentary only pertains to school districts…in the year 2020…until there is some authority from the Comptroller, the courts, or the legislature to sort this mishegas out.

[8] Depending on what's happening in your region, this might not be their first charge-back rodeo.

[9] A lawyer is critical, because there is more than one kind of tax adjustment proceeding, and RPTL 726 only applies to adjustments under Article 7.  The lawyer's job will be to make sure the adjustment and charge back demand is legit (or not), and to assess the risks of paying (or not).

Tags: Taxes, Association Libraries, School Ballots

Topic: Fundraising - 10/04/2017
A member asked if there are any legal issues to consider when using GoFundMe to fund-raise, especi...
Posted: Wednesday, October 4, 2017 Permalink

MEMBER QUESTION

A member asked if there are any legal issues to consider when using GoFundMe to fund-raise, especially for association libraries.

WNYLRC ATTORNEY'S RESPONSE

The lawyer answers…

Fund-raising in the current climate (or any climate) is tough.  There are state and federal accounting rules, bylaws, “best practices,” and internal policies to abide by, while at the same time there is pressure to make sure the campaign is well-executed, fun, and most of all: productive. 

The various online options for fundraising enhance productivity.  Online fundraising can bring a new array of donors into the mix, can reinvigorate current benefactors, and can make giving as easy as sending a text message.  It is also becoming a necessity…for some (mostly under age 35) donors, not offering these options can mean your fund-raising effort doesn’t exist! 

What does a library have to coordinate when getting into the world of online fund-raising?  There are a host of legal issues.  Our member asked about GoFundMe, the current site du jour, so we’ll use that one.

First of all, for those libraries that are registered 501(c)3’s and charitable not-for-profit corporations, no matter where the fund-raising takes place, the solicitation, donor acknowledgement, accounting, and reporting are governed by the same rules as your “analog” fund-raising.  So, first, when evaluating whether or not to use a GoFundMe, make sure your treasurer and accountant are part of the set-up, and you check your policies, so internal awareness and regulatory compliance can be assured.

GoFundMe (and others) wants you to use their utility for your “Campaign” (as they call it in their “Terms” as of 10/23/2017) so they have thought about these things.  That said, there is a catch.  Here is how they support efforts by charitable entities:

Charitable Giving: Campaigns are not charities to which you can make tax-deductible charitable contributions. However, in addition to the Services described above, GoFundMe permits Donors to contribute directly to certain charitable organizations ("Charities") through the Platform. Any donation you make to a Charity through the Platform will be subject to a Services fee as described at http://www.gofundme.com/pricing. You understand and acknowledge, however, that GoFundMe is not a charity. If you or your charity would like to register to be listed as a charitable organization on the Platform, please contact us at support@gofundme.com and we can help facilitate that process. As used in this Agreement, the term "Campaign" does not refer to a Charity, and you acknowledge that contributions to Campaigns are not deductible under your jurisdiction’s applicable tax laws and regulations.

See what they do there?  They put the tax issue on your organization, while making sure they still get their fee!  --And considering that these fees can be almost 8% of the money donated, it can add up.

So, second, do the math: does the potentially broader audience and ease of donating warrant the payment of the fee?

That said, this is the USA and GoFundMe provides a service for this fee.  For smaller libraries without big advancement, marketing, and IT departments, sites like GoFundMe can provide an easy-to-use “front end” for your campaign.  You can tell your story, use their various resources for promoting the campaign, and get a polished-looking product entirely supported by the vendor’s structure.  Of course, the content in that “front end” still has to be supplied by you, and it should be coordinated with the library’s website and social media presence.

So, third, ask: does the library have the technical and outreach ability to make the best use of the utility?  If no one on staff is confident about gracefully integrating the link on the library’s website, and using social media outreach to drive donors to the site, other avenues might be a better use of resources.  In other words: for some places, online is the way to go, while for or others, up close and personal could still be a winning strategy (with no fee!).  This is a question only your internal team can answer.

And finally, does the type of library or archives you are affect this issue?  Absolutely, but there is no categorical rule on this. The minutia of a library’s bylaws, IRS status, policies, and the goals of the fundraiser govern the use of online fundraising. 

Generally speaking, if an institution can fundraise for something in the “real” world, they can do it online.  Just make sure your solicitations, accounting, and reporting follow the usual rules…something that starts (and ends) with making sure your team is in the know, has designed the campaign before it is launched, and has the capacity to solicit, acknowledge, account for, and report to donations as required.

As offline, so online!  Good luck.

Tags: Fundraising, Association Libraries, 501c3

The WNYLRC's "Ask the Lawyer" service is available to members of the Western New York Library Resources Council. It is not legal representation of individual members.