Submission Date:
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.
Answer:
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.[2]
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”[3] a Regents-chartered library is, it is always considered an “education corporation,”[4] to be governed, in part, by the Not-for-Profit Corporation Law.[5]
- 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.[6] 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.[7] 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,[8] 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)[9] 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”[10] 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 [11] 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.[12] 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;[13] 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.
[2] And the year is only half over.
[3] Indian, free association, special district, school district, municipal.
[4] This governance is established through a daisy chain of Education Law sections: 255, 260, 226, and 216-a.
[5] The Education Law carves out several areas where the NFP law does not apply, including provisions related to trustee removal.
[6] Here is a nice summary of some of them: https://www.law.cornell.edu/constitution-conan/amendment-1/government-as-employer-free-expression-generally
[7] Here is a another summary, this time of the “tests”: https://www.law.cornell.edu/constitution-conan/amendment-1/modern-tests-and-standards-vagueness-overbreadth-strict-scrutiny-intermediate-scrutiny-and-effectiveness-of-speech-restrictions
[8] 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.
[9] 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.
[10] 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.
[11] 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.
[12] 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.
[13] 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.
Tag:
Board of Trustees, Education Law Section 225, First Amendment, Public Libraries, Public Officers Law
