Templates

This is a timely and important question.

Regarding the ability of law enforcement (including ICE, FBI, ATF, etc.) to enter a college or university campus: the administration will make that determination, and it will be based on many factors.

That said, by both state and federal law (Education Law 6434, and the Clery Act [20 U.S.C. 1092]), college and university campuses are supposed to have a relationship with local law enforcement, so some degree of cooperation with local police, a county sheriff, and the state troopers should already be in place. Many institutions, especially those close to borders or with particular security priorities, have established working relationships with the FBI.

Against that variable background, what happens within an academic library on campus (and in virtual spaces) is subject to further control.

To describe that and provide guidance, I have developed the below “GUIDE” that can be posted in academic libraries in New York State. The sections in yellow can be modified to fit your institution’s unique information. Feel free to use your own font (I am into Century Schoolbook these days, but Avenir Next has a quiet authority). You can also add additional protections and procedures; I have put in the bare minimum required by law and ethics.

NOTE: As will ALL templates, have your higher-ed institution’s lawyer review it first, whenever possible. They may have a few more considerations to add.

In addition to having clarity about the steps needed to demand student-related information, I want to encourage all academic librarians to stay calm. In the event you are asked for information about a student or colleague, follow policy and guidance (including what is below, if your institution decides to use it) and refer all inquiries to senior administration.

In the event of an enforcement action, one of the best things you can do is provide witness, and help that person get to a good lawyer. So, if you have extra adrenaline on this right now, using your librarian skills to assemble lists of legal aid and private attorneys with the right experience to help can be vital.

In summary: librarians at higher-ed institutions can’t control what campus policy is overall, but they can have clarity about the policy in the library. In addition, by attesting to what you see, and providing timely information to those who could be impacted, you are using your profession to ensure accurate information is timely applied. As of this writing (January 29th, 2025), helping your colleagues track accurate information about funded research and programs will help, too.

Thank you for thinking of your students and your ethical obligations as an academic librarian.

The Higher Ed Librarians’ of New York

GUIDE

To Responding to Law Enforcement & Others’

Requests for Library User Information

[INSERT YOUR LIBRARY LOGO HERE!]

FACT 1: “Library Records” in New York, including those held by higher education libraries, may not be disclosed to third parties without a duly executed subpoena, court order, or waiver signed by the library user, unless such disclosure is required for library operations (for example, reporting destruction of library property). [NY CPLR 4509]

FACT 2: “Library Records” in New York, including those held by higher education libraries, may not be shared with law enforcement (local, state, or federal) without a warrant, unless the library is the party filing the report (for example, reporting theft of library property).

FACT 3: At this library, a student’s Library Records are also confidential “Education Records” per the Family Education Rights Privacy Act (FERPA). While some records can be shared under FERPA, Library Records have an added layer of restriction (see FACT 1 and FACT 2).

FACT 4: The American Library Association’s Code of Ethics requires librarians to “protect each library user’s right to privacy and confidentiality with respect to information sought or received and resources consulted, borrowed, acquired or transmitted.”

BECAUSE OF THESE LEGAL AND ETHICAL OBLIGATIONS:

1. Law Enforcement (local, state and federal): All requests for library user information will be referred to Campus [Safety/Security] or the [University/College’s] lawyer. Search warrants, subpoenas and court orders should be submitted directly to [position] for assessment, so prompt responses can be issued. Library workers are, by law and policy, barred from providing such information.

2. Attorneys: All requests for library user information will be referred to Campus [Safety/Security] or the [University/College’s] lawyer. Subpoenas and discovery demands should be submitted directly to [position] for assessment, so prompt responses can be issued. Library workers are, by law and policy, barred from providing such information.

3. Private Investigators: All requests for library user information will be referred to Campus [Safety/Security]. Library workers are, by law and policy, barred from providing such information.

4. Faculty, Staff, Coaches, Advisors: All requests for library user information will be referred to the Library Director, who will assess the degree to which such information may be shared under FERPA and CPLR 4509. If a student has signed a FERPA waiver that includes disclosure of Library Records, please alert the Library Director, so the information that the student has agreed can be shared can be promptly provided. Library workers are, by policy, barred from providing such information.

5. Information Technology (“IT”): All requests for library user information should be referred to the Library Director, including requests that could be fulfilled by IT. IT workers are, by law, barred from providing access to Education Records and Library Records without a FERPA waiver authorizing such access.

IN THE EVENT LIBRARY RECORDS OR INFORMATION RELATED TO LIBRARY USE IS DEMANDED DUE TO AN IMMEDIATE RISK TO HUMAN HEALTH (student or other), THE DIRECTOR OR LIBRARIAN IN CHARGE WILL WORK WITH OTHER [COLLEGE/UNIVERSITY] PERSONNEL TO MAKE A TIMELY DECISION BASED ON APPLICABLE LAW.

This Guide is posted and promulgated in the [NAME] Library to protect important privacy rights while promoting the orderly and safe operation of the campus.

Should your institution stop a program designed to attract people from populations under-represented in librarianship to librarianship? NO.[1]

Should your institution submit its DEI program for careful and routine evaluation for legal compliance and effectiveness? ALWAYS.

And now let’s ask: Why is submitting your DEI program for “careful and routine evaluation” important?

In New York, just as in the United States, it is illegal to deny a person a job or educational opportunity on the basis of a “protected category,” such as race, sex, ethnic origin, sexual orientation, veteran status, etc.[2] At the same time, it is legal to intentionally build a workforce or program[3] to meet particular goals, including a goal of addressing the impact of past harms, and/or benefitting from a diversity of experiences and connections.[4]

These two things are true under federal law too, but with New York and the federal government often applying different law and terminology,[5] and with the POTUS now workshopping the term “illegal DEI,”[6] some are questioning if DEI is “illegal” under federal law.

NOW HEAR THIS: DEI is no more illegal, than the concept of “good government” or the principal of “fiscal responsibility.” That is because like “good government” and “fiscal responsibility,” DEI is not a static legal concept. Rather, it is an acronym with no fixed technical meaning from place to place.[7]

So, POTUS notwithstanding, DEI is not “illegal.”[8] That said, a hiring or recruitment program that bars opportunities on the basis of a protected category absolutely could be.

Because of this, at all times (even times that were ten years ago, or more), DEI initiatives (or whatever you want to call them) should be carefully crafted to avoid use of “quotas” and should never use a protected category as a determinative factor to give or deny a benefit. Rather, initiatives to either bring a great diversity of experience and social connections into the workforce, and/or to address the quantifiable impacts of past wrongs, should be tailored to meet specific objectives.

This “tailoring” is the difference between: “We won’t select white people for this internship,” (WHICH WOULD BE WRONG) and “We will seek candidates with confirmed competencies and experience with defined communities,” (WHICH WOULD BE RIGHT).

Because of this distinction, programs designed to bring under-represented groups into a profession or educational experience should focus on measurable outcomes for either the profession, or the people under-represented in it. In addition, those outcomes should actually be measured, with the program adjusted when outcomes are not reaching established goals.

Here is an example of a program and evaluation method that focuses on the benefits to a profession:

EXAMPLE 1: Profession-focused

NAME: Community Connections Library Internship

PURPOSE: The purpose of this internship is to attract to librarianship people to from communities currently under-represented in the profession. The objective of this effort is to ensure the future stability and value of libraries by keeping them connected to the communities they serve. In [REGION], these communities are located in [DEFINED AREAS] (“Under-Represented Areas”). For that reason, past library experience is not needed for this internship, but direct experience and connections with communities in Under-Represented Areas, and an interest in librarianship, are.

APPLICATION QUESTIONS:

• Please tell us about your connections to a community in an Under-Represented Area.
• Please tell us about a strength you have from your connection to that Under-Represented Area.
• Please tell us how you think a librarian from the Under-Represented Area could benefit that community.
• This internship does not require you to become a librarian, but we will solicit feedback about your career path in the years after you complete the internship. Do you agree to that?

RUBRIK FOR ANNUAL EVALUATION

• What are the Under-Represented Areas? (Has there been a population change requiring adding/subtracting?)
• How many applications were received?
• How many positions were awarded?
• Of past interns, how many applied to library school?
• Of past interns, how many are currently in library school?
• Of past interns, how many are working in a library?
• Is the program reaching a broad applicant pool?
• Should the program be continued the next year?

Now, here is an example of a program and evaluation method that focuses on addressing the lingering impacts of past wrongs:

EXAMPLE 2: Impact-focused

NAME: Going Forward Library Internship

PURPOSE: While the required advanced degree and commitment to public service makes the path to librarianship a challenge for any person, a legacy of unequal treatment under the law can create additional barriers to pursuing a career in librarianship. The purpose of this internship is to assist future professionals whose path to librarianship may be made more difficult by the lingering effects of legal inequities experienced by their family and community (including but not limited to war crimes, housing discrimination, denial of veteran benefits, forced relocation, treaty violations, educational segregation, discriminatory hiring). While past unequal treatment under the law cannot be undone, this internship seeks to counter lingering negative impacts by creating a defined opportunity to explore a career in librarianship for people so impacted and bring their unique strengths and perspectives into the profession.

APPLICATION QUESTIONS:

• Please tell us how your family has been negatively impacted by legal inequities.
• Please share how this impacted your family and how those impacts are still creating challenges today. NOTE: We appreciate that this may also be an answer that celebrates the strength of your family and community.
• We believe that families and communities with ties to a librarian and library are stronger than those without such ties. Please comment on this.
• This internship does not require you to become a librarian, but we will solicit feedback about your career path in the years after you complete the internship. Do you agree to that?
• Please share how you believe this opportunity could help you consider librarianship as a career.
• Please let us know what else our organization could do to assist you on the path to librarianship.

RUBRIK FOR ANNUAL EVALUATION for Impact-Focused Approach

• How many applications were received this year?
• How many positions were awarded this year?
• How many interns has the program had, to date?
• Of past interns, how many have applied to library school?
• Of past interns, how many are currently in library school?
• Of past interns, how many are working in a library?
• How was the opportunity publicized this year?
• What communities in our area of service are we enhancing our connections to because of this program?
• Should the program be continued next year?
• What ongoing connections and support do we offer to program participants after the experience?

So, to repeat: should your organization end your DEI initiatives? Only if your leadership believes they no longer have value. However, whether starting or continuing a DEI program,[9] it is important to use defined outcomes, tied to measurable benefits related to the purpose of your organization, to craft a program that doesn’t simply admit or deny opportunity on the basis of a protected category.

For this, careful thought and analysis of the final criteria and evaluation process by your lawyer has always been, and remains, important.

Thank you for an important question.

Short answer: yes, it is legal, and yes, there are options.

Let’s review why it is legal,[1] and then we’ll discuss the options.

For over thirty years, there has been clear guidance that when a municipality or school district collects taxes for a public library, the money should be turned over “as soon as practicable after their receipt.”

For this reason, libraries and their taxing authorities should stay in close communication about the timing of payment(s).

If an “incremental” approach is needed because of delayed payments, this close communication is more critical, because there are a few more details to consider, such as how to know when to demand payment, and how to demand incremental payments efficiently.[2]

Because the district is obligated to keep the library’s moneys in a separate account,[3] the district should be able to provide current information about when there are moneys to be paid.

Proceeding from there, the district and the library should be able to agree on periodic payments, and memorialize the agreement as follows:

RE:        [NAME LIBRARY] [YEAR] Levy

              Agreement regarding payments of [LEVY AMOUNT]

Dear [NAME AT DISTRICT]:

Thank you for meeting with [NAMES] on [DATE] to discuss the manner in which the District will convey the levy.

As we discussed, the District will remit the full amount by [DATE], unless it has not received the full amount, in which case it will remit what it has collected.

In the event the full amount cannot be paid, after [DATE], the District will pay over moneys collected for the Library by [the # day of the month].[4]

The District will consider this letter a standing request for payment of the [YEAR] levy per Education Law Section 259.

In the event the District receives notice of assessment challenges that might result in the need to return funds, the District shall notify the Library as soon as possible via an email to [ADDRESS].

Thank you for your assistance in this matter.

Sincerely,

NAME

President

NAME Library

Going back to the Comptroller’s guidance from 1992, this might not be the only option. In many counties, the county as taxing agent actually fronts anticipated revenue to the entities it collects for. In some places, steady revenue is assured by issuance of “tax anticipation notes,”[5] which are low-interest loans that bridge any gap between the need for funding and the levy collection.[6]

What does this mean?

If a library depends on timely collection of a levy for cash flow (either because that’s just how things are, or because there may be a time of unusual burden on reserve funds, as in the question), it is important for the library to:

• Know how taxes are collected.
• Know if funds are ever advanced prior to full collection.
• Know if there are anticipated “claw backs” due to assessment challenges.
• Know if “tax anticipation notes” are issued.
• If “tax anticipation notes” are not used, but could ensure fiscal stability for the library, work with the taxing agency to explore if they can be used.[7]

This approach could be helpful in a scenario like one described by the member, because the issue is created not only by some special circumstances at the library (construction project) but sudden notification of a change in payment practice.

In a case like the one in the question, being tactical/diplomatic/strategic and involving legal counsel and/or accountants with experience in municipal/school district finance is just as important as knowing the law.[8] Prior to meeting with the district, setting out a plan and confirming it with the library’s board of trustees is the way to go.

Thank you for an important question. Given the pressures on library budgets and taxpayers in 2024, this is likely not going to be a unique situation.

Before I answer, let’s confirm: sometimes, base pay (hourly wage or salary) is the only compensation an employee gets, while sometimes, compensation is base pay plus a robust combination of benefits.

For example, a person earning $20 dollars per hour with no benefits might not be better compensated than a person who earns $17 dollars per hour but also gets on-site childcare, sick leave beyond what is required by law, a family health insurance plan, 21 days a year of paid vacation, and tuition assistance for professional development.

How does a public library, with an obligation to properly steward use of taxpayer funds and a fiduciary duty to make decisions based on the best interests of the library, decide what to offer as compensation?

The answer is this: a public library’s approach to compensation should always be based on a library board’s “compensation strategy”—the approach the board takes to using compensation and benefits to achieve the library’s mission.

When developing a compensation strategy, a library board should be thinking:

• What type of workforce does our library need?
• What combination of base pay and benefits will attract, retain, and develop that workforce?
• What key performance indicators show our compensation strategy is working?
• What external baseline and best practice data should we be gathering to periodically evaluate our compensation strategy?
• How can we demonstrate the value of these costs to the public?

A public library’s compensation strategy should not be a stand-alone resolution or isolated policy. Signs of it should be seen in budgets, annual reports, committee work, and reports to the community—all signs that a library is thinking about how to nurture its most important resource: people.

Which brings us to the member’s question: “Can you also speak to the potential downsides of choosing to pay less than the NYS minimum wage and minimum exempt salary if you discover you are allowed to do so?”

Yes, I can, and my answer is rooted in what can happen when a public library makes decisions about compensation strategy based on a “how low can we go?” approach, rather than the above-listed factors.

We won’t get into all the downsides, but here are the legal risks posed by paying as little as you can legally get away with:

1. Discrimination claims

When people are not paid what they are demonstrably worth, there is an elevated risk that they will have a credible claim that their underpayment in comparison to others is the result of illegal discrimination.

2. Only otherwise affluent people will be able to work at such a library

If someone can’t make a living wage[1] working at a library, only people who have another source of income will be able to work there. This means working at that library will be off-limits to any person who has been impacted by poverty, creating evidence that could support claims for risk #1, above, and for every other reason on this list.

3. Not aligning with industry standards

Many organizations track employment data[2] to show what the baseline compensation is in different regions, by profession, at different-sized institutions. Having a number that significantly departs from the average can be a factor in every other item on this list, as well as many non-legal concerns such as morale, reputation, and strategic planning.

4. Trouble recruiting and retaining qualified employees

A library is just a room full of books without its employees. If compensation does not attract, retain, and develop a workforce that can achieve the objectives in the strategic plan, budget, or annual report to the community, the board is engineering future failure.[3]

5. Diminished ability to forge relationships with community partners and external funding sources

Other not-for-profit organizations know how to read budgets, and they know the difference between frugality and parsimony.[4] Public libraries who are demonstrably choosing to reduce investment in their workforce impede their own ability to partner with mission-aligned groups and undercut their ability to attract external funding. After all, if an organization doesn’t believe in itself, why should an external partner invest in it?

6. Ongoing impacts

Once a public institution establishes a willingness to reduce itself to the bare minimum, even its allies and advocates will have a tough time arguing for more.

I say this, knowing (and having seen firsthand) that library boards face ENORMOUS pressures to cut budgets whenever they can. And—from the perspective of good governance—they should.

The trick is to be ready to show that a budget that invests in a strong workforce is not wasteful, imprudent, or foolish. By developing and continually re-evaluating its compensation strategy, a board is ready to take on all those who would argue they should pay as little as possible. By giving in to pressure and simply slashing compensation, a board is creating an ongoing cycle of austerity.

7. Increased likelihood of employees needing a union to ensure positive working conditions

Unions are powerful mechanisms for employees to advocate for what they need and SHOULD NEVER BE RESISTED.[5] It is nice if they are brought into the equation as the result of workers feeling empowered, rather than feeling misused.

8. Trouble meeting regulatory requirements

A public library must meet certain regulatory requirements; these requirements vary from library to library. A compensation strategy should be based in part on meeting these requirements, as well as other mission and strategic plan-related objectives set by the board.

Below this answer, we are putting a simple template for developing a compensation strategy. Using this, a library can start to resist external (and internal) pressures to simply slash-and-burn the budget—including pressure to offer minimal wages.

Thank you for an excellent question.

Policy

It is the policy of the NAME Library to use a strategic approach to compensation and benefits to achieve the library’s mission.

In developing this Compensation Strategy, the board will continually address:

• What type of workforce does our library need?
• What combination of base pay and benefits will attract, retain, and develop that workforce?
• What key performance indicators show our compensation strategy is working?
• What external baseline and best practice data should we be gathering to periodically evaluate our compensation strategy?
• How can we demonstrate the value of these costs to the public?

The board and director will use the below worksheet to answer these questions on a no-less-than-annual basis. This work will be used as the board develops the annual budget, as the board conducts the annual evaluation of the director, as the director conducts the annual evaluation of staff, and as the board and director work to affirm a staffing plan that meets the current and contemplated needs of the library.

WORKSHEET

1. What are our minimum regulatory requirements for operation?

INSERT

2. What are our additional operational commitments?

INSERT

3. What workforce does our library need to meet these requirements and commitments?

Sample answer:

[NOTE: Really, this is just a sample! Every library should have a different answer here, and the person who best knows the answer is the director, informed by the strategic vision of the board. Some libraries need more part-time folks. Others want mostly full-time. Some want new people and new ideas and community connections, while others want to emphasize long-term folks committed to innovation. Make sure your answers meet the need of YOUR library!]

Sample answer:

The Library needs a workforce that meets not only basic requirements but is quantifiably skilled in the “soft skills” of patron service, outreach, and community partnerships.

The Library needs a workforce that is stable, with full-time employees incentivized to stay long-term.

The Library needs a workforce that is able to provide consistent service without too much backup or assistance from part-time or temp workers.

4. What combination of base pay and benefits will attract, retain, and develop that workforce?

Sample answer:

[NOTE: Really, this is just a sample! Every library should have a different answer here, and the person who best knows the answer is the director, informed by the strategic vision of the board. Some libraries will want to take a completely different approach than what is below. Make sure your answers meet the need of YOUR library!]

Because the Library wants to attract a highly qualified applicant pool, it generally starts its pay range at the baseline established by ALA-APA for our type/size/region of library. The top of the range is then set by our reliance on the attributes of the position, with the baseline being increased by up to twenty percent if merited by the position’s impact on Key Performance Indicators.

Because the Library wants to incentivize long-term employment and continuous improvement, it uses a system of percentage increases and merit pay, in addition to cost-of-living adjustments, to effect raises.

Because the Library wants to remain competitive with private organizations that must offer paid sick leave, we offer twelve days of paid sick leave a year to full-time employees, with the amount pro-rated for part-time employees.

Because the Library wants to remain competitive with private organizations that must offer paid family medical leave, we have opted in to New York State’s Paid Family Medical Leave and pay the premiums.

Because the Library wants to remain competitive with governmental organizations offering retirement pensions, we offer and contribute a set percentage to New York State Retirement for all employees.

Because the Library wants to remain competitive with all organizations and incentivize the retention of employees, we offer a baseline of 10 days of paid vacation per year to full-time employees, with one day added for each year of employment.

Because the Library wants to incentivize retention, we offer a bonus at every 5-year mark.

Because the Library wants to ensure that our incentives to remain are earned, we are rigorous about annual performance reviews.

5. What key performance indicators (“KPI’s”) show our compensation strategy is working?

Sample answer:

KPI #1: Community input shows that our community wants more in-person events for children and seniors. We will ensure that employee competencies/experience and duties related to such programming are part of our workforce recruitment and that the experience of those workers is adding value to programs.

>KPI #2: Community input shows that our reference services and assistance identifying reliable sources of information are very valuable. We will ensure employee competencies/experience and duties related to such services are part of our workforce recruitment and track (without patron identification) instances related to this service.

KPI #3: Our strategic plan commits us to building a new library building by 2027. We will ensure that attracting candidates with experience related to moving a library is part of our ongoing workforce recruitment, so that we have those competencies when needed.

6. What external baseline and best practice data should we be gathering to periodically evaluate our compensation strategy?

Sample answer: The Library will use data from ALA-APA to show what similar organizations in similar regions are paying for qualified library professionals and workers, and the Library will identify reasons to justify significant deviations.

When there is a significant deviation showing we pay at least 10% more than baseline, we will identify why this deviation from baseline is important to our obligations, objectives and/or community. When there is a deviation below baseline, we will identify and confirm why this isn’t important to our obligations, objectives and/or community.

7. How can we demonstrate the value of these costs to the public?

Sample answer: The Library will track our programs and KPI’s and highlight the work of our workforce in the annual report to the community, noting when a worker’s experience and commitment has helped make an initiative successful.

This question threw me into an existential spiral.

Unlike most existential spirals I get hit with these days,[1] this one was fairly pleasant; I got to think about New York State Education Law, due process, and library plans of service.

Here is how it went down:

Well, sure, it’s only natural to want to require a person to read a book before they exercise their right to kick off a costly and time-consuming evaluation process of it.

But yep, the ol’ OIF knows it’s business… having a threshold test to exercise a right creates a legal bone to pick. Best to avoid it if you can.

But hey… if part of the challenge process is a bone, is the whole thing a body? If it’s a body, who gets to inhabit it? What forces govern it? Are they in the library’s control?

If it’s in the library’s control… why enable challenges at all? What’s the point? Is it even required? What is it really for?

IS THERE ANOTHER WAY?

At this point, I started thinking about the recent wild scrambles to batten the hatches and make sure libraries have clear and well-developed collection management policies, so they are ready for book challenges.

Over those years,[2] when I was asked from time to time, “Do we have to have a reconsideration policy?” my answer was, “No, there is no requirement.”[3]

My answer to the inevitable follow-up question was, “While not required, having a reconsideration policy creates a channel for community engagement and feedback, so concerns about collection items have a procedural path to follow. A good policy will ensure the path for evaluating the concern reinforces the ethics of the library and abides by the First Amendment.”

I stand by that reply, but as an innovator, I do want to say: having a “reconsideration” policy for library collection materials isn’t the only way a library can do this.

Consider the current regulatory requirements of public, association, and Indian libraries, each of which must assure the New York State Education Department that it:

(1) is governed by written bylaws which define the structure and governing functions of the library board of trustees, and which shall be reviewed and re-approved by the board of trustees at least once every five years or earlier if required by law;

(2) has a community-based, board-approved, written long-range plan of service developed by the library board of trustees and staff;

(3) provides a board-approved written annual report to the community on the library’s progress in meeting its mission, goals and objectives, as outlined in the library’s long-range plan of service;

(4) has board-approved written policies for the operation of the library, which shall be reviewed and updated at least once every five years or earlier if required by law;

(5) annually prepares and publishes a board-approved, written budget, which enables the library to address the community’s needs, as outlined in the library’s long-range plan of service;

(6) periodically evaluates the effectiveness of the library’s programs, services and collections to address community needs, as outlined in the library’s long-range plan of service;

(7) is open the following scheduled hours:

(8) maintains a facility that addresses community needs, as outlined in the library’s long-range plan of service, including adequate space, lighting, shelving, seating, power and data infrastructure, and a public restroom;

(9) provides programming to address community needs, as outlined in the library’s long-range plan of service;

(10) provides a circulation system that facilitates access to the local library collection and other library catalogs; and provides equipment, technology, and internet connectivity to address community needs and facilitate access to information;

(11) provides access to current library information in print and online, facilitating the understanding of library services, operations and governance; information provided online shall include the standards referenced in paragraphs (1) through (5) of this subdivision;

(12) employs a paid director in accordance with the provisions of section 90.8 of this Part;

(13) provides library staff with annual technology training, appropriate to their position, to address community needs, as outlined in the library’s long-range plan of service; and

(14) establishes and maintains partnerships with other educational, cultural or community organizations which enable the library to address the community’s needs, as outlined in the library’s long-range plan of service.

As shown by the highlighted language, a library is required to periodically evaluate the ability of its collection to meet community needs.

With that ongoing obligation in mind, just for fun, imagine this: instead of a “reconsideration” process as part of a collection management policy, a library continually solicits input via a “Collection Effectiveness Assessment” policy.

Rather than say (in essence), “If you don’t think a particular book belongs on our library, you can file this request for reconsideration,” a Collection Effectiveness Assessment policy could say:

YOUR INPUT MATTERS

As required by state regulations, the NAME Library regularly evaluates the effectiveness of the library’s programs, services, and collections to address community needs, as outlined in the library’s long-range plan of service.

As part of that ongoing evaluation, the library welcomes your input on our programs, services and collections.

Input on specific services, programs, and collection items will be considered in the context of library’s obligations to a) provide a circulation system that facilitates access to the local library collection and other library catalogs; b) provide programming that meets community needs; c) provide equipment, technology, and internet connectivity to address community needs and facilitate access to information; d) provide access to current library information in print and online; and (e) facilitate the understanding of library services, operations and governance.

Input may be submitted by cardholders at [INSERT METHOD].

Once a year, the library will aggregate and assess this input and will factor it into the evaluation of the long-range plan of service and policies that inform the library’s programs, services and collections.

Please provide your input, and it will be evaluated as part of the [YEAR] evaluation cycle.

Of course, a library that used this “give us your input” approach would want to be intentional about how the information is collected and scrupulous as to how the input is assessed and incorporated. The backend of such a system would take some thinking.[4]

But if done with proper attention to detail, this “routine evaluation” rather than a “ad hoc reconsideration” approach could ratchet down in-the-moment pressure to remove books on the basis of their content (which is a First Amendment no-no), while soliciting ongoing (and voluminous) input about library collections in the context of the needs of the community.

Such an approach could also control the pace at which public library boards react to that input, changing it from ad hoc panic[5] to an annual, well-planned, deliberate ritual.

The Collection Effectiveness Assessment approach solicits and empowers individual input but enters it in the context any library must operate from—its duty to meet the overall needs of the public, rather than the perspective of one member of the community. The potential result is input that may go beyond a request to remove or relocate a book; it allows for input on the strategic decisions and policies that select and catalog the books.[6]

So, at the end of all this, what are my thoughts?

I think that if there is a reconsideration policy, it must have clear parameters for who can use it (such as only cardholders or residents of the served community) and after that—as advised by OIF—as few barriers to use as possible.

But I also think there are other ways, rooted in a public library’s regulatory requirements, to empower community members to offer input on collection materials, while minimizing an individual’s ability to initiate a wasteful ruckus.[7] A holistic look at how a library is soliciting feedback might provide an opportunity to shift the library’s approach on this.

Thank you for walking on this existential spiral with me. I hope it was not too dizzying.

Many libraries do indeed have materials[1] that are unpublished, one-of-a kind, original works, such as photographs, letters, drawings, and recordings. 

Some of these works may have significant financial value, while some may be more valuable in terms of local history and culture.

When the donors of such works are deceased, a library is best suited to use them[2] if they can show they have ownership of both the physical object and copyrights.

As the member points out, the copyright will survive the life of the author. And so they ask:

1. If a library/archives lacks a deed of gift (or if the deed of gift doesn’t explicitly transfer copyright), can an heir transfer copyright or otherwise provide permission for the library to publish/digitize/etc?
2. In NY, are copyrights automatically transferred to heirs when someone dies?
3. What if there is no will?

To illustrate the answers to these questions, let’s create a hypothetical scenario:

Person ABC[3] was a long-time member of the Library.  Prior to their death at the age of 98, they left the Library 200 sketches. Some library workers still remember the day Person ABC dropped them off, but there is no documentation (“deed of gift” or other document acknowledging the donation). The Library would like to create a special collection to house the sketches and to digitize them for inclusion in an online archive. The Library has found their surviving spouse, child, and the executor of the estate (who has zero information about the sketches, which were not mentioned in the will).

First, the Library can work with the heirs to obtain an acknowledgment letter confirming there is no disagreement regarding custody and ownership of the physical objects.

Second, the Library can work with the same people to obtain an assignment of copyright, since without a will, the copyright would have passed to Person ABC’s heirs.[4]

And third, the Library can initiate outreach for the letter with an outreach letter summarizing the situation and the parties’ communications.

Here is a sample of the outreach letter:

As you know, the Library has 200 sketches by Person ABC and remains grateful for the donation of these items.

Recently, the Library has been taking steps to formally accession the sketches Person ABC left to the Library. This work includes planning to make digital images of their important work available for purposes of research and scholarship.

To ensure we can put accurate and helpful information about the pictures in our archive and to facilitate its use for scholarship, the Library has two requests:

First, can you kindly sign the accompanying donation acknowledgement? We know that the sketches were left to the Library, but this acknowledgement will help us document their provenance.

Second, if you are amenable, can you sign the accompanying “Assignment of Copyright?” This will position the Library to archive the sketches digitally and to allow use of images for purposes of scholarship and research. 

Thank you for considering providing the Library with this documentation. Please don’t hesitate to contact me with any questions.

Sincerely,

Director

Here is a sample of the Donation Acknowledgement:

DONATION ACKNOWLEDGEMENT

The undersigned: NAME and NAME (“Acknowledging Parties”), all being at least 18 years of age, hereby review and acknowledge:

1.  To the best of our joint and individual ability to determine, the sketches listed below (the “Photographs”) were created by Person ABC:

[insert list/description]

2.  A copy of each of the Sketches is attached as “A.”

3.  To the best of our joint and individual ability to determine, the physical copies of the Sketches were given to the Library by Person ABC in approximately YEAR.

[include signature and witness blocks]

Here is a sample of the Copyright Assignment:

COPYRIGHT ASSIGNMENT

The undersigned: INSERT NAMES (“Assigning Parties”), all being at least 18 years of age, hereby review and acknowledge:

1.  To the best of our joint and individual ability to determine, the sketches listed below (the “Sketches”) were authored by Person ABC:

[insert list/description]

2.  A copy of each of the Sketches is attached as “A.”

3.  Person A was born on DATE and died on DATE. 

4.  The Assigning Parties were their only heirs.

5.  Any and all rights to the Sketches possessed by the Assigning Parties per the Copyright Act and the Estates Powers & Trust Law are hereby assigned to the NAME Library.

[include signature and witness blocks]

For the most part, confirming that the natural heirs have acknowledged the gift—and that they convey any copyrights they have inherited—will ensure no competing claim can muddy the waters of using the works for archival and research purposes.

There is, of course, one large wrinkle here.

What is it?

Money.

In the event the works in question become valuable, the above-listed recital might not be enough.

To illustrate why, let’s return to our scenario...

As it turns out, Person ABC was a famous space marine, although tales of their exploits have only recently made it back to earth. Consequently, interest in her 200 sketches of rocks, deserted wasteland, and tentacles emerging from blown hatchways is WAY up, and a famous movie producer is offering millions of dollars to license her work and story.

Just as the Library is about the sign a deal that will ensure the Library will be able to repair its leaking roof and to add a new “Person ABC” science-fiction wing to the Library, one of the people who signed the Gift Acknowledgement and Copyright Assignment calls a press conference and says “I signed those documents before I knew what I was doing.” They then hire a well-known lawyer to try and argue that the documents are invalid.

Cases that deal with contested “deeds of gifts” and donor documents are all over the place.  When enough money is on the line, every detail will be scrutinized.  Was Person ABC of sound mind when they gave the Library the documents?  Did they unfairly disinherit their child?  Is one of the witnesses now a known liar? 

No amount of customized legal drafting can forestall these types of objections, but here is the take-away: whenever possible, a library or other cultural institution should use a customized donation document reviewed by a lawyer to ensure it is as strong as possible.  The more valuable the asset, the more it is essential to draft and review the documents to meet the specific circumstances. 

Thank you for an excellent question.

This is such a beautiful idea! In my experience, there are three things that often impede beautiful ideas:

1. Insurance concerns;
2. Legal concerns; and
3. People who worry that there might be insurance or legal concerns.

This question shows how to protect an idea from these impediments:

1. Ask the insurance carrier;
2. Check with legal; and
3. Be in a position to assure worried people that you've handled the insurance and legal concerns.[1]

As it happens, Ask the Lawyer has addressed this question before, but under slightly different circumstances. In April of 2020,[2] we got a question about lending blood pressure cuffs, pulse oximeters, and forehead thermometers.

The risks assessed in that RAQ are somewhat the same as here, but as these mobility devices are only for on-site use, I will modify the guidance from a 9-step guide to a 3-step guide.

Step 1: Buy Carefully

The equipment purchased per the library's procurement policy and should be under warranty at all times it is in use.

Step 2: Set Clear Terms for Use

The rules and conditions for use of a mobility device should be clearly posted and should be individually agreed to by each user (just once).[3] 

Posted Rules for [Wheelchair/Walker]

This [insert item] may be signed out by any person who has signed the "Equipment Use Agreement" on a first-come, first-serve basis.

The [item] cannot leave [area].

This [item] may be used for up to [#] hours.

The manual for this equipment is at the [insert]. Please review before using.

Please clean the [item] after use; [spray and paper towels][4] are at [insert].

 Equipment Use Acknowledgements and Waiver

I understand the [insert item] may be signed out and used for up to [#] hours.

I have been provided with a copy of or access to the manual for this equipment and agree to use it as set forth in the manual.

Please select:

I agree to clean the [item] after use with the [spray and paper towels] provided.                   

                    OR                   

I request the reasonable accommodation of not having to clean the equipment after use.

I hereby agree to hold harmless the Library and its employees with respect to any injury related to the use of this equipment.

I am at least 18 years of age.

I understand that this agreement is in place until revoked by me in writing.

Reviewed and agreed by _______­­­­­______________ on ____________.

                                        Print name                             Date

Signature:

The Library shall retain a copy of this agreement for six years after its revocation.

Step 3:  Plan, Budget, Train, and Delegate for Function and Cleanliness

As established by Step 1, each mobility device should be carefully selected based on reliability, warranty, and ease of care. 

Step 3 is the other side of that coin: ensuring the mobility devices are maintained as required by the warranty and ready for use by the public.

Since the device will need to be cleaned between each use,[5] budget staff time to quickly check cleanliness and function between uses, and calendar for and log routine evaluation. If there is not sufficient time and budget to do this, it is better to wait and plan to do it in another fiscal year. The routine checking and cleaning of the equipment will be important to both its longevity and to any concerns related to its function (including alleged injury).

Thank you for a great question!

Great questions!

Let's tackle[1] them:

Is this true?

Yes.  If you would like to look up the text of the law, which went into effect on November 13th, 2023, you can find it here: https://www.nysenate.gov/legislation/laws/LAB/590.

Does this new law really apply to ALL employers in New York (even a town or village public library)?

Yes.  Unlike other sections of the Labor Law, which sometimes define "employer" in a way that can exclude certain public libraries, the new Section 590(2) is part of Article 18 (“Unemployment Insurance Law”) of the Labor Law; Article 18 applies to ALL employers in New York State, even government entities.

Does this new law apply even if the employee is resigning or retiring?

Yes.  It also applies of the employee was on a contract that expired, was on a grant that ran out, was a seasonal employee, or any of a number of other reasons why a person who once has a job no longer has a job.[2]  Basically, if an employee is no longer an employee, or if an employee's hours have been cut to below 30, the notice must be provided.

Does this new law apply to no-show employees, those who requested to work less hours, or others who may have abandoned their employment?

Yes.  Even when an employee quits by attrition, asks to work below 30 hours a week, or goes away on vacation and never comes back,[3] an employer must determine what date is the date they were "separated" from employment, or the effective date of the reduction, and give the required notice.

Is there a form for this notice?

Yes!

The New York Department of Labor's newly revised "Record of Employment" form can be found at https://dol.ny.gov/system/files/documents/2023/11/ia12.3_0.pdf.

When does this notice have to be provided?

The new law requires employers to provide the notice "upon separation."  The DOL form's instructions say to "give this form to anyone who is permanently, indefinitely, or temporarily laid off; discharged; quits; or has their hours reduced to 30 or less each week"—with no mention of precise timing.

For that reason, until there is further guidance, the notice must be given as soon as possible.

For those whose status change is easy to pinpoint (for instance, when an employer tells an employee their job has been eliminated), the completed form should be given at the same time as the notice of termination. 

For slightly less definitive situations—such as when an employee fails to show up but doesn't call or quit—the completed form should be mailed[4] as soon as the failure to show up is converted to a termination.

This means a few things:

First, it means that if an employer has been a bit loosey-goosey[5] about when people are "separated from employment",[6] they need to tighten things up going forward.

Second, it means that if a public library has been a bit unclear on who provides the unemployment insurance (the library? … the municipality?), clarity on that topic must be achieved (and demonstrated via the "Record of Employment" form).

Third, for those employers who maintain a checklist of items to do when an employee is "separated from employment" (return keys, terminate passwords, update website and social media access, etc.), the "Record of Employment" form can be a new item on the "to-do" list.

Fourth, for those employers who must follow Labor Law Section 195(6),[7] your organization is already obligated to confirm separation of employment in writing within 5 days of the date of termination.  For employers obligated to provide this "195(6) letter", the "Record of Employment form" information regarding the last date of employment should be consistent with the information in the 195(6) letter.[8] 

Why was this law passed?

When considering this law, the New York State Assembly wrote in the legislative memo:

Many workers, when laid off or subject to a reduction in working hours, do not realize they are eligible for unemployment assistance.  Particularly in the case of partial unemployment assistance there is a lack of awareness about eligibility. To compound this issue, employers are disincentivized from informing their employees about eligibility because their unemployment insurance payments may increase when employees or former employees file for unemployment assistance. In the wake of catastrophic job losses caused by the COVID-19 pandemic, it has become clearer than ever that underemployed workers need robust public support mechanisms to weather an economic storm.  By requiring employers to inform employees who are laid off, or who have had their hours reduced, of their potential eligibility for unemployment assistance, this bill bestows on workers better awareness of their rights and options for supporting themselves and their families when they need it the most.

In other words: people entitled to benefits didn't know they could get them.  This new notice requirement is to make sure such people are aware and are able to timely apply.

Is there a model policy for this law?

Employers do not have to have a written policy to comply with the law, but for those who want to adopt a policy to help assure compliance, here is a template[9] to work from:

Policy

To document compliance with Labor Law Section 590(2), it is the policy of the INSERT NAME to immediately provide each former employee with a completed "Record of Employment" (as such form is maintained by the New York Department of Labor) upon:

• Notice of termination
• Confirmation of separation from employment due to retirement
• Termination due to abandonment of the job by the employee ("no-show")
• Voluntary resignation
• Reduction of hours to less than 30 per week

Such documentation shall be as contemporaneous with the separation of employment or reduction of hours as possible, but in no event shall it be later than five (5) days after the last date of employment or effective date of the reduction.

This answer applies to an association library, a cooperative library system, or regional library council (e.g. the Western New York Library Resources Council or the Northern New York Library Network).

It can also apply to a chartered museum or historical society.

If you are a public library (municipal, special district, school district) or a consolidated/confederated library system, feel free to read along for fun[1]...but this does not apply to you, since there are some extra things to consider before such an entity directly engages[2] in activity that looks/acts/smells like lobbying.

But speaking of "looks/acts/smells like lobbying"... what is "lobbying"?

By law[3], "lobbying" is "any attempt to influence":[4]

(i) the passage or defeat of any legislation or resolution by either house of the state legislature including but not limited to the introduction or intended introduction of such legislation or resolution or approval or disapproval of any legislation by the governor;

(ii) the adoption, issuance, rescission, modification or terms of a gubernatorial executive order; (iii) the adoption or rejection of any rule or regulation having the force and effect of law by a state agency;

(iv) the outcome of any rate making proceeding by a state agency;

(v) any determination: (A) by a public official, or by a person or entity working in cooperation with a public official related to a governmental procurement, or (B) by an officer or employee of the unified court system, or by a person or entity working in cooperation with an officer or employee of the unified court system related to a governmental procurement;

(vi) the approval, disapproval, implementation or administration of tribal-state compacts, memoranda of understanding, or any other tribal-state agreements and any other state actions related to Class III gaming as provided in 25 U.S.C. § 2701, except to the extent designation of such activities as “lobbying” is barred by the federal Indian Gaming Regulatory Act, by a public official or by a person or entity working in cooperation with a public official in relation to such approval, disapproval, implementation or administration;

(vii) the passage or defeat of any local law, ordinance, resolution, or regulation by any municipality or subdivision thereof;

(viii) the adoption, issuance, rescission, modification or terms of an executive order issued by the chief executive officer of a municipality;

(ix) the adoption or rejection of any rule, regulation, or resolution having the force and effect of a local law, ordinance, resolution, or regulation; or

(x) the outcome of any rate making proceeding by any municipality or subdivision thereof.

So, "lobbying" is attempting to influence various decisions and actions of state and local government. 

And although the above list doesn't say it, lobbying can be done either by a contractor retained by an organization, an employee of the organization, or through the "grassroots" work of an organization.

With all that said....

YES, a non-profit entity chartered by NYSED (including a university, college, museum, historical society, library, library system, or library council) can hire a lobbyist to advance their interests at New York's state capital, or at the local level, through lobbying. 

That said, before hiring or employing a person to lobby at the state or local level[5], there are some important things to consider.

First, an organization should familiarize itself with the many requirements imposed on lobbying entities in New York (basically, on lobbyists and their clients).

As of October 10, 2023, the state has a helpful guide on those requirements—which are so extensive I would exceed my "Ask the Lawyer" word count[6] if I tried to even summarize it—is posted here: https://ethics.ny.gov/lobbying-overview.

Of those requirements, one of the most significant is this: for any organization that will spend more than $4,999.99 on lobbying during a calendar year (not just on one lobbyist, but overall lobbying activities), there are some routine reporting requirements.  So before signing a contract with a lobbyist or lobbying firm, or budgeting for employee or organizational resources for lobbying, a governing board should consider what is needed to both comply with the law and get the most out of a lobbying relationship and activities.[7]

From these requirements spring some "considerations".  The big ones are:

• All lobby firms or lobbyists hired must be registered with the state[8];
• All lobbying contractual agreements and reporting must meet precise regulatory requirements[9];
• A client spending more than $4999.99 a year on lobbying must file a semi-annual report to the New York State Commission on Ethics and Lobbying in Government (due every July 15th and January 15)[10] which requires creating a login and developing a profile https://my.ny.gov
• Once triggered, the duty to self-report lobbying activity may also include "direct lobbying" (lobbying by employees of the organization)
• The CEO of the organization hiring the lobby firm must attend mandatory ethics training (see https://ethics.ny.gov/information-mandated-ethics-training-requirement-lobbyists-and-clients)
• The objectives of lobbying should be clear and the decision to spend resources on lobbying should be re-evaluated at least annually (when the budget is approved).

In other words: while the benefits can be immense, the decision to retain a lobbyist—or to in any way spend at least $5,000.00 annually on lobbying—comes with added obligations.  Responsibility for meeting those obligations should be assigned with clarity and monitored routinely.

Which means that any organization engaging in lobbying OR employing employees who lobby should have a policy on lobbying.

As readers know, at "Ask the Lawyer," when we say "you should have a policy" we provide a template policy. 

Of course, as with all templates, this template should be reviewed by your own legal counsel and customized to your institution's own operations.  

But it is a good place to start.

Here it is:

To ensure compliance with state and federal lobbying law and regulations, any lobbing done on behalf of the NAME ("Organization") will follow this policy and procedure.

Before passing such a policy, a board should review the guidance linked in the footnotes, and make sure the organization is set up to comply with the requirements.  Whenever possible, having a local attorney review the final version before it is adopted is a wise idea.

Thank you for a great question.  May all your visits to state and local officials be cordial, helpful, and productive!

The answer to these highly specific questions will assume readers have reviewed the ALA's excellent general guidance at https://www.ala.org/advocacy/privacy/guidelines/videosurveillance and the "Ask the Lawyer" guidance here: https://wnylrc.org/raq/patron-privacy-and-police.

With that background taken as read, let's address these questions related to a closed-circuit camera with audio recording at a school district public[1] library:

Is it legal to record sound [and/or] it is a violation of patron privacy?

In New York, recording third parties without their permission[2] is illegal "Eavesdropping" per Penal Law Section 250.05: a class E felony.

Section 250.05 is part of Penal Law Article 250 "Offenses Against the Right to Privacy," so from both the legal and ethical perspective, such recording is a violation.

Can board members review the tapes?

Assuming the tapes are visual only (and not illegal Eavesdropping), from the legal perspective, a board member could view a security camera recording, but from the ethical and risk management perspective, such viewing should only be per an established policy.

How does this all play out in the real world?

Put plainly:

A non-association library board in New York State considering use of a security camera system should ensure such a system is only used once there is a policy in place, and that policy should address the following questions:

• What is the purpose of the cameras?
• Where are the cameras pointing?
• How does the library ensure use of them is consistent with applicable ethics?
• Are any of the generated recordings patron library records?
• How long are the recordings kept for?
• Once the retention period is past, how are the recordings disposed of?
• How are the records secured against data breach or misappropriation?
• Who gets to view the recordings, and why?
• How will FOIL requests for the footage be handled?
• How will other requests for the footage be handled?
• When the library deems it necessary to retain recordings past their retention term, how are the recordings saved?
• Will any of the records be archived?

Below is a template policy for a non-association public library addressing the above questions.  Areas in yellow may be customized for the needs of a particular library (make sure you remove the footnotes).

Thank you for an important array of questions.

POLICY

To achieve the desired balance user privacy assurance and on-site security, any use of security cameras and of records generated by such cameras ("Security Recordings") in the Library will follow the below provisions.

A. Limited Use

Cameras will be used to generally monitor the areas noted on the floor plan or survey attached as "A."[4]

Cameras will never be used to monitor the following: [insert specific areas or angles to affirmatively be excluded; common examples are bathrooms, reference desk, check-out desk].

Cameras will be set up so they do not record the content of media accessed by patrons.

B. Notice

In all areas subject to security camera recording, the Library will post a sign: "The Library values patron privacy and security.  This area is monitored by security cameras."[5]

C. Patron Records

Security Recordings showing people are considered to be patron records and the Library will not release such recordings to third parties without a court order or subpoena.[6]

D.  Viewing and Use of Security Recordings by the Library

The Library will use Security Recordings to address general and specific security needs, including but not limited to:

• Assessing safety concerns
• Addressing Code of Conduct-related incidents
• Assessing operational and facility needs
• INSERT

When footage must be reviewed by the Library, such review must be authorized by either the Library Director or by a resolution of the Library’s Board of Trustees.[7]

When a Security Recording must be retained past the period set by Section G of this policy, for any reason, the basis and plan for the retention must be authorized by either the Library Director or by a resolution of the Library’s Board of Trustees.

E.  FOIL Requests

Request for Security Recordings generated at a particular date and time shall be evaluated by the Library per its FOIL policy.

In keeping with the applicable laws, Security Recordings featuring Library users shall not be made available in response to FOIL requests.[8]

F.  Warrants, Subpoenas, Litigation Hold

Requests to disclose copies of or to retain Security Recordings per a warrant, duly issued subpoena, or "litigation hold"[9] demand will be evaluated by the Library Director or designee with advice of legal counsel as needed.

G. Retention & Data Security

The Library retains Security Recordings for [period decided by Library], unless a specific segment is required to be retained for operational purposes, in which case, such segment is retained for three (3) years as required by the Retention and Disposition Schedule for New York Local Government Records.

The Library may also identify certain footage it decides is worthy of being retained in permanent archives.

H.  Budget and Capacity

The board shall no less than annually review of the budget and operational capacity needed to assure that the retention, disposal, and security of Security Recordings may remain as required by this policy.[10]