Submission Date:
Question:
What, if any, are the ramifications if a school district public library board of trustee member refuses to sign the code of ethics and/or the conflict of interest/whistleblower policy?
Answer:
I am sure there is a very interesting set of facts, personal convictions, and conversations behind the stark facts presented in this question (there always is). But we’ll address just the stark facts.
Because a library’s Code of Ethics, Conflict of Interest Policy, and Whistleblower Policy[1] are rooted in different areas of the law, a refusal to sign these documents creates an array of ramifications. We’ll explore each type in turn.
But first, it’s important to establish certain base factors.
Base Factors
In New York, most libraries (unless they are part of a larger institutions like a college or museum) are not-for-profit corporations chartered by the New York Education Department’s Board of Regents.[2] This means that, just like other not-for-profit corporations registered with the New York Department of State, libraries are subject to the Not-for-Profit Corporations Law (the “NFPCL”).[3] This includes school district public libraries.
Without getting too technical, this means that all libraries in New York are governed in accordance with not only their charters and bylaws, but the applicable parts of the Education Law and the NFPCL, too.[4]
This governance structure impacts questions related to conflicts of interest, whistleblowing, and codes of ethics. With the basic features established, let’s look at the different type of policy in the member question.
Conflict of Interest Policy
Here is what the law says about a refusal to participate in the “Conflict of Interest” policy, as governed by the NFPCL:
The conflict of interest policy shall require that prior to the initial election of any director[5], and annually thereafter, such director shall complete, sign and submit to the secretary of the corporation or a designated compliance officer a written statement identifying, to the best of the director’s knowledge, any entity of which such director is an officer, director, trustee, member, owner (either as a sole proprietor or a partner), or employee and with which the corporation has a relationship, and any transaction in which the corporation is a participant and in which the director might have a conflicting interest.[6]
So, to give a stark answer to the member’s question, per the law, no person should actually be elected to serve as a trustee until the nominee’s Conflict of Interest statement (the “COI”) is completed and submitted. In other words, if the COI is not turned in, that person should never initially be elected as a trustee (we’ll pick that back up in a few paragraphs when we discuss the election criteria for school district public library trustees).
Whistleblower Policy
A requirement to “sign” the Whistleblower Policy is a slightly different matter. Unlike the law related to conflicts of interest, the law requiring any not-for-profit with over 20 employees (or revenue in excess of one million dollars) to have a Whistleblower Policy[7] does not come with a requirement for trustees to sign any document.
Of course, a refusal to abide by the Whistleblower Policy (for instance, a trustee failing to keep a report confidential), could result in a violation of the law, and the libraries’ bylaws, as well.
Code of Ethics
Public school boards must have Codes of Ethics,[8] but libraries—even school district public libraries—do not. There is no requirement in the NFPCL, nor the Education Law, nor any applicable regulations, that a public library have such a code.
That said, to clearly express and enforce a library’s values, a Code of Ethics is often built into a library’s bylaws or adopted as a stand-alone policy of a library’s board.[9] The bylaws, or policy itself, could also require that it be signed. Once it is a requirement of the bylaws or policy, it does not have the force of law, but it can be enforced by the board.
Refusal to Sign
Which brings us to: whether it a requirement of law or policy, the refusal to sign of a board member must be addressed under the library’s charter, bylaws, and the NFPCPL.
Under NFPCL §706, a board is empowered to remove a board member per the procedures in its bylaws. Therefore, if a board determines that failure to sign the Code of Ethics or Whistleblower Policy is unacceptable, or that a failure to sign a Code of Ethics makes the library non-compliant with the law, then that board member can be removed, provided the remaining trustees are careful to follow the bylaw’s procedures for doing so.
This can be a divisive issue, since I imagine someone could present a debatable reason for not signing a Code or other policy,[10] but since a Code of Ethics or mission statement is something every board member must support as part of their service to the library, the root cause of the refusal might be just as serious as the refusal, and in any event, must be resolved. And that is, except for one wrinkle, the lay of the land.
School District Public Library
At school district public libraries, board members are elected per the requirements of Education Law §260.
§260, and by reference, §2018 of the Education Law, include very precise conditions for the nomination and election of a school district public library board member—none of which is a pre-vote signature on a COI, or a signed acceptance of a Whistleblower Policy or Code of Ethics.
Of course, per Public Officers Law §10, all school district public library trustees must take and file an oath of office “before he[11] shall be entitled to enter upon the discharge of any of his official duties.” This means, somewhere in the “pre-term” area after the election but before the newly elected trustee starts working, there is a zone where they can, based on a refusal to take the oath of office, not be qualified to start the term.[12]
The consequences of a refusal to sign a COI are a little less well-defined, but it is clear that if a board tolerates a refusal, the organization is not in compliance with the NFPCL. The refusal to sign a Whistleblower Policy is not controlled by law, but the failure to actually follow it is. And the failure of a board member to sign a Code of Ethics is a matter to be decided by the rest of the governing board.
What Happens Next?
The refusal to sign and participate in critical board policy cannot simply be ignored. It has to be addressed, and the rest of the board has to follow the rules as they address it.
Barring any obvious provision in the bylaws or wording in a particular policy, what does the board use as a playbook for dealing with this type of challenge? Upon confirming the factors leading to the refusal, a board’s executive committee,[13] consulting with the library’s lawyer and working from copies of the charter and bylaws, must consider the facts, could develop a solution. The solution could be a revision of a policy to address a particular concern, or, in the case of an incomplete COI, removal of the member. In no event should this be done without the input of an attorney, since the stakes are high, and feelings may be strong.
Thank you for an important question.
[1] In their quest to impose order on the universe, lawyers often use capitalization to express when a “thing” is a “Thing.” For purposes of this answer, the various policies the member references are each Things, and so while certain style guides may disapprove, the capitals are there to stay!
[2] The way corporations are created in New York is a type of legal conjuring. For more information on this particular type of conjuring, check out the New York State Education Department’s Division of Library Development Guide at http://www.nysl.nysed.gov/libdev/charter/index.html, and Education Law §255.
[3] This application of the NFPCL is set forth in NY Education Law §216-a, which is a fun read on a rainy day.
[4] Intricate arrangements like this are why people like me have jobs!
[5] In the law, “director,” “board member” or “trustee member” all refer to elected members of the board of trustees.
[6] This is from NFPCL §715-a (c). This language, or something substantially similar, should be in every library’s Conflict of Interest Policy.
[7] NFPCL §715-b.
[8] §806 Section 1(a) of NY’s General Municipal Law.
[9] Boards of museums and other cultural agencies chartered by the Regents are required to have a code of ethics; see 8 NYCRR § 3.30.
[10] I cannot imagine a good reason for not signing a COI, unless the policy was badly worded, there is confusion about the policy, or the director really does believe they should be allowed to vote for their wife’s company to install the new library floor.
[11] It’s 2019. We really need to work on the pronouns in our legislation.
[12] As but one example of this, see 2001 Op Comm Ed No. 14,710
[13] Or the trusteeship committee, or the board, working as a committee of the whole…whatever group will ensure thorough assessment and the preparation for, if needed, a removal vote.
Tag:
Board of Trustees, Ethics, Policy, Public Libraries, School Districts
