Submission Date:
Question:
[This question is a quasi-fictional mash-up of some questions we got from some town libraries and a cooperative library system.]
We are a town public library, so our town board appoints our trustees. We know New York's Public Officers Law Section 3 requires that the appointed trustees be residents of the town, but recently, our town attorney said our town adopted a local law to exempt appointments from the Public Officers Law's residency requirements. Can a town do that? And if so, can that be a way to address a shortage of trustees who reside within the Town limits?
Answer:
First: I'd like to thank the libraries and the library system who brought up this issue. The questions raised in this submission only materialized because they were committed to careful reading of the law and to doing the right thing.
Second: before answering, I have to set out two caveats.
Caveat #1: before feeling constrained by Public Officers Law Section 3, a town public library should check its charter, because if it hasn't been changed since April 13, 1921[1], the library may already have an alternate method of trustee appointment.[2]
Caveat #2: prior to diving into the question as created by state law, a town public library interested in this path should check its charter and bylaws, since any residency exceptions must not only be consistent with the law, but consistent with those foundational documents.
And with that...
YES, the residency requirement created by Public Officer's Law Section 3 can be changed by local law, and yes, after careful assessment, this can be the way for a town public library to address a trustee shortage.
I put the first "YES" in caps because for the casual searcher, the answer at first appears to be "NO." This is because back in the 1950's and into the 1970's and 1980's, towns did not have the authority to change the residency requirements for library trustee appointments, and many cases and official opinions set that out in legal stone; an example of this vehement denial is the 1985 New York State Attorney General commentary here.[3]
However, in 1991, the New York State Legislature amended Section 3 of the Public Officers Law to add sub-section 24, allowing the Town of Greenburgh to appoint any person residing in NY as any officer.
According to 1997 opinion of the New York State Attorney General found here[4], the "Greenburgh effect" means Towns may, by local law, designate any position as not requiring residency.
The Attorney General's reasoning:
"For home rule purposes, a "general law" is a State statute which in terms and in effect applies alike to all counties, all counties other than those wholly included within a city, all cities, all towns or all villages. Municipal Home Rule Law § 2(5). It is thus significant that the Legislature has amended section 3 of the Public Officers Law to establish a special residency requirement for any appointed public officer in the Town of Greenburgh. Public Officers Law § 3(24) (first subset). An appointed public officer in the Town of Greenburgh now may reside anywhere in the State of New York. This exception for the Town of Greenburgh has rendered section 3 of the Public Officers Law, in its coverage of appointed town officers, a special, rather than a general law. In establishing residency requirements for appointed town officers, section 3 no longer applies in terms and in effect alike to all towns of the State.
Under home rule authority, since section 3 no longer is a general law with respect to the residency of appointed town officers, any other town may enact a local law inconsistent with its provisions establishing a residency for an appointed town office at least as broad as the residency established for appointed officers of the Town of Greenburgh."
There has been no case law contrary to this Attorney General commentary since 1997.[5]
Because of this, local attorneys for towns[6] across the state have been able to advise their clients to adopt local laws "establishing a residency for an appointed town office at least as broad as the residency established for appointed officers of the Town of Greenburgh."
Of course, a town public library and town board struggling to find qualified and willing trustees should thoroughly examine this option before working with the town attorney to draft the local law enabling it. Cultivating trustees within the sponsoring municipality is a critical way to have the supporting community involved and engaged in the operations of the library.[7] For this reason, putting parameters on who from within the state can be appointed (perhaps limiting selection to the area of service, if it exceeds the town's borders, or limiting it to the county or library system area of service) makes sense.
And remember, before considering this option, a library should examine its charter. If the law allows trustees who reside outside the town to be appointed, but the charter language sets stricter criteria, there could be a concern. So before asking a town board to pass a local law[8] allowing non-resident trustees, examine the charter first![9]
Thanks again to the libraries and the cooperative library system with the tenacity and patience to closely examine the details and pose these questions. The opportunity to do a deep dive on these issues always brings somet
[1] I don't know how many of these pre-April 13, 1921 charters there are, so if anyone has that stat handy, please send it to [email protected].
[2] See Education Law 260 (2), which states: "The charter of any public library granted prior to April thirtieth,nineteen hundred twenty-one, which provides for trustees, their terms of office and method of election or appointment in a manner differing from that hereinbefore provided, shall remain in full force and effect until the regents, upon application of the library trustees, shall amend the charter to conform to the provisions of law in effect when such amendment is made."
[3] The opinion emphatically states: "It seems clear that the trustees of a public library exercise sovereign powers in the management and control of the library system. It follows that the trustees are public officials. Under the provisions of the Public Officers Law, to qualify for appointment to a city office, a person must be a resident of the city (Public Officers Law, § 3). The officer must remain a resident during his tenure in office ( id., § 30)."
[5] That I could find. And wow, did I look.
[6] For village-sponsored public libraries who are wondering: "how do we get in on this action?"—never fear: Public Officers Law Section 3 sub-section 6 already specifically allows for village boards to appoint library trustees who don't live in the village.
[7] For these and other reasons, how to approach broadening a residency requirement is a good thing to discuss at length with your cooperative library system before your board initiates any discussions with the town.
[8] A good guide to passing local laws, with guidance on the topic of residency requirements, can be found at https://dos.ny.gov/system/files/documents/2023/01/adopting-local-laws-in-nys_1.pdf.
[9] This is a good one to bring an attorney in on.
