Library Employment Contracts

Submission Date:

Tuesday, June 7, 2022

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?

Answer:

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.

[2] Found as of June 2, 2022, at https://www.nysl.nysed.gov/libdev/trustees/handbook/index.html.

[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 [email protected].

Tag:

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